IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-10875

Summary Calendar

STEVEN CREAR, SR., Secured Party,

Plaintiff – Appellant

v.

JP MORGAN CHASE BANK N.A.,

Defendant – Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:10-CV-463

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:

*

In this diversity case, Steven Crear, Sr., a pro se plaintiff, appeals a grant

of summary judgment in favor of JPMorgan Chase Bank. Crear sued JPMorgan

and several co-defendants for violating multiple Texas consumer protection laws

when they refused to produce an original note or deed of trust before initiating

foreclosure proceedings. Because of these violations as well as unmet unilateral

United States Court of Appeals

Fifth Circuit

F I L E D

March 28, 2011

Lyle W. Cayce

Clerk

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.

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demands that Crear believed created a contract, Crear asserted the defendants

owed him $65 million. On appeal, Crear challenges the district court’s

jurisdiction and in the alternative contends that the contract obligated

JPMorgan to pay him. We disagree and AFFIRM summary judgment. Crear

also challenges the dismissal of his claims against three co-defendants, which we

DISMISS for lack of jurisdiction.

I.

To purchase property in Dallas, Crear executed a promissory note through

Washington Mutual Bank, which was secured with a concurrent deed of trust

encumbering the property. In 2009, foreclosure proceedings were initiated on

the property, and Crear received a letter indicating the payoff amount required

to prevent the foreclosure. Crear responded by sending foreclosure counsel a

copy of the letter, upon which Crear wrote illegible and confusing language. It

appears Crear intended this document to be valued at $136,633.24—the required

payoff amount—but the document was not legal tender.

Along with the copy of the letter, Crear sent a document entitled

“Conditional Acceptance Administrative Procedure,” which cited incoherent case

law from a variety of jurisdictions in an attempt to suggest the defendants had

violated the Truth in Lending Act. The document then listed thirty-two

demands, including producing the original promissory note for Crear to review.

1

Lastly, the Conditional Acceptance stated “[f]ailure to reply will result in a

The Texas Property Code provides that either a mortgagee or mortgage servicer may 1

administer a deed of trust foreclosure without production of the original note. See TEX. PROP.

CODE ANN. §§ 51.002, 51.0025 (establishing the notice required prior to a foreclosure sale

pursuant to a power of sale).

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complete Administrative Process,” with compensatory penalties up to four times

the principal amount of the loan and punitive damages up to two hundred times

the compensatory amount. The letter did not provide any legal authority for

these damages nor did it explain what administrative process Crear intended to

follow.

When Washington Mutual did not respond to Crear’s Conditional

Acceptance, he sent foreclosure counsel a letter stating “your client is now at

fault and in agreement to the claim and lien at the ‘sum certain’ as so claimed.”

Further, the letter stated that Washington Mutual agreed to the Conditional

Acceptance by its “silence, agreement and general acquiescence.” A few days

later Crear sent a letter stating that by remaining silent, Washington Mutual

“fully agreed” that it owed Crear over $65 million in damages.

In December 2009, Crear filed suit in state court against JPMorgan,

Washington Mutual, Deutsche Bank National Trust Company, and Mortgage

Electronic Registration Systems, Inc. (MERS). Crear sued for violations of the

Texas Property Code, the Texas Business and Commerce Code, the Texas

Finance Code, and the Texas Deceptive Trade Practices Act, as well as common

law claims. JPMorgan, the only defendant to appear, removed the action on

diversity grounds and filed a motion for summary judgment in May 2010. Crear

failed to respond to the summary judgment motion and instead challenged the

district court’s jurisdiction. On July 22, the magistrate judge recommended that

JPMorgan’s motion be granted. On August 13, the magistrate judge

recommended that Crear’s claims against MERS, Deutsche Bank, and

Washington Mutual be dismissed for his failure to serve these defendants. On

August 19, the district court granted summary judgment in favor of JPMorgan.

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Crear timely filed his notice of appeal on August 27. On September 10, the

district court dismissed Crear’s claims against MERS, Deutsche Bank, and

Washington Mutual.

II.

