IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20180

Summary Calendar

FLORENCE ANYAFULU, 

 Plaintiff - Appellant

v.

EQUICREDIT CORPORATION OF AMERICA; SELECT PORTFOLIO 

SERVICING, INCORPORATED, 

 Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:14-CV-2901

Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit 

Judges.

PER CURIAM:*

Plaintiff-Appellant home-owner filed suit against Defendants-Appellees 

seeking to enjoin foreclosure proceedings on her residential property. The 

district court granted summary judgment in favor of Defendants-Appellees and 

dismissed Plaintiff-Appellant’s claims. We affirm.

 

* 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

Fifth Circuit

FILED

November 30, 2016

Lyle W. Cayce

Clerk

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No. 16-20180

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I. Facts & Procedural History

In 1997, Plaintiff-Appellant Florence Anyafulu executed a promissory 

note (the “Note”) in the amount of $80,750, and a deed of trust (the “Deed”) in 

favor of EquiCredit Corporation of Texas, to secure a residential property (the 

“Property”) located on Duchamp Drive in Houston, Texas. In October of 2010, 

after expressing concern over her ability to pay her monthly loan installments, 

Anyafulu agreed to sign a loan modification agreement. The modification 

agreement provided an increased monthly payment amount to reflect a new 

principle balance of $94,580.06, to account for unpaid interest, taxes, insurance 

premiums, and other expenses relating to the original Note. 

In 2012, EquiCredit Corporation of Texas assigned the Note to the 

current lender, Defendant-Appellee EquiCredit Corporation of America. 

Defendant-Appellee Select Portfolio Servicing, Inc. (“Select”) then became the 

mortgage servicer for the loan. In June 2014, Select sent Anyafulu a notice of 

default stating that she had failed to make the requisite loan payments and as 

a result, she would be required to pay $57,020.92 to cure the default. When 

the debt remained outstanding a few months later, Select retained a debt 

collection firm who notified Anyafulu that, due to her continued failure to cure 

the default on the loan, Defendants-Appellees had elected to accelerate the 

maturity of the debt and initiate foreclosure sale proceedings on the Property. 

Then on October 6, 2014, Anyafulu filed suit in Texas state court seeking 

to enjoin the foreclosure proceedings and asserting claims against DefendantsAppellees for breach of contract, fraud and fraudulent misrepresentation, 

breach of good faith and fair dealing, violations of the Deceptive Trade 

Practices Act (“DTPA”), and requesting an accounting. Defendants-Appellees 

removed the case to federal district court and moved to dismiss the suit. On 

June 3, 2015, the district court denied Defendants-Appellees’ motion to dismiss 

and ordered Anyafulu to amend her complaint. After Anyafulu filed her first 

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amended complaint on June 24, 2015, Defendants-Appellees moved for 

summary judgment and for judgment on the pleadings. The district court 

granted Defendants-Appellees’ motion for summary judgment and dismissed 

Anyafulu’s suit in its entirety. 

In its order, the district court reasoned that Defendants-Appellees were 

entitled to summary judgment on the breach of contract claim because 

Anyafulu failed to present any type of evidence documenting that DefendantsAppellees breached the terms of the loan. The district court then determined

that Anyafulu’s fraud and fraudulent misrepresentation claims were barred by 

the economic loss rule. It further held that her claims asserting breach of good 

faith and fair dealing failed because there was no duty of good faith and fair 

dealing imposed on the lender in a debtor-creditor relationship. Finally, 

because Anyafulu lacked standing as a consumer under the DTPA, she was 

barred from obtaining relief under the Act. Additionally, because she could not 

point to a legal theory or claim, or a contractual provision, entitling her to an 

accounting, the district court denied her request for one.

This appeal ensued.

II. Standard of Review

“We review a district court’s grant of summary judgment de novo, 

applying the same standards as the district court.” Hagen v. Aetna Ins. Co., 

808 F.3d 1022, 1026 (5th Cir. 2015) (citation omitted). Summary judgment is 

appropriate if the record evidence shows that there is no genuine issue of 

material fact and that the moving party is entitled to judgment as a matter of 

law. Robinson v. Orient Marine Co., 505 F.3d 364, 366 (5th Cir. 2007); Fed. R. 

Civ. P. 56(a). “Unsubstantiated assertions, improbable inferences, and 

unsupported speculation are not sufficient to defeat a motion for summary 

judgment.” See Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003) 

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(citation omitted). “[R]easonable inferences are to be drawn in favor of the nonmoving party.” Robinson, 505 F.3d at 366 (citation omitted).

III. Discussion

On appeal, Anyafulu first argues that the district court erred in 

dismissing her breach of contract claim against Defendants-Appellees. 

