REVISED August 4, 2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20598

MICHAEL BYNANE, 

 Plaintiff - Appellant 

v. 

THE BANK OF NEW YORK MELLON, AS TRUSTEE FOR CWMBS, 

INCORPORATED ASSET-BACKED CERTIFICATES SERIES 2006-24; 

BANK OF AMERICA, N.A.; MORTGAGE ELECTRONIC REGISTRATION 

SYSTEMS, INCORPORATED, 

 Defendants - Appellees 

Appeal from the United States District Court

for the Southern District of Texas 

Before KING, PRADO, and SOUTHWICK, Circuit Judges. 

KING, Circuit Judge:

Plaintiff–Appellant Michael Bynane appeals the dismissal of his claims, 

which related to his mortgage and the foreclosure on his home. As an initial 

matter, Bynane argues that the district court lacked subject matter 

jurisdiction because there was not complete diversity, which requires us to 

address the recurring issue of whether diversity jurisdiction hinges on a 

trustee’s citizenship or a trust’s shareholders’ citizenships. Bynane also 

contends that certain claims were improperly dismissed and that he should 

United States Court of Appeals

Fifth Circuit

FILED

August 3, 2017

Lyle W. Cayce

Clerk

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have been allowed leave to amend his complaint. For the following reasons, 

we AFFIRM. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

In November 2006, Plaintiff–Appellant Michael Bynane executed a 

$135,000 note in favor of Countrywide Home Loans, Inc. (Countrywide) for the 

purpose of purchasing a property located in Houston, Texas. To secure the 

note, Bynane and his wife executed a security instrument (the Deed of Trust) 

in favor of Mortgage Electronic Registration Systems, Inc. (MERS) as nominee 

for Countrywide and Countrywide’s successors and assigns. In January 2012, 

MERS assigned its interest under the Deed of Trust to Defendant–Appellee 

The Bank of New York Mellon (BONYM), as trustee for the certificateholders 

of the CWABS Inc., Asset-Backed Certificates, Series 2006-24. 

After Bynane defaulted on the loan, BONYM accelerated the debt, 

obtained a June 2014 order to proceed with a foreclosure, and sold the property 

to David Guzman for $281,000 at a substitute trustee’s sale in March 2015. In 

April 2015, Bynane filed a lawsuit in Texas state court against MERS, 

BONYM, Bank of America, N.A. (BANA, and together with MERS and 

BONYM, Appellees), and Guzman, which was removed to federal district court 

(Bynane I). Further litigation ensued, including Bynane filing a first amended 

complaint and Appellees filing a motion to dismiss. Bynane also moved to 

remand the case to state court, arguing that complete diversity was lacking 

because Guzman was a citizen of Texas (of which Bynane was also a citizen), 

not Indiana (which was claimed in the notice of removal). The district court 

denied the motion to remand. Following the district court’s denial of his motion 

to reconsider on August 6, 2015, Bynane voluntarily dismissed his complaint 

without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). 

A few days later, Bynane filed this lawsuit in Texas state court, naming, 

once again, Appellees and Guzman as the defendants. Bynane’s complaint

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applied for a temporary restraining order and injunction and included six 

causes of action: (1) lack of standing to foreclose; (2) quiet title; (3) breach of 

contract; (4) promissory estoppel; (5) fraud; and (6) violation of the Texas Debt 

Collection Act. Appellees removed the case to federal district court on the basis 

of diversity jurisdiction.1 On October 12, 2015, Appellees moved to dismiss 

under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.2 On 

October 13, 2015, Bynane moved to remand the case, alleging, once again, that 

Guzman was a citizen of Texas, not Indiana. Appellees and Guzman filed 

separate oppositions to the motion to remand, and Guzman supported his 

opposition with his own affidavit stating, inter alia, that “Indiana is my home 

where I always intend to return and stay.” On December 1, 2015, the district 

court concluded that Guzman was a citizen of Indiana and, thus, denied 

Bynane’s motion to remand. 

On December 15, 2015, the district court granted both Appellees’ and 

Guzman’s motions to dismiss, thus leaving only Guzman’s counterclaim 

against Bynane pending. The district court also denied Bynane leave to 

replead his claims. On March 7, 2016, the district court reinstated the case 

and ordered the parties to address whether diversity jurisdiction existed in 

light of the Supreme Court’s decision that same day in Americold Realty Trust

v. Conagra Foods, Inc., 136 S. Ct. 1012 (2016). On May 10, 2016, after 

receiving the requested briefing from the parties, the district court concluded 

that there was diversity jurisdiction. Specifically, the district court found that, 

for the purpose of determining diversity jurisdiction, the citizenship of BONYM 

as the trustee is what matters, not the citizenships of the trust’s shareholders. 

