IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40826

JESSE C. BURCIAGA; EDNA K. BURCIAGA, 

 Plaintiffs - Appellants 

v. 

DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE, 

 Defendant - Appellee 

Appeal from the United States District Court

for the Eastern District of Texas 

Before PRADO, HIGGINSON, and COSTA, Circuit Judges. 

STEPHEN A. HIGGINSON, Circuit Judge:

The Burciagas defaulted on their home equity loan in 2011. In 2013, 

Deutsche Bank filed a foreclosure suit in Texas state court. Without holding a 

hearing—as required by Texas law—the state court entered a foreclosure 

order. Although Texas law expressly required that any challenge to the 

foreclosure order be made in a separate, original proceeding, the Burciagas 

moved to vacate the foreclosure order in the same proceeding. The state court 

granted their motion. Several months later, Deutsche Bank foreclosed on the 

encumbered property. The Burciagas filed suit in another Texas state court 

challenging the foreclosure sale. Deutsche Bank removed the suit to federal 

district court, and the district court granted summary judgment to Deutsche 

Bank on all claims. The Burciagas appealed and we AFFIRM. 

United States Court of Appeals

Fifth Circuit

FILED

September 18, 2017

Lyle W. Cayce

Clerk

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No. 16-40826

2 

I 

In 1999, Jesse and Edna Burciaga purchased a house in Flower Mound, 

Texas (the “Property”). The Burciagas refinanced their mortgage in 2003, and 

they executed a home equity fixed/adjustable rate note (the “Note”) in the 

original principal amount of $344,000. The Note and interest in the security 

instrument were assigned to Deutsche Bank. 

The Burciagas defaulted on their obligations under the Note in 2011. On 

July 11, 2011, Deutsche Bank notified the Burciagas of the bank’s intent to 

accelerate the debt if the Burciagas did not cure their default. The Burciagas 

failed to do so, and Deutsche Bank accelerated the debt. 

In October 2013, Deutsche Bank filed a foreclosure suit in Texas state 

court pursuant to Texas Rule of Civil Procedure 736.1 (the “Foreclosure 

Action”).1 The Burciagas filed an answer, and a final hearing was set for 

December 20, 2013. On December 13, 2013, however, the state court issued an 

order permitting Deutsche Bank to proceed with foreclosure of the loan and 

sale of the Property (the “Foreclosure Order”). The court closed the Foreclosure 

Action that same day. 

On December 20, 2013, the Burciagas moved to vacate the Foreclosure 

Order and reopen the case. The state court granted the Burciagas’ motion and 

vacated the Foreclosure Order on January 9, 2014 (the “Vacating Order”).

Nonetheless, on April 10, 2014, Deutsche Bank sent a copy of the 

Foreclosure Order and a Notice of Sale to the Burciagas. Deutsche Bank 

foreclosed on the Property on May 6, 2014, and purchased the Property at the 

foreclosure sale for $455,784.96 (the “Foreclosure Sale”). Soon after, Deutsche 

Bank notified the Burciagas of the bank’s intent to take possession of the 

 

1 At the time of the filing, the Burciagas owed a total amount of $422,052.25, and to 

cure their default, would have had to pay $104,564.05. 

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Property.2

II

On June 4, 2014, the Burciagas filed suit in a different Texas state court, 

asserting three claims: trespass to try title, violation of the Texas Civil Practice

and Remedies Code, and a request for a preliminary injunction. Deutsche Bank 

removed the case to federal court. Deutsche Bank filed a counterclaim seeking 

a declaratory judgment, quiet title to the Property, and judicial foreclosure 

based on breach of contract. 

The district court granted summary judgment in favor of Deutsche Bank.

The court declared that the May 6, 2014 foreclosure sale was valid and entered 

an order granting quiet title to the Property to Deutsche Bank. The Burciagas 

moved for reconsideration, which the district court denied, and the Burciagas 

timely appealed. 

On appeal, the Burciagas make three arguments. First they contend that 

the district court’s assumption of jurisdiction violated the Rooker-Feldman

doctrine and that this court should dismiss the appeal for lack of subjectmatter jurisdiction. Second, they argue that the district court erred in granting 

summary judgment to Deutsche Bank because the state court’s Vacating Order 

was proper, and thus, the Foreclosure Order was invalid. Finally, the 

Burciagas argue that their due process rights under the United States and 

Texas Constitutions were violated when the state court entered the 

Foreclosure Order without first holding a hearing as required by Texas law. 

III

Before considering the Burciagas’ arguments, we briefly review the 

particular Texas foreclosure process that underlies this case—Texas Rule of 

 

2 The Burciagas continue to live at the Property but have not paid property taxes or 

insurance since 2012. As of May 21, 2015, the total amount owed on the loan was $497,916.55. 

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Civil Procedure 736. A Rule 736 proceeding is not “an ordinary lawsuit,” but 

rather “a faster, more streamlined alternative to judicial foreclosure.” Huston 

v. U.S. Bank Nat’l Ass’n, 359 S.W.3d 679, 682 (Tex. App.—Houston [1st Dist.] 

2011, no pet.). Once the petitioner files a Rule 736 application for foreclosure, 

if the respondent files a response, Rule 736.6 requires that the court hold an 

evidentiary hearing before issuing an order on the application. A Rule 736 

order “is without prejudice and has no res judicata, collateral estoppel, estoppel 

by judgment, or other effect in any other judicial proceeding.” Tex. R. Civ. P. 

736.9. “After an order is obtained, a person may proceed with the foreclosure 

process under applicable law and the terms of the lien sought to be foreclosed.” 

Id.

Rule 736 also provides an exclusive procedure for challenging an order 

on a Rule 736 application: “Any challenge to a Rule 736 order must be made in 

a suit filed in a separate, independent, original proceeding in a court of 

competent jurisdiction.” Id. at 736.8(c) (emphasis added). An order granting or 

denying a Rule 736 application “is not subject to a motion for rehearing, new 

trial, bill of review, or appeal.” Id. However, if a party files an independent suit 

challenging a Rule 736 foreclosure order before 5:00 p.m. on the Monday before 

the scheduled foreclosure sale, the Rule 736 proceeding or order is 

automatically stayed. Id. at 736.11(a). Once the Rule 736 court is notified that 

an independent suit has been filed challenging the Foreclosure Order, the court 

is required to dismiss the Rule 736 proceeding or vacate the foreclosure order. 

Id. at 736.11(c). “If the automatic stay under [Rule 736.11] is in effect, any 

foreclosure sale of the property is void.” Id. at 736.11(d). 

IV

We first address whether we have subject-matter jurisdiction over this 

appeal. The Burciagas argue that the district court exceeded its jurisdictional 

authority by “unilaterally reviv[ing] the vacated Foreclosure Order and 

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modif[ying] the final disposition of the foreclosure in the Trial Court” in 

violation of the Rooker-Feldman3 doctrine.4 The court must address challenges 

to subject-matter jurisdiction before reaching the merits of a case. Del-Ray 

Battery Co v. Douglas Battery Co., 635 F.3d 725, 729 (5th Cir. 2011) (citing 

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)). We review the 

district court’s determination that Rooker-Feldman does not apply de novo. Ill. 

Cent. R.R. Co. v. Guy, 682 F.3d 381, 390 (5th Cir. 2012).

“‘Reduced to its essence, the Rooker-Feldman doctrine holds that inferior 

federal courts do not have the power to modify or reverse state court judgments’ 

except when authorized by Congress.” Truong v. Bank of Am., N.A., 717 F.3d 

377, 382 (5th Cir. 2013) (quoting Union Planters Bank Nat’l Ass’n v. Salih, 369 

F.3d 457, 462 (5th Cir. 2004)). We have described the doctrine as comprising 

four elements: “(1) a state-court loser; (2) alleging harm caused by a state-court 

judgment; (3) that was rendered before the district court proceedings began; 

and (4) the federal suit requests review and reversal of the state-court 

judgment.” Houston v. Venneta Queen, 606 F. App’x 725, 730 (5th Cir. 2015) 

(unpublished) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 

280, 284 (2005)). We have also said that the doctrine applies only to “final 

judgment[s] rendered by a state’s court of last resort.” Ill. Cent., 682 F.3d at

390.5 Further, in addition to the precise claims presented to the state court, 

 

3 The doctrine takes its name from two United States Supreme Court decisions: Rooker 

v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. 

Feldman, 460 U.S. 462 (1983).

