Deutsche Bank, Ocwen and Related ‘Foreclosure’ Cases where Haynes was on the Circuit’s 3-Panel
As the Burkes argued in their petition to the US Supreme Court which was denied by a clerk (and was never even considered) and given the US Supreme Court has refused to grant a cert for a homeowner case involving Deutsche Bank National Trust Co., MERS and/or Ocwen Loan Servicing, LLC, it has allowed 5th Circuit judges to invoke their own bias and personalities into their opinions and create precedents which defy the constitution and rule of law.
Judge Catharina Jacoba Hendrika Dubbelday* Haynes is one such judge. She is loud, abrasive, and shows many of the traits of her Scorpio persona, e.g. insecure, cold to others, and who will not ‘suffer fools gladly’; in other words, as seen in her opinions and remarks, she is derogatory to pro se and homeowners who appeal cases before her.
Below you’ll get an insight into her opinions relative to foreclosures and why in the Burkes’ case, when they amended from an unpublished to a published opinion in Case No. 18-20026, it has had a materially profound effect for any future parties seeking to obtain a review of their case.
When the Burkes’ challenged the 5th Circuits obvious bias, Haynes retaliated by immediately citing the newly published opinion in the criminal case of United States v. Pittman, No. 18-10203 (5th Cir. Dec. 11, 2018) and where the panel was the same as Case No. 18-20026, e.g. Haynes, Graves and Davis. It was cited again in Petrobras Am. Inc. v. Cadenas, No. 18-20532 (5th Cir. Jun. 18, 2019) along with Graves who was part of the 3-panel in Case No. 18-20026.
It should be noted that although Case No. 18-20026 shows an unpublished date of September 5, 2018, which was changed to a published opinion on September 1o, 2018 due to post Opinion motions and orders, the mandate was not issued until Nov. 27, 2019. So the first retaliatory cite in Pittman was literally 2 weeks later. A petty act for a federal court of appeals panel.
In summary, it needs no pre-warning that any panel Judge Catharina Haynes sits on will end up with the homeowner being a ‘former’ owner of real estate in Texas.
*Born with last name Dubbeldam, later changed to Dubbelday…..We’ll Be dam[n]ed to-Day!
Lyons v. Select Portfolio Servicing Inc., No. 18-10938 (5th Cir. Jan. 17, 2019)
Before DAVIS, HAYNES, and GRAVES, Circuit Judges. PER CURIAM:
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. ——–
Because the Lyonses acknowledge that all their claims depend on the Bank improperly accelerating and because we determine that acceleration was proper, the Lyonses’ claims fail. AFFIRMED for “the Bank”.
Hoyt v. Lane Constr. Corp., No. 18-10289 (5th Cir. Jun. 10, 2019)
Before JONES, HAYNES, and OLDHAM, Circuit Judges. ANDREW S. OLDHAM, Circuit Judge:
We must decide whether the district court erred by refusing to remand this case to state court. It did not. Next, we must decide whether the district court erred by granting summary judgment to the defendant. It did.
If Congress wanted to resolve the conflict by adopting the Tedford standard, it could have done so. Cf. 42 U.S.C. § 2000bb(b)(1) (listing the restoration of “the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972)” as a purpose of the Religious Freedom Restoration Act). But it did not.
Congress instead chose to replace Tedford’s equitable-estoppel principle with a “bad faith” standard. See 28 U.S.C. § 1446(c)(1). And we presume that choice of different text carries with it a choice of different meaning. Cf. Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1723 (2017) (“[W]hen we’re engaged in the business of interpreting statutes we presume differences in language . . . convey differences in meaning.”).
We therefore no longer apply the old § 1446 and the Tedford exception we created. We now apply the new § 1446 and the bad-faith exception Congress created. See Thompson v. Deutsche Bank Nat’l Tr. Co., 775 F.3d 298, 303 (5th Cir. 2014).