 

1 Prior to removal, Guzman filed a counterclaim against Bynane, alleging that 

Bynane’s lawsuit was groundless and brought for an improper purpose. 

2 On October 26, 2015, Guzman separately moved to dismiss the complaint for failure 

to state a claim. 

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Thus, because BONYM is a citizen of New York, the district court concluded 

that there was diversity jurisdiction. 

On May 25, 2016, the district court entered a Federal Rule of Civil 

Procedure 54(b) final judgment, dismissing all of Bynane’s claims against 

Appellees as ordered by its December 15, 2015, opinion granting Appellees’ 

motion to dismiss. On June 22, 2016, Bynane filed a combined motion to alter 

or amend judgment and for leave to file an amended complaint (Combined 

Motion). In the Combined Motion, Bynane argued that (1) the district court 

should allow him to amend his complaint to add allegations under section 

50(a)(6) of the Texas Constitution in light of the Texas Supreme Court’s recent 

decision in Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542 (Tex. 2016); (2) the 

district court erred in concluding that his allegation that the mortgage 

assignment was void as a forgery was insufficient; and (3) the district court 

erred in denying his request to amend his promissory estoppel claim. On July 

15, 2016, Bynane filed a proposed amended complaint for his allegations 

relating to violations of section 50(a)(6). The district court denied the 

Combined Motion. Bynane timely appeals. 

II. DIVERSITY JURISDICTION 

We first address the threshold issue of whether there is subject matter 

jurisdiction over this case on the basis of diversity jurisdiction. Under 28 

U.S.C. § 1332(a), diversity jurisdiction exists when there is complete diversity 

of citizenship among the parties and the amount in controversy exceeds 

$75,000. See, e.g., Vantage Drilling Co. v. Hsin-Chi Su, 741 F.3d 535, 537 (5th 

Cir. 2014) (per curiam). “[C]omplete diversity requires that all persons on one 

side of the controversy be citizens of different states than all persons on the 

other side.” Settlement Funding, L.L.C. v. Rapid Settlements, Ltd., 851 F.3d 

530, 536 (5th Cir. 2017) (alteration in original) (quoting McLaughlin v. Miss. 

Power Co., 376 F.3d 344, 353 (5th Cir. 2004) (per curiam)). Our review of a

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district court’s determination that diversity jurisdiction exists is de novo. See 

Arena v. Graybar Elec. Co., 669 F.3d 214, 218–19 (5th Cir. 2012). The party 

seeking the federal forum has the burden of establishing diversity jurisdiction. 

See id. at 219. Accordingly, in this case, Appellees have the burden of 

establishing diversity jurisdiction given that they invoked federal jurisdiction 

by removing Bynane’s state court case. See Howery v. Allstate Ins., 243 F.3d 

912, 916 (5th Cir. 2001).

The district court found that there was complete diversity: Bynane is a 

citizen of Texas; BANA, a national banking association with its main office 

located in North Carolina, is a citizen of North Carolina; MERS, a Delaware 

corporation with its principal place of business in Virginia, is a citizen of 

Delaware and Virginia; BONYM, a national banking association with its main 

office located in New York, is a citizen of New York; and Guzman is a citizen 

of Indiana. On appeal, Bynane challenges the district court’s citizenship 

findings with respect to BONYM and Guzman. First, Bynane contends that

the district court erred in considering only the citizenship of BONYM as the 

trustee, and instead, the district court should have considered the citizenship 

of each of the shareholders of the trust. Second, Bynane argues that an 

individual named Preston Julian purchased the property from Guzman prior 

to removal. According to Bynane, Julian is thus the real party in interest, and 

because Julian appears to be a citizen of Texas, complete diversity was lacking 

at the time of removal. We address each argument in turn. 

A. BONYM 

Bynane’s first argument raises the issue of whether the district court 

erred in not considering the citizenships of the trust’s shareholders. In 

determining diversity jurisdiction, “a federal court must disregard nominal or 

formal parties and rest jurisdiction only upon the citizenship of real parties to 

the controversy.” Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 461 (1980). In 

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Navarro, the Supreme Court addressed whether the trustees or the trust’s 

beneficial shareholders are the real parties to a controversy when the trustees 

are named as the parties in the lawsuit. Id. at 462. The Supreme Court held 

that, in such a situation, “a trustee is a real party to the controversy for 

purposes of diversity jurisdiction when he possesses certain customary powers 

to hold, manage, and dispose of assets for the benefit of others.” Id. at 464. 

