IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50815

Summary Calendar

CAROL L. REEVES,

Plaintiff - Appellant

v.

WELLS FARGO HOME MORTGAGE, also known as Kimberly Biery;

WELLS FARGO BANK NATIONAL ASSOCIATION, also known as Scott

Holzemiester; BARRETT FRAPIER DAFFIN TURNER & ENGEL, LIMITED

LIABILITY CORPORATION; BARRETT DAFFIN FRAPPIER TURNER &

ENGEL; MERS, (Mortgage Electronic Registration System),

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:10-CV-240

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Carol Reeves argues that Wells Fargo Home Mortgage and Wells Fargo

Bank National Association (collectively “Wells Fargo”) wrongfully initiated

foreclosure proceedings after she defaulted on her loan, because they did not own

United States Court of Appeals

Fifth Circuit

F I L E D

November 8, 2013

Lyle W. Cayce

Clerk

* 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.

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the promissory note securing the mortgage. Because we find that Reeves did not

establish a genuine issue of material fact as to the note’s ownership, we AFFIRM

the district court’s grant of summary judgment to Defendants.

FACTS AND PROCEEDINGS

In April 2004, Fern L. Gillespie (“Gillespie”), then known as Fern L.

Stevenson, executed a Deed of Trust and a Promissory Note (the “Note”) on the

property located at 2500 Penwood Drive, El Paso, Texas (the “property”). The

Note identified the lender as “PlainsCapital McAfee Mortgage Company and its

successors and assigns.” Gillespie promised to pay the principal sum of $62,583,

plus interest, to PlainsCapital. The loan was secured by the Deed of Trust,

transferring interest in the property to Carl W. Odom, the named trustee. The

Deed of Trust identified the beneficiary as “Mortgage Electronic Registration

Systems, Inc. (‘MERS’), (solely as nominee for Lender, as hereinafter defined,

and Lender’s successors and assigns).” “Lender” is identified as “PlainsCapital

McAfee Mortgage Company.” 

There are two undated signature stamps on the last page of the Note as

it appears in the record. One stamp reads: “Pay to the order of Wells Fargo

Bank, N.A. Without Recourse PlainsCapital McAfee Mortgage Company, Kelly

Summers, Assistant Secretary.” The other states: “Without Recourse Pay to the

Order of Wells Fargo Bank, N.A. By Amy Sharp, Vice President, Loan

Documentation.” The stamps bear the signatures of Summers and Sharp,

respectively. In an affidavit submitted to the district court, Michael Dolan, an

operations analyst for Wells Fargo Bank, stated that PlainsCapital endorsed the

note to Wells Fargo on July 29, 2004, without recourse, and that “Wells Fargo

has been the owner and holder of the Note since July 29, 2004.” Dolan also

stated: “Under the Deed of Trust, MERS remained a beneficiary of record as

‘nominee for Lender and Lender’s successors and assigns;’ therefore, MERS

became the nominee for Wells Fargo once the Note was transferred to Wells

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Fargo.” Gillespie began making monthly payments on the Note to Wells Fargo

in August 2004. 

In 2007, Gillespie moved out of state, sold the property to her daughter,

Carol Reeves, and filed a quitclaim deed conveying her interest in the property

to Reeves. Reeves was unable to replace Gillespie as the named borrower on the

Note and the Deed of Trust, but she did make payments on the Note. Reeves

made her last payment on October 29, 2009 to cover the month of November

2009. She and Gillespie had “becom[e] concerned about who in fact owned the

Note and Mortgage” and they began corresponding with Wells Fargo in an

attempt to obtain more information. 

On February 7, 2010, Wells Fargo notified Gillespie that her mortgage was

in default, with $2,048.67 in past due payments, and that it intended to

accelerate the Note if Gillespie failed to cure the default by March 9, 2010. 

Reeves wrote to Wells Fargo on March 8, 2010, alleging that the mortgage was

“fraudulent due to predatory lending practices.” MERS then executed a

document entitled “Assignment of Note and Deed of Trust,” naming Wells Fargo

as the assignee and providing that it would be effective on March 31, 2010. The

notarized assignment indicated that the “Holder of the Note and Deed of Trust

transferred and assigned each to Assignee, and warranted that the lien was

valid against the property in the priority indicated.” The notarized assignment

was signed on behalf of MERS on June 9, 2010 by Stephen C. Porter, identified

as an “Assistant Secretary.” 

On April 30, 2010, Wells Fargo, through their counsel Barrett Daffin

Frappier Turner & Engel, LLP (“BDFTE”), notified Gillespie that the Note had

been accelerated and the property would be posted for foreclosure sale on July

6, 2010. On May 10, 2010, Wells Fargo’s counsel sent Gillespie a copy of the

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Note and Deed of Trust with the stamped endorsements.1In June 2010,

Gillespie and Reeves filed to suit to halt the foreclosure. On July 2, 2010, the

district court denied their request for a temporary restraining order and

preliminary injunction; this court affirmed that decision on June 27, 2011.

Reeves v. Wells Fargo Home Mortg., 431 F. App’x 304 (5th Cir. 2011)

(unpublished). Reeves filed an amended complaint in July 2011. On May 11,

2012, the district court granted Wells Fargo and MERS’s (“Defendants”) motion

for summary judgment, dismissing Reeves’s claims for declaratory relief,

wrongful acceleration, wrongful foreclosure, fraud, and intentional infliction of

emotional distress.2

On March 5, 2012, MERS executed a document entitled “Corporate

Assignment of Deed of Trust,” which assigned to Wells Fargo MERS’s “beneficial

interest under the Deed of Trust.” The document was signed by Deborah

Humphrey, identified as an Assistant Secretary. Reeves filed a motion for

reconsideration under Federal Rule of Civil Procedure 59(e), based in part on:

the 2012 assignment; an online list of MERS’s corporate officers which did not

include Stephen Porter, as well as a website listing Porter as a partner of

BDFTE; and a copy of the Note allegedly sent to Gillespie by Wells Fargo in 2010

which did not contain the stamped endorsements. The district court denied

1 An attorney named Terrance Swanson wrote to Wells Fargo on June 29, 2010,

regarding Gillespie’s visit to his office. Swanson stated that Gillespie and Reeves “have been

reading a book about mortgage scams” and “the book itself . . . are scam-meisters themselves.” 

Swanson requested that Wells Fargo “give [Gillespie and Reeves] a step-by-step procedure”

to “bring [the loan] current,” because Gillespie’s “property in Texas is worth more than she

owes so it does not seem needful for her to play games or look for some bureaucratic misstep.” 

In reply, Wells Fargo noted that Gillespie had not authorized it to release loan information

to Swanson and gave the number of its loss mitigation department.

2 The district court also granted additional defendant BDFTE’s motion to dismiss.

Reeves did not allege claims against BDFTE in her first amended complaint, and on appeal

she states that no claims against the law firm “had been asserted.” She has thus waived any

claims against BDFTE. See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744,

748 (5th Cir. 1987).

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Reeves’s Rule 59 motion on July 30, 2012. The district court found that the

websites relating to Porter and the Note sent to Gillespie in 2010 did not qualify

as “newly discovered” evidence. The district court treated the 2012 assignment

as newly discovered evidence, but found that it did “not call into question the

dismissal of Reeves’s claim for wrongful acceleration” because it “at best, allows

one to speculate something suspicious happened with the Deed [of Trust] . . .

[Reeves’s] evidence about the Deed does not buttress her wrongful acceleration

claim focused on the Note, and Reeves has no other evidence to suggest that

anything suspicious occurred with the Note.” 

STANDARD OF REVIEW

“We review a grant of summary judgment de novo, applying the same

standard as the district court.” Haverda v. Hays Cnty., 723 F.3d 586, 591 (5th

Cir. 2013). Summary judgment is proper “if 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). 

The standard of review of a motion for reconsideration “is dependent on

whether the district court considered the materials attached to . . . the motion,

which were not previously provided to the court.” Templet v. HydroChem Inc.,

367 F.3d 473, 477 (5th Cir. 2004). If materials attached to a motion for

reconsideration are “considered by the district court, and the district court still

grants summary judgment, the appropriate appellate standard of review is de

novo.” Id. If the district court refuses to consider such materials, we review for

abuse of discretion. Id.

DISCUSSION

I. Standing

Defendants argue that Reeves does not have standing to sue because she

“is not a party to the loan in dispute” and thus there is “no real controversy

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between her and” Defendants.3 Defendants cite Goswami v. Metro Savings &

Loan Association for the proposition that “[a]s a general rule, only the mortgagor

or a party who is in privity with the mortgagor has standing to contest the

validity of a foreclosure sale pursuant to the mortgagor’s deed of trust.” 751

S.W.2d 487, 489 (Tex. 1988).4 While the Texas Supreme Court in Goswami

acknowledged that rule, it also noted an exception: “[W]hen the third party has

a property interest, whether legal or equitable, that will be affected by such a

sale, the third party has standing to challenge such a sale to the extent that its

rights will be affected by the sale.” Id. Reeves acquired Gillespie’s interest in

the property via a recorded quit-claim deed, and she made payments on the Note

from 2007 to 2009. Reeves’s interest in the property is sufficient to challenge the

validity of Defendants’ authority to foreclose. See Long v. NCNB–Texas Nat’l

Bank, 882 S.W.2d 861, 867 (Tex. App.–Corpus Christi 1994, no writ) (a plaintiff

“need only have established a property interest in the deed of trust realty to

impute a flaw” in the sale).5

II. Summary Judgment

Reeves’s only claim on appeal, wrongful acceleration, is premised on her

contention that Wells Fargo did not own the Note and the Deed of Trust on her

3 Contrary to Reeves’s contention, Defendants did make this argument before the

district court.

