### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40590 Summary Calendar

JP MORGAN CHASE BANK, N.A., FEDERAL HOME LOAN MORTGAGE CORPORATION; RECEIVER FEDERAL DEPOSIT INSURANCE CORPORATION, receiver for Washington Mutual Bank N.A.,

Plaintiffs-Appellees,
v. GEORGE DIXON, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. 3:10-cv-329

Before STEWART, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges. PER CURIAM: * Plaintiffs-Appellees, JP Morgan Chase Bank, N.A. ( “Chase”) and Federal Home Loan Mortgage Co r p oration (“Freddie Mac”) (collectively, “Appellees”), f i l e d s u i t a g a i n s t D e f

e n d a n t

- Ap p e l l a n t G e o r ge Dixon seeking judgment de c l a r i n g the validity o f a past foreclosure on Dixon’s property , f o r s u p erior t itle, and to

U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D October 7, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-40590 Document: 00512399012 Page: 1 Date Filed: 10/07/2013No. 12-40590

quiet title. The district c ourt granted summary judgment in favor of Appellees and dismissed Dixon’s counterclaims. We AFFIRM. I. In September 1997, Ge o r g e Dixon executed a promissory note in the amount of $178,500, payable to PNC M ortgage C orporation of America (“PNC”), to finance the p urchase of a residential pr o perty l ocated on Melody Lane in Friendswood, Texas ( “the Property”). To s ecure the n ot e ( “the Note”), Dixon executed a deed of trust n a ming PNC as the beneficiary. Several years later in 2002, Washington Mutual B ank, F.A. (hereinafter, “WaMu”) bec a m e t he

successor in interest to PNC by o p e r a t i o n o f law. At that time, Dixon was notified that WaMu was the servicer and mortgagee of his loan. In Septem ber 2007, Dixon stopped m aking payments on t he Note. In March 2008, WaMu’s counsel notified Dixon of his default o n the Note and gave him an opportunity to cure the default. Dixon failed to do so. Then, i n September 2008, WaMu was declared insolvent and c losed by the Office of T h r i ft Supervision and the Federal Deposit I nsurance Corporation (“FDIC”). The FDIC was appointed as the r e c e i v e r of WaMu. Consequently, Chase and the FDIC executed a Purchase a nd Assumption Agreement (“P&A A gr e e ment”) wherein C hase acquired certain assets a n d l i ab i l it i e s o f W aM u f r o m the FDIC. The P &A Agreement provided t hat Chase acquired a ll loans and l oan commitments of WaMu but that certain liabilities, i .e. , b orrower’s claims, were retained by the FDIC. The following month in October 2008, Dixon was informed via written letter that Chase h ad become the mortgagee and servicer

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f o r h i s l oan due to WaMu’s insolvency and c losing. 1 Shortly thereafter, Chase acquired the Note and deed and appointed a Substitute Trustee. In October 2 0 09, approximately one year after WaMu was declared insolvent and placed i nto receivership, Dixon f iled suit against W aMu i n Texas state court alleging c laims under the Deceptive Trade Practices Act, i n addition to claims of slander of title and tortious interference. Moreover, in spite of the fact t hat Dixon had received notice from Chase in 2008 t h at it was replacing WaMu as the mortgagee and l oan servicer o f the Note, Dixon n ever joined Chase as a defendant in the state court suit. Then on April 28, 2010, D ixon obtained

a default judgment against WaMu wherein he w a s a w a r d ed in excess of $2.8 million dollars in damages and all liens o n t he P roperty were declared to be released, discharged, and cancelle d

. D ixon recorded t he state court default judgment in the real property records in Galveston, Texas. In May 2010, d ue to Di x o n ’ s c ontinuing default on the Note, Chase’s counsel notified Dixon t hat the terms of the Note were accelerated a nd that the Property would be subject t o foreclosure s ale on June 1, 2010. T hen on June 1, the Property w as sold to Freddie M ac for $222,761. 2 The Substitute T rustee’s deed was then recorded in the real property records in Galveston, Texas. In August 2010, a fter the state court default judgment w as rendered and filed in the conveyance r e c ords, Appellees filed suit in federal district court

