### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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: * C a rol R eeves argues t hat Wells Fargo Home Mortgage and Wells Farg o B a nk National Association (collectively “Wells Fargo”) w rongfully initiated foreclosure proceedings after she d efaulted o n her l oan, b ecause they did not own U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Nov em ber 8, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-50815 Document: 00512435508 Page: 1 Date Filed: 11/08/2013No. 12-50815

the promissory note securing the mortgage. Because we find that R eeves did not establish a genuine issue of material fact as to the note’s o wnership, we AFFIRM the district court’s grant of summary judgment to Defendants. FACTS AND PROCEEDINGS In April 2004, Fern L. Gillesp i e (“Gillespie”), then known as Fern L. Stevenson, executed a D eed o f Trust and a Promissory N o te (the “Note”) on the property located at 250 0 P e n w o o d Drive, El Paso, T exas (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 PlainsCap i t a l

. T h e l oan was secured b y the D eed of Trust, transferring interest i n the property to Carl W. Odom, the named trustee. The Deed of Trust identified the beneficiary a s “Mortgage E lectronic R e g i s t r a tion Systems, Inc. (‘MERS’), (solely as nominee for Lender, as he r e i nafter defined, and Lender’s successors and a ssigns).” “Lender” is identified as “PlainsCapital McAfee Mortgage Company.” There are two undated signat u r e s t a m p s on the last page of the Note as it appears in t h e record. O ne stamp reads: “Pay to the order of Wells Fargo Bank, N.A. Without Recourse PlainsCapital M cAfee Mortgage Company, Kelly Summers, Assistant Secretary.” The o ther states: “Without Recourse Pay to the Order of Wells F argo Bank, N.A. By Amy Sharp, Vice P r e sident, Loan Documentation.” The s t a m p s bear the signatures of Summers and Sharp, respectively. In an a ffidavit submitted to the district court, Michael Dolan, an

o perations analyst for Wells Fargo Bank, stated that PlainsCap it al e n d o r s e d th e

n o t e t o Wells F argo on July 29, 2004, without recourse, and t hat “Wells Fargo has been the owner a nd holder o f the Note sin c e J u l y 2 9 , 2004.” Dolan also stated: “Under the D e e d of Trust, MERS remained a beneficiary of r ecord as ‘nomin e e for Lender and Lender’s successors and assigns;’ t herefore, MERS became the nominee for W e lls Fargo once the Note was t r a n s f e rred to Wells

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Fargo.” G illespie began making monthly payments on the Note t o W ells Fargo in August 2004. In 2007, G i llespie moved out of st a te, sold the property to her d aughter, Carol Reeves, and filed a quitclaim deed conveying her i nterest i n the property to Reeves. Reeves was unable to replace Gillespie as the named borrower on the N o t e a n d the Deed of Trust, but she did m ake payments on the N o te. Reeve s made her last payment on October 29, 20 0 9 t o c o v er the month of November 2009. She and Gillespie had “becom[e] concerned about who in fact owned the Note a n d M ortgage” and t hey began corresponding with Wells F argo in an attempt to obtain more information. On February 7 , 2010, Wells Fargo notified G illesp i e th a t h er mortgage was in default, with $2,048.67 in past due payments, and that it i n t ended t o accelerate the Note i f Gilles p i e f ailed to c ure the default by M a rch 9, 2010. Reeves wrote to Wells Fargo on March 8 , 2010, a lleging t hat the mortgage was “fraudulent due to predatory lending practice s . ” MERS then executed a document e ntitled “Assignment of Note and Deed of Trust,” naming Wells Fargo

as the a ssignee and providing that it would b e effective on March 31, 2010. The notarized assignment indicated that the “Holder of the Note a nd Deed of Trust t r a n s ferred and assigned e ach to Assignee, and warranted that the lien wa s valid against the property in t he priority indicated.” The notarized assignment

was signed o n 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, 2 0 1 0

. O n M ay 10, 2010, Wells Fargo’s counsel sent Gillespie a copy of the

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Note a nd Deed of Trust with the s t amped endorsements. 1 I n J une 2010, G i l l e s p i e and Reeves filed to suit to halt the foreclosure. On J uly 2, 2010, t h e district court denied their request f or a temporary r e s t r a i n ing order and preliminary injunction; this court affirmed that d e c i sion on June 27, 2011. Reeves v. Wells Fargo Home Mortg. , 431 F. Ap p ’ x 3 0 4 (5th C ir. 2011) (unpublished). Reeves filed an amended complaint in July 2011. O n M a y 11, 2012, the district court granted Wells Fargo and MERS’s (“Defendants”) motion for summary judgment, dismissing R ee v e s ’ s claims for declaratory relief, wrongful acceleration, w rongful foreclosure, fraud, and intentional infliction of emotional distress. 2 On March 5, 2012, MERS executed a d ocument entitled “Corp o rate Assignment of Deed of T rust,” which assigned to Wells Fargo MERS’s “beneficial interest under the Deed of T r u s t.” The document was s igned b y Deborah Humphrey, ide n t i f

ied as an Assistant Secretary. Reeves filed a motion for

r e c onsideration u nder 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 P o r t e r , a s w ell as a website listing Porter as a partner of BDFTE; and a copy o f the Note allegedly sent t o G illespie by Wells F argo in 2010 which di d not conta i n t he stamped endorsements. The district court denied