HAYNES, Circuit Judge, dissenting:
“I respectfully dissent from the majority opinion’s determination that we have jurisdiction in this case. Accordingly, I would vacate the district court’s judgment and remand to the district court to remand to state court without reaching the merits.“
Petrobras Am. Inc. v. Cadenas, No. 18-20532 (5th Cir. Jun. 18, 2019)
Before HAYNES, GRAVES, and HO, Circuit Judges. PER CURIAM:
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Petrobras America, Inc. and Vicinay Cadenas, S.A. return to our court in a suit over an allegedly bad chain made by Vicinay.
The district court granted summary judgment against Petrobras because Vicinay invoked a contractual release of claims and waiver of losses.
Petrobras argued that the release and waiver were invalid under a Louisiana statute that invalidates prospective releases of claims based on “intentional or gross fault.”
The district court concluded the statute could not save Petrobras’s claims because it did not require Petrobras to prove “intentional or gross fault.” But, in this context, Louisiana courts have consistently looked at the underlying facts of a claim, not the form of the cause of action.
We thus REVERSE and REMAND.
“Though Vicinay previously argued that Petrobras’s claims were maritime claims, it did not argue that Petrobras’s tort claims occurred anywhere but at an OCSLA situs. It does not claim otherwise now nor does it offer any of the traditional arguments for supplanting law of the case. Deutsche Bank Nat’l Trust Co. v. Burke, 902 F.3d 548, 551 (5th Cir. 2018) (describing the three limited circumstances where a second panel can re-examine a prior panel’s holding).“
Petrobras Am. Inc. v. Cadenas, No. 18-20532, at *5 (5th Cir. Jun. 18, 2019)
Deutsche Bank Nat’l Tr. Co. v. Burke, 902 F.3d 548 (5th Cir. Sep. 5, 2018) – Deutsche II
Before DAVIS, HAYNES, and GRAVES, Circuit Judges. (Published Opinion)
PER CURIAM: THIS WAS NOT PER CURIAM, IT WAS AUTHORED BY CATHARINA HAYNES WHO NOW WISHES TO DEFLECT THE FOLLOWING STATEMENT IN THE FINAL SENTENCE OF THE ORDER;
“Given nearly a decade of free living by the Burkes, there is no injustice in allowing that foreclosure to proceed.”
REVERSED and RENDERED.
Deutsche Bank Nat’l Tr. Co. v. Burke, No. 15-20201 (5th Cir. Jun. 9, 2016)– Deutsche I
Before REAVLEY, HAYNES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Deutsche Bank Nat’l Tr. Co. v. Burke, No. 15-20201 – REVISED (5th Cir. July 19, 2016)– Deutsche I
Before REAVLEY, HAYNES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
The Opinion had to be reissued after Magistrate Judge Stephen Wm. Smith advised the Court that the first Opinion made no sense as it named Deutsche Bank the Mortgage Servicer…
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
First Class from the Fifth Circuit
Benjamin argues that precedent relied on by the district court does not adequately support difference between first class and certified mail.
Facing the Turncoats. An Incredible True Story Exclusively on LIT
The significant and distressing difference is the Burkes battle is not just with the opposing parties, but with the judicial machinery itself.
The Best Work by Congress So Far in 2021: The STOCK Act (for Judges)
It’s a start. The STOCK act is a sign of progress and that is worthy of a hat tip, but there’s still so much judicial ochlocracy to correct.
Blank v. Deutsche Bank Nat’l Trust Co., No. 18-10054 (5th Cir. Aug. 9, 2018)
Before DAVIS, HAYNES, and GRAVES, Circuit Judges. PER CURIAM:
“Blank did not seek a determination of the validity of his title but only of the weakness or unenforceability of Deutsche’s lien. Therefore, the district court did not abuse its discretion by declining Blank’s invitation to allow leave to amend his complaint. We AFFIRM.”