1 Chas e inf

orm ed D ixon in the O ctober 2008 letter that, during a trans itionary p eriod , his loan w ould cont i n u e t o b e s erviced und er the nam e WaM u f or p urp os es of convenience. Then in O ctober 2009, D ixon w as inf orm ed that the trans ition w as com p lete and that his loan
w ould be serviced und er Chas e’s nam e f rom that p oint f

orw ard

. Dixon, how ever, alleges that he und ers tood C has e’s ins tructions to ind icate that his loan w ould be s ervi c e d b y WaM u d uring this p eriod , not jus t und er the nam e of WaM u.

2 Accord ing to Chas e, in s p ite of the f oreclos ure s al e , D i x o n continues to live at the Prop erty. 3 Case: 12-40590 Document: 00512399012 Page: 3 Date Filed: 10/07/2013No. 12-40590

seeking a declaratory j udgment tha t the June 1, 2010 foreclosure proceedings were valid and to quiet title of the Property in Freddie Mac’s name. 3 At the summary judgment proceedings, Ap p ellees argued that they had superior title to the Property over Dixon because Chase properly acquired title from the FDIC, the receiver for WaMu, in September 2008. Because the FDIC, and not WaMu, acquired title after WaMu’s insolvency and closing, WaMu had

no interest in t he Prop e r t y t h a t Dixon could have a cquired by the state court suit. Additionally, Chase avers that it complied with a ll relevant provisions of the deed a nd the Texas Property Code during the foreclosure procee d i n gs. F u r t h e r , Chase asserted that an a ccurate payoff s tatement was provided to Dixon and that Chase properly reported the credit i nformation associated with the status of Dixon’s account. Dixon countered that both Chase and WaMu r epresented that they were the s ervicers and mortgagees of the Note, thus, he challenged Chase’s claim that Appellees had superior title to the P roperty. D ixon a lso contended that WaMu did n ot acquire the Note from PNC because PNC assigned the deed to the FDIC in 1997. Further, D i x o n c l a imed that b ecause the P&A Agreement did not specifically mention the Note, Chase could not establish that it w as the true

owner of the Note a nd d eed. A dditionally, D ixon sought to quiet his own title to the Property and submitted the following counterclaims against C hase: (1) trespass to title; (2) slander of title; (3) wrongful foreclo s u r e ; (4) tortious interference; (5) alter ego and single business enterprise; and, (6) fraud.

3 Als o d uring this tim e p eriod , the FD I C f iled a s ep arate bill of review in Texas s tate court s eek ing to s et as id e the s tate court d ef ault jud gm ent that rem ained p end ing during the d is trict court s um m ary jud gm ent p r o c eed ings below

. In June 2012 the s tate court granted
s um m ary jud gm ent i n f a vor of the FD IC and vacated the Ap ril 28, 2010 d ef ault jud gm ent agains t WaM u. See FDIC, as recei v er f or Wa sh. M

ut. Ba nk, v. Di xon , N o. 11- cv- 0690 (June 8, 2012)

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In May 2012, the district judge en t e r e d an Amended Final J udgment in favor of Appellees holding that Freddie Mac held superior title to the Property through the valid foreclosure sale on Jun e 1 , 2 0 1 0 a n d that the c loud on the Substitute Trustee’s deed, which was created as a result of t he recordation of the state court default judgment against WaMu, w as t hereby removed. The order f u r th e r provided that D ixon t o ok nothing on h i s count e r c l a i m s a g a i n s t Ap p e l l e e s . In his earlier memorandum opinion w hich was i n corporated into the A mended F i n a l Judgment, the district judge stated that: (1) it is undisputed that D i x o n defaulted on the Note; (2 ) D i x on failed to provide evidence rebutting Chase’s assertion t hat i t a cquired the Note a nd deed f rom t he FDIC at t h e f oreclosure sale of WaMu’s a ssets i n Se p tember 2008; (3) Dixon failed to provide evidence rebutting Chase’s assertion that it complied w i th the Texas Property Code and the t erms of the deed of trust when it foreclosed on the Property; and, (4) Chase had no duty to r espