# United States Court **of Appeals** 

**f or the Fifth Circuit** 

No. 20

- 50944

**MTGLQ Investors, L.P.,**

Plaintiff

— Appellee

**,**

versus

**Jerry K. Walden, Jr.,** also known as **Jerry K. Walden;**

**Tamatha Walden,**

Defendants

— Appellants

**.**

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:19

- CV

- 992

Before **Jolly, Elrod,** and **Graves,** Circuit Judges

**.**

**Per Curiam :**  *

We **WITHDRAW** the court’s prior opinion in this case and

substitute the following. The petition for panel rehearing is **DENIED**

. Appellants’ motion to v acate f inal j udgment and r ender d ismissal d ue t o

m ootness is also **DENIED**

. As a general matter, t he mid

- litigation

* Pursuant to **5th Cir cuit**  **R ule**  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opinion should not be published and is not precedent except under the limited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 cuit**  **R ule**  47.5.4. United States Court of Appeals

Fifth Circuit 

### FILED

October 19, 2021

Lyle W. Cayce

Clerk Case: 20-50944 Document: 00516059811 Page: 1 Date Filed: 10/19/2021No. 20

- 50944

2 assignment of an interest neither renders a case or controversy moot nor

requires the assignee to substitute as a party

. See F.D.I.C. v. SLE, Inc. , 722

F.3d 264, 267

– 68 (5th Cir. 2013); TOC Retail, Inc. v. Gulf Coast Oil Co. of

Miss

. , Inc.

, No. 97

- 30969, 1999 WL 197149 , at *12 (5th Cir. Mar. 25, 1999);

**Fed. R. Civ. P.** 25(c); **F ed**  **. R. A pp**  **. P.** 43(b).

* * *

Jerry and Tamatha Walden appeal the district court’s grant of

MTGL Q Investors’ s motion for summary judgment. Because we hold that

the district court did not err in its determination , we **AFFIRM**

**.**

The Waldens argue that the district court erred in granting MTGLQ’s

motion for summary judgment because they had not had an opportunity to

conduct discovery. However, t he Waldens did not provide enough specific,

factual information in response to MTGLQ’s motion for s ummary judgment

to justify delaying consideration of the motion or denying the motion in order

to allow discovery per Federal Rule of Civil Procedure 56(d). “[N]on

moving parties requesting Rule 56(d) relief ‘may not simply rely on vague

assertions that a dditional discovery will produce needed, but unspecified,

facts.’” Am. Fam. Life Assur ance Co. of Columbus v. Biles , 714 F.3d 887 , 894

(5th Cir. 2013) (quoting Raby v. Livingston , 600 F.3d 552, 561 (5th Cir. 2010) )

.

We therefore reject this argument.

In addition

, the Waldens assert that the district court erred in granting

the motion for summary judgment because MTGLQ was simultaneously

pursuing an expedited order for foreclosure in state court. But this argument

fails because a state

- court action for foreclosure under Texas Rule of Civil

Procedure 736 is not a parallel proceeding

. It “has no res judicata, collateral

estoppel, estoppel by judgment, or other effect in any other judicial

proceeding.” Tex. R. Civ. P. 736.9 ; accord Burciaga v. Deutsche B ank Nat ’ l

Tr. Co.

, 871 F.3d 380

, 387 (5th Cir. 2017) ( noting that Texas law states that a Case: 20-50944 Document: 00516059811 Page: 2 Date Filed: 10/19/2021No. 20

- 50944

3 Rule 736 action has no preclusive effect and is subject to “collateral attack”

in other courts )

.

Furthermore, even if MTGLQ did simultaneously pursue both

judicial and nonjudicial foreclosure

— namely, by seeking both forms of relief

in both its Third Amended Petition in the Rule 736 proceeding and its

federal

- court complaint

— the Waldens forfeited any objection by failing to

ple ad election of remedies as an affirmative defense in federal court. See

Medina v. Herrera

, 927 S.W.2d 597, 600 (Tex. 1996) (“The doctrine of

‘election of remedies’ is an affirmative defense

. . . .”); NewCSI, Inc. v.

Staffing 360 Sols

. , Inc.

, 865 F.3d 251, 259 (5th Cir. 2017) (stating that

affirmative defenses are forfeited when not raised in responsive pleadings in

district court).

Finally

, t he Waldens argue that the district court improperly admitted

testimony from M TG LQ’s representative

. This argument is forfeited

because they failed to raise this argument to the district court. We will not

consider arguments that are raised for the first time on appeal a nd will only

consider arguments which have been presented to the district court.

Hardman v. Colvin

, 820 F.3d 142, 152 (5th Cir. 2016)

.

* * *

Because we conclude that the district court did not err in granting

MTGLQ’s motion for summary judgment

, we **AFFIRM.** Case: 20-50944 Document: 00516059811 Page: 3 Date Filed: 10/19/2021