IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50417

JUDITH FRENCH; VIRGINIA J. FRENCH, 

Plaintiffs-Appellants

v.

EMC MORTGAGE CORPORATION; THE BANK OF NEW YORK MELLON, 

formerly known as The Bank of New York as Successor Trustee to JP Morgan 

Chase Bank, N.A. as Trustee for Certificate holders of Bear Stearns Asset 

Backed Securities Trust 2006-3, Asset Banked Certificates, Series 2006-3; 

BEAR STEARNS, L.L.C.; BEVERLY MITRISIN; CHARLES THOMAS 

NATION; MORTGAGE ELECTRONIC REGISTRATION SERVICES.

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:12-CV-100

Before REAVLEY, JONES, and GRAVES, Circuit Judges.

PER CURIAM:*

This case arises from the foreclosure sale of Appellants’ home after they 

defaulted on their mortgage. Appellants challenge the removal of the case to 

federal court and the dismissal of their claims alleging deceptive lending 

practices on the part of Appellees. 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

April 29, 2014

Lyle W. Cayce

Clerk

 

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No. 13-50417

On December 1, 2005, Appellants executed an Adjustable Rate Note in 

the amount of $147,750, secured by a Deed of Trust on their home at 

1271 Morrow Court, El Paso, Texas. Appellants began to fall behind on their 

mortgage payments around October 2008. On August 16, 2010, nearly a year 

after Appellants last made a loan payment, EMC, the mortgage servicer, sent 

two certified letters, notifying Appellants that it was accelerating the maturity 

date of the debt and scheduling a foreclosure sale for September 7, 2010. The 

letters were returned as unclaimed, despite three delivery attempts. On the 

scheduled foreclosure date, however, Appellants filed suit in state court and 

obtained an ex parte Temporary Restraining Order (“TRO”), enjoining the 

foreclosure. Notwithstanding the TRO, a Substitute Trustee, appointed by 

EMC, sold the home to The Bank of New York (BONY) for $202,837.46. 

Appellants, however, continue to live at the home. 

Appellants initially alleged several causes of action under Texas law in 

their state court case to enjoin the foreclosure sale. On March 20, 2012,

however, Appellants filed an amended complaint that claimed, for the first 

time, that EMC’s conduct was “in direct violation of . . . the Federal Fair Debt 

Collection Practices Act.” This amendment prompted Appellees to remove the 

case to federal court on the basis of federal question jurisdiction. Appellants 

moved to remand, and the district court denied the motion. Appellees then 

moved for summary judgment on all of Appellants’ claims. After Appellants 

failed to respond to the motion, the district court granted summary judgment 

and entered a final judgment against Appellants. Appellants filed a motion for 

reconsideration, which was denied. This appeal followed. 

Appellants press three arguments. First, they contend that removal was 

improper because the two references in their amended complaint to the Fair 

Debt Collection Practices Act (“FDCPA”) are not sufficient to invoke federal 

question jurisdiction. Citing Grable & Sons Metal Prods. v. Darue Eng’g & 

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Mfg., 545 U.S. 308 (2005), Merrell Dow Pharms. Inc. v. Thomas, 478 U.S. 804 

(1986), and Howery v. Allstate Ins. Co., 243 F.3d 912 (5th Cir. 2001), Appellants 

assert that the district court should have considered the relative significance 

of the federal claim. The rule from this line of authority, however, applies to 

cases that do not plead a cause of action arising under a federal statute, but 

where federal jurisdiction may exist over claims created by state law that 

“incorporate federal standards or require the interpretation of federal law.” 

