IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10474

Summary Calendar

DARRYL J. BERRY; ROSALINDA BERRY, 

 Plaintiffs - Appellants Cross-Appellees

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION; IBM LENDER 

BUSINESS PROCESS SERVICES, INCORPORATED, 

 Defendants - Appellees Cross-Appellants

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 3:11-CV-1288

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

In this real estate foreclosure case, plaintiffs-appellants Darryl and 

Rosalinda Berry (collectively, the “Berrys”) challenge the district court’s grant 

of summary judgment in favor of the defendants-appellees (collectively, the 

“Lenders”).1 For the reasons below, we AFFIRM.

* 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.

1 Though the caption lists “IBM Lender Business Process Services, Inc.” as a 

defendant, Lender Business Process Services, Inc. (“LBPS”) voluntarily identified itself as 

the proper co-defendant in the notice of removal. 

United States Court of Appeals

Fifth Circuit

FILED

April 17, 2015

Lyle W. Cayce

Clerk

 

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No. 14-10474

FACTS AND PROCEEDINGS

A. Mortgage and Foreclosure 

The Berrys purchased property in Dallas, Texas, and executed the 

related note and deed of trust in November 2007. The note was payable to CTX 

Mortgage Company and the Deed of Trust listed CTX as the lender. The Deed 

of Trust was later assigned to Fannie Mae. Chase Home Finance, LLC 

(“Chase”) became the mortgage servicer. In 2009, after these assignments, the 

Berrys discovered that they were in default, despite their claim that they had 

not missed any payments. Chase subsequently confirmed that four of the 

Berrys’ money orders had not been processed because they were “not legible,” 

and the Berrys were in default. 

The Berrys attempted to pay the arrears but underpaid because they did 

not factor in the fees and penalties assessed by Chase. After speaking with 

Chase about a loan modification, the Berrys signed a Trial Payment Plan 

(“TPP”). Chase did not sign the TPP and never confirmed that the Berrys had 

been accepted into the loan modification program.2 The Berrys’ mortgage was 

transferred to a new lender, IBM Lender Business Process Services, Inc.

(“LBPS”) before the TPP was approved or denied by Chase. The Berrys applied 

for a loan modification with LBPS and were told it would be processed. It never 

was. Instead, the Berrys received a foreclosure notice. 

B. District Court Proceedings 

The Berrys filed a complaint in the County Court of Dallas County on 

June 6, 2011. They alleged, inter alia, that the Lenders intentionally misled 

them, improperly accounted for their payments, violated the Texas Debt 

Collection Practices Act (“TDCA”), and breached their duty of good faith and 

2 The Berrys allege that, when they asked Chase about the status of the modification,

they were simply told that the documents were “not ready,” suggesting, to them, that they 

had reason to believe they would be approved for the modification. 

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fair dealing. The Lenders removed to the United States District Court for the 

Northern District of Texas and filed a counterclaim, alleging breach of 

contract, suit on the note, and seeking attorneys’ fees. The Lenders filed a 

motion for summary judgment on July 16, 2012, which the district court 

granted in-part as to the Berrys’ claims on March 29, 2013. But, the district 

court denied the Lenders’ counterclaims. The Lenders filed a second motion 

for summary judgment on May 3, 2013, to which they attached evidence

showing that Fannie Mae was the holder and owner of the note. The court 

granted the second motion for summary judgment on March 13, 2014. The 

Berrys filed a timely appeal. 

DISCUSSION

A. The TPP Contract

The Berrys challenge the district court’s holding that the TPP was not a 

binding contract because Chase never signed it. This court has previously held 

that if a “TPP expressly requires that before the contract is final, the lender 

must send a signed copy to the borrower,” a contract is not created when the 

borrower signs the TPP and begins to perform. Pennington v. HSBC Bank 

USA, N.A., 493 F. App’x 548, at 554 (5th Cir. 2012). 

Here, the TPP states:

I understand that after I sign and return one copy of this Plan to 

the Lender, the Lender will send me a signed copy of this Plan if I 

qualify for the Offer or will send me written notice that I do not 

qualify for the Offer. This Plan will not take effect unless and 

until both the Lender and I sign it and Lender provides me 

with a copy of this Plan with the Lender's signature. 

There is no evidence in the record that the Berrys ever received a fully executed 

copy of the TPP from Chase. The only copy of the TPP in the record contains 

Darryl Berry’s signature and a blank signature line for Chase. Contrary to 

the Berrys’ argument, the acknowledgement letter from Chase confirming 

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receipt of the Berrys’ TPP application shows that Chase did not intend to be 

bound by the TPP until it returned a signed copy of the agreement. There is, 

therefore, no genuine issue of material fact as to whether the parties entered 

a binding TPP contract. We affirm the district court. 

B. The Texas Debt Collection Act

The Berrys also allege that there is a genuine issue of material fact 

concerning the Lenders’ alleged breach of the TDCA. The Berrys cite four 

sections of the Act, Tex. Fin. Code §§ 392.301(a)(8), 392.302(a)(2), and 

392.304(a)(8) & (19). The Berrys do not, however, offer any evidence or citation 

to the record in support of their position that there is an issue of material fact 

as to §§ 392.301(a)(8), 392.302(a)(2). As to § 392.304(a)(8) & (19), the Berrys 

first allege that the TPP was a binding contract. For the reasons explained 

above, this is not a genuine issue of material fact, supra. 

The Berrys also allege that there was a genuine issue of material fact 

concerning whether the Lenders acted fraudulently by sending the Berrys a 

“Notice of Defaulted Mortgage” on May 8, 2009, stating they owed $3,668.70,

and then a “Mortgage Loan Statement” the next day, on May 9, stating that 

they owed $4,289.62. The mere existence of these two documents, however, 

does not demonstrate fraud or deceptive means as required under the TDCA. 

First, the Berrys offer no evidence that these documents are meant to convey 

the same information. They assume that the documents are referencing the 

same debt or amount owed. But, in any given account or mortgage there will

be more than one amount owed. What is owed as a minimum payment and 

what is owed to eliminate an arrearage, for example, are two different things. 

The fact that the documents have different names further suggests that they 

serve distinct purposes. In sum, even drawing all reasonable inferences in 

favor of the Berrys, there is no genuine issue whether the Lenders used fraud 

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or deceit in violation of the TDCA. Hence, we affirm the district court’s grant 

of summary judgment concerning the Lenders alleged violation of the TDCA. 

C. The Request for an Accounting and Declaratory Judgment and the Grant 

of Lender’s Counterclaim

The Berrys’ other issues are not sufficiently briefed. The Berrys offer no 

law or analysis in support of these issues, and thus, they are not properly 

before this court. Fed. R. App. P. 28(a)(8) requires that the argument section 

of an appellant’s brief contain the “appellant’s contentions and the reasons for 

them, with citations to the authorities and parts of the record on which the 

appellant relies.” Under this rule, the Berrys’ pleadings regarding their 

request for an accounting and the Lenders’ counterclaim are not sufficient to 

raise a claim. 

CONCLUSION

The judgment of dismissal is AFFIRMED. 

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