We review a grant of summary judgment using the same standard of

review as the district court. A court “shall grant summary judgment if the

2

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.” An issue as to a material

3

fact is genuine “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” A moving party may show there is no genuine

4

issue for trial by pointing out the absence of evidence supporting the nonmoving

party’s case. The nonmoving party, who will have the burden of proof at trial,

5

must then come forward with summary judgment evidence establishing the

existence of a genuine issue. We consider all evidence “in the light most

favorable to the party resisting the motion.”

6

We hold pro se briefs to less stringent standards than formal pleadings

drafted by lawyers. However, pro se litigants must brief the arguments in order

7

See Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 257 (5th Cir. 2001).

2

 Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 3

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 4

See Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995). 5

Trevino v. Celanese Corp., 701 F.2d 397, 407 (5th Cir. 1983). 6

See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). 7

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to preserve them, and litigants should reasonably comply with the standards

8

of Rule 28 of the Federal Rules of Appellate Procedure.

9

III.

A.

Crear first claims that the parties lacked complete diversity and therefore

the district court did not have jurisdiction. Specifically, Crear contends that

MERS is a citizen of Texas because it maintains a data center in Plano, Texas.

For diversity purposes, a corporation is only a citizen of the states in which it is

incorporated or maintains a principal place of business. A corporation “is not

10

deemed a citizen of every State in which it conducts business or is otherwise

amenable to personal jurisdiction.” If MERS maintained a data center in

11

Texas, it is subject to personal jurisdiction in that state, but for diversity

purposes, its citizenship is tied to its principal place of business (Virginia) or its

state of incorporation (Delaware). MERS is not a citizen of Texas.

The parties in this case are completely diverse. Crear is a citizen of Texas.

See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

8

See id. at 224–25; see also Grant v. Cueller, 59 F.3d 523, 524 (5th Cir. 1995) 9

(“Although we liberally construe briefs of pro se litigants and apply less stringent standards

to parties proceeding pro se than to parties represented by counsel, pro se parties must still

brief the issues and reasonably comply with the standards of Rule 28.” (footnote omitted)).

See Wachovia Bank, N.A. v. Schmidt, 546 U.S. 303, 318 (2006) (citing 28 U.S.C. §

10

1332(c)(1)).

Id. at 317.

11

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JPMorgan is a citizen of Ohio, as designated by its articles of association.

12

Deutsche Bank and Washington Mutual were both citizens of California. The

amount in controversy is not a disputed element. Accordingly, the district court

properly exercised diversity jurisdiction.

B.

Even if the district court had diversity jurisdiction, Crear argues that the

court should have abstained from deciding a matter of state law. We review a

district court’s decision not to abstain under an abuse of discretion standard.

13

Crear relies on Burford v. Sun Oil Corp. to suggest that the district court

14

should have declined to exercise its jurisdiction. The Supreme Court considers

Burford abstention to be “an extraordinary and narrow exception to the duty of

the District Court to adjudicate a controversy properly before it.” Indeed,

15

“federal courts have a ‘virtually unflagging obligation . . . to exercise the

jurisdiction given them.’” The Court has held that Burford permits a federal

16

court to abstain from a case “only if it presents difficult questions of state law

See id. at 318 (finding that for diversity purposes a national bank is the citizen of the 12

state that its articles of association designate as its main office).

Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 144 (5th Cir. 13

2010).

 319 U.S. 315 (1943). 14

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 728 (1996) (internal quotation marks 15

omitted).

Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 313 (5th Cir. 1993) (quoting 16

Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)) (alteration

in original).

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bearing on policy problems of substantial public import . . . or if its adjudication

in a federal forum would be disruptive of state efforts to establish a coherent

policy with respect to a matter of substantial public concern.”

17

Our court recognizes five factors a court should weigh when deciding

whether to abstain under Burford:

(1) whether the cause of action arises under state or federal law . . . ;

(2) whether the case requires inquiry into unsettled issues of state

law, or into local facts; (3) the importance of the state interest

involved; (4) the state’s need for a coherent policy in that area; and

(5) the presence of a special state forum for judicial review.

