IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10032

Summary Calendar

LEO WATSON; DORA WATSON,

Plaintiffs–Appellants

v.

AURORA LOAN SERVICES, L.L.C.; AURORA LOAN SERVICES 

INCORPORATED,

Defendants–Appellees

Appeal from the United States District Court

for the Northern District of Texas

U.S.D.C. No. 4:11-CV-301

Before REAVLEY, JONES, and PRADO, Circuit Judges.

PER CURIAM:*

The dispute in this mortgage case is over Defendants–Appellees Aurora 

Loan Services, L.L.C., and Aurora Loan Services Inc.’s (collectively “Aurora”) 

foreclosure on the Plaintiffs–Appellants Leo and Dora Watson’s (collectively 

“the Watsons”) home. The Watsons appeal the district court’s decision 

granting Aurora’s motion for summary judgment on the Watsons’ Federal Debt 

Collection Practices Act (“FDCPA”) claims. The Watsons raise two issues on 

* 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

August 26, 2014

Lyle W. Cayce

Clerk

 

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appeal. First, the Watsons argue there was a genuine issue of material fact 

precluding summary judgment. The Watsons point to Aurora’s summary 

judgment filings in which Aurora erroneously identified April 14, 2011 as the 

date Aurora sent notice of the foreclosure sale. In fact, Aurora sent the notice 

on March 13. Aurora corrected this error in supplemental briefing before the 

district court. But on appeal, the Watsons characterize the initial 

misstatement as a binding “judicial admission.” Second, the Watsons argue 

the district court misconstrued their request for an accounting as a request for 

an equitable remedy. The Watsons contend this request was, instead, a 

separate claim for a declaratory judgment under Texas law. Aurora responds 

arguing inter alia that the Watsons waived these two issues because they did 

not present either argument to the district court. After careful review of the 

record and the applicable law, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The following factual background is essentially undisputed. The 

Watsons defaulted on their home loan. Instead of foreclosure, the Watsons 

discussed a loan modification with their mortgage holder, Aurora. In October 

2010, the Watsons and Aurora agreed to a loan modification. Under the terms 

of the agreement, the Watsons agreed to pay $6,000 up front to Aurora and to 

make five monthly payments. Aurora agreed not to foreclose. The Watsons 

missed the third payment, and Aurora initiated foreclosure proceedings.

A. Aurora’s Debt-Collection Efforts

The Watsons’ FDCPA claims at issue in this appeal turn on Aurora’s 

efforts to collect the debt and foreclose on the Watsons’ home. On appeal, the 

Watsons contend Aurora sent notice and posted the Watsons’ home for 

foreclosure sale after the Watsons disputed the debt in violation of the FDCPA. 

Under the FDCPA, a debt collector must cease collection efforts as soon as the 

consumer informs the debt collector in writing that the consumer disputes the 

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debt. 15 U.S.C. § 1692g(b). Thus, timing is key. It is undisputed that on March 

13, 2011, Aurora sent notices of foreclosure sale scheduled for April 5, 2011. 

Eleven days later, on March 24, 2011, the Watsons disputed the debt. 

B. District Court Proceedings

The Watsons sued Aurora in Texas state court asserting various claims 

for violations of Texas law and the FDCPA, and Aurora removed the case to 

federal court on diversity grounds. In its initial motion for summary judgment, 

Aurora erroneously said it sent notice of the foreclosure sale on April 14, 2011 

when, in fact, it sent the notice on March 13, 2011. The district court initially 

denied the motion, reasoning that by sending the notice of foreclosure after the 

Watsons disputed the debt, there existed a genuine dispute of material fact. 

The court then asked for supplemental briefing whether Aurora was a “debt 

collector” within the meaning of the FDCPA.

Aurora filed a supplemental brief clarifying that it sent the notice of 

foreclosure sale before the Watsons disputed the debt—on March 13, 2011. 

This time, the district court granted Aurora’s motion for summary judgment 

against the Watsons on all claims. The Watsons timely appealed. They only 

appeal the district court’s grant of summary judgment on their FDCPA claims

and their claim requesting an accounting.

II. DISCUSSION

The district court had diversity jurisdiction under 28 U.S.C. § 1332, and 

this Court has jurisdiction to review the final judgment of the district court 

under 28 U.S.C. § 1291. We review a grant of summary judgment de novo. 