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Porterfield v. JP Morgan Chase, N.A., No. 16-50215 (5th Cir. Mar. 16, 2017)
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges. PER CURIAM:
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
John and Anita Porterfield (“the Porterfields”) appeal the district court’s grant of summary judgment in favor of JP Morgan Chase, N.A. and Deutsche Bank National Trust Company (collectively, “the Defendants”), and allege nonjudicial foreclosure on their property was time-barred by the applicable Texas statute of limitations. We AFFIRM.
“HARMONIZING” AND EQUITABLE TOLLING
The Porterfields admit that the Defendants could have sued Galland’s estate on the promissory note at the time nonjudicial foreclosure was initiated on the Property. Because the Defendants could have brought suit at the time of Galland’s death, the statute of limitations on the note would have been tolled for one year following his death under § 16.062.
And given that Texas courts seek to “harmonize” the limitations periods for foreclosure actions
and suits on the underlying debt, the one-year tolling of the limitations period for the note likewise served to toll the limitations period for the nonjudicial foreclosure. See Davidson, 44 F.3d at 254.
The limitations period here ran four years from August 14, 2007, but was tolled for at least one year because of Galland’s death. Thus, the limitations period for nonjudicial foreclosure, at the earliest, would not have expired until August 14, 2012.3 Because the Defendants foreclosed on the Property before that date, foreclosure was proper and the district court correctly granted summary judgment in favor of the defendants on this issue.
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges. PER CURIAM:*
John and Anita Porterfield (“the Porterfields”) appeal the district court’s grant of summary judgment in favor of JP Morgan Chase, N.A. and Deutsche Bank National Trust Company (collectively, “the Defendants”), and allege nonjudicial foreclosure on their property was time-barred by the applicable Texas statute of limitations.
We AFFIRM.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I. FACTUAL BACKGROUND
The underlying controversy in this case arises from a nonjudicial foreclosure on a piece of property located at 2 Walnut Grove Road in Boerne, Texas (“the Property”).
On November 30, 2005, Jon Galland purchased the Property using a loan from Long Beach Mortgage Company.
Galland executed a promissory note with a principal balance of $240,000 secured by a lien on the Property.
Thereafter, the loan was assigned to Deutsche Bank National Trust Company (“DBNTC”), and Washington Mutual Bank (“WaMu”) served as the mortgage servicer. Sometime later, JP Morgan Chase purchased WaMu’s assets.
On March 9, 2006, the Porterfields executed a contract for deed purporting to purchase the Property from Galland.
The loan was not paid off as part of the sale, and WaMu stopped receiving payments sometime in 2006.
The Porterfields then sued Galland over the contract for deed, and on April 19, 2007, an agreed judgment was signed transferring ownership of the Property to the Porterfields.
On August 14, 2007, a notice of acceleration and foreclosure was sent to Galland.
To prevent foreclosure, the Porterfields applied for a temporary restraining order (“TRO”), which was granted sometime in September 2007 (“the First Lawsuit”).
The TRO enjoined foreclosure on the deed of trust from September 28, 2007, to October 25, 2007.
John Galland then died on or about June 3, 2008.
In September 2011, the Porterfields and DBNTC entered mediation regarding the First Lawsuit and executed a Mediated Settlement Agreement (“MSA”).
Pursuant to the MSA, the Porterfields agreed to pay DBNTC $120,000 “in full satisfaction and release of the lien held by” DBNTC.
If the Porterfields paid this amount by December 31, 2011, DBNTC agreed to release the lien.
But if the Porterfields failed to pay by the agreed-upon date, DBNTC would be permitted to pursue foreclosure, and the Porterfields agreed to “not oppose, contest or in any way delay or thwart the foreclosure.”
The Porterfields apparently did not meet the deadline set in the MSA, and on July 16, 2012, a second notice of acceleration and foreclosure was sent to Galland at the Property.
The Property was ultimately sold to DBNTC at a foreclosure sale held on August 7, 2012, for $204,879.40.