And in that case, the trustees were the real parties to the controversy because 

their “control over the assets held in their names [wa]s real and substantial.” 

Id. at 465. Here, Navarro has a straightforward application: BONYM, the 

trustee, was named as the defendant in this lawsuit, and thus, BONYM is the 

real party to the controversy (and therefore its citizenship is what matters in 

determining diversity jurisdiction) if its control over the trust’s assets is real 

and substantial. See id. 

Bynane, however, argues that we should instead look to the Supreme 

Court’s recent decision in Americold. In that case, the Supreme Court 

considered whose citizenship—the trustee’s or the trust’s shareholders’—

matters in determining diversity jurisdiction for a real estate investment trust 

organized under Maryland law. Americold, 136 S. Ct. at 1015–17. Treating 

the trust as a non-corporate artificial entity and applying the “oft-repeated rule 

that diversity jurisdiction in a suit by or against the entity depends on the 

citizenship of all [its] members,” the Supreme Court held that the real estate 

investment trust’s shareholders’ citizenships must be considered. See id. 

(alteration in original) (internal quotation marks omitted) (quoting Carden v. 

Arkoma Assocs., 494 U.S. 185, 195–96 (1990)). Notably, the Supreme Court 

“decline[d] to apply the same rule to an unincorporated entity sued in its 

organizational name that applies to a human trustee sued in her personal 

name.” See id. at 1017. In other words, because the real estate investment 

trust was sued in its own name (rather than the suit being filed against the

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trustee), the Supreme Court declined to apply the rule from Navarro that a 

federal court looks only at the trustee’s citizenship; instead, the Supreme Court 

applied the “oft-repeated” rule that an unincorporated entity (the trust in that 

case) possesses the citizenship of its members. See id. 

The crux of the issue raised by Bynane’s argument is whether Navarro

controls (i.e., we should look at only the trustee’s citizenship) or whether 

Americold controls (i.e., we should look at the citizenships of all of the trust’s 

shareholders). In Justice v. Wells Fargo Bank National Association, 674 F. 

App’x 330 (5th Cir. 2016) (per curiam), an unpublished opinion,3 we addressed 

a similar question involving a trustee of a mortgage securitization trust and 

held that, for the purpose of determining diversity jurisdiction, the citizenship

of the trustee is what matters. See id. at 332. Put another way, Justice held 

that the Navarro rule still controls when the trustee sues or is sued in its own 

name. See id. We agree. As we recognized in Justice, Americold “reiterated 

[the Supreme Court’s] prior holding in Navarro . . . , ‘that when a trustee files 

a lawsuit in her name, her jurisdictional citizenship is the State to which she 

belongs—as is true of any natural person.’” Id. (quoting Americold, 136 S. Ct. 

at 1016). Indeed, Americold emphasized that Navarro’s rule “coexists” with 

Americold’s discussion that, “when an artificial entity is sued in its name, it 

takes the citizenship of each of its members.” See Americold, 136 S. Ct. at 

1016. Thus, Navarro’s rule is still good law: “Where a trustee has been sued 

or files suit in her own name, the only preliminary question a court must 

answer is whether the party is an ‘active trustee[] whose control over the assets 

held in [its] name[] is real and substantial.’” Justice, 674 F. App’x at 332

 

3 “Although unpublished opinions are not precedential, they are persuasive.” United 

States v. Olivares, 833 F.3d 450, 453 n.1 (5th Cir. 2016) (per curiam).

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(alterations in original) (quoting Carden, 494 U.S. at 191). 

Here, similar to the trustee in Justice, BONYM was sued in its capacity 

as a trustee. Thus, Navarro controls, and the only remaining question is 

whether BONYM possesses the sort of “real and substantial” control over the 

trust’s assets discussed in Navarro. And just as in Justice, the trustee here, 

BONYM, has “real and substantial” control. For example, under the Pooling 

and Service Agreement (PSA) for the trust, “all right, title, and interest in and 

to the Initial Mortgage Loans” were transferred to BONYM as trustee. 