According to the district court’s written order, “Anyafulu has not attached any 

evidence to her responses even documenting increases in payment that she 

alleges violates the loan’s terms.” Anyafulu claims that the district court’s 

observation is in error and she points to an attachment to her first amended 

complaint where the Deed is detailed. Therein, the terms indicate that she is 

entitled to 21 days’ notice in writing prior to the sale of the Property. She 

claims that Defendants-Appellees’ failure to give her the requisite notice is at 

least one example of their breach of the terms of the contract that she provided 

in the proceedings below sufficient to defeat summary judgment.

“In Texas, the essential elements of a breach of contract action are: (1) 

the existence of a valid contract; (2) performance or tendered performance by 

the plaintiff; (3) breach of the contract by the defendant; and (4) damages 

sustained by the plaintiff as a result of the breach.” Smith Int’l, Inc. v. Egle 

Grp., LLC, 490 F.3d 380, 387 (5th Cir. 2007) (alterations and internal 

quotation marks omitted).

Although Anyafulu claimed that her default on the loan payments was 

excused by Defendants-Appellees’ own breach of the terms of the Note, 

presumably by accelerating the terms of the Note and instituting foreclosure 

proceedings, she failed to present any documentary evidence supporting these

claims. Though she alleges that she did not receive the requisite 21 days’

written notice prior to the sale of the Property, the record reflects that she did 

receive notice of the anticipated sale in September 2014, and the Property, to 

date, remains unsold. Aside from the language in the Deed concerning the 

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requisite notice, which does not reveal a contractual breach by DefendantsAppellees, Anyafulu has provided no other evidence to support her breach of 

contract claims. Consequently, Anyafulu’s allegations that DefendantsAppellees breached the contract are no more than “unsubstantiated assertions” 

and thus insufficient “to defeat a motion for summary judgment.” Brown, 337 

F.3d at 541. We therefore hold that the district court did not err in dismissing 

Anyafulu’s breach of contract claims.

Anyafulu also argues on appeal that the district court erred in dismissing 

her claims against Defendants-Appellees for fraud and fraudulent 

representation. She claims that Defendants-Appellees promised her orally and 

in writing that as long as they were engaging in the modification process of the 

terms of the loan, her property “was safe.” She points to a letter sent by Select 

in September 2014 indicating that no foreclosure sale would be conducted 

within a 30-day period. She advances that this was a fraudulent 

misrepresentation because approximately two weeks later, when she remained

in default on her loan payments, Defendants-Appellees accelerated the terms 

of the loan and began planning foreclosure proceedings. 

As the district court correctly recognized, “Texas courts follow the 

economic loss rule which generally precludes recovery in tort for economic 

losses resulting from a party’s failure to perform under a contract when the 

harm consists only of the economic loss of a contractual expectancy.” See 

Shakeri v. ADT Sec. Servs., Inc., 816 F.3d 283, 292 (5th Cir. 2016) (alterations 

and internal quotation marks omitted). Here, Anyafulu’s fraudulent 

misrepresentation claim rests on her allegation that Defendants-Appellees 

modified the terms of the loan by indicating that they would not accelerate or 

initiate foreclosure proceedings while she was undergoing the loan 

modification process. As the district court correctly reasoned, Anyafulu’s

claims involving Defendants-Appellees’ alleged modification of the terms of

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loan “sound[] only in contract.” See Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 

493, 494–95 (Tex. 1991) (“When the injury is only the economic loss to the 

subject [matter] of a contract itself the action sounds in contract alone.”). This 

is because liability would only arise if Defendants-Appellees’ conduct 

constituted breach1 of the parties’ loan agreement. Shakeri, 816 F.3d at 292. 

Thus, the district court properly concluded that her fraudulent 

misrepresentation claims are barred by the economic loss rule because the 

alleged loss complained of is the subject matter of the loan agreement, or

contract, between the parties. DeLanney, 809 S.W.2d at 494–95. Accordingly,

the district court did not err in dismissing Anyafulu’s claims for fraud and 

fraudulent misrepresentation.2 

IV. Conclusion

For the aforementioned reasons, we affirm the district court’s summary

judgment in favor of Defendants-Appellees.

 

1 Nothing in this opinion should be construed as a conclusion that DefendantsAppellees breached the terms of the parties’ loan agreement.

2 Anyafulu does not include in her appellate brief any arguments relating to the 

district court’s dismissal of her claims against Defendants-Appellees for breach of good faith 

and fair dealing, its dismissal of her claims pursuant to the Deceptive Trade Practices Act, 

or its denial of her request for an accounting. Accordingly, she has waived her right to appeal

those issues. See United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000) (“It has long 

been the rule in this circuit that any issues not briefed on appeal are waived.”). 

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