The Porterfields filed suit challenging the foreclosure sale (“the Second Lawsuit”) against the Defendants on August 20, 2012.1
Among other things, the Porterfields argued that the foreclosure sale was barred because the statute of limitations had passed.
DBNTC filed counterclaims against the Porterfields, and the parties filed competing motions for summary judgment.
The district court denied the Porterfields’ partial motion for summary judgment and granted summary judgment in favor of the Defendants.
As relevant to this appeal, the district court denied the Porterfields’ motion for summary judgment on their wrongful foreclosure claim based on their argument that the statute of limitations for nonjudicial foreclosure had passed before the Defendants foreclosed on the Property.
The Porterfields argued that more than four years had elapsed between the first notice of acceleration and the foreclosure sale.
The Defendants argued, and the district court agreed, however, that the statute of limitations had been tolled for one year following Galland’s death pursuant to Texas Civil Practice and Remedies Code § 16.062.
Accordingly, foreclosure was not time-barred when the Property was sold.
On appeal, the Porterfields only contest the district court’s application of the § 16.062 one-year tolling provision.
1 The Porterfields initially filed suit in state court in Kendall County, Texas, but the Defendants properly removed the suit to federal court on the basis of diversity jurisdiction.
II. DISCUSSION
The district court had jurisdiction in this case pursuant to 28 U.S.C. § 1332, and this Court has appellate jurisdiction under 28 U.S.C. § 1291.
“This court reviews a district court’s grant of summary judgment de novo, applying the same standards as the district court.”
Johnson v. World All. Fin. Corp., 830 F.3d 192, 195 (5th Cir. 2016).
On appeal, this Court can affirm the district court’s grant of summary judgment “on any legally sufficient ground, even one not relied upon by the district court.”
BMG Music v. Martinez, 74 F.3d 87, 89 (5th Cir. 1996).
Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56.
“A genuine dispute of material fact exists ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’”
Johnson, 830 F.3d at 195 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Texas Civil Practice and Remedies Code § 16.035 sets out the statute of limitations for a cause of action arising out of a lien on real property.
The portions of the statute relevant to this case provide the following:
(a) A person must bring suit for the recovery of real property under a real property lien or the foreclosure of a real property lien not later than four years after the day the cause of action accrues.
(b) A sale of real property under a power of sale in a mortgage or deed of trust that creates a real property lien must be made not later than four years after the day the cause of action accrues.
Tex. Civ. Prac. & Rem. Code Ann. § 16.035(a)–(b).2
Section 16.035(b) controls here because the Defendants pursued nonjudicial foreclosure pursuant to a
2 The parties dispute what, if any, impact § 16.035(c) has in this case.
Given the plain meaning of this provision, it has no bearing on the outcome here.
The statute provides that “[t]he running of the statute of limitations is not suspended against a bona fide purchaser for value . . . who has no notice or knowledge of the suspension of the limitations period and who acquires an interest in the property when a cause of action on an outstanding real property lien has accrued for more than four years, except as provided by . . . Section 16.062.” Tex.
deed of trust creating the lien.
Accordingly, absent any reason to toll the limitations period, the Defendants had four years from the time the maturity of the loan was accelerated to complete nonjudicial foreclosure of the Property.
See Boren v. U.S. Nat’l Bank Ass’n, 807 F.3d 99, 104 (5th Cir. 2015); Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001).
The limitations period begins to run when the holder of a note or deed of trust sends “both a notice of intent to accelerate and a notice of acceleration”—here, on August 14, 2007.
Boren, 807 F.3d at 104 (quoting EMC Mortg. Corp. v. Window Box Ass’n, Inc., 264 S.W.3d 331, 335–36 (Tex. App.—Waco 2008, no pet.)).
Under § 16.062, “[t]he death of a person against whom or in whose favor there may be a cause of action suspends the running of an applicable statute of limitations for 12 months after the death.”