Moreover, under the PSA, the certificateholders have only limited rights to 

vote or otherwise control the operation of the trust. Thus, we consider in 

determining diversity jurisdiction only the citizenship of BONYM, which 

Bynane does not dispute is a citizen of New York for diversity jurisdiction 

purposes. See Wachovia Bank v. Schmidt, 546 U.S. 303, 307 (2006) (“[A] 

national bank . . . is a citizen of the State in which its main office, as set forth 

in its articles of association, is located.”). 

We reject Bynane’s argument that, contrary to the straightforward 

application of Navarro and Americold described above, we should instead 

adopt the two part test used in an unpublished district court opinion: 

(1) identify whether the trust or the trustee is the real and 

substantial party to the controversy, and (2) if the trust is the real 

party, then determine whether it is a “traditional trust” where a 

court looks to the citizenship of the trustee, or whether it is a 

“business trust” (unincorporated association) where a court looks 

to the citizenship of the trust’s members to determine jurisdiction.

Guillen v. Countrywide Home Loans, Inc., No. H-15-849, 2016 WL 7103908, at 

*4 (S.D. Tex. Dec. 6, 2016). Under Guillen’s test, even if the trustee is the 

named defendant because the trust is not an entity that can be sued in its own 

capacity under state law, a district court must examine the substance of the 

complaint to see if the allegations show that the trust is the real party to the 

controversy, and if it is, the district court must then wade into the thicket of 

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determining whether the trust is a business trust or a traditional trust. We 

disagree with this test for several reasons. First, as noted above, we do not 

interpret Americold as standing for the proposition that a district court must 

disregard whether the trust or trustee is sued and look instead at how the 

substance of the complaint characterizes the real party to the controversy.4 

Rather, if the trustee sues or is sued in the trustee’s own name, then Navarro’s 

rule controls. Second, nominally determining whether the trust is a “business” 

or “traditional” trust is not the appropriate test. Putting aside the fact that a 

business trust and a traditional trust lack clear definitions and the line 

between them is blurry at best, the characterization of the trust as a business 

or traditional trust is not dispositive. As we stated in Justice, “[t]he fact ‘[t]hat 

the trust [otherwise] may depart from conventional forms in other respects has 

no bearing upon’” our determination of whether the trustee’s control over the 

trust’s assets is real and substantial. Justice, 674 F. App’x at 332 (second and 

third alterations in original) (quoting Navarro, 446 U.S. at 465). Indeed, 

Navarro involved what the Supreme Court referred to as a “business trust”—

yet, the Supreme Court held that the trustees’ citizenships were the relevant 

inquiry in determining diversity jurisdiction.5 See Navarro, 446 U.S. at 459. 

In sum, Navarro provides the appropriate framework here: BONYM’s 

citizenship, not the trust’s shareholders’ citizenships, is relevant for 

 

4 In Guillen, the district court appears to have disregarded how Navarro determined 

whether a trustee is a real party to the controversy, instead “[l]ooking beyond the mere 

caption of the suit” and finding “that Guillen’s original petition treats the trust as the real 

and substantial party to the controversy because the trust ‘apparently contains at least the 

piece of real estate at issue in this case.’” See id. at *6.

5 Moreover, Guillen’s test would require an extensive examination by district courts. 

The Supreme Court, however, noted that “the relative simplicity” of the rule applied in 

Navarro “is one of its virtues.” Navarro, 446 U.S. at 464 n.13 (“Jurisdiction should be as selfregulated as breathing; . . . litigation over whether the case is in the right court is essentially 

a waste of time and resources.’” (omission in original) (quoting David A. Currie, The Federal 

Courts and the American Law Institute, Part I, 36 U. Chi. L. Rev. 1, 1 (1968))). 

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determining diversity jurisdiction because BONYM was sued in its own name 

as trustee and it has sufficiently real and substantial control over the trust’s 

assets. See Americold, 136 S. Ct. at 1016 (“And when a trustee files a lawsuit 

or is sued in her own name, her citizenship is all that matters for diversity 

purposes.”). 

B. Guzman and Julian 

Bynane’s second argument relating to diversity jurisdiction is that the 

district court should have considered that Julian is purportedly a citizen of

Texas. Bynane argues that, prior to removal, Guzman transferred his interest 

in the property to Julian. According to Bynane, a recent Texas Court of 

Appeals decision confirms the transfer to Julian.6 Bynane concludes that the 

district court should have effectively looked through Guzman and considered 

Julian’s purported Texas citizenship as a real party to the controversy, and 

thus, complete diversity did not exist at the time of removal because Julian 

and Bynane are both Texas citizens. 