4Defendants also cite Martinez v. JPMorgan Chase Bank, N.A., but that case addressed

only whether a party not in privity with the mortgagor is entitled to notice of a foreclosure, not

whether such a party can challenge the mortgagee’s authority to foreclose. No. SA-9-CV-675-

XR, 2010 WL 1780351, at *2 (W.D. Tex. May 3, 2010).

5 Defendants also argue that even if Reeves has standing to challenge the Note and

Deed of Trust, she does not have standing to challenge the assignment because she was not

a party to it. We have recently held, however, that under Texas law a homeowner has

standing to challenge the assignment of a mortgage as void. Reinagel v. Deutsche Bank Nat’l

Trust Co., 722 F.3d 700, 705 (5th Cir. 2013) (allowing homeowners’ claim to proceed where

they were “not attempting to enforce the terms of the instruments of assignment” but rather

“urg[ing] that the assignments [were] void ab initio.”).

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residence when it began the foreclosure process, and the acceleration was

therefore invalid.6 A “party seeking to foreclose must have the right to enforce

the debt it seeks to satisfy.” Reinagel v. Deutsche Bank Nat’l Trust Co., 722 F.3d

700, 706 (5th Cir. 2013). 

Reeves argues that there is no “documentary proof of transfer of” the note

from PlainsCapital to Wells Fargo before Wells Fargo began foreclosure

proceedings in 2010. Specifically, she objects to the district court’s consideration

of Dolan’s affidavit, which states that the Note was endorsed to Wells Fargo in

2004, because Dolan lacked personal knowledge of that transaction. Federal

Rule of Civil Procedure 56(c)(4) provides that, on summary judgment, an

affidavit “must be made on personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant . . . is competent to testify on

the matters stated.” 

Reeves did not object to the admission of Dolan’s affidavit before the

district court. In fact, Reeves stated in her Rule 59 motion that “Mr. Dolan’s

affidavit introducing documents may be admissible.” The admissibility of

evidence at summary judgment “is subject to the same standards and rules that

govern the admissibility of evidence at trial.” Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 650 n.3 (5th Cir. 1992). “An affidavit that does

not measure up to the standards of” Rule 56 “is subject to a timely motion to

strike. In the absence of this motion or other objection, formal defects in the

affidavit ordinarily are waived.” Auto Drive-Away Co. of Hialeah v. Interstate

Commerce Comm’n, 360 F.2d 446, 448–49 (5th Cir. 1966); see also Munoz v. Int’l

Alliance of Theatrical Stage Employees & Moving Picture Mach. Operators, 563

6 Because Reeves has not briefed her claims for declaratory relief, wrongful foreclosure,

fraud, and intentional infliction of emotional distress, she has waived those claims. See

Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

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F.2d 205, 214 (5th Cir. 1977) (“Inadmissible material that is considered by a

district court without challenge may support a summary judgment. Here there

was no timely objection and it is deemed waived.”).

Regardless of whether Reeves waived her objection toDolan’s affidavit,the

district court did not err in considering it. In Resolution Trust Corp. v. Camp,

we considered a grant of summary judgment based in part on affidavits from

employees of the defendants who “had personal knowledge that RTC took over

the assets of the failed institutions, [but]they had no precise personal knowledge

of this particular note.” 965 F.2d 25, 29–30 (5th Cir. 1992). We concluded that

to exclude the affidavits would establish “a standard so strict that summary

judgment would be all but impossible.” Id. at 29; see also Diamond Offshore Co.

v. A&B Builders, Inc., 302 F.3d 531, 545 (5th Cir. 2002), overruled on other

grounds by Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778 (5th

Cir. 2009) (finding no abuse of discretion where the district court admitted

affidavits wherein the affiant stated that he was the director of claims for the

defendant, that he “had ‘personal knowledge of the facts stated’ therein, and that

he had access to and had reviewed [the defendant’s] records as they pertain to

information contained in the affidavits.”).

Reeves does not contest that she and Gillespie began payments to Wells

Fargo on the Note in August 2004, directly after Wells Fargo alleges it took over

the Note, and continued to make payments to Wells Fargo until 2009. In

addition, Wells Fargo provided a copy of the Note with stamped endorsements

that it sent to Reeves in May 2010, and Reeves did not challenge this evidence

at summary judgment. In the face of this evidence, Reeves failed to show a

genuine issue of material fact as to whether Wells Fargo owned the Note before

it began foreclosure proceedings. Ownership of the Note was sufficient to allow

Wells Fargo to foreclose. See Gilbreath v. White, 903 S.W.2d 851, 854 (Tex. App.