1 An a t t o r n e y n am ed Terrance Sw ans on wrote to Wells Fargo on June 29, 2010, regard ing G illes p ie’s vis it to his of f ice. Sw ans on s tated that G illes p ie and Reeves “have been read ing a book about m ortgage s cam s ” and “the book its elf

. . . are scam - m eis ters them s elves

. ” S w a n s on reques ted that Wells Fargo “give [G illes p ie and Reeves ] a s tep

- by- s tep p roced u r e ” to “bring [ th e l o a n ] c u r r ent, ” becaus e G illes p ie’s “p rop erty in Texas is worth m ore than s he ow es s o it d oes not s eem need f ul f or her to p lay gam es or look f or s om e bureaucratic m is s tep

. ” In rep ly, Wells Fargo noted that G illes p ie had not authorized it to releas e loan inf orm ation to Sw ans on andgave the num ber of its los s m itigation d ep artm ent.

2 The d is trict cour t a l s o granted ad d itional d ef end ant B D FTE’s m otion to d is m is s . Reeves d id not allege claim s agains t BD FTE in her firs t am end ed com p laint, and on ap p eal
s he s tates that no claim s agains t the law f irm “had been as serted

. ” She has thus w aived any claim s agains t B D FTE. See Bri nkm a nn v . D a l la s Cnty. D ep uty Sherif f A bner , 813 F. 2d 744, 748 ( 5th C ir. 1987)

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Reeves’s Rule 59 motion on July 30, 2 0 12. The district court found that the websites relating to Porter and the Note sent to Gillespie in 2010 did not qualify

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

as newly discovered e vidence, b u t f o und t hat it did “not c all into question the dismissal of Reeves’s claim f or 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 b uttress h er wrongful acceleration

c l a im focused on the Note, and Reeves has no other evidence to suggest tha t anything suspicious occurred with the Note.” STANDARD OF REVIEW “We review a grant o f summary j u d g m ent de novo, applying the same standard as the district court.” Haverda v . H a y s Cnty. , 723 F.3d 586, 591 (5th Cir. 2013). Summary judgment i s proper “if the m ovant shows t h at there is no genuine dispute as t o any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The standard of r eview of a motion for reconsideration “is d e p e n d e nt on whether the district court considered the materials attached to

. . . the motion, which were not previously provided to the c ourt.” T emplet v. HydroChem Inc. , 367 F.3d 473 , 4 77 (5th Cir. 2004). I f materials attached to a motion for reconsideration are “ c onsidered by the district court, a nd the district court still grants summary judgment, the appropriate ap p e l l a t e s tandard of review is de

novo .” Id. If the district court refuses to consider s uch materials, we r eview for abuse of discretion. Id

. DISCUSSION I. Standing Defendants a rgue that Reeves does not have standing to s ue 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 D e fendants cite Goswami v. Metro Savings & Loan Association for t he p roposition that “[a]s a general rule, only the mortgagor

or a part y w h o i s in privity with the mortgagor has standing to c ontest the validity o f a foreclosure sale pursuant to the mortgagor’s deed of trust.” 751 S.W.2d 487, 489 (Tex. 1988). 4 While the T exas Supreme Court in G o s w a m i acknowledged that rule, it also noted an exception: “[W]hen the third p arty has

a property interest, whether l e g al o r equitable, t hat will be affected by such a sale, the third party has standing to challenge s uch a sale to t he extent that its rights will be affected b y the sale.” Id. Reeves acquired Gillespie’s inte r e s t in the p roperty via a r ecorded quit-claim deed, and she m ade payments on t he Note from 2007 to 2009. R eeves’s interest in the property i s sufficient t o challenge the validity of Def

e n d a n t s ’ authority to foreclose. See Long v . NCNB–Texas Nat’l Bank , 882 S.W.2d 861, 8 67 (Tex. App.–Corpus Christi 1 994, no writ) (a plaintiff “need only have established a property interest i n t h e d eed of trust realty to impute a flaw” in the sale). 5 II. Summary Judgment Reeves’s o nly claim on appeal, wrongful acceleration, is premised on her contention that W e lls Fargo did not own the Note and the Deed of Trust on her

3 Contrary to Reeves ’s contention, D ef end ants d id m ak e this argum ent bef ore the d is trict court.

4 D ef end ants als o cite M

a rti nez v . JPM

orga n Chas e Ba nk, N

. A. , but that cas e ad d res s ed only w hether a p arty not in p rivity w ith the m ortgagor is entitled to notice of a f oreclos ure, not w hether such a p arty can challenge the m ortgagee’s authority to f oreclos e. N o. SA- 9- CV- 675- XR, 2010 WL 1780351, at *2 (W. D

. Tex. M ay 3, 2010)

.

