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

No. 12-20559 Summary Calendar

ASHLEY MARTINS, Plaintiff-Appellant,

versus BAC HOME LOANS SERVICING, L.P.; FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendants-Appellees.

A ppeal from the United States District Court for the Southern District of Texas No. 4:11-CV-2104

Before SMITH, PRADO, and OWEN, Circuit Judges. JERRY E. SMITH, Circuit Judge: *

BAC Home Loans Servicing, L.P. (“BAC”), foreclosed o n Ashley Martins’s U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 26, 2013 Ly l e W . Cay ce 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: 12-20559 Document: 00512222011 Page: 1 Date Filed: 04/26/2013No. 12-20559

house, whereupon he challenged the f o r eclosure. Finding no genuine issue of material fact, the district court granted summary judgment for BAC. W e affirm.

I. In 2003, Martins refinanced a mortgage on his homestead through BSM Financial (“BSM”), executing a security instrument naming t h e Mortgage Electronic Registration System (“MERS”) as t he be n e f i c iary and nominee for BSM and its assigns. M a r t i n s paid t he mortgage until December 2 009, w hen he became delinquent and then ceased payment in June 2010. In November 2010, MERS assigned t he mortgage to BAC; t he transfer was recorded on November 2 2. In February 2011, M a rtins was notified that he was in default and t h a t the property would be foreclosed on if he failed to cure the default. Martins did not respond, and on March 14 the note’s t rustee p rovided notice t o Martins and the c lerk’s office that t he property would be s o ld. The house was sold o n April 5, 2011, to the Federal National Mortgage Association; Martins did not participate in the sale. Martin s sued in state court claiming wrongful foreclosure, promissory estoppel, and negligent misrepresentations. BAC r e moved to federal c ourt and moved for summary jud g m e n t

. F ollowing Martins’s failure t o file a response, BAC filed a Notice of No Response, to which Martins replied with a motion for continuance, w hich was denie d , a n d a n u n t i m e ly r eply to the summary judgment motion. H a v i n g c onsidered the untimely reply, the court granted summary judgment for BAC.

I I. “Summary judgments are reviewed de novo .” Moussazadeh v. Tex. Dep’t of C riminal Justice , 703 F.3d 781, 787 ( 5th Cir. 2012). Summary judgment m ay be grant e d w h e re, t aking the evidence in the light most favorable to the non2 Case: 12-20559 Document: 00512222011 Page: 2 Date Filed: 04/26/2013No. 12-20559

movant, there i s n o genuine disput e o f material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). See also F E D
. R. C I V
. P. 56(a).

III. Martins q uestions B A C ’ s “standing” to foreclose. Martins p resents an incoherent and rambling argument conflating ownership of a note with constitutional standing. Interpreting those argume n t s m o s t c h a r i t a b l y , w e c o n clude that Martins contends that the note was not properly transferred to BAC and that the a ssignment w as “robosigned” and therefore “forged.” Because of that, Martins’s l ogic goes, B AC was not the h older o f the note, did n ot own the mortgage, and could not foreclose. This argument fails. There is no doubt that the mortgage was transferred by MERS to B A C , which p resented a s i g ned, notarized assignment document that had also been recorded by the county clerk. Martins’s allegations of forgery rest on the fact (based o n counsel’s research) t hat MERS d o es not h ave a Texas office and that the assignment was “robosigned.” That a lone i s hardly sufficient to maintain a claim for fraud, much less to a void summary judgment. 1 BAC has offered sufficient e vidence, through i t s r e corded assignment, that it was the rightful holder of the mortgage, and Martins failed to present evidence creating a genuine issue of fact. Martins contends that BAC also c a nnot f oreclose because it was only assigned the m ortgage, and not the note itself, b y MERS. Martins suggests that the assignment split the note from the deed of trust and that BAC therefore had

1 See Ka n v . O neWest Ba nk, FSB , 823 F. Sup p . 2d 464, 470 ( W. D

. Tex. 2011) ( d is m is s ing s uit f or f ailure to s tate a claim w here one of the argum ents w as that the m ortgage d ocum ents w ere robos igned and theref ore s om ehow invalid ); Chri stensen v . Ba nk of A m . , N

. A

. , 2011 WL 7070568 ( N

. D

. Tex. N ov. 4, 2011) ( granting s um m ary j u d g m e n t w here the plaintif f had no ground s f

or alleging that a d ocum ent w as robos igned )

