### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40428

T. WILLIAM MCINTYRE, Plaintiff-Appellant v. CHICAGO TITLE INSURANCE CO., et al., Defendants-Appellees

Appeal from the United States District Court for the Eastern District of Texas Case No. 4:10-cv-335

Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges. PER CURIAM: * Following the defendants’ attempt to non-judicially foreclose on a Deed of Trust securing p r o p e rty owned by plaintiff T. William McIntyre, M cIntyre brought claims of breach of contract, and violations of the Texas Deceptive Trade Pr actices Act and Texas Debt Collection Act against the defendants alleging that the Deed of Trust was not e nforceable against him. McIntyre appeals the grant of summary judgment in favor of the defendants. Because the record establishes U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 20, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-40428 Document: 00512181632 Page: 1 Date Filed: 03/20/2013No. 12-40428

that the Deed of Trust is enforceable against McInt yr e , r endering his claim meritless, we affirm. I. In July 2003, Ch ry s tal Suswell purchased a home located at 2307 Aberdeen Bend in C arrollton, Texas (the Property). On January 11, 2005, after Suswell and McIntyre were married, Suswell executed a Warranty Deed conveying the Property to herself and McIntyre. At the same time, Suswell and McIntyre executed an Adjustable R ate Note and Deed of Trust in favor of New Century Mortgage Corporation (New Century), both in the amount o f $283,500. The Deed of Trust created a lien in favor o f New Century and secured the Note. Only Suswell was identified as a Borrower o n the face of the Deed of Trust. However, McIntyre is identified a s a B orrower on the main signature page and he e xecuted the Deed of Trust, s igning above his n ame which identified him as Borrower. He al s o s i gned several addenda to the Deed of Trust on signature lines b e l o w t e xt that indicated that the signature lines were for the Borrower. In July 2 008, in conjunction with their divorce, Suswell conveyed her half interest in the Property to McIntyre using a Special Warranty Deed. When McIntyre failed t o m ake payments, Carrington Mortgage Servi c e s , LLC (Carrington), the s ervicer of the Note and Deed of T r u st, allowed him to enter into a Loan Modification Agreement in S e p t e mber 2008. M cIntyre defaulted again in December 2 008 and failed to cure the default after r e c eiving notice of default. McIntyre filed suit against Chicago Title Insurance Company ( Chicago Title), Deutsche Bank National Trust Company, Carrington and New Century in Texas state court s eeking to e njoin a n o n -j u dicial f oreclosure and claiming money damages under v arious state law causes of action. Chicago Title removed the case to the district court. McIntyre settled with Chicago Title and dismissed it from the case. M cIntyre failed to serve New Century and the district cou r t
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dismissed th a t d e f

e ndant without prejudice. Both sides filed Motions for Summary Judgment. The district c ourt adopted the magistrate judge’s Report and Recommendation and denied McIntyre’s motion, granted t h e defendants’ motion and order e d t h at McIntyre take nothing on the remaining claims. McIntyre appeals. II. This court reviews the district c ourt’s decision on summary judgment applying the s a me standard as the district court. Wade v . Hewlett-Packard Dev. Co. LP Short Term Disability Plan , 493 F.3d 533, 5 37 (5th Cir. 2007), a b rogated

on o ther grounds by Hardt v. Reliance Standard Life Ins. Co., 130 S.Ct. 2149, 2157-58 (2010). Summary judgment is proper if there i s no genuine dispute as to any material fact and the movant is entitled to judgment a s a matter of law. Fed. R. Civ. Pro. 56(a). McIntyre argues that summary judgment was not p roper because he was not specifically named as a Grantor o r c onveyor of an interest in the Deed of Trust, and because his status as a B o r r o w e r in the Deed o f Trust can not be inferred to make him a Grantor. He also argues that because he is not named

as a Grantor in the Deed of Trust, the promissory note is void, and th at the note should be deemed unsecured because the Deed of Trust was not p roperly delivered to him by the mortgagee or bank. We disagree. Under Texas Law, “separate instruments or c o n t r acts executed at the

same time, for the same purpose, and in the course of the s ame transaction are to be considered as o ne instrument, and are to be read and construed together.” Jones v. Kelley , 614 S.W. 2d 95, 98 (Tex. 1981). Un der this rule, McIntyre clearly

was intended to be considered as a Grantor/Borrower in the Deed of Trust. The Note and Deed o f Trust were dated on the same day, January 7, 2005. The Note, which McIntyre signed as Borrower, states that “a M o rtgage, Deed of Trust, or Security Deed (the ‘ S e c u ri ty Instrument’), dated the same date as this Note,
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protects the Note Holder from possible losses that might result if I do not keep the promises that I make in this Note.” The Note lists the property address as 2307 Aberdeen Bend, Carollton, Texas

– the same address as that listed on the D e e d o f T r u s t

. The Note and Deed o f Trust list the s ame d ebt amount – $283,5 0 0

. I n a ddition, McIntyre signed the Deed of Trust on a line where his

name is identified a s “Borrower” and on s everal addenda on s i gn a t u r e lines below language indicating that the signatures are those of the Borrower. These documents construed together clearly r e flect that McIntyre intended to be treated as a Borrower/Grantor under the Deed o f T r u s t and, accordingly, that instrument is enforceable against him. III. Based on the foregoing, the dis t ri c t c ourt properly granted judgment in favor of the defendants, which judgment we affirm. AFFIRMED.

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