Tex. Civil Prac. & Rem. Code Ann. § 16.062(a).
Moreover, “[i]t is a general and long-established principle in Texas that a mortgage is a mere incident of the debt.”
Davidson, 44 F.3d at 253.
“Consistent with this principle, Texas law matches the limitations period of the mortgage to that of the note.” Id. at 254. Thus, “the limitation available to a purchaser of property incumbered [sic] by a lien to secure a debt of his vendor is that which applies in favor of the debtor against the creditor.” Brown v. Cates, 87 S.W. 1149, 1151 (Tex. 1905). “[S]o long as the creditor’s cause of action against the debtor upon the debt is not barred, the right to foreclose against the purchaser of the property continues.” Id.
Civil Prac. & Rem. Code Ann. § 16.035(c) (emphasis added). As we have long recognized, this provision functions to “protect from secret tollings or extensions the unknowing bona fide purchaser who acquires the land when the limitations period on the debt has facially expired.” Davidson v. FDIC, 44 F.3d 246, 254 (5th Cir. 1995). Because the Porterfields acquired the property, at the latest, on April 19, 2007, before either notice of acceleration was sent, the limitations period had not facially expired. Thus, § 16.035(c) would not have prevented suspension of the limitations period if such a suspension were applicable.
The Porterfields admit that the Defendants could have sued Galland’s estate on the promissory note at the time nonjudicial foreclosure was initiated on the Property. Because the Defendants could have brought suit at the time of Galland’s death, the statute of limitations on the note would have been tolled for one year following his death under § 16.062. And given that Texas courts seek to “harmonize” the limitations periods for foreclosure actions and suits on the underlying debt, the one-year tolling of the limitations period for the note likewise served to toll the limitations period for the nonjudicial foreclosure. See Davidson, 44 F.3d at 254.
The limitations period here ran four years from August 14, 2007, but was tolled for at least one year because of Galland’s death. Thus, the limitations period for nonjudicial foreclosure, at the earliest, would not have expired until August 14, 2012.3 Because the Defendants foreclosed on the Property before that date, foreclosure was proper and the district court correctly granted summary judgment in favor of the defendants on this issue.
III. CONCLUSION
For the foregoing reasons, we AFFIRM.
3 The Defendants also argue that the statute of limitations would have been suspended from September 28, 2007, to October 25, 2007, during the pendency of the TRO in the First Lawsuit.
See Landers v. Nationstar Mortg., LLC, 461 S.W.3d 923, 926–27 (Tex. App.—Tyler 2015, pet. denied).
Because the foreclosure sale was completed within the limitations period regardless of this potential 27-day suspension, we do not determine whether limitations would have been tolled during the TRO.
United States v. Pittman, No. 18-10203 (5th Cir. Dec. 11, 2018)
Before DAVIS, HAYNES, and GRAVES, Circuit Judges. PER CURIAM:
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Randy Dewayne Pittman appeals his sentence of 51 months in prison, imposed following his guilty plea conviction of possession of a firearm by a convicted felon and this court’s remand to the district court to correct the term of supervised release. See United States v. Pittman, 698 F. App’x 175, 176 (5th Cir. 2017).
The Government contends that Pittman’s argument is barred under the mandate rule by this court’s order on remand. We agree. Although the mandate rule is one of judicial discretion and there can be exceptions, the exceptions do not apply in the instant matter. See United States v. Pineiro, 470 F.3d 200, 205-06 (5th Cir. 2006); United States v. Lee, 358 F.3d 315, 320-21 (5th Cir. 2004), cf. Deutsche Bank National Trust Co. v. Burke, 902 F.3d 548, 551 (5th Cir. 2018).
The judgment of the district court is AFFIRMED. The motion to expedite the appeal is DENIED as moot.
