IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

HEATHER SPENCER MEANS, §

PLAINTIFF, §

 §

V. § CASE NO. 3:22-CV-1249-G-BK

 §

GATEWAY MORTGAGE COMPANY, §

DEFENDANT. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this case has been referred to the 

undersigned United States magistrate judge for pretrial management. Doc. 4. Now before the 

Court is Plaintiff’s Motion for New Trial. Doc. 41. For the reasons that follow, it is 

recommended that the motion be DENIED.

 I. PROCEDURAL HISTORY

In June 2022, Plaintiff filed this counseled action in state court for breach of contract, 

seeking a temporary restraining order to prevent Defendant from foreclosing on the property 

located at 346 Harbin Avenue, Waxahachie, Texas 75165 (the “Property”). Doc. 3-3 at 2. 

Plaintiff alleged that Defendant’s failure to give her proper notice of the default and subsequent 

acceleration of the note securing the Property violated the Texas Property Code and various 

HUD regulations and breached the parties’ “loan documents.” Doc. 3-3 at 2. 

By way of background, Plaintiff’s former husband, Adam Means (“Means”), who is now 

deceased, executed a deed of trust (the “Deed”) and a loan agreement (the “Note”) as to the 

Property in September 2017 before he and Plaintiff married. Doc. 23-1 at 16, 21. Plaintiff and 

Means subsequently divorced, and the divorce decree awarded Plaintiff and Means each one-half 

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interest in the Property, ordered them to sell the Property, and required Means to continue 

making payments on the Note pending the sale (though the Property ultimately did not sell). 

Doc. 23-1 at 28-29, 32. Rather, following Means’ default on the Note, Defendant sent Means or 

his estate (1) a Notice of Default, Opportunity to Cure, and Intent to Accelerate, (2) a Notice of 

Acceleration, and (3) a Notice of Substitute Trustee’s Sale, which scheduled the foreclosure sale 

of the Property in June 2022. Doc. 23-1 at 40-42.

Asserting diversity jurisdiction, Defendant removed the action to this Court, Doc. 1, and 

filed counterclaims against Plaintiff seeking (1) a declaratory judgment to the effect that it was 

authorized to enforce the power of sale enumerated in the governing deed of trust through 

foreclosure; (2) non-judicial foreclosure on the Property; and (3) a writ of possession, Doc. 7 at 

4-5. Defendant then filed an Amended Motion to Dismiss, seeking the dismissal of Plaintiff’s 

claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Doc. 26. 

Upon the undersigned’s recommendation and absent Plaintiff’s objection, the district 

judge granted Defendant’s motion. Doc. 33; Doc. 36. In particular, the Court found that 

Plaintiff lacked contractual standing to bring her suit as she was not a party to the Note. Doc. 33 

at 4-6; Means v. Gateway Mortg. Co., No. 3:22-CV-1249-G-BK, 2023 WL 5760026, at *2-3

(N.D. Tex. Aug. 16, 2023) (Toliver, J.) (collecting cases), adopted by 2023 WL 5751437 (N.D. 

Tex. Sept. 5, 2023) (Fish, J.). The Court entered judgment on September 5, 2023, and Plaintiff 

filed the instant motion 27 days later, seeking relief pursuant to Rule 59(a). Doc. 37; Doc. 41.

 II. ANALYSIS

Rule 59(a) provides that a court may “grant a new trial on all or some of the issues” only

“after a jury trial” or “after a non-jury trial.” FED. R. CIV. P. 59(a)(1). As an initial matter, Rule

59(a) has no application here because the case was dismissed for failure to state a claim under 

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Rule 12(b)(6). See Hernandez v. Siemens Corp., 726 F. App’x 267, 269 (5th Cir. 2018) (holding 

that Rule 59(a) did not apply when the case was disposed of under Rule 12(b)(6)) (citation 

omitted). Even assuming Rule 59(a) did apply, a motion for a new trial must clearly establish 

either a manifest error of law or fact or present newly discovered evidence. Turner v. Baylor 

Richardson Med. Ctr., 476 F.3d 337, 344 (5th Cir. 2007) (citation omitted). Put differently, such

motions “cannot be used to raise arguments which could, and should, have been made before the 

judgment issued.” Id. (emphasis added).

Here, Plaintiff has not demonstrated either a manifest error of law or fact, nor has she

presented newly discovered evidence. Rather, Plaintiff reiterates the same arguments she made 

in opposition to Defendant’s dismissal motion which this Court has already rejected. In 

particular, Plaintiff reiterates that (1) she did not receive the required default notices; (2) she 

established standing to bring this action by virtue of her and Means’ divorce decree; and (3) 

Defendant’s submission of documents outside the pleadings effectively converted its motion to 

dismiss into a summary judgment motion. Doc. 41 at 4-5. The Court previously considered and 

rejected those arguments. Doc. 33 at 3-5; Means, 2023 WL 5760026, at *1-3 (collecting cases). 

Finally, Plaintiff’s failure to object to this Court’s recommendation that her case be 

dismissed likely constitutes a waiver thereof. Turner, 476 F.3d at 344; see, e.g., Simon v. United 

States, 891 F.2d 1154, 1159 (5th Cir. 1990) (holding that the defendant’s Rule 59(e) limitation 

on liability argument “could, and should, have been made at some point before the entry of 

judgment,” and the defendant’s failure to do so waived the defense) (citation omitted).

 

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 III. CONCLUSION

For the foregoing reasons, it is recommended that Plaintiff’s Motion for New Trial, Doc. 

41, be DENIED.

1

SO RECOMMENDED on January 12, 2024.

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner provided by 

law. Any party who objects to any part of this report and recommendation must file specific 

written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED.

R. CIV. P. 72(b). An objection must identify the finding or recommendation to which objection is 

made, the basis for the objection, and the place in the magistrate judge’s report and 

recommendation the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific 

written objections will bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon 

grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 

1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file 

objections to 14 days). 

1 At the status conference held on September 14, 2023, Defendant indicated that the Court’s 

judgment rendered its counterclaims moot and represented it would move to withdraw the 

counterclaims forthwith. Doc. 40. To date, however, those claims remain pending. Accordingly, 

if Defendant believes its counterclaims are moot, it is ORDERED to take appropriate action to

dismiss or withdraw them within ten days of the date of this recommendation. If Defendant 

declines to do so, it shall file a Status Report with respect to the counterclaims within the same 

period.

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