Bynane’s argument, however, is flawed. “The ‘real party to the 

controversy’ test does not require a federal court to consider the citizenship of 

non-parties who have an interest in the litigation or might be affected by the 

judgment.” Corfield v. Dall. Glen Hills LP, 355 F.3d 853, 865 n.10 (5th Cir. 

2003). Instead, “[t]he ‘real party to the controversy’ test requires consideration 

of the citizenship of non-parties when a party already before the court is found 

to be a non-stake holder/agent suing only on behalf of another.” Id. But here, 

it is simply not accurate to characterize Guzman as only litigating this case on 

behalf of another: Bynane named Guzman as a defendant in the suit with 

 

6 In Bynane v. Guzman, No. 01-16-00356-CV, 2017 WL 1089774 (Tex. App.—Houston 

[1st Dist.] Mar. 23, 2017, no pet.), the Texas Court of Appeals held that Guzman lacked 

standing in an eviction suit against Bynane because Guzman had sold his interest in the 

property to Julian on March 24, 2015. Id. at *1. 

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causes of action based, in part, on Guzman’s purchase of the property at 

foreclosure, and Guzman was not named as a litigant only on behalf of another. 

Even assuming that Julian had an interest in the property at the time of 

removal, the law does not dictate that the district court should have looked 

through Guzman to determine whether Julian’s citizenship would destroy 

complete diversity. And Bynane does not cite to any caselaw mandating such 

a result. Perhaps there could have been an issue of whether Julian should 

have been joined to the litigation, but that was not an argument raised by 

Bynane. Cf. Keybank Nat’l Ass’n v. Perkins Rowe Assocs., L.L.C., 539 F. App’x 

414, 417 (5th Cir. 2013) (per curiam) (“Whether the other non-party banks in 

this case are necessary parties whose joinder would defeat diversity is a much 

different question. Although the district court determined that the other banks 

were not necessary parties under Rule 19, Perkins Rowe has not briefed that 

issue, and we do not consider it.” (citations omitted)). Accordingly, the district 

court did not err by failing to consider that Julian is purportedly a citizen of 

Texas.7 

In sum, the district court did not err in determining that diversity 

jurisdiction exists in this case: Bynane is a citizen of Texas, BANA is a citizen 

of North Carolina, MERS is a citizen of Delaware and Virginia, BONYM is a 

citizen of New York, and Guzman is a citizen of Indiana. 

III. FORGERY ALLEGATION

 We next turn to Bynane’s argument that the assignment from MERS 

to BONYM was void because Dominique Johnson, an assistant secretary 

employed by MERS who signed the assignment, was not authorized by MERS 

to execute the assignment or, alternatively, Johnson’s signature was forged by 

 

7 To the extent that Bynane argues that we must also consider the citizenship of 

Marcia Clark (another individual who Bynane suggests potentially owns a share of the 

property), we reject this argument for the same reasons discussed above.

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someone else. The district court rejected this argument and dismissed 

Bynane’s claims for lack of standing to foreclose, quiet title, and breach of 

contract because each of those claims was based on the allegation that the 

assignment was void due to forgery. “We review de novo a district court’s 

dismissal under Rule 12(b)(6), accepting all well-pleaded facts as true and 

viewing those facts in the light most favorable to the plaintiff.” Sullivan v. 

Leor Energy, LLC, 600 F.3d 542, 546 (5th Cir. 2010). 

Under Texas law, “an obligor cannot defend against an assignee’s efforts 

to enforce the obligation on a ground that merely renders the assignment 

voidable at the election of the assignor.” Reinagel v. Deutsche Bank Nat’l Tr. 

Co., 735 F.3d 220, 225 (5th Cir. 2013). However, “the obligor may defend ‘on 

any ground which renders the assignment void.’” Id. (quoting Tri-Cities 

Constr., Inc. v. Am. Nat’l Ins., 523 S.W.2d 426, 430 (Tex. App.—Houston [1st 

Dist.] 1975, no writ)). As noted above, Bynane advances two arguments for 

why the assignment was void: (1) Johnson signed the assignment but lacked 

authority to do so on behalf of MERS, or alternatively, (2) Johnson did not 

actually sign the assignment, and instead, Johnson’s signature was forged by 

some unknown individual. 