Auguster v. Vermilon Parish Sch. Bd., 249 F.3d 400, 402 (5th Cir. 2001). 

Summary judgment is appropriate if “the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.” Fed. R. Civ. P. 56(a). We view all facts in the light most 

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favorable to the nonmovant and draw all reasonable inferences in the 

nonmovant’s favor. See Auguster, 249 F.3d at 402.

On appeal, the Watsons argue the district court erred by granting 

Aurora’s motion for summary judgment for two reasons: (1) Aurora judicially 

admitted that it posted the Watsons’ property for foreclosure sale on April 14, 

2011 in its motion for summary judgment, and (2) the Watsons’ request for an 

accounting was actually a separate claim under the Texas Uniform 

Declaratory Judgment Act. Aurora counters the Watsons’ arguments on

appeal “are completely different than their arguments before the district 

court.” Aurora argues the Watsons have therefore waived these arguments. 

We agree.

“Under this Circuit’s general rule, arguments not raised before the 

district court are waived and will not be considered on appeal unless the party 

can demonstrate ‘extraordinary circumstances.’” AG Acceptance Corp. v. 

Veigel, 564 F.3d 695, 700 (5th Cir. 2009).1 “Extraordinary circumstances” exist 

only if the appellant establishes “the issue involved is a pure question of law 

and a miscarriage of justice would result from our failure to consider it.” N. 

Alamo Water Supply Corp. v. City of San Juan, 90 F.3d 910, 916 (5th Cir. 

1996).

Review of the record in this case reveals that the Watsons did not present 

the arguments they now assert to the district court. In opposition to Aurora’s

initial motion for summary judgment, the Watsons did not argue that Aurora 

judicially admitted to notifying the Watsons about the foreclosure sale after 

1 See also Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“[T]he general rule . . . that a 

federal appellate court does not consider an issue not passed upon below . . . is ‘essential in 

order that parties may have the opportunity to offer all the evidence they believe relevant to 

the issues and in order that litigants may not be surprised on appeal by final decision there 

of issues upon which they have had no opportunity to introduce evidence.’” (alterations and 

citation omitted) (quoting Hormel v. Helvering, 312 U.S. 552, 556 (1941))).

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the Watsons disputed the debt. The district court sua sponte noticed the 

erroneous date and denied summary judgment, at least at first. The district 

court said, “it appears that Defendant, on April 14, 2011, filed a Notice of 

Accelerations and Notice of Trustee’s sale”—based on the mistake in Aurora’s 

motion for summary judgment. Aurora filed a supplemental brief correcting 

this mistake. The Watsons responded, but they did not dispute this fact or 

otherwise argue Aurora judicially admitted to sending the notice on April 14, 

2011. Instead, they said, “It is undisputed that on March 13, 2011 Defendant 

sent Plaintiffs a Notice of Foreclosure.” The Watsons also filed a motion for 

reconsideration in which they again reiterated it was “undisputed” that 

“Defendant sent Plaintiffs a Notice of Foreclosure Sale dated March 13, 2011.” 

Because these judicial-admission arguments were not made to the district 

court, they are presented for the first time on appeal, and we “will not disturb 

the district court’s judgment” on these grounds. See Pluet v. Frasier, 355 F.3d 

381, 385 (5th Cir. 2004).

For the same reason, we reject the Watsons’ argument that their request 

for an accounting was actually a separate claim under the Texas Uniform 

Declaratory Judgment Act. This argument was also not fairly presented to the 

district court. In response to Aurora’s motion for summary judgment, the 

Watsons argued only that they were entitled to an accounting under section 

809(b) of the FDCPA and under section 6 of the Real Estate Settlement 

Procedures Act (“RESPA”). The district court rejected this argument because 

the Watsons never asserted a RESPA claim in their complaint, and because 

Aurora was entitled to summary judgment on the FDCPA claims, as discussed 

above. Moreover, in their reply brief, the Watsons do not identify 

extraordinary circumstances that would permit us to consider their waived 

arguments. In sum, the Watsons seek to try the accounting issue and FDCPA 

claim “anew because [they have] discovered . . . more attractive theor[ies],” and 

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this we do not allow. McDonald v. Bd. of Miss. Levee Comm’rs, 832 F.2d 901, 

909 (5th Cir. 1987). 

III. CONCLUSION

For the foregoing reasons, we AFFIRM.

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