Appellate Judges

The Fifth Circuit Say Ciao to Cao In this Succinct Foreclosure Opinion

Obviously, the clerk in charge of this opinion wasn’t very good at arithmetic at school and left it undisturbed from the lower court opinion.

Cao v. BSI Financial Services

“The Magistrate Judge noted that Cao has asked for a preliminary injunction to prevent the foreclosure sale, but Cao already “had her day in court…””

SEP 9, 2021 | REPUBLISHED BY LIT: SEP 9, 2021

Well, at least it’s better than just, AFFIRMED (detect the sarcasm).

Before King, Costa, and Ho, Circuit Judges. Per Curiam:*

After defaulting on her mortgage, Angela Cao filed lawsuits against BSI Financial Services, Selene Finance, L.P., and MTGLQ Investors, L.P., who were at different times the mortgage servicers for the loan. Cao sought to halt foreclosure on the property and asserted numerous claims.

The district court consolidated the two matters into the present case.

The defendants filed a motion for judgment on the pleadings and both Cao and the defendants sought summary judgment. The magistrate judge issued her Memorandum and Recommendations (M&R), which recommended dismissal of all but four of Cao’s claims against BSI, Selene, and MTGLQ.

All parties objected.

The district court, after reviewing the M&R, determined that all of Cao’s claims should be dismissed with prejudice.

Some of those claims—fraud, conspiracy, conversion, negligence, and fraudulent transfer—were dismissed based on the pleadings.

Other claims—breach of contract, duress, usury, Texas Theft Liability Act, Texas Debt Collections Act, Federal Debt Collections Practices Act, quiet title, wrongful foreclosure, and money had and received—were dismissed based on the summary judgment record.

Cao filed an unsuccessful motion for reconsideration.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

On appeal, Cao asserts seven challenges to the district court’s order. Although those include a merits challenge, she spends most of her brief arguing that the district court erred procedurally in dismissing her case. None of her arguments succeed.

First, Cao argues that the court erred in its review of the magistrate’s M&R by reviewing some of the magistrate’s findings de novo, which led to the district court’s dismissals that the magistrate judge had not recommended. But the district court properly applied a de novo standard to the parts of the magistrate judge’s opinion to which a party had objected and reviewed only for clear error those portions to which no party objected. Fed.

  1. Civ. P. 72(b).

Second, Cao argues that the court relied on matters outside of the pleadings by considering an exhibit that was not mentioned in objections to the M&R. But it is well-settled that the district court may consider the entire record in its decision on a summary judgment motion. Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1023–24 (5th Cir. 1995).

Third, Cao argues that the district court improperly converted defendants’ motions for dismissal on the pleadings into a motion for summary judgment. That is not what happened. The defendants filed separate motions for summary judgment. It is those separate motions that were the basis for the grant of summary judgment.

Fourth, the magistrate judge did not sua sponte reject Cao’s argument that she was entitled to tolling the statute of limitations. Defendants addressed tolling argument in their response to Cao’s motion for summary judgment.

Fifth, Cao argues that dismissal on the pleadings was not warranted because the M&R contained undisputed material facts that favored Cao’s position.

But she misunderstands what Defendants were challenging in their Rule 12(c) motions for dismissal on the pleadings: Cao’s third amended complaint, not the M&R. Defendants raised their challenges to the M&R separately in their objections.

Sixth, Cao challenges the merits of the summary judgment order, primarily on the conspiracy claim, and argues that she is actually entitled to summary judgment. Her cursory challenge to the merits is difficult to follow.

In any event, we agree with the district court’s reasons for granting summary judgment in favor the defendants on the conspiracy and other claims.

Finally, Cao’s substantial rights were not violated nor was she denied due process based on procedural errors she alleges the district court committed that led to an unfair process.

As we have said, we do not see any procedural improprieties.

* * *

We AFFIRM the judgment of the district court.

Cao v. BSI Fin. Servs., CIVIL ACTION H- 17-321 (S.D. Tex. Sep. 17, 2020)

Senior Judge Gray Miller

Fifth Circuit Expand The Court Laws By Making Arguments for the Bank Not Previously Raised

In this foreclosure appeal, the court sua sponte includes arguments of res judicata not brought up at the lower court and returns to Twombly.

Fifth Circuit Foreclosures Panels Including Jim ‘Waterboarding’ Ho in 2021 When MERS Is A Party

If you notice, all the arguments re acceleration are based on post 2008 financial crisis opinions by the corrupt Fifth Circuit judges.

Justice Sonia Sotomayor Unleashes on the Beastly Court of Appeals for the Fifth Circuit

Justice Sotomayor rips Fifth Circuit for their breathtaking defiance of the rule of law, precedent, and their flaming cowardice.

The Fifth Circuit Say Ciao to Cao In this Succinct Foreclosure Opinion
Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

Laws In Texas is a blog about the Financial Crisis and how the banks and government are colluding against the citizens and homeowners of the State of Texas and relying on a system of #FakeDocs and post-crisis legal precedents, specially created by the Court of Appeals for the Fifth Circuit to foreclose on homeowners around this great State. We are not lawyers. We do not offer legal advice. We are citizens of the State of Texas who have spent a decade in the court system in Texas and have been party to during this period to the good, the bad and the very ugly.

Donate to LawsInTexas. Make a Difference.

Subscribe to Our Newsletter

We keep your data private and share your data only with third parties that make this service possible. See our Privacy Policy for more information.

© 2020-21 LawInTexas com is an online trading name which is wholly owned by Blogger Inc., a nonprofit 501(c)(3) registered in Delaware. | All Rights Reserved.

To Top