Bynane’s first argument—i.e., Johnson signed the assignment but lacked 

authority to do so—fails. Under Texas law, “a contract executed on behalf of a 

corporation by a person fraudulently purporting to be a corporate officer is, like 

any other unauthorized contract, not void, but merely voidable at the election 

of the defrauded principal.” Id. at 226. Here, even accepting as true Bynane’s 

allegation that Johnson was not authorized to execute the assignment, this 

allegation merely renders the assignment voidable at MERS’s behest. Thus, 

given that this allegation merely renders the assignment voidable, Bynane 

may not defend against BONYM’s enforcement of his obligation on the ground 

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that Johnson executed the assignment without authorization. See id.

Bynane’s second argument—i.e., Johnson’s signature on the assignment 

was forged—also fails. As an initial matter, the assignment would be void if it 

was forged, and “[a] document is forged if it is signed by one who purports to 

act as another.” See Vazquez v. Deutsche Bank Nat’l Tr. Co., N.A., 441 S.W.3d 

783, 787–88 (Tex. App.—Houston [1st Dist.] 2014, no pet.). However, Bynane’s 

conclusory allegation that Johnson’s signature was forged fails to meet the 

heightened pleading standard of Federal Rule of Civil Procedure 9(b). See

Kreway v. Countrywide Bank, FSB, 647 F. App’x 437, 437–38 (5th Cir. 2016) 

(per curiam) (holding that a forgery allegation was insufficiently pled when its 

only support came from an exhibit comparing signatures and it lacked any 

facts “relating to who perpetrated the alleged forgery or how, when, and where 

the alleged forgery was executed”); Brinson v. Universal Am. Mortg. Co., No. 

G-13-463, 2014 WL 4354451, at *4 n.1 (S.D. Tex. Sept. 2, 2014) (applying Rule 

9(b) to a forgery allegation); see also Lone Star Ladies Inv. Club v. Schlotzky’s 

Inc., 238 F.3d 363, 368 (5th Cir. 2001) (“Rule 9(b) applies by its plain language 

to all averments of fraud, whether they are part of a claim of fraud or not.”). 

Bynane’s only allegation on this point amounts to stating that the assignment 

“was signed, or the electronic signature was affixed, by a person not Dominque 

Johnson, and signed or affixed by a person without any kind of authority 

whatsoever from the real Dominque Johnson, and without the knowledge or 

assent of the real Dominque Johnson.” Bynane’s forgery allegation appears to 

be premised solely on his deduction that the assignment must have been forged 

because Johnson’s signature on the assignment, which was attached to the 

complaint, looks different than her signature on an unrelated assignment, 

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which was also attached to the complaint.8 Such bare and conclusory

allegations are insufficient. See Shandong Yinguang Chem. Indus. Joint Stock 

Co. v. Potter, 607 F.3d 1029, 1032 (5th Cir. 2010) (per curiam) (“Rule 9(b) 

requires the who, what, when, where, and how to be laid out.” (internal 

quotation marks omitted) (quoting Benchmark Elecs., Inc. v. J.M. Huber Corp., 

343 F.3d 719, 724 (5th Cir. 2003))). 

In sum, Bynane fails to adequately allege a ground that would make the 

assignment void. Accordingly, the district court did not err in dismissing 

Bynane’s claims for lack of standing to foreclose, quiet title, and breach of 

contract given that each of those claims was based on the assignment being 

void. 

IV. PROMISSORY ESTOPPEL

Next, we address Bynane’s argument that the district court erred in 

dismissing his promissory estoppel claim. Bynane alleged that BANA 

promised over the phone and in writing that it would consider a loan 

modification application from him and that “no non-judicial or judicial 

foreclosure would occur until the loan modification process was completed and 

[he] was given an answer that his application was either granted or denied.” 

Bynane further alleged that BANA promised “to sign a written modification 

document already in existence at the time of the promise if the modification 

was approved.” The district court, however, found that these allegations were 

insufficient because Bynane had failed to allege that the purported “written 

modification document already in existence” satisfied the statute of frauds by 

containing the material terms of the loan modification. Similar to Bynane’s 

forgery allegation, we review the district court’s dismissal of this claim de novo. 

 

8 “In deciding a motion to dismiss the court may consider documents attached to or 

incorporated in the complaint and matters of which judicial notice may be taken.” United

States ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 379 (5th Cir. 2003). 

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See Sullivan, 600 F.3d at 546.