Howery, 243 F.3d at 917; see also Grable & Sons Metal Prods., 545 U.S. at 312 

(addressing state-law claims that implicate significant federal issues); Merrell 

Dow Pharms. Inc., 478 U.S. at 805 (explaining that the question presented was 

whether federal jurisdiction existed over state-law action that incorporated a 

federal standard). In the present case, Appellants referenced the FDCPA by 

way of asserting a cause of action under this federal statute. As such, the 

amended complaint brought a claim “under the . . . laws . . . of the United 

States,” 28 U.S.C. § 1331, and was properly removed to federal court. See

28 U.S.C. § 1441(a) (authorizing removal of civil actions over which the district 

court has original jurisdiction).1 

Second, Appellants argue that summary judgment was unwarranted 

because Appellees failed to submit evidence that controverted the allegations 

in the amended complaint that Appellees engaged in deceptive mortgage 

practices. Appellees’ initial burden on summary judgment, however, was only 

1 Appellants do not argue that the district court erred in exercising supplemental 

jurisdiction over their state law claims. To the contrary, Appellants concede that their claims 

“arise from an interlocked series of transactions.” The Court agrees that Appellants’ claims 

derive from the same nucleus of operative fact, the servicing of their mortgage loan and the 

foreclosure of the subject deed of trust. As such, supplemental jurisdiction was proper. See

U.S.C. § 1367(a) (authorizing supplemental jurisdiction where the state law claims are “so 

related” to the federal claims as to “form part of the same case of controversy”); Mendoza v. 

Murphy, 532 F.3d 342, 356 (5th Cir. 2008) (stating that supplemental jurisdiction exists when 

the federal and state claims “derive from a common nucleus of operative fact”). 

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to point to an absence of evidence supporting Appellants’ claims. Celotex Corp. 

v. Catrett, 477 U.S. 317, 325 (1986) (holding that the party seeking summary 

judgment can satisfy its initial burden by demonstrating an absence of 

evidence to support the nonmoving party’s case where the nonmoving party 

has the burden of proof at trial). Once Appellees made this initial showing, the 

burden shifted to Appellants to identify genuine issues of material fact. 

Esmark Apparel, Inc. v. James, 10 F.3d 1156, 1160 (5th Cir. 1994) (shifting 

burden to nonmoving party after moving party pointed out to the district court 

that there was no evidence in the record to support nonmoving party’s case). 

Appellants, however, did not respond to Appellees’ motion, and the district 

court found no evidence in the record that supported Appellants’ claims. 

On appeal, moreover, Appellants do not point to any summary judgment 

evidence that demonstrates a genuine issue of material fact as to any of their 

claims. Instead, Appellants refer to a demand letter from the Texas Attorney 

General’s office concerning JP Morgan Chase & Co.’s foreclosure practices and 

a stipulated final judgment from a federal lawsuit against EMC. Neither of 

these documents, however, evidences any misconduct in Appellants’ case, and, 

in any event, they cannot be used to challenge the district court’s summary 

judgment ruling because they were not in the record when the court issued the 

ruling. Moore v. Miss. Valley State Univ., 871 F.2d 545, 549 (5th Cir. 1989) 

(holding that an appeals court is bound on summary judgment review to the 

record as it existed before the district court). Accordingly, we find no error in 

the district court’s grant of summary judgment. 

Finally, Appellants complain about the timing of the removal and the 

summary judgment motion. Specifically, Appellants claim that Appellees took 

advantage of the misfortune that befell Appellants’ counsel and circumvented 

a discovery hearing in state court. In support, they point out that Appellees 

filed their notice of removal three days before a scheduled discovery hearing in 

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state court, and on the same day that Appellants’ counsel received news that 

an immediate family member was stricken with a life-threatening illness. 

Appellants further indicate that counsel reduced his legal practice for a period 

of seven months until the family member’s condition improved. Given 

counsel’s family health emergency, Appellants argue that the failure to file a 

summary judgment response should be excused. 

Appellants’ grievances do not warrant relief. Appellees timely removed 

the state court action on the basis of the amended complaint, which Appellants 

filed six days before the discovery hearing. The fact that the removal occurred 

on the eve of the hearing is of no significance because the availability of 

removal is not dependent on whether the state court case has a pending 

hearing but rather on whether the defendant acts promptly upon notice that 

federal jurisdiction exists. See 28 U.S.C. § 1446. As to the summary judgment 

motion, Appellants had ample time to seek a continuance in the district court 

case. Appellees waited seven months from removal before moving for summary 

judgment, and the district court waited an additional three months before 

ruling on the motion. In light of Appellants’ prolonged inactivity, which 

persisted for several months after counsel’s emergency subsided, there was 

nothing improper about the summary judgment process. 

AFFIRMED. 

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