IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-41224

Summary Calendar

STEVEN SCOTT; SUSAN SCOTT,

 Plaintiffs - Appellants

v.

FEDERAL HOME LOAN MORTGAGE CORPORATION; WELLS FARGO 

BANK, N.A., doing business as Wells Fargo Home Mortgage, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Eastern District of Texas

U.S.D.C. No. 4:11-CV-600

Before KING, JOLLY, and HAYNES, Circuit Judges.

PER CURIAM:*

Steven Scott and Susan Scott (“Plaintiffs”) appeal the district court’s 

dismissal of their claim that Federal Home Loan Mortgage Corporation and 

Wells Fargo Bank, N.A. (“Wells Fargo”) (collectively, “Defendants”) improperly 

foreclosed on Plaintiffs’ home. The district court granted summary judgment 

* 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

June 5, 2015

Lyle W. Cayce

Clerk

 

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No. 14-41224

for Defendants on multiple claims. Plaintiffs only appeal the dismissal of their 

claim that Defendants “temporarily waived their right to foreclose on 

Plaintiffs’ home” by accepting payments under a forbearance agreement and

then “fail[ing] to give [Plaintiffs] notice that strict compliance [with the original 

terms of the loan] would be required before foreclosing.” The district court 

correctly determined that Plaintiffs failed to show waiver of Defendants’ right 

to foreclose; therefore, we AFFIRM the dismissal of Plaintiffs’ waiver claim. 

In 2001, Plaintiffs executed a note and deed of trust to finance the

purchase of their home (the “Property”).1 Plaintiffs defaulted on the loan in 

March 2008, entered into a loan modification agreement with Wells Fargo in 

May 2008, and defaulted on that agreement in November 2008. Plaintiffs kept 

in close contact with Wells Fargo about further loan modification from 

December 2008 until October 2009. During this period, Plaintiffs received

several notices that the Property would be foreclosed upon. Each time, in 

December of 2008 and in April and May of 2009, Plaintiffs contacted Wells 

Fargo and received assurances that no foreclosure would occur while loan

modification was under review—and no foreclosure occurred. 

Plaintiffs signed a loan modification agreement (“Forbearance 

Agreement”) in May 2009, which required Plaintiffs to make three payments 

of $1000.00 over three months, followed by a payment of $14,701.43, due on 

September 27, 2009 (“balloon payment).2 Plaintiffs informed Wells Fargo that 

they could not make the final balloon payment. They allege that Wells Fargo 

1 The deed of trust provides: “Any forbearance by Lender in exercising any right or 

remedy including . . . Lender’s acceptance of payments . . . in amounts less than the amount 

then due, shall not be a waiver of or preclude the exercise of any right or remedy.” 

2 The agreement specified that “this forbearance shall not constitute a waiver of the 

lender’s right to insist on strict performance in the future,” and that “the lender, at its option, 

may institute foreclosure proceedings according to the terms of the note and security 

instrument without regard to this agreement.” 

2

 

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No. 14-41224

advised them to make the first three payments, after which they would be 

considered for a different loan modification program. Plaintiffs did so, but

defaulted on the Forbearance Agreement on September 27, 2009, when they 

could not make the $14,701.43 payment. On September 22, 2009, Plaintiffs 

were notified that they might be eligible for the aforementioned loan 

modification program. Wells Fargo ultimately granted no further loan 

modification, although Plaintiffs allege phone conversations led them to 

believe they were in the process of enrolling in a new program.

On October 12, 2009, Plaintiffs received notice of a foreclosure sale 

scheduled for November 3, 2009. The Property was foreclosed upon on 

November 3, 2009. Plaintiffs filed suit in state court and the case was removed 

to federal district court. The district court ultimately dismissed Plaintiffs’

waiver claim on summary judgment, citing the non-waiver provision in the 

deed of trust and determining that Plaintiffs did not “point[] to any evidence 

that Wells Fargo intentionally relinquished its right to foreclose or acted in a 

way inconsistent with its right to foreclose.” 

Although we do not countenance the disorganized conduct Plaintiffs 

allege or the confusion and uncertainty engendered by it, that conduct is not 

relevant here. The district court correctly determined that the evidence does 

not show a waiver of Defendants’ right to foreclose.3 Plaintiffs did not address 

the dismissal of their other claims, so we deem those matters abandoned.4 

We AFFIRM the district court’s dismissal of Plaintiffs’ claims.

3 See Thompson v. Bank of Am., N.A., 783 F.3d 1022, 1024–26 (5th Cir. 2015); see also 

Robinson v. Wells Fargo Bank, N.A., 576 F. App'x 358, 363–64 (5th Cir. 2014) (unpublished); 

Martin-Janson v. JP Morgan Chase Bank, N.A., 536 F. App’x 394, 396–98 (5th Cir. 2013)

(unpublished).

4 See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993); FED. R. APP. P. 28. 

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