18

This case involved well-settled principles of Texas state law. The mere fact that

allegations were asserted under state law does not mean that the district court

should have abstained. There were no complex regulatory matters that would

be better addressed in a state forum. Rather, the district court could ably apply

Texas law to the facts at hand. Further, the adjudication of Crear’s case in

federal court would not disrupt Texas’s interests in developing a coherent

consumer protection policy. Therefore, the district court did not abuse its

discretion in failing to abstain from deciding Crear’s claims.

C.

Crear does not challenge the district court’s legal conclusions on the Texas

statutory or common law claims. Nor does Crear explain why he failed to

properly respond to JPMorgan’s motion for summary judgment. Instead, his

challenge on the merits is limited to assertions that the district court improperly

Quackenbush, 517 U.S. at 726–27 (internal quotation marks and citations omitted).

17

Sierra Club, 627 F.3d at 144 (quoting Wilson, 8 F.3d at 313).

18

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made a credibility determination on Crear’s “Affidavit of Truth” and that the

district court deprived Crear of his right to file and enforce a commercial lien. 

No document in the record is labeled “Affidavit of Truth,” and the district

court did not challenge the credibility of any of Crear’s affidavits explicitly.

Rather, the district court concluded that Crear had failed to produce competent

evidence to show a genuine issue of material fact for any of his claims. Crear

may be implying that the district court did not give full consideration to all the

statements in his affidavits. If so, the district court’s limited reliance on the

affidavits was proper. Crear’s assertions extended far beyond his personal

knowledge and such assertions could not be considered on summary judgment.

19

Statements in the affidavit supported by Crear’s personal knowledge were

properly considered by the district court.

It is not apparent what Crear means by his right to file and enforce his

commercial lien, but he seems to assert that the Conditional Acceptance

Administrative Procedure he sent to foreclosure counsel created a contractual

obligation that required the defendants to pay him $65 million. Crear admits

that the defendants never agreed to the Conditional Acceptance Administrative

Procedure, but he contends that defendants obligated themselves to pay $65

million because they did not respond to Crear’s unilateral demands. Assuming

Crear’s document was an offer to contract with the defendants, the offer was

never accepted and no valid contract was created. The only valid contracts

20

between Crear and the defendants were the promissory note and deed of trust.

See Cormier v. Pennzoil Exploration & Prod. Co., 969 F.2d 1559, 1561 (5th Cir. 1992) 19

(holding that affidavits offered by a nonmoving party could not be considered at summary

judgment because they were not based on personal knowledge).

See 1 WILLISTON ON CONTRACTS § 4:1 (4th ed. 2010). 20

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Accordingly, the district court properly granted JPMorgan’s motion for summary

judgment.

IV.

JPMorgan was the only defendant that responded to the suit. After Crear

filed his appeal, the district court dismissed without prejudice Crear’s claims

against Deutsche Bank, MERS, and Washington Mutual because these parties

were not properly served. Crear failed to amend his notice of appeal to include

this judgment of dismissal, and as a result, JPMorgan contends that Crear

waived any right to challenge this finding. Our court follows “a policy of liberal

construction of notices of appeal . . . in situations where the intent to appeal an

unmentioned or mislabeled ruling is apparent and there is no prejudice to the

adverse party,” but we have previously held that an appellant could have no

21

intent to appeal an order that was filed after the appeal notice.

22

Here, the magistrate judge’s report recommending dismissal of the codefendants was issued before the JPMorgan judgment that Crear appealed. In

the appealed order, the district court did not specifically accept the dismissal

recommendation for the co-defendants, but the judgment included a Fed. R. Civ.

P. Rule 54(b) explanation for why the court could issue a final judgment for only

C.A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir. July 21

1981) (per curiam).

See Fiess v. State Farm Lloyds, 392 F.3d 802, 806–07 (5th Cir. 2004). In Fiess, the 22

order plaintiffs wished to appeal contained a new argument that was not proposed in the

arguments of the prior orders. In contrast, Crear appeals an order on a claim that was

intertwined with the final judgment. Cf. Trust Co. of La. v. N.N.P. Inc., 104 F.3d 1478, 1485

(5th Cir. 1997) (finding that a notice of “appeal from a final judgment sufficiently preserves

all prior orders intertwined with the final judgment”).