. 3 Case: 12-20559 Document: 00512222011 Page: 3 Date Filed: 04/26/2013No. 12-20559

a meaningless piece of paper rather t han a debt on which it could foreclose. Martins cites no Texas authorities to support this proposition but relies o n general property-law treatises, likely because he would find no support in Texas law. Numerous distric t c o u rts have addressed this question, and each one to analyze Texas law has c o n c l u d e d t h a t T exas recognizes a ssignment of m ortgages through MERS and i ts equivalents as valid and enforceable. The court summarized Martins’s strategy well in Wells v. BAC Home Loans Servicing, L.P. , 2011 WL 2163987, *2 (W. D

. T ex. Apr. 26, 2011) (internal citations and quotation marks omitted): This claim—colloquially c alled the “show-me-the-note” theory— b e g a n circulating in courts across the country i n 2009. Advocates of this theory believe t hat only the h older of t he original wet-ink signature note has t h e l awful power to initiate a n on-judicial foreclosure. The courts, however, have roundly rejected t his theory and dismissed the claims, because foreclosure stat u t es simply do n ot require possession or production o f t he original note. The “show me the note” theory fares no better under Texas law.[ 2 ]
Texas differentiates between enforcement of a note and foreclosure—the latter enforces a d e e d of trust, rather than t he underlying note, and can be accomplished without judicial s u p e r vision. Wells , 2011 WL 2 163987, at *2. Where a deed of trust confers such a power, a trustee may sell a debtor’s property. Slaughter v. Qualls , 162 S.W.2d 671, 675 (Tex. 1942). “Texas courts have refused to c onfla t e f

o r e c l o s u r e w i t h e n forcement of a promissory note.” Reardean

v. CitiMortgage , Inc., 2011 WL 3268307, at *3 (W.D. Tex. July 25, 2011). Where

a debt is “secured by a n ote, which is, in turn, secured b y a lien, the lien and the note c onst itute separate obligations.” A guero v. Ramirez , 70 S.W.3d 372, 374

2 See a l so V

a n Ha uen v . Wel l s Fa rgo Ba nk, N

. A

. , 2012 WL 4162138 ( E. D

. Tex. Aug. 24, 2012) , rep ort a nd recom m enda ti on a dop ted , 2012 WL 4322518 (E. D

. Tex. Sep t. 20, 2012) ( “Courts in Texas have rep eated ly recognized that Texas law allow s either a mortgagee or a m ortgage s ervicer to ad m inis ter a d eed of trus t f oreclos ure w ithout p rod uction of the original note. ”) ; Stev ens v . Wel l s Fa rgo Ba nk, N

. A

. , 2012 WL 5951087 ( N

. D

. Tex. N ov. 27, 2012)

. 4 Case: 12-20559 Document: 00512222011 Page: 4 Date Filed: 04/26/2013No. 12-20559

(Tex. App.—Corpus Christi 2002, pet. d enied). All that matters, therefore, is that the mortgage b e p r o p e r l y assigned. Here, the mortgage was assigned by MERS, which had been given such p o wer, including the power to f oreclose, by the deed of trust. M artins claims h e d id not receive notice of the s ale as required under Section 51.002 of the Texas Property Code. Service of notice is complete when the notice is s ent via c ertified mail. T E X
. P R O P
. C O D E § 51.002(e). “The affidavit of a person k nowledgeable o f the facts to t he effect that service w as c om p l eted is prima facie evidence of service.” Id

. BAC satisfies its burden of proof by presenting evidence of mailing the notice and an affidavit to that effect. There is no requirement that Martins receive the notice. Martins maintains t hat there was a sufficient dispute of material fact to send his claim of w rongful foreclosure t o the jury. The three e lements of wrongful foreclosure discussed by Martins are (1) a defect in the foreclosure sale proceedings; ( 2) a grossly i nadequate selling price; and (3) a causal connection between the two. See Charter Nat’l B ank–Hous. v. S t evens , 781 S.W.2d 368, 371 (Tex. App.—Houston [14th Dist.] 1989, w rit denied). He argues that the failure to receive notice was a defect. That contention fails for t h e reasons set forth above: BAC p rovided the p r o p er notice to Martins directly through the mails and to the county clerk. There was no defect. Additionally, the selling price was not grossly inadequate: T he house was sold for $133,897.86. The last appraisal had been $145,716. Fannie Mae paid almost 92% of the most recent apprai s a l v a l ue. A “grossly inadequate price would have t o b e s o l i ttle as ‘to shock a correct mind.’” FDIC v. B lanton , 918 F.2d 524, 5 31 (5th Cir. 1990) (quoting Richard s o n v . K ent , 4 7 S.W.2d 4 20, 425 (Tex. C i v . App.—Dallas 1932, no w rit)). The sale price is not s hocking and is therefore not “grossly inadequate.” Because there was no d efect, and the sale price was not grossly inadequate, there was no wrongful foreclosure.