Pursuant to Texas’s statute of frauds, “[a] loan agreement for more than 

$50,000 is not enforceable unless it is in writing.” Martins v. BAC Home Loans 

Servicing, L.P., 722 F.3d 249, 256 (5th Cir. 2013) (citing Tex. Bus. & Com. Code 

§ 26.02(b)). An agreement to modify such a loan must also be in writing to be 

valid. Id. Promissory estoppel is an exception to the statute of frauds, but the 

exception requires, inter alia, there to “have been a promise to sign a written 

contract which had been prepared and which would satisfy the requirements 

of the statute of frauds.” Id. at 256–57 (quoting Beta Drilling, Inc. v. Durkee, 

821 S.W.2d 739, 741 (Tex. App.—Houston [14th Dist.] 1992, writ denied)). 

Relevant to this case is the latter requirement—i.e., the already prepared 

written loan modification agreement must itself satisfy the statute of frauds. 

But here, although Bynane did allege that BANA promised “to sign a written 

modification document already in existence at the time of the promise if the 

modification was approved,” Bynane did not allege anything about how the 

written loan modification agreement contained sufficient material terms to 

itself satisfy the statute of frauds. For example, Bynane failed to allege even

what terms were being changed and included in the written loan modification 

agreement.9 Cf. Scott v. Bank of Am., N.A., 597 F. App’x 223, 225 (5th Cir. 

 

9 Bynane points to our unpublished decision in Martin-Janson v. JP Morgan Chase 

Bank, N.A., 536 F. App’x 394 (5th Cir. 2013) (per curiam), to support his argument that his 

complaint sufficiently alleged the terms of the written loan modification agreement. It is 

true that the plaintiff in Martin-Janson sufficiently alleged a promissory estoppel claim when 

the lender had promised not to foreclose on the loan and that the loan would be modified. Id.

at 398–99. However, Martin-Janson is distinguishable because the plaintiff in that case also 

included additional allegations about the terms of the modification agreement. For example, 

we highlighted in that case how the plaintiff had included, inter alia, the following two 

allegations: “[t]o the extent any terms of that agreement are not clear or not filled in, the core 

terms may be determined from a formula that [the lender] uses to calculate loan 

modifications—interest rate, monthly payment, loan balances, and other core terms based on 

[the plaintiff’s] income profile;” and “[the lender] uses standard forms (uniform instruments 

and loan modification templates, for example) and computation procedures that determine 

the terms of loan modifications, and these are in the sole possession and control of [the 

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2014) (“To satisfy the statute of frauds in Texas, a writing . . . ‘must be 

complete within itself in every material detail and contain all of the essential 

elements of the agreement.’” (quoting Sterrett v. Jacobs, 118 S.W.3d 877, 879–

80 (Tex. App.—Texarkana 2003, pet. denied))); BACM 2001-1 San Felipe Road 

Ltd. P’ship v. Trafalgar Holdings I, Ltd., 218 S.W.3d 137, 146 (Tex. App.—

Houston [14th Dist.] 2007, pet. denied) (“A modification alters only those terms 

of the original agreement to which it refers, leaving intact those unmentioned 

portions of the original agreement that are not inconsistent with the 

modification.”). Accordingly, the district court did not err in dismissing this 

claim. 

Bynane argues in the alternative that the district court erred in failing 

to allow him leave to replead his promissory estoppel claim. “We review the 

district court’s denial of a motion for leave to amend for abuse of discretion.” 

Moore v. Manns, 732 F.3d 454, 456 (5th Cir. 2013) (per curiam). “In 

determining whether to grant leave to amend, ‘the court may consider factors 

such as undue delay, bad faith or dilatory motive on the part of the movant, 

repeated failure to cure deficiencies by amendments previously allowed, undue 

prejudice to the opposing party by virtue of the allowance of the amendment, 

[and] futility of the amendment.’” Leal v. McHugh, 731 F.3d 405, 417 (5th Cir. 

2013) (alteration in original) (internal quotation marks omitted) (quoting 

Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 678 (5th Cir. 2013)). 

Here, the district court did not abuse its discretion in denying Bynane 

leave to replead his promissory estoppel claim. As the district court reasoned, 

Bynane had raised a promissory estoppel claim in Bynane I, and in light of 

being able to see Appellees’ motion to dismiss in that case prior to voluntarily 

 

lender], without borrower input.” Id. In any event, Martin-Janson, an unpublished opinion,

is not precedential even if it could be construed as requiring reversal in this case. Olivares, 

833 F.3d at 453 n.1. 

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dismissing his complaint, Bynane already had the opportunity to rework his 

current promissory estoppel claim. Moreover, the district court reasoned that 

Bynane’s voluntary dismissal of Bynane I and refiling of this case created an 

undue delay and suggested a dilatory motive.10 Finally, the district court noted 

that Appellees and Guzman would suffer undue prejudice from further delay 

in the resolution of this case, especially considering that Guzman had yet to 

take possession of the property. In light of the district court’s reasoning and 

the circumstances of this case, the district court did not abuse its discretion in 

denying Bynane leave to replead his promissory estoppel claim. 