Fantroy v. First Fin. Bank, N.A., No. 15-10975 (5th Cir. 2016)
DAVIS, JONES, and HAYNES, Circuit Judges. PER CURIAM:
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Defendants moved to dismiss plaintiff’s appeal from the district court’s denial of his Federal Rule of Civil Procedure 60(b) motion for fraud on the court. Because plaintiff’s appeal is frivolous, we grant the defendant’s motion and impose sanctions.
I.
Rickey Fantroy lost his home in foreclosure proceedings to Deutsche Bank National Trust Company (Deutsche Bank). In 2008, he sued Deutsche Bank and others in state court for fraud and wrongful foreclosure. The defendants were granted summary judgment, which the state appellate court affirmed.
In 2012, Fantroy filed suit in federal court and asserted the same claims that he made in the state courts. As such, the district court dismissed his lawsuit for its lack of subject matter jurisdiction. Fantroy appealed to this Court, but we dismissed it as frivolous.
We explained to Fantroy that he “is WARNED that further frivolous litigation will result in substantial sanctions under Rule 38 or this court’s inherent sanctioning power and will include monetary sanctions and restrictions on access to federal court.”
Fantroy v. First Fin. Bank, No. 13-10448 (5th Cir. Sept. 9, 2014). ——–
Undeterred, Fantroy filed a motion asking the district court for leave to file a Federal Rule of Civil Procedure 60(b) motion for fraud on the court. The district court denied it as time barred and insufficiently alleged. Then, Fantroy brought the present appeal, and defendants have filed a motion to dismiss it as frivolous.
II.
Fantroy’s appeal does not address any potential error in the district court’s denial of his Rule 60(b) motion for fraud on the court. Instead, while couched as fraud on the court, his appeal reurges the same arguments from his prior lawsuit.
There is no merit to his claims, and we dismiss his appeal as frivolous.
Moreover, Fantroy failed to heed our prior warning about frivolous filings, so we sanction him $500 in the form of damages to be paid to the defendants jointly and bar him from future litigation that arises out of this transaction, unless he obtains the district court’s permission.
III.
For these reasons, IT IS SO ORDERED.
Iroh v. Bank of Am., No. 16-20052 (5th Cir. Jul. 10, 2018)
Before JOLLY, OWEN, and HAYNES, Circuit Judges PER CURIAM:
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. ——–
Iroh appeals the district court’s dismissal of his civil action for failure to state a claim on which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). Because Iroh failed to file an amended or new notice of appeal with respect to the district court’s denial of his Federal Rule of Civil Procedure 59(e) motion, this court’s jurisdiction does not extend to a review of that ruling. See FED. R. APP. P. 4(a)(4)(B)(ii); Fiess v. State Farm Lloyds, 392 F.3d 802, 806-07 (5th Cir. 2004).
We review a Rule 12(b)(6) dismissal de novo. United States ex. rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 379 (5th Cir. 2003). The district court did not err in rejecting either Iroh’s claim for attempted wrongful foreclosure, see Foster v. Deutsche Bank Nat’l Tr. Co., 848 F.3d 403, 406-07 (5th Cir. 2017) (per curiam – before JOLLY, JERRY ‘Brain Surgeon‘ SMITH and GRAVES), or his apparent argument based on the split-the-note theory, see Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 255 (5th Cir. 2013) (SMITH, PRADO and OWEN).
There is no merit to Iroh’s arguments that the district court judge was biased against him, see Liteky v. United States, 510 U.S. 540, 555 (1994), or that there should have been a full evidentiary hearing and an opportunity for discovery, see Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000).
We do not review issues that were raised for the first time on appeal or were not raised in the initial appellate brief. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
Accordingly, we will not consider Iroh’s claims that particular defendants committed fraud on certain dates, that the defendants were subject to the Racketeer Influenced and Corrupt Organizations Act, and that Countrywide Home Loans Servicing, L.P. was improperly dismissed as a defendant. See id.
Iroh has failed to brief, and thus abandoned, his claims under the Federal Debt Collection Practices Act, the United States Constitution, Title 15 of the United States Code, and Title 17 of the Code of Federal Regulations. See id. at 224-25.
