IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-10034

CURTIS MARSH; JAIME MARSH, 

 Plaintiffs - Appellants

v.

SPECIALIZED LOAN SERVICING, L.L.C., Alleged Mortgage Servicer for 

Morgan Stanley Mortgage Trust 2006-15XS; U.S. BANK NATIONAL 

ASSOCIATION, As Trustee, 

 Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:17-CV-2111

Before HIGGINBOTHAM, JONES, and DUNCAN, Circuit Judges.

PER CURIAM:*

In 2006, Appellants Curtis and Jamie Marsh executed a promissory note 

payable to Realty Mortgage Corporation and secured by a Deed of Trust.

Mortgage Electronic Registration Systems (“MERS”) was the nominee. On 

March 9, 2011, MERS, as nominee for Realty Mortgage Corporation, assigned 

the Deed of Trust to US Bank, as trustee for Morgan Stanley Mortgage Loan 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

January 17, 2020

Lyle W. Cayce

Clerk

 Case: 19-10034 Document: 00515276901 Page: 1 Date Filed: 01/17/2020
No. 19-10034

2

trust 2006-15XS. America’s Servicing Company (“ASC”), a division of Wells 

Fargo Bank, was the original mortgage servicer. Servicing was transferred to 

Specialized Loan Servicing, LLC. Appellants learned of this transfer in a letter 

from SLS on December 7, 2015. 

Appellants were first in default by late 2008 and have made no payments 

toward the Note since a negotiated loan-modification agreement fell through 

in 2010. Since then, the servicers—ASC and then, after December 2015, SLS 

—have accelerated the debt several times, most recently on April 19, 2017. A 

foreclosure sale was scheduled for August 1, 2017.

Appellants filed their Original Petition in Texas state court on July 28, 

2017, raising claims for declaratory and injunctive relief. They sought a 

declaration that the noticed foreclosure was barred by the statute of 

limitations, arguing that the debt was accelerated in 2009 and that this 

acceleration was never abandoned. They also sought declarations that the real 

estate lien and the power to enforce that lien are void and that the defendants 

had no legal right to foreclose. The petition raised no other claims, nor did it 

include any language that might be construed as a claim for breach of contract.

The state court entered a temporary injunction and the case was

removed to federal court. On December 12, 2018, the district court granted 

Appellees’ motion for summary judgment on two bases: (1) Appellants’ claims 

for declaratory and injunctive relief were theories of recovery, not properly pled 

causes of action and (2) Appellants were not entitled to any of their requested 

declaratory relief. The district court also awarded Appellees attorney’s fees. 

Appellants contend that they have raised triable fact issues as to their claims 

for declaratory relief and that the district court erred in awarding fees. 

Having reviewed the record and applicable law, we affirm the district 

court for essentially the reasons set out in its written order. 

 Case: 19-10034 Document: 00515276901 Page: 2 Date Filed: 01/17/2020