1995) (“the collateral follows the promissory note obligation”); Lawson v. Gibbs,

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591 S.W.2d 292, 294 (Tex. App.–Houston [14th Dist.] 1979, writ ref’d n.r.e.); Tex.

Bus. & Com. Code § 9.203(g); id. cmt. 9 (“Subsection (g) codifies the common-law

rule that a transfer of an obligation secured by a security interest or other lien

on personal or real property also transfers the security interest or lien.”); see also

Kiggundu v. Mortgage Elec. Registration Sys. Inc., 469 F. App’x 330, 331–32 (5th

Cir.) (unpublished), cert. denied, 133 S. Ct. 210 (2012) (noting that “under Texas

law, the mortgage follows the note” and it is “sufficient for the [lender] to

establish that it was in possession of the note; it was not required to show that

the deed of trust had been assigned to it.”).

III. Motion for Reconsideration

A Rule 59(e) motion “calls into question the correctness of a judgment,”

and “serves the narrow purpose of allowing a party to correct manifest errors of

law or fact or to present newly discovered evidence.” Templet, 367 F.3d at

478–79. Reeves attached three pieces of evidence to her motion for

reconsideration: websites listing Porter as a partner at a law firm rather than

a corporate officer of MERS; a copy of the Note which she alleges Wells Fargo

sent to her and Gillespie in 2010 without the stamped endorsements; and the

2012 assignment. 

Reeves did not allege fraud in connection with Porter’s signature on the

2010 assignment in her response to Defendants’ motion for summary judgment,

but did discuss the issue—without attaching the relevant websites—in her

second “Amended Complaint” filed on the same day as the response, March 9,

2012. The district court did not consider the issue in its order granting summary

judgment. An “unexcused failure to present evidence available at the time of

summary judgment provides a valid basis for denying a subsequent motion for

reconsideration.” Templet, 367 F.3d at 479. But even assuming Porter was not

an officer of MERS, his “lack of authority . . . does not furnish [Reeves] with a

basis to challenge” the 2010 assignment. See Reinagel, 722 F.3d at 707. This is

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so because 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”—here, MERS. Id. at 706 (citing Nobles v. Marcus, 533

S.W.2d 923 (Tex. 1976)). And an obligor such as Reeves or Gillespie “may not

defend [against an assignee’s effort to enforce the obligation] on any ground

which renders the assignment voidable only.” Id. at 706–07. Instead, “under

Texas law, facially valid assignments cannot be challenged for want of authority

except by the defrauded assignor.” Id. at 709.

The district court did not abuse its discretion in not treating as newly

discovered the copy of the unendorsed Note, as Reeves alleges that she received

it in January 2010, before litigation began. See Templet, 367 F.3d at 479

(finding no abuse of discretion where “the underlying facts were well within the

[plaintiffs’] knowledge prior to the district court’s entry of judgment.”). 

By contrast, the district court properly treated the 2012 assignment of the

Deed of Trust from MERS to Wells Fargo as newly discovered, but concluded it

did not affect the 2004 endorsement of the Note from PlainsCapital to Wells

Fargo. The 2012 assignment conveyed MERS’s “beneficial interest under the

Deed of Trust” to Wells Fargo. It did not address the Note. MERS’s 2012

assignment of the Deed of Trust may arguably be superfluous if the 2010

assignment of both the Note and Deed of Trust was valid. Nonetheless, we have

not previously treated two successive and potentially overlapping assignments

as necessarily suspicious. See Reinagel,722 F.3d at 706 (noting that where a

first assignment was “sufficient to give [the defendant] authority to foreclose .

. . the validity of the second assignment is irrelevant.”). 

Further, Reeves has failed to “point[] to evidence in the record [showing]

. . . that [she] had a legitimate fear that [Wells Fargo] was not the owner and

holder of the note in question and that some other entity,” such as MERS or

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PlainsCapital, “might later approach [her] demanding payment.” Resolution

Trust Corp., 965 F.2d at 30. In other words, she did not“point[] to anything in

the record to indicate . . . any legitimate fear that any entity other than [the

defendant] is owner and holder of the note.” Id.; see also Reinagel, 722 F.3d at

711 (Graves, J., concurring) (where plaintiffs “admit they made their payments

to [Defendants] . . . there is no indication that [plaintiffs] were confused as to

which lender to pay, or that a significant possibility exists of [the original lender]

attempting to collect on the note.”). The district court did not err in granting

summary judgment after considering the 2012 assignment. See Templet, 367

F.3d at 477. 

CONCLUSION

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

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