5 Case: 12-20559 Document: 00512222011 Page: 5 Date Filed: 04/26/2013No. 12-20559

Martins avers t h a t p romissory estoppel bars BAC from foreclosing. He claims that B AC orally promised that h is h ouse would not be foreclosed on i f he submitted an application through the Home Affordable Modification Program, which he did. U nder the d octrine o f promissory estoppel, if j usti c e requires, a person may be bound b y a promise that he reasonably b eli e v e d w o uld induce action or inaction and t hat did induce the a ction or forbearance. Moore Burger, Inc. v. Phillips Petroleum Co. , 492 S.W.2d 9 34, 937 (Tex. 1 972). Martins’s argument fails on several grounds, chief among them the s t atute of frauds. A l oan agreement for more than $50,000 is not enforceable u nless it is in w riting. T E X
. B U S

. & C O M
. C O D E § 2 6.02(b). Similarly, a promise relating to the s a l e o f r e al estate must be i n writing. Id

. § 26.01(b)(4). An a greement regarding the transfer of the property or modification of a l o an must therefore b e in writing to be valid. Promissory e stoppel may overcome the statute of fra u d s requirement in Texas, b ut “there must have been a p romise to sign a written c ontract which had been prepared and which would satisfy t he requirements of t h e s tatute of frauds.” 3 The purported agreement to modify the loan agreement is within the statute of f

rauds. Martins alleges only an oral agreement, not a promise on the part of BAC or its agents t o sign an agreement validating the o ral agreement that would satisfy t he statute of frauds. Thus, promissory estoppel d oes not overcome the statute of frauds, and Martins’s argument fails. Martins contends that the district court abused its discretion by denying

3 Beta D ri l l i n

g , In c . v. D urkee , 821 S. W. 2d 739, 741 (Tex. Ap p.

— H ous ton 1992, w rit d enied )

. See a lso Ca rp enter v . Phel p s , 391 S. W. 3d 143 (Tex. Ap p . — H ous ton [ 1s t D is t. ] 2011, no p et. ) ( “Fo r p r o m i s s o r y es top pel to create an excep tion to the s tatute of f raud s requires a p rom is e to s ign a p rep ared w ritten contract w hich w ould s atis f y the requirem ents of the s tatute of f raud s . ”) ; Ford v . Ci t

y Sta te Ba nk of Pa l a ci os , 44 S. W. 3d 121, 139 ( Tex. A p p . — Corp us Chris ti 2001, no p et. ) (“When p rom is s ory es top p el is rais ed to bar the ap p lication of the s tatute of fraud s , there is an ad ditional requirem ent that the p rom is or p rom is ed to s ign a w ritten d ocum ent com p lying w ith the s tatute of f raud s .”)

. 6 Case: 12-20559 Document: 00512222011 Page: 6 Date Filed: 04/26/2013No. 12-20559

his motion for a continuance, which was filed after the deadline had expired for

a response to B AC’s motion f or summary judgment. Under F ederal Rule of Civil Procedure 56(d), the court may defer judgment i f t he nonmovant shows that, for “specific reasons,” it cannot present facts to justify i ts position and needs further discovery. Martins did not ask for m ore time until after the deadline to respond had passed. He did not articulate specifically what facts he needed to respond to BAC’s motion f

or summary judgment. Nevertheless, t he court considered his
response, giving him more consideration than was required. T he c ourt did not abuse its discretion by denying the untimely motion for continuance. The summary judgment is AFFIRMED.

7 Case: 12-20559 Document: 00512222011 Page: 7 Date Filed: 04/26/2013