4 Notably, the Burciagas argued below that the Rooker-Feldman doctrine did not bar 

the district court from hearing the case because the state court did not render a final 

judgment and because all of the claims and counterclaims were based on the propriety of the 

foreclosure sale. Notwithstanding the Burciagas’ change of heart, this court is duty-bound to 

examine its subject-matter jurisdiction sua sponte. Ins. Corp. of Ir., Ltd. v. Compagnie des 

Bauxites de Guinee, 456 U.S. 694, 702 (1982); H&D Tire & Auto.-Hardware, Inc. v. Pitney 

Bowes Inc., 227 F.3d 326, 328 (5th Cir. 2000).

5 In a case pre-dating Illinois Central, we found Rooker-Feldman to bar review of a

state court judgment when the state court appeal was pending at the time the federal action 

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Rooker-Feldman prohibits federal court review of claims that are “inextricably 

intertwined” with a state court decision. Feldman, 460 U.S. at 486–87. “[I]n 

light of the ‘narrow ground’ Rooker-Feldman occupies,” however, “[the 

doctrine] does not prohibit a plaintiff from ‘presenting some independent claim, 

albeit one that denies a legal conclusion that a state court has reached in a 

case to which [the plaintiff] was a party.’” Truong, 717 F.3d at 382 (alteration 

omitted) (quoting Exxon, 544 U.S. at 284, 293). 

There are two state court orders at issue in this litigation that might 

implicate the Rooker-Feldman doctrine: the Foreclosure Order and the 

Vacating Order. Because it was issued later and ostensibly superseded the 

Foreclosure Order, we first examine application of Rooker-Feldman to the 

Vacating Order. 

A 

By arguing that its foreclosure of the Burciagas’ property was valid, 

Deutsche Bank is essentially seeking review of the Vacating Order. Deutsche 

Bank contends that the Vacating Order was improper because Texas law 

prohibits parties from challenging Rule 736 foreclosure orders in the Rule 736 

proceeding. See Tex. R. Civ. P. 738.8. According to Deutsche Bank, the 

Foreclosure Order is the state court’s only valid and operable order, and the 

bank was entitled to use it to foreclose on the property. The Rooker-Feldman 

doctrine is inapplicable to Deutsche Bank’s counterclaims for two, independent

reasons. 

First, the Vacating Order was not a final judgment. See Ill. Cent., 682 

F.3d at 390 (stating that Rooker-Feldman applies only to state court “final 

 

was filed. Hale v. Harney, 786 F.2d 688, 689–91 (5th Cir. 1986). Contrary to Illinois Central’s 

explication of the doctrine, Hale suggests that a state court judgment need not be issued by 

a court of last resort for Rooker-Feldman to apply. Because of this apparent tension in our 

case law, we do not rely on this aspect of the doctrine to resolve the jurisdictional question 

before us now.

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judgment[s]”). “To be final a judgment must determine the rights of the parties 

and dispose of all the issues involved so that no future action by the court will 

be necessary in order to settle and determine the entire controversy.” Wagner 

v. Warnasch, 295 S.W.2d 890, 892 (Tex. 1956). The Vacating Order did not 

determine the rights of the parties or dispose of all the issues involved; to the 

contrary, it purported to undo the state court’s previous foreclosure 

determination and reinstate the litigation.6

Second, the Vacating Order is void under Texas Law, and we have said 

that Rooker-Feldman does not preclude review of void state court judgments. 

See United States v. Shepherd, 23 F.3d 923, 925 (5th Cir. 1994) (observing that 

the Rooker-Feldman doctrine would likely not bar federal court review of void 

state court judgments, although it would still preclude jurisdiction to review

voidable state court judgments); see also Truong, 717 F.3d at 383 n.3 (citing 

Shepherd for the proposition that “Rooker-Feldman prohibits a district court 

from voiding state foreclosure judgments, notwithstanding claims that the 

judgments were fraudulently procured” (emphasis added)); Mosely v. Bowie 

Cty. Tex., 275 F. App’x 327, 329 (5th Cir. 2008) (unpublished) (citing Shepherd

for the proposition that, “[u]nder some circumstances, a federal court may 

review the state court record to determine if the judgment is void”); cf. Rooker, 

263 U.S. at 415 (finding no federal jurisdiction to review state court judgment 

where the state court had subject matter over the underlying case, but noting 

that “[i]f the decision was wrong, that did not make the judgment void, but 

merely left it open to reversal or modification in an appropriate and timely 

 