Finally, because Iroh has failed to renew in this appeal his claims to quiet title to the property in question and for declaratory and injunctive relief, those claims are likewise abandoned. See id.
AFFIRMED.
Meachum v. Bank of N.Y. Mellon Trust Co., No. 15-10237 (5th Cir. 2016)
Before PRADO, OWEN, and HAYNES, Circuit Judges. PER CURIAM:
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Meachum tries to distinguish Boren by arguing that the Bank’s predecessor actually obtained an order of foreclosure after initially accelerating the note, such that any future attempts to abandon the acceleration were ineffectual.
This argument misapprehends the nature of a Rule 736 order, which is merely an order “allowing the foreclosure of a [certain kind of] lien.” TEX. R. CIV. P. 736.1(a). It is “not a substitute for a judgment for judicial foreclosure.” TEX. R. CIV. P. 735.3.
Indeed, a Rule 736 order allowing a foreclosure to proceed “is without prejudice and has no res judicata, collateral estoppel, estoppel by judgment, or other effect in any other judicial proceeding.” TEX. R. CIV. P. 736.9.
Thus, a lender may abandon acceleration even after receiving a non-judicial foreclosure order under Rule 736.
See Biedryck v. U.S. Bank Nat’l Ass’n, No. 01-14-00017-CV, 2015 WL 2228447, at *5 (Tex. App.—Houston [1st Dist.] May 12, 2015, no pet.) (describing Rule 736 as “merely provid[ing] a procedural device to obtain authorization to proceed with the remedy of foreclosure”);
See also Snowden v. Deutsche Bank Nat’l Tr. Co., No. H-14-2963, 2015 WL 5123436, at *3 (S.D. Tex. Aug. 31, 2015) (citing Biedryck, 2015 WL 2228447, at *5) (holding that a lender may abandon acceleration even after obtaining a Rule 736 order allowing foreclosure).
Under the rule established in Boren, the Bank did in fact abandon acceleration by requesting payment on less than the full amount of the loan. See 2015 WL 6445721, at *4. Accordingly, the four-year statute of limitations did not bar the Bank’s 2013 attempt to foreclose.
Footnote: We express no opinion on the impact of a judicial foreclosure on a lender’s ability to abandon a prior acceleration. ——–
Smitherman v. Bayview Loan Servicing, LLC, No. 16-20560 (5th Cir. Mar. 6, 2018)
Before STEWART, Chief Judge, and HAYNES and WILLETT, Circuit Judges. PER CURIAM:
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
We review the denial of a motion to remand to state court de novo. Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1336 (5th Cir. 1995). “Jurisdictional facts are determined at the time of removal, and consequently post-removal events do not affect that properly established jurisdiction.” Spear Mktg., Inc. v. BancorpSouth Bank, 791 F.3d 586, 592 (5th Cir. 2015) (alterations and quotation marks omitted).
“It is this court’s established precedent that once a case is properly removed, the district court retains jurisdiction even if the federal claims are later dropped or dismissed.” Id. (emphasis in original).
Because this lawsuit was properly removed to federal court based on federal question jurisdiction being established from Smitherman’s RESPA claims, Smitherman’s subsequent deletion of his RESPA claims in his amended complaint was immaterial.
In light of the foregoing, the judgment of the district court is AFFIRMED. All pending motions are denied.
ETHICAL INTRICACIES OF THE ATTORNEY/JUDGE RELATIONSHIP: WHAT’S O.K. AND WHAT’S NOT* (2003)
*This is a restructured and modified version of a paper distributed on May 2, 2003 at the Dallas Bar Association CLE program on “The Ethics of Lawyer-Judge Interactions” presented by The Honorable Catharina Haynes, The Honorable Karen Johnson, The Honorable Jeff Kaplan, and James L. Mitchell, Jr., Esq.
