IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20541

Summary Calendar 

MICHAEL A. MALDONADO, 

 Plaintiff - Appellant 

v. 

CITIMORTGAGE, INCORPORATED, 

 Defendant - Appellee 

Appeal from the United States District Court

for the Southern District of Texas 

USDC No. 4:15-CV-120

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges. 

PER CURIAM:*

Michael Maldonado sought a declaratory judgment against 

CitiMortgage, Inc., claiming the instruments securing the lien on his property 

were invalid. CitiMortgage counterclaimed for judicial foreclosure and moved 

 

* 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

Fif h Circuit

FILED

January 23, 2017

Lyle W. Cayce

Clerk

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for summary judgment. The district court entered judgment for CitiMortgage. 

We AFFIRM. 

FACTUAL AND PROCEDURAL BACKGROUND 

In 2006, Michael Maldonado borrowed $292,000 under a Home Equity 

Note to finance the purchase of a home in Houston, Texas. The principal 

amount was secured by a mortgage on the property under a Texas Home 

Equity Security Instrument. The loan was originally serviced by ABN AMRO 

Mortgage Group, Inc. CitiMortgage obtained the loan after its merger with 

ABN AMRO. 

Since the execution of the loan agreement, CitiMortgage claims that 

Maldonado has “repeatedly fail[ed] to make payments under the Loan” and has 

“delay[ed] foreclosure by requesting modifications and forbearance 

agreements.” Between 2009 and 2014, Maldonado received six written notices 

of default, but he never sought to bring the loan current. Maldonado last made 

a payment in May 2011, and the loan is currently in default. 

In December 2014, Maldonado sued CitiMortgage in what the district 

court characterized as “an attempt to stop CitiMortgage’s foreclosure on the 

Property after he defaulted on his loan.” CitiMortgage removed the case to 

federal court, counterclaimed for judicial foreclosure of the property, and 

moved for summary judgment on each of Maldonado’s claims. The district 

court granted CitiMortgage’s motion and its counterclaim for judicial 

foreclosure. The final judgment reflects that the outstanding balance on the 

loan is $533,960.80. That sum consists of the outstanding principal, accrued 

and unpaid interest, escrow advances, and late charges and fees. 

Shortly thereafter, Maldonado filed a motion to alter or amend the 

district court’s judgment. He argued the district court erroneously calculated 

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his outstanding balance by relying on incompetent summary-judgment 

evidence. The district court summarily denied Maldonado’s motion. 

Maldonado filed a timely notice of appeal. 

DISCUSSION 

Maldonado disputes the various amounts the district court used to 

calculate his outstanding balance. He attempts to create a fact issue by 

claiming that he “pointed to evidence” demonstrating the inaccuracies upon 

which the district court relied.

We review de novo the district court’s grant of summary judgment. 

Trinity Universal Ins. Co. v. Emp’rs Mut. Cas. Co., 592 F.3d 687, 690 (5th Cir. 

2010). Summary judgment is proper when “the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.” FED. R. CIV. P. 56(a). “Factual controversies are construed 

in the light most favorable to the nonmovant, but only if both parties have 

introduced evidence showing that an actual controversy exists.” Lynch Props., 

Inc. v. Potomac Ins. Co. of Illinois, 140 F.3d 622, 625 (5th Cir. 1998). To do so, 

the nonmovant must “support [his] allegations with admissible evidence.” 

Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 192 (5th Cir. 1990). 

Conclusory assertions are not enough. See Wheat v. Florida Par. Juvenile 

Justice Comm’n, 811 F.3d 702, 707 (5th Cir. 2016). Further, the nonmovant 

must designate specific facts; we will not search the entire record on his behalf 

for evidence that may create a fact issue. Nissho-Iwai Am. Corp. v. Kline, 845 

F.2d 1300, 1307 (5th Cir. 1988). 

Under Texas law, the holder of a negotiable instrument is entitled to 

enforce it. TEX. BUS. & COM. CODE ANN. § 3.301. A holder is “the person in 

possession of a negotiable instrument that is payable either to bearer or to an 

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identified person that is the person in possession.” Id. § 1.201(b)(21)(A). 

Although ABN AMRO initially serviced the loan, the parties agreed that 

CitiMortgage became the holder of the note after its merger with ABN AMRO. 

Thus, CitiMortgage may enforce the note. 

The court may order judicial foreclosure upon proof “establishing the 

debt and fixing the lien.” Bonilla v. Roberson, 918 S.W.2d 17, 21 (Tex. App.—

Corpus Christi 1996, no writ); see also TEX. R. CIV. P. 309. To recover, a movant 

must prove a financial obligation and the lien securing it, a default on the loan, 

and that the property subject to foreclosure is the same property subject to the 

lien. See Rinard v. Bank of Am., 349 S.W.3d 148, 152 (Tex. App.—El Paso 

2011, no pet.). CitiMortgage established each of the required elements for 

judicial foreclosure by competent summary-judgment evidence. Michael 

Maldonado signed a Texas Home Equity Note for $292,000, secured by a 

mortgage on the property that is now subject to foreclosure. The parties 

stipulated that the loan is currently in default. 

The only remaining question, then, is the outstanding balance owed 

under the loan agreement. In its motion for summary judgment, CitiMortgage 

argued the outstanding balance was $533,960.80. That figure was adopted by 

the district court. In support, CitiMortgage offered the affidavit of Cindy 

Schneider, who testified, as the custodian of records, that CitiMortgage’s figure 

was the sum of the outstanding principal balance, accrued and unpaid interest, 

and late charges and fees. CitiMortgage also offered documentary evidence of 

the amount owed, including a comprehensive record of Maldonado’s account. 

In response, Maldonado “dispute[d] some of the numbers that 

CitiMortgage . . . included in [its] motion for summary judgment to determine 

the value of the debt on judicial foreclosure.” Specifically, he disputed the 

amounts that CitiMortgage claimed in attorneys’ fees, inspection fees, escrow, 

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taxes, and late charges. Maldonado’s response does not provide any evidence 

of what the correct amounts should be. He does not offer affidavits, 

depositions, or other documentation to create an issue of fact.1 Instead, he 

relies on a policy argument, claiming that “Texas law favors protection of the 

homestead,” so CitiMortgage’s motion should be denied because the amounts 

to be paid are in dispute. That is not a valid response to the evidence and law 

supporting foreclosure. 

The district court did not err by granting CitiMortgage’s motion for 

summary judgment. 

 AFFIRMED. 

 

1 Maldonado offers the affidavit of his attorney, Ricardo Guerra, who testified as to 

the appropriate amount of attorneys’ fees that CitiMortgage should be claiming. Guerra 

never mentioned the amounts associated with the underlying transaction, which are the only 

amounts disputed here.

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