6 Even if the state court’s later dismissal of the foreclosure suit for want of prosecution 

converted the order into a final judgment, see, e.g., Aguilar v. Maverick Eng’g Co., 752 S.W.2d 

727, 728 (Tex. App.—Corpus Christi 1988, no pet.), the state court did not dismiss the case 

until after Deutsche Bank removed the second state proceeding and filed its counterclaims,

and Rooker-Feldman applies only to final state court judgments entered before the filing of 

the federal case. Venneta Queen, 606 F. App’x at 730 (citing Exxon, 544 U.S. at 284).

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appellate proceeding”). 

The Vacating Order is void because the Texas state court did not have 

jurisdiction to enter it. See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 

(Tex. 2010) (quoting Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005) (“A 

judgment is void only when it is apparent that the court rendering judgment 

had no jurisdiction of the parties or property, no jurisdiction of the subject 

matter, no jurisdiction to enter the particular judgment, or no capacity to 

act.”)). Rule 736.8(c) precludes courts from hearing challenges to Rule 736 

foreclosure orders: 

An order granting or denying the application is not subject to a 

motion for rehearing, new trial, bill of review, or appeal. Any 

challenge to a Rule 736 order must be made in a suit filed in a 

separate, independent, original proceeding in a court of competent 

jurisdiction. 

Accordingly, a trial court that enters a Rule 736 foreclosure order has no 

jurisdiction to review a party’s motion to disrupt that order. See Hofrock v. Fed. 

Nat’l Mort. Ass’n, No. A-13-CV-1013 LY, 2014 WL 12586366, at *4 (W.D. Tex. 

Mar. 18, 2014) (“Because the December 2012 Order [withdrawing previous 

foreclosure order] purports to grant relief which is not available in a Rule 736 

proceeding, the order is without effect.”), adopted by No. A-13-CV-1013-LY, 

2014 WL 12586757 (W.D. Tex. May 9, 2014). 

Texas case law confirms this view. In In re Casterline, a Texas appeals 

court considered a petition for writ of mandamus challenging a trial court’s

decision to grant a motion to reconsider a previous Rule 736 foreclosure order

denying an application for expedited foreclosure. The appellate court 

determined that the trial court “abused its discretion” by granting the motion 

and vacating the foreclosure order. Casterline, 476 S.W.3d 38, 44–45 (Tex. 

App.—Corpus Christi 2014, no pet.); see also Custom Corps., Inc. v. Sec. 

Storage, Inc., 207 S.W.3d 835, 838 (Tex. App.—Houston [14th Dist.] 2006, no 

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pet.) (explaining that Texas courts “grant mandamus relief only where a trial 

court has clearly abused its discretion” and that “[t]he issuance of a void order 

is an abuse of discretion” warranting mandamus relief); McClelland v. Partida, 

818 S.W.2d 453, 456 (Tex. App.— Corpus Christi 1991, writ dism’d w.o.j.) (“[A] 

writ of mandamus is an appropriate remedy to nullify an order already entered 

without legal authority.”). Moreover, Texas appellate courts routinely dismiss 

appeals from Rule 736 foreclosure orders for lack of jurisdiction, citing Rule 

736.8(c). See, e.g., Wood v. 21st Century Mortg. Corp., No. 05-14-01467-CV, 

2015 WL 3866634, at *1 (Tex. App.—Dallas Jun. 23, 2015, no pet.); Moir v. JP 

Morgan Chase NA, No. 05-14-00899-CV, 2014 WL 6808668, at *1 (Tex. App.—

Dallas Dec. 4, 2014, no pet.); Thweatt v. Deutsche Bank Nat’l Tr. Co., No. 01-

14-00261-CV, 2014 WL 2538691, at *1 (Tex. App.—Houston [1st Dist.] Jun. 5, 

2014, no pet.). 