5 D ef end ants als o argue that even if Reeve s h a s s tand ing to challenge the N ote and D eed of Trus t, s he d oes not have s tand ing to challenge the as s ignm ent becaus e s he w as not a p arty to it. We have recently hel d , h o w ever, that und er Texas law a hom eow ner has
s tand ing to challenge the as s ignm ent of a m ortgage as void

. Rei na gel v . D eutsche Ba nk N a t’l Trust Co. , 722 F. 3d 700, 705 ( 5th Cir. 2013) (allow ing hom eow ners ’ claim t o p roceed w here they w ere “not attem pting to enf orce the term s of the ins trum ents of as s ignm ent” but rather “urg[ ing] that the as s ignm ents [ w ere] void ab initio. ”)

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residence when it began the fo r e c l o sure process, and the acceleration was therefore invalid. 6 A “party seeking to foreclose must have the r ight to enforce the debt it seeks to satisfy.” Reinagel v. Deutsche Bank Nat’l T rust Co. , 722 F.3d 700, 706 (5th Cir. 2013). Reeves argues t hat there is no “ documentary proof of transfer o f” the note from PlainsCapital to Wells Fargo before Wells Fargo began foreclosure proceedings in 2010. Specifically, s he objects to the district c o urt’s consideration of Dolan’s affidavit, which states that the Note was endorsed to Wells F argo in 2004, because Dolan lacked personal knowledg e o f that t ransaction. Federal Rule of Civil Procedure 56(c)(4) p r o v ides that, on summary judgment, an affidavit “must be made o n p ersonal k nowledge, set o ut facts that would be admissible in evidence, and show t hat the affiant

. . . is c ompetent to testify on the matters stated.” Reeves did not object to the admission of Dolan’s affidavit before the district c ourt. I n fact, R e e v e s s t ated in her Rule 59 motion that “Mr. Dolan’s affidavit intr o d ucing documents may be admissible.” The admissibility of evidence at s ummary judgment “is subject to the same standards and rules that govern the admis s i b i l ity of evidence at trial.” Donaghey v. Ocean Drilling & Exploration Co. , 974 F .2d 646, 650 n.3 (5th Cir. 1992). “An a ffidavit that does not measure up t o th e s t a ndards of” Rule 56 “is subject to a timely motion to strike. In the abs e n c e of this motion or other objection, f ormal defects in the affidavit ordinarily are waived.” Auto D r i v e -A w ay C o. 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 Becaus e Reeves has not brief ed her claim s f

or d eclaratory relief, w rongf ul f oreclos ure, f r a u d , a n d i ntentional inf liction of em otional d is tres s , she has waived thos e claim s . See Bri nkm a nn v . D al l a s Cnty. Dep uty Sherif f A bner , 813 F. 2d 744, 748 ( 5th Cir. 1987)

.
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F.2d 205, 214 (5th Cir. 1977) (“Ina d m i s s ible material that i s c onsidered by a district court without challenge m ay support a s ummary judgment. Here there was no timely objection and it is deemed waived.”). R e g ardless of w hether Reeves waived h e r objection t o D o l a n ’ s af f i d avit , th e district cour t did not err in considering it. In Resolution Trust C o rp. v . Camp , we considered a grant of summary judgment based in part o n affidavits from employees of t he defendants who “had p ersonal knowledge that RTC took o ver the assets of the failed i nstitutions, [b ut] they had no p recise personal knowledge of this particular n ote.” 965 F .2d 25, 29–30 (5th C i r . 1992). We concluded that to exclude the affidavits would e stablish “a s tandard so strict that summary judgment would be all b ut impossible.” I d. at 29; see also Diamond Offshore Co.

v. A&B B uilders, Inc. , 302 F.3d 531, 545 (5th Cir. 2002), o v e rruled 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 c our t a d m itted affidavits wherein the affiant stated that he w as the direc t o r o f c l a i ms for the defendant, that he “had ‘personal knowledge o f the facts stated’ therein, and that he had access to and had r eviewed [the defendant’s] records as they pertain to information contained in the affidavits.”). Ree v e s does not c ontest that s h e and Gillespie began payments to Wells Fargo on the Note in August 2004, directly after Wells F argo alleges it took o ver the Note, and c ontinued to make payme n t s t o W ells 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 s ummary judgment. In t h e f a c e of this evidence, R e eves failed to show a genuine issue of material fact as to whether Wells Fargo owned t he N o te before it b egan foreclosure proceedings. Ownership o f the Note was sufficient to allow Wells Fargo to f

oreclose. See Gilbreath v. White , 903 S.W.2d 851, 854 (Tex. App. 1995) (“the collateral follows t he promissory note obligation”); Lawson v. Gibbs , 8 Case: 12-50815 Document: 00512435508 Page: 8 Date Filed: 11/08/2013No. 12-50815