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one of the defendants. The judgment stated: “Because no other defendant has

been properly served or appeared herein, there is no just reason for delay.”

Under these circumstances, Crear, as a pro se plaintiff, might have believed that

the court was following the magistrate judge’s recommendation to dismiss the

other defendants, even though the court did not formally dismiss the defendants

until a few weeks later. Crear referenced the dismissal in his appellate brief and

included the final dismissal judgment in his record excerpts. JPMorgan, having

briefed the issue, was not prejudiced.

Nonetheless, Crear is here on the Rule 54(b) certificate, which necessarily

means that other parties remained after the entry of the challenged order.

Crear did not amend his appeal to include judgments other than the Rule 54(b)

grant of summary judgment; therefore, we do not have jurisdiction over the

appeal challenging the dismissal of Deutsche Bank, MERS, and Washington

Mutual.

23

As Crear is pro se, we pause to explain that his challenge to the dismissal

of the remaining parties had little likelihood of success. Texas requires strict

24

compliance with its rules of service. “Actual notice to a defendant, without

See C.A. Marine Supply, 649 F.2d at 1056 (“Where the appellant notices the appeal 23

of a specified judgment only . . . this court has no jurisdiction to review other judgments or

issues which are not expressly referred to and which are not impliedly intended for appeal.”).

Crear offered the district court no explanation for his failing to serve Deutsche Bank 24

and did not explicitly challenge Deutsche’s dismissal in his appellate brief. Even without the

jurisdictional constraints, our court could not consider any challenge to Deutsche Bank’s

dismissal. See McClellon v. Lone Star Gas Co., 66 F.3d 98, 100 (5th Cir. 1995) (holding that

“[g]enerally, appellate courts will not consider issues not urged in the district court except

when the failure to do so would result in grave injustice” and noting that this rule applies to

pro se plaintiffs); see also Al-Ra’id v. Ingle, 69 F.3d 28, 31 (5th Cir. 1995) (finding that a pro

se plaintiff abandoned a claim when his brief does not inform the appellate court of what

alleged error the district court made).

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proper service, is not sufficient to convey upon the court jurisdiction to render

default judgment against him.” Further, “jurisdiction is dependent upon

25

citation issued and served in a manner provided for by law.” Texas law

26

provides that a plaintiff may serve a nonresident defendant using the Texas

long-arm statute when the nonresident fails to maintain a registered agent for

service of process. Washington Mutual maintained a registered agent in Texas.

27

Crear did not first attempt to serve this agent, as required by Texas law.

28

MERS did not maintain a registered agent in Texas. The Texas long-arm

statute requires that documents submitted to the Secretary of State for service

indicate the nonresident’s home office address. Under Texas law, service is not

29

effective “[i]f nothing on the face of the record shows the forwarding address was

the defendant’s home or home office.” The home office of MERS is in Virginia.

30

The record reflects that Crear did not provide the Secretary of State with this

address.

Wilson v. Dunn, 800 S.W. 2d 833, 836 (Tex. 1990).

25

Id. 26

 TEX. CIV. PRAC. & REM. CODE ANN. § 17.044. 27

See McKanna v. Edgar, 388 S.W. 2d 927, 929 (Tex. 1965) (holding that before the 28

Secretary of State may be substituted for service, the plaintiff must demonstrate that the

defendant has no designated agent upon whom service may be made); Mobilevision Imaging

Servs., LLC v. LifeCare Hosps. of N. Tex., 260 S.W. 3d 561, 565 (Tex. App. 2008—Dallas 2008,

no pet.) (reversing a default judgment when the plaintiff served the defendant through the

long-arm statute but did not allege that the defendant had failed to designate or maintain a

resident agent for service of process).

 TEX. CIV. PRAC. & REM. CODE ANN. § 17.045(a).

29

Wachovia Bank of Del., N.A. v. Gilliam, 215 S.W. 3d 848, 849 (Tex. 2007) (internal 30

quotation marks omitted).

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V.

The district court’s grant of summary judgment in favor of JPMorgan is

AFFIRMED, and the appeal from the dismissal without prejudice of Deutsche

Bank, MERS, and Washington Mutual is DISMISSED for want of jurisdiction.

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