The Burciagas’ “Motion to Vacate” was an impermissible challenge to the 

Rule 736 Foreclosure Order. Although Rule 736.8(c) does not include “motions 

to vacate” in its list of specific forbidden challenges to foreclosure orders, this 

absence is not dispositive. See Casterline, 476 S.W.3d at 44–45 (holding that a 

“Motion to Reconsider and Reopen” was “in substance a motion for rehearing 

or new trial which is prohibited by Rule 736.8(c)”). Rule 736.8(c) makes clear 

that “[a]ny challenge to a Rule 736 order must be made in a suit filed in a 

separate, independent, original proceeding in a court of competent 

jurisdiction.” Tex. R. Civ. P. 736.8(c). The state court lacked jurisdiction to 

grant the Burciagas’ motion, and thus, the Vacating Order “is without effect.” 

See Hofrock, 2014 WL 12586366, at *4; see also Travelers, 315 S.W.3d at 863.

Accordingly, because the Vacating Order was not final when the federal 

suit was brought and is void under Texas state law, the Rooker-Feldman

doctrine does not bar federal court review of it. 

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B 

Because we hold that that the Vacating Order is void under Texas law, 

the Foreclosure Order is the final state court judgment. See Courtlandt Corp. 

v. Trico Serv. Corp., 600 S.W.2d 883, 886 (Tex. Civ. App.—Houston [1st Dist.]

1980, writ ref’d n.r.e.) (holding that trial court did not have jurisdiction to order 

reinstatement of previously dismissed action, and thus reinstatement order 

was void and of no effect and previous order of dismissal was still in effect); 

Carrera v. Marsh, 847 S.W.2d 337, 343 (Tex. App.—El Paso 1993, no writ) 

(finding order granting new trial following default judgment to be void and of 

no effect, and therefore ruling that the previously entered default judgment 

was final). We must now examine whether we have jurisdiction to consider an 

attack on the Foreclosure Order. 

A cursory analysis might suggest that the Rooker-Feldman doctrine 

precludes federal court review of the Burciagas’ claims. The Burciagas are (1) 

state court losers (with respect to the Foreclosure Order), (2) alleging they were 

harmed by the Foreclosure Order, (3) which was rendered before the district 

court proceedings began, and (4) requesting that a federal court review the 

issuance of the Foreclosure Order and effectively overrule the state trial court’s 

decision. See Venneta Queen, 606 F. App’x at 730 (citing Exxon, 544 U.S. at 

284).

However, we generally do not apply Rooker-Feldman “to state decisions 

that would not be given preclusive effect under doctrines of res judicata and 

collateral estoppel.” Del-Ray, 635 F.3d at 730 (quoting Ingalls v. Erlewine (In 

re Erlewine), 349 F.3d 205, 210 (5th Cir. 2003)). In Del-Ray, we observed that, 

under Texas law, a non-suit following an order for partial summary judgment 

does not convert the partial summary judgment order into a final judgment on 

the merits where there are outstanding issues in the case. We therefore 

concluded that Rooker-Feldman did not bar review of the state court’s 

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interlocutory summary judgment order because the order had no preclusive 

effect. Id.; see also Reyna v. Deutsche Bank Nat’l Tr. Co., 892 F. Supp. 2d 829, 

832 (W.D. Tex. 2012) (concluding that a home equity foreclosure order issued 

pursuant to Tex. R. Civ. P. 736 was not “a final state court judgment as 

contemplated under the Rooker-Feldman doctrine” because Texas law affords 

such orders no preclusive effect). 

Here, Texas state law explicitly provides that the Foreclosure Order has

no preclusive or res judicata effect. Tex. R. Civ. P. 736.9 (commanding that a 

foreclosure order “is without prejudice and has no res judicata, collateral 

estoppel, estoppel by judgment, or other effect in any other judicial 

proceeding”). Indeed, Texas law specifically allows for collateral attacks on 

Rule 736 foreclosure orders in “a court of competent jurisdiction.” Tex. R. Civ. 

P. 736.8(c). Accordingly, Rooker-Feldman does not bar review of the 

Foreclosure Order.7

We therefore conclude that the district court did not err in holding that 

the Rooker-Feldman doctrine did not preclude review of the parties’ claims. We 

also conclude that we have jurisdiction to hear this appeal. 