591 S.W.2d 292, 294 (Tex. App.–Houston [14th Dist.] 1979, writ ref’d n .r.e.); T ex. Bus. & Com. Code § 9.203(g); id. cmt. 9 (“Subsection (g) codifies the common-law rule that a t r ansfer of an obligation secured by a security interest o r other lien

on personal or real property also transfers the s ecurity interest or lien.”); see also Kiggundu v. Mortgage Elec. Registration Sys. Inc. , 469 F

. App’x 330, 3 31–32 (5th Cir.) (unpublished), cert. denied, 133 S

. Ct. 2 10 (2012) (noting that “under Texas law, the mortgage f

ollows the note” and it is “ sufficient f or t he [lender] to establish that it was i n 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 R ule 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 f act or to p resent newly discovered e vidence.” Templet , 367 F.3d at 478–79. Reeves attached three pieces of eviden c e to her motion for reconsideration: websites list i n g Porter as a p artner at a law firm rather than

a corporate office r o f M E R S ; a copy of the Note which she alleges Wells Fargo sent t o her and Gille s p i e i n 2010 without the stamped endorsements; and the 2012 assignment. Reeves di d n o t allege fraud in connection with P orter’s signature on the 2010 assignment in her response to Defendants’ motion for summary judgment, but did discuss t he i ssue—without a t t a ching the relevant websites—in her second “Amen d e d Complaint” filed o n the same d ay as the r e sponse, March 9, 2012. The district court did not consider the i ssue in its order granting summary judgment. An “unexcused f a i l u r e to present e vidence available at the time of
summary j udgment provides a valid basis for denying a s ubsequent motion for reconsideration.” T

emplet , 3 67 F.3d at 479. But even a ssuming Porter was not

an officer of MERS, his “lack of authority

. . . does not furnish [ R eeves] with a basis to challenge” the 2 010 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 f

raudulently purporting to b e a corporate officer is, like a ny oth e r unauth o rized contract, not void, but merely v oidable at the election of the defrauded principal”—here, M ERS. Id. at 706 (citi n g Nobles v . Marcus , 533 S.W.2d 923 (Tex. 1 976)). And an obligor s uch as Reeves or G illespie “may not def e n d [ a gainst an assignee’s effort to enforce the obligation] on any ground which renders t he assignment voidable only.” I d

. a t 706–07. Instead, “under Texas law, facially valid a ssignments c a nnot be challenged for want of authority except by the defrauded assignor.” Id. at 709. T h e district court did not abuse its discretion in not treating as n e w l y discovered the copy o f the unendorsed Note, as Reeves alleges that she received i t i n J anuary 2 010, before litigation began. See Templet , 3 67 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 a ssignment of the Deed of Trust from MERS to Wells Fargo as newly discovered, but c oncluded it did not affect the 20 0 4 endorsement of the Note from PlainsCapital to Wells Fargo. The 2012 assignment conveyed MERS’s “benefic i a l i n t erest under the Deed of Trust” t o W e lls Fargo. It did not address the Note. M ERS’s 2012 assignment of the Deed of Trust m ay arguably be superfluo u s i f t h e 2010 assignment of both the Note and Deed of Trust was valid. N onetheless, we have not previously treated t wo s uccessive and potentially overlapping assignments

as necessarily suspicious. See Reinagel ,722 F .3d at 706 (noting t h a t w here a first assignment was “sufficient to give [the defen d a n t ] authority to foreclose

. . . the validity of the second assignment is irrelevant.”). Further, Reeves has failed to “point[] to evidence in the record [showing]

. . . t hat [she] had a legitimate fear t hat [Wells Fargo] was n o t t h e o w n e r and holder of t he note in question and that some other e n t ity,” 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 n ot“point[] to anything in the record to i ndicate

. . . any legitimate fear that a n y e n t ity other than [the defendant] is owner and holder of the note.” I d. ; see also Reinagel , 722 F.3d at 711 (Graves, J ., concurring) (where plaintiffs “admit they made their payments to [Defendants]

. . . t h e re is no indication that [plaintiffs] were confused as to which lender to pay, or t hat a significant possibility e xists of [the o riginal lender] attempting to collect on the n o t e . ” )

. The district court did n ot err in granting
summary judgment after considering the 2012 assignm e n t

. See T emplet , 367 F.3d at 477. CONCLUSION For the foregoing reasons, we AFFIRM the judgment of the district court.

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