Steven Crear sued his lender and its loan servicer to prevent them from foreclosing on his property. After defendants removed the case to federal court, the parties filed cross-motions for summary judgment. The district court granted defendants’ motion and denied Crear’s. Crear now appeals.
We AFFIRM in Favor of Deutsche Bank Again.
SPS (MORTGAGE SERVICER) & DEUTSCHE BANK NATIONAL TRUST CO.
Crear sued SPS and Deutsche Bank in state court, arguing that the statute of limitations barred the foreclosure of his property. Defendants removed the case to federal court, asserting diversity jurisdiction. Crear concedes that he received the February 2009, letter informing him that Washington Mutual had accelerated the loan. But he argues that none of the subsequent letters were actually mailed to him, and defendants never abandoned the acceleration. Therefore, because more than four years had passed since the loan was accelerated, Crear contends that defendants could no longer foreclose on his property under Texas law. The district court granted defendants’ motion for summary judgment, concluding that there was no genuine fact issue as to whether defendants sent Crear notices of default on December 4, 2009, and July 15, 2010, thus abandoning the February 2009 acceleration of Crear’s debt. Crear appeals.
FIFTH LIMITS THE DISCUSSION VIA THE FOLLOWING DISCLAIMER
Crear’s argument on appeal is narrow. Crear concedes that he has not made a payment on the loan since 2007, and he agrees that he received Washington Mutual’s February 9, 2009, notice of acceleration. But he argues that he did not receive any of the subsequent letters abandoning the acceleration and, therefore, the defendants can no longer foreclose on his property because the limitations period expired on February 9, 2013. He does not argue that the letters would not have abandoned the acceleration had they been sent or that he actually needed to have received the letters. Nor does he argue that certified mail was an insufficient means of delivering the letters. Therefore, we limit our discussion accordingly.
FIFTH ALLOWS CREAR’S ARGUMENTS TO GO UP IN SMOKE
“Burns, an attorney who represented Washington Mutual in its attempts to seek payment from Crear. But Crear does not brief this argument and, therefore, we consider it waived. See United States v. Scroggins, 599 F.3d 433, 446-47 (5th Cir. 2010) (finding argument not adequately presented where brief did not discuss the issue “in any depth”)….”
SMITH CAN PROVIDE AFFIDAVITS OF PERSONAL KNOWLEDGE ABOUT SPS & CHASE DESPITE THE CHASE LETTERS DISCUSSED BEING FROM 2012, SOME 6+ YEARS EARLIER.
Melissa Smith, an SPS document control officer, (AKA foreclosure mill employee) submitted a declaration authenticating these letters based on her review of SPS’s loan records. Smith also authenticated Chase’s certified mail register, which lists four of the letters as having been sent by certified mail on November 5, 2012. In addition, Smith authenticated Chase’s USPS certificate of bulk mailing for its first-class mail sent on November 5, 2012. Therefore, defendants have also sufficiently established that the November 5, 2012, notices of default were put in the mail.