V 

Having established that we have subject-matter jurisdiction over the 

parties’ claims, we now turn to the merits. We review a district court’s grant of 

summary judgment de novo. Boren v. U.S. Nat’l Bank Ass’n, 807 F.3d 99, 103–

 

7 A prior unpublished opinion of this court reached the opposite conclusion. In Magor 

v. GMAC Mortg., L.L.C., 456 F. App’x 334, 335–36 (5th Cir. 2011), we held that RookerFeldman barred review of a claim “inextricably intertwined” with a foreclosure order issued 

pursuant to Tex. R. Civ. P. 736. In so holding, the Magor court did not discuss our circuit’s 

exception for judgments with no preclusive or res judicata effect. Further, the panel did not 

address the peculiarities of Rule 736 proceedings and did not recognize that Texas law 

specifically allows for collateral attacks on Rule 736 foreclosure orders “in a court of 

competent jurisdiction.” Because Magor is non-binding, see 5th Cir. R. 47.5.4, we decline to 

follow its reasoning.

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04 (5th Cir. 2015) (citing Young v. Equifax Credit Info. Servs., Inc., 294 F.3d 

631, 635 (5th Cir. 2002)). “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.’” Id. at 104 (quoting Fed. R. Civ. P. 

56(a)). We construe all facts and inferences in the light most favorable to the 

nonmovant. Canal Ins. Co. v. Coleman, 625 F.3d 244, 247 (5th Cir. 2010). 

The Burciagas argue that the Foreclosure Sale was invalid and therefore 

Deutsche Bank does not hold valid title to the Property. The crux of their 

argument is that the state court properly vacated the Foreclosure Order. 

According to the Burciagas, this means that the Foreclosure Order was invalid 

and that Deutsche Bank’s use of the order to foreclose on the Property violated 

§ 12.002(a) of the Texas Civil Practice and Remedies Code, which prohibits the 

use of “fraudulent court record[s]” and “fraudulent . . . claim[s] against real . . 

. property.” 

The Burciagas’ argument is incorrect. As we explained above, the state 

court did not have jurisdiction to enter the Vacating Order. See Casterline, 476 

S.W.3d at 44–45. The Vacating Order is therefore void, see Travelers, 315 

S.W.3d at 863, and the Foreclosure Order was effective at the time Deutsche 

Bank foreclosed on the Property. Cf. Carrera, 847 S.W.2d at 343. 

In their briefing before this court and the district court, the Burciagas

make conclusory statements that the Foreclosure Order is “void” or “invalid” 

because the state court entered it without holding a hearing as required by 

Rule 736.6. Although the Burciagas are correct that the state court 

procedurally erred by failing to hold a hearing before entering the Foreclosure 

Order, they point to no authority supporting their contention that this 

procedural error rendered the Foreclosure Order void rather than voidable. See

Browning, 165 S.W.3d at 346 (“A judgment is void only when it is apparent 

that the court rendering judgment had no jurisdiction of the parties or 

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property, no jurisdiction of the subject matter, no jurisdiction to enter the 

particular judgment, or no capacity to act.” (internal quotation marks and 

citation omitted) (emphasis added)); see also SEC v. Life Partners Holdings, 

Inc., 854 F.3d 765, 778 n.7 (5th Cir. 2017) (finding an argument forfeited where 

“beyond a conclusory assertion, the SEC “ma[de] no argument and cite[d] no 

authority”). 

Texas law provided the Burciagas with a procedure for challenging a 

voidable Foreclosure Order: they could have filed an independent suit

challenging the Foreclosure Order in a court of competent jurisdiction. Tex. R. 

Civ. P. 736.8.8 Indeed, had the Burciagas filed such a suit before 5:00 p.m. on 

the Monday before the scheduled foreclosure sale, the Foreclosure Order would 

have been automatically stayed. Id. at 736.11(a). And, once the Burciagas

notified the state court that they were challenging the Foreclosure Order in a 

separate suit, the court would have been required to vacate the Foreclosure 

Order. Id. at 736.11(c). But the Burciagas do not assert that their lawsuit in 

this case was itself a proper Rule 736.8 challenge. Despite acknowledging in 

the district court and on appeal Deutsche Bank’s position that the present 

“lawsuit is an improper challenge pursuant to [Tex. R. Civ. P.] 736.8,” the 

Burciagas have evaded that question to argue instead that their pre-suit 

motion to vacate the Foreclosure Order was appropriate under Rule 736.8 and 

Casterline. See Life Partners, 854 F.3d at 778 n.7.

Because we conclude that the Vacating Order is void under Texas law, 

 

8 Although Texas law does not develop this point, it may be that a party can file a Rule 

736.8 challenge in a separate proceeding even after the foreclosure sale occurs. Compare Tex. 