V. MOTION TO AMEND 

 Finally, we turn to Bynane’s argument that the district court erred in 

denying him leave to amend his complaint to assert claims under section 

50(a)(6) of the Texas Constitution. Bynane argues that, when he initially filed 

his complaint, he was ethically prohibited from asserting claims under section 

50(a)(6) because then-controlling precedent held that such claims were subject 

to a four-year statute of limitations. See Priester, 708 F.3d at 673–74. 

According to Bynane, the recent Texas Supreme Court decision in Wood was 

an intervening change in law that now allows him to bring such claims. Cf. 

Ocwen Loan Servicing, L.L.C. v. Berry, 852 F.3d 469, 473 (5th Cir. 2017) 

(recognizing that the Texas Supreme Court’s holding in Wood abrogated, in 

part, our decision in Priester). As part of his proposed amended complaint filed 

in the district court, Bynane alleged several violations of section 50(a)(6) that 

served as the basis for three causes of action: (1) breach of contract, (2) quiet 

 

10 Bynane’s only argument that there was an abuse of discretion appears to be that 

the district court erred by considering at all the fact that he voluntarily dismissed a complaint 

prior to filing this action. Bynane, however, points to no caselaw supporting his argument, 

and we decline to find an abuse of discretion under these circumstances based solely on the 

district court’s consideration of his prior voluntary dismissal in determining whether to grant 

leave to replead this claim. 

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title, and (3) declaratory judgment. 

The district court denied Bynane’s request for leave to amend on the 

ground that his amendments would be futile. Specifically, the district court 

concluded that Bynane cannot state a claim under section 50(a)(6) because 

Guzman, a third party, had purchased the property without knowledge of the 

alleged section 50(a)(6) violations. The district court also concluded, citing 

Wood, that Bynane cannot state an affirmative claim asserting substantive 

rights under section 50(a)(6). See Wood, 505 S.W.3d at 546 (“Specifically, we 

hold in Garofolo that section 50(a) does not create substantive rights beyond a 

defense to foreclosure of a home-equity lien securing a constitutionally 

noncompliant loan, observing that the terms and conditions in section 50(a)(6) 

‘are not constitutional rights and obligations unto themselves.’” (quoting 

Garofolo v. Ocwen Loan Servicing, L.L.C., 497 S.W.3d 474, 478 (Tex. 2016))). 

Although we generally review the district court’s denial of a motion to amend 

for abuse of discretion, “where the district court’s denial of leave to amend was 

based solely on futility, [we] appl[y] a de novo standard of review ‘identical, in 

practice, to the standard used for reviewing a dismissal under Rule 12(b)(6).’” 

Thomas v. Chevron U.S.A., Inc., 832 F.3d 586, 590 (5th Cir. 2016) (quoting City 

of Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010)). 

Bynane has waived any challenge to the district court’s futility ruling by 

failing to adequately brief the issue. In his opening brief, Bynane’s argument 

amounts to recounting how the change in law—i.e., the statute of limitations 

ruling in Wood—should allow him to now bring “any good faith 

claims . . . under section 50(a)(6).” But the district court did not deny leave to 

amend because it disagreed with Bynane’s characterization of the change in 

law; instead, it denied leave to amend because it found that the proposed 

amended complaint would be futile. Bynane does not engage at all with the 

district court’s reasoning for why his proposed amended complaint would be

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futile, and indeed, he advances no arguments for why his proposed claims have 

any merit.11 Accordingly, Bynane has waived his argument that the district 

court erred in denying his motion to amend. See Test Masters Educ. Servs., 

Inc. v. Robin Singh Educ. Servs., Inc., 799 F.3d 437, 450 (5th Cir. 2015) (“On 

appeal, Singh makes a conclusory argument without addressing any aspects of 

the district court’s opinion. He has therefore waived review of this 

argument.”). 

VI. CONCLUSION 

For the foregoing reasons, we AFFIRM the judgment of the district court. 

 

11 Bynane’s reply brief similarly does not discuss the merits of his proposed claims.

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