IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40168

Summary Calendar 

JOE O. RODRIGUEZ, JR., 

Plaintiff - Appellant 

v. 

BANK OF AMERICA, N.A., as Successor by Merger to BAC Home Loans; 

RECONTRUST COMPANY, N.A., 

Defendants - Appellees 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 2:13-CV-133

Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges. 

PER CURIAM:*

Joe O. Rodriguez, Jr., who proceeds pro se in this appeal, filed a pro se

complaint in Texas state court against Countrywide Home Loans Servicing, 

L.P., Bank of America, N.A. (BOA), and Recontrust Co., N.A. (Recon), claiming 

his property was sold improperly following foreclosure because BOA did not 

possess the promissory note that was secured by the property. Following 

 

* 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.

United States Court of Appeals

Fif h Circuit

FILED

July 20, 2017

Lyle W. Cayce

Clerk

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No. 16-40168

2 

removal to federal court, summary judgment was awarded on the grounds of 

res judicata to all defendants except Recon; Recon was granted summary 

judgment on the merits. Our court affirmed. Rodriguez v. Bank of America, 

N.A., 588 F. App’x 356 (5th Cir. 2014). 

Rodriguez then moved for relief from judgment pursuant to various 

sections of Federal Rule of Civil Procedure 60. The district court found the 

Rule 60(b)(2) and (b)(3) claims had not been brought within a reasonable time, 

and were therefore barred under Rule 60(c)(1). (Rodriquez does not challenge 

these conclusions on appeal.) Additionally, the court ruled Rodriguez’ factual 

assertions were conclusory and did not support his remaining Rule 60(d)(3) 

and (b)(4) claims for post-judgment relief. 

First, Rodriguez maintains the court erred in denying his fraud-on-thecourt claim under Rule 60(d)(3), in which he alleged evidence was withheld 

during discovery. The denial is reviewed for abuse of discretion. E.g., Buck v. 

Thaler, 452 F. App’x 423, 431 (5th Cir. 2011). In making this claim, however, 

Rodriguez has simply repeated his allegations, which the district court deemed 

to be conclusory. Accordingly, Rodriguez has not proven his assertions, and 

the court did not abuse its discretion in denying relief under Rule 60(d)(3). See 

Rozier v. Ford Motor Co., 573 F.2d 1332, 1338–39 (5th Cir. 1978); see also Buck, 

452 F. App’x at 431. 

Next, Rodriguez asserts the court erred in denying relief under Rule 

60(b)(4), contending the original judgment was void for lack of jurisdiction. 

Because it is a jurisdictional issue, Rule 60(b)(4) claims are reviewed de novo. 

See Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir. 1998). A judgment is void 

under Rule 60(b)(4) only if the court lacked subject-matter or personal 

jurisdiction, or if it “acted in a manner inconsistent with due process of law”. 

Id. at 1006 (internal quotations marks and citation omitted). Rodriguez’ lack-

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of-jurisdiction assertion relies on the validity of his withheld-evidence claims, 

which the district court dismissed. Therefore, he has not shown either a 

jurisdictional flaw or a violation of procedural due process. 

AFFIRMED. 

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