R. Civ. P. 736.11(a) (imposing an explicit filing deadline to obtain an automatic stay), with 

Tex. R. Civ. P. 736.8 (omitting an explicit deadline to file a “separate, independent, original 

proceeding in a court of competent jurisdiction”). We need not resolve this question because 

the Burciagas have not asserted below or to us any argument that this lawsuit is a valid Rule 

736.8 challenge.

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and because the Burciagas point to no authority demonstrating that the 

Foreclosure Order was void rather than voidable, we reject the Burciagas’ 

argument that the district court erred by granting summary judgment to 

Deutsche Bank.

VI

The Burciagas also argue that the state court’s issuance of the 

Foreclosure Order without a hearing denied them procedural due process in 

violation of the United States and Texas Constitutions. According to the 

Burciagas, “the District Court failed to grasp that in granting Deutsche Bank’s 

Motion for Summary Judgment, it was denying the due process rights of the 

Burciagas.” 

“It is well settled in this Circuit that the scope of appellate review on a 

summary judgment order is limited to matters presented to the district court.” 

Hardman v. Colvin, 820 F.3d 142, 152 (5th Cir. 2016) (quoting Keelan v. 

Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir. 2005)). “Arguments not 

raised in the district court cannot be asserted for the first time on appeal.” Id.

(quoting Greenberg v. Crossroads Sys., Inc., 364 F.3d 657, 669 (5th Cir. 2004)). 

“A party must ‘press and not merely intimate the argument during the 

proceedings before the district court.’” Id. (quoting Keelan, 407 F.3d at 340). 

We will not consider on appeal an issue not previously presented to the district 

court unless such review is “necessary to prevent a miscarriage of justice.” 

Thorton v. Schweiker, 663 F.2d 1312, 1315 (5th Cir. 1981).

The Burciagas did not bring a freestanding due process claim in their 

complaint before the district court. The Burciagas’ summary judgment brief in 

the district court merely states that the state court’s failure to hold a hearing 

before entering the Foreclosure Order violated the Burciagas’ due process 

rights. The Burciagas did not cite any case law in support of this argument; 

nor did they make any other attempt to develop the argument before the 

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district court. Moreover, on appeal, the Burciagas do not explain why they 

failed to develop their due process argument before the district court or how 

not considering it would amount to a miscarriage of justice. See Hardman, 802 

F.3d at 152. The Burciagas have thus forfeited this issue on appeal. See In re 

Deepwater Horizon, 814 F.3d 748, 752 (5th Cir. 2016) (per curiam) (“Claimants 

did not make this [due process] argument in their memorandum in support of 

their motion before the district court, and it is accordingly forfeited.”). 

Moreover, because Texas law afforded the Burciagas an adequate 

process for challenging the Foreclosure Order, their due process claim fails on 

the merits. “The fundamental requirement of due process is the opportunity to 

be heard ‘at a meaningful time and in a meaningful manner.’” Mathews v. 

Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 

552 (1965)); see also City of Paris v. Abbott, 360 S.W.3d 567, 582 (Tex. App.—

Texarkana 2011, no pet.) (citing Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex. 2001)); 

Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 939 (Tex. 1998)). “In assessing 

what process is due . . . substantial weight must be given to the good-faith 

judgments” of those who provide the procedures. Mathews, 424 U.S. at 349.

Here, as we detailed above, Texas law provided the Burciagas an 

adequate procedure to challenge the Foreclosure Order by filing an 

independent suit in a court of competent jurisdiction. See Tex. R. Civ. P. 736.8. 

The Burciagas, however, never argued that this lawsuit constitutes a Rule 

736.8 proceeding. The Burciagas cannot forgo procedures and remedies 

available to correct a state procedural error, and then belatedly claim they 

were denied due process because of that error. See Able v. Bacarisse, 131 F.3d 

1141, 1143 n.1 (5th Cir. 1998) (finding no due process violation because 

“Appellant deprived himself of the right to appeal by failing to avail himself of” 

established state procedures); Rathjen v. Litchfield, 878 F.2d 836, 839 (5th Cir. 

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1989) (“[N]o denial of procedural due process occurs where a person has failed 

to utilize the state procedures available to [them].”).

VII

For the foregoing reasons, we AFFIRM the judgment of the district court.

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