* 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.

REVISED JULY 30, 2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-51206

Summary Calendar 

CAROL MELIA COPELAND,

Plaintiff-Appellant

v.

U.S. BANK NATIONAL ASSOCIATION,

Defendant-Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:11-CV-444

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

A homeowner claiming that the non-judicial foreclosure of her property

violated Texas law initiated suit in state court. She sought damages and to void

the foreclosure. After removal, the district court granted summary judgment to

the bank on all claims. We AFFIRM. 

United States Court of Appeals

Fifth Circuit

F I L E D

July 27, 2012

Lyle W. Cayce

Clerk
No. 11-51206

1 This is a form of investment instrument that pools mortgages.

2

BACKGROUND

Our jurisdiction is based on diversity of the parties. U.S. Bank, N.A., is

solely a citizen of Minnesota under the citizenship rule for “national banking

associations.” 28 U.S.C. § 1348; see Wachovia Bank v. Schmidt, 546 U.S. 303,

318 (2006). Carol Copeland is a citizen of Texas and the amount in controversy

exceeds $75,000 due to the value of the subject property. See 28 U.S.C. § 1332.

These are the undisputed facts. On July 14, 2006, Copeland purchased a

homestead in Williamson County, Texas financed with a note payable to Wells

Fargo Bank, N.A. That same day she executed a deed of trust in favor of Wells

Fargo, which secured her obligation to pay under the note. Copeland fell behind

on her mortgage payments. In April 2010, Wells Fargo mailed Copeland a notice

of default. After Copeland failed to cure the deficiency, Wells Fargo mailed her

on November 11 a notice of substitute trustee sale. That document advised that

the mortgage was being accelerated and that her property was to be sold at the

Williamson County courthouse on December 7, 2010. 

According to U.S. Bank, effective December 1, 2008, Wells Fargo assigned

Copeland’s note and deed oftrustto U.S. Bank as trustee for Asset-Backed PassThrough Certificates, Series 2006-WFHE3.1 Wells Fargo continued on as the

mortgage servicer, maintaining sole contact with Copeland. 

In the district court, Copeland argued that U.S. Bank failed to comply with

the notifications that Texas law and the deed of trust required before the

mortgage note could be accelerated and a foreclosure undertaken. See Tex.Prop.

Code § 51.002. U.S. Bank produced copies of the notices, as well as affidavits

and U.S. Postal Service tracking numbers showing they had been mailed. This
No. 11-51206

2 E.g., Weaver v. Tex. Capital Bank, N.A., 660 F.3d 900, 904 (5th Cir. 2011).

3

evidence led the court to find an absence of a genuine dispute of material fact as

to notice. See Fed. R. Civ. P. 56(a). 

DISCUSSION

Copeland alludes to a variety of legal bases for relief. As we explain,

though, all save three contentions are waived. Her argument that the

assignment from Wells Fargo to U.S. Bank was “ineffective” because it was

“outside the 90 day REMIC transfer window” is inadequately briefed and is

being raised for the first time on appeal. See Fed. R. App. P. 28(a)(9)(A); Lofton

v. McNeil Consumer & Speciality Pharm., 672 F.3d 372, 380-81 (5th Cir. 2012).

Also inadequate under Federal Rule of Appellate Procedure 28 is whether the

Rooker-Feldman doctrine of abstention applies;2it is only mentioned in the

statement of issues, without argument or citations to authority. Alameda Films

SA de CV v. Authors Rights Restoration Corp., 331 F.3d 472, 483 (5th Cir. 2003).

She further argues that U.S. Bank cannot enforce the note under the law

governing negotiable instruments. See Tex. Bus. & Com. Code § 3.102. Her

complaint did not raise this issue and it was not addressed by the district court

in its ruling on summary judgment. Because Copeland raises it with us for the

first time in her reply brief, we deem it waived. See United States v. Jackson,

426 F.3d 301, 304 n.2 (5th Cir. 2005). 

Properly before us are the following. First is whether there are any

cognizable irregularities with the foreclosure, including the appointment of the

substitute trustee. Second and third are whether any invalidity in the

appointment creates a basis for her Deceptive Trade Practices-Consumer

Protection Act or Debt Collection Act claims that withstands summary

judgment. See Tex. Bus. & Com. Code § 17.41 et seq.; Tex. Fin. Code § 392.001

et seq.
No. 11-51206

4

In Texas, “[a] mortgage servicer may administer the foreclosure of

property . . . if (1) the mortgage servicer and the mortgagee have entered into an

agreement granting the current mortgage servicer authority to service the

mortgage” and (2)the appropriate Section 51.002(b) notices have been furnished.

Tex. Prop. Code § 51.0025; see Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d 636,

637 n.2 (5th Cir. 2007).

As the adequacy of notice is no longer an issue in this case, the only

question is whether the foreclosure of Copeland’s homestead was pursuantto an

agreement. The notice of substitute trustee transmitted to Copeland states that

“Wells Fargo Bank, N.A. is acting as the Mortgage Servicer for U.S. Bank . . .

who is Mortgagee of the Note and Deed of Trust” concerning Copeland’s

homestead. The notice explains that

[t]he Mortgage Servicer is authorized to representthe Mortgagee by

virtue of a servicing agreement with the Mortgagee. Pursuant to

the Servicing Agreement and Texas Property Code §51.0025, the

Mortgage Servicer is authorized to collect the debt and to

administer any resulting foreclosure of the property. . . . 

Copeland has not presented any competent summary judgment evidence that

would call the validity of these statements into doubt. 

Copeland claims the foreclosure is invalid because the substitute trustee’s

deed bears the name of John Latham, whereas the original deed oftrustto Wells

Fargo designated Robert K. Fowler as trustee. Paragraph 24 of the deed,

however, gave the lender the option to “remove or substitute any trustee, add

one or more trustees, or appoint a successor trustee to any Trustee without the

necessity of any formality other than a designation by Lender in writing.” As the

district court found, the notice of substitute trustee mailed to Copeland plainly

designated Latham in writing. 

Because the district court did not have an opportunity to pass on them, we

decline to reach Copeland’s new arguments (i) that only Wells Fargo, not U.S.
No. 11-51206

5

Bank after it became mortgagee, had authority to appoint a substitute trustee,

and (ii) her related assertion that Wells Fargo assigned its rights away before

it could validly appoint a trustee other than Fowler. See Lofton, 672 F.3d at 381.

As to Copeland’s Debt Collection Act and Deceptive Trade PracticesConsumer Protection Act claims, the only argument made on appeal is that the

district court’s “previously documented error regarding the substitute trustee

and lack of standing to foreclose . . . led the [c]ourt to error” as to these claims.

As already noted, Copeland has not challenged the district court’s conclusion

that she received the required notice, which is the basis on which she pled these

statutory claims. The district court did not err as to these two statutory claims.

AFFIRMED.