Jared Day v. Wells Fargo Bank National Assn
2014 U.S. App. LEXIS 18735
5th Cir.2014Background
- In Feb 2011 the Days executed a $241,390 promissory note and Deed of Trust to Wells Fargo on a purchased property.
- The Days defaulted on payments; Wells Fargo sent a notice of default (July 2012), accelerated the note (Nov 2012), and purchased the property at a foreclosure sale (Dec 4, 2012).
- The Days filed a state-court quiet-title action on Dec 7, 2012; Wells Fargo removed to federal court and moved for summary judgment.
- The district court granted Wells Fargo’s unopposed motion for summary judgment and awarded $18,000 in attorney’s fees to Wells Fargo.
- On appeal, the Days argued Wells Fargo did not own the original note and thus lacked the right to foreclose; they also attempted to introduce new evidence and new claims for the first time on appeal.
- The Fifth Circuit affirmed, holding the Days failed to raise a genuine issue of material fact about Wells Fargo’s ownership of the note or right to foreclose and declining to consider new evidence or new claims raised for the first time on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ownership of note / right to foreclose | Days: Wells Fargo did not hold the promissory note and thus lacked standing to foreclose | Wells Fargo: produced the original wet-ink note, Deed of Trust authorized acceleration and sale, and complied with notice requirements | Court: No genuine dispute; Wells Fargo owned the note and had the right to foreclose |
| Adequacy of foreclosure procedures | Days: Foreclosure invalid due to party in interest/trustee issues and securitization | Wells Fargo: Deed of Trust permits trustee sale and notices were facially complied with | Court: Foreclosure procedures were satisfied on the record |
| Failure to oppose summary judgment | Days: did not timely oppose; sought to introduce evidence on appeal | Wells Fargo: movant entitled to judgment given undisputed record | Court: Unopposed summary judgment can stand when record shows entitlement to judgment; Days’ late evidence not considered |
| New claims on appeal | Days: raised statute-of-frauds and holder-in-due-course arguments on appeal | Wells Fargo: issues not raised below and should be forfeited | Court: Declined to consider new issues raised for first time on appeal |
Key Cases Cited
- Haverda v. Hays Cnty., 723 F.3d 586 (5th Cir. 2013) (standard of review for summary judgment)
- Erie R.R. Co. v. Tompkins, 304 U.S. 64 (U.S. 1938) (apply forum-state substantive law in diversity cases)
- Hibernia Nat. Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277 (5th Cir. 1985) (unopposed summary judgment may be entered if undisputed facts show entitlement)
- Trinity Industries, Inc. v. Martin, 963 F.2d 795 (5th Cir. 1992) (appellate court generally will not enlarge the record with evidence not before the district court)
- Topalian v. Ehrman, 954 F.2d 1125 (5th Cir. 1992) (limitations on considering new evidence on appeal)
- N. Alamo Water Supply Corp. v. City of San Juan, Tex., 90 F.3d 910 (5th Cir. 1996) (issues not raised in district court generally not considered on appeal)