Jаred B. DAY; Lisa M. Day, Plaintiffs-Appellants v. WELLS FARGO BANK NATIONAL ASSOCIATION; Wells Fargo Home Mortgage, Defendants-Appellees.
No. 14-10429
United States Court of Appeals, Fifth Circuit.
Sept. 30, 2014.
435
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
Summary Calendar.
Lisa M. Day, Haslet, TX, pro se.
Richard A. Illmer, Esq., Husch Blackwell, L.L.P., Dallas, TX, Elizabeth Gabrielle Bloch, Esq., Husch Blackwell, L.L.P., Austin, TX, for Defendants-Appellees.
PER CURIAM:*
Plaintiffs-Appellants Jared B. Day аnd Lisa M. Day, proceeding pro se, argue that Wells Fargo Home Mortgage and Wells Fargo Bank National Association (collectively “Wells Fargo“) wrongfully initiated foreclosure proceedings after they defaulted on thеir loan because Wells Fargo did not own the promissory note securing the mortgage. Because we find that Appellants did not establish a genuine issue of material fact as to the note‘s ownership or Wells Fargo‘s right to foreclose, we AFFIRM the district court‘s grant of summary judgment to Wells Fargo.
FACTS AND PROCEEDINGS
In February 2011, Appellants purchased the property аt issue, executed a note to Wells Fargo in the amount of $241,390 and executed a Deed of Trust to secure the nоte. In July 2012, Wells Fargo sent a notice of default to Appellants. In November 2012, Appellants were notified that Wells Fаrgo was accelerating the note, and on December 4, 2012 Wells Fargo purchased the property at а foreclosure sale. On December 7, 2012, Appellants filed suit in state court to quiet title. Wells Fargo subsequently removed to federal court. Wells Fargo moved for summary judgment on January 2, 2014. After Appellants failed to respond within the allotted time, the district court granted the motion for summary judgment and awarded Wells Fargo $18,000 in attorneys’ fees.
STANDARD OF REVIEW
“We review a grаnt of summary judgment de novo, applying the same standard as the district court.” Haverda v. Hays Cnty., 723 F.3d 586, 591 (5th Cir. 2013). Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Appеllants appeal the district court‘s grant of summary judgment in favor of Wells Fargo.1 As a matter of law, Appellants are not entitled to equitable relief in the form of a quiet title action. Because we have diversity jurisdiction over this аction, we apply the substantive law of the forum state, Texas. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). “Under Texas law, to prevail in a suit to quiet title, the plaintiff must prove: (1) his right, title, or ownership in real property; (2) that the defendant has asserted a ‘cloud’ on his proрerty, meaning an outstanding claim or encumbrance valid on its face that, if it were valid, would affect or impair thе property owner‘s title; and (3) that the defendant‘s claim or encumbrance is invalid.” Warren v. Bank of America, N.A., 566 Fed. Appx. 379, 382 (5th Cir. 2014). Appellants have not met thе third part of this test. The evidence shows that Wells Fargo had a valid claim to the property and properly fоreclosed. Wells Fargo is the owner and holder of the original “wet ink” note. The Deed of Trust, signed by Appellants, grants Wеlls Fargo various rights in connection with the note. The Deed of Trust permits Wells Fargo to accelerate payment if Appellants default “by failing to pay in full any monthly payment required by this Security Instrument prior to or on the due date of the next monthly payment.” On July 16, 2012, Appellants received a notice of default for failure to make required monthly рayments. The Deed of Trust provides that, if there is a default and acceleration, Wells Fargo may invoke the power of sale. The Deed of Trust sets forth certain requirements for notice and sale, all of which were faсially complied with by Wells Fargo.
Appellants submitted no evidence in opposition to Wells Fargo‘s summary judgment motion, let alone evidence that casts doubt on Wells Fargo‘s ownership of the note and right to foreclose. Appellants assert that Wells Fargo was not the holder of the note, that Wells Fargo was not the party in interest because it appointed a trustee to effectuate the foreclosure sale, that Wells Fargo has not proven that it advanced funds pursuant to the Deed of Trust, and that Wells Fargo is not the holder of the note because Wells Fargo securitized the note. But Appellants have submitted no evidence to support any of their claims.2 On аppeal, for the first time, Appellants attempt to submit evidence to create an issue of material fact regarding Wells Fargo‘s ability to foreclose. Since this court‘s inquiry is limited to the summary judgment record before the trial court, we will not consider the newly submitted evidence. Trinity Industries, Inc. v. Martin, 963 F.2d 795, 799 (5th Cir. 1992) (“Generally, we will not enlarge the record on appeаl with evidence not before the district court.“); Topalian v. Ehrman, 954 F.2d 1125, 1131 n. 10 (5th Cir. 1992). In the face of the unrebutted evidence submitted by Wells Fargo, Appellants failed to show a genuine issue of material fact as to whether Wells Fargo
CONCLUSION
For the foregoing reasons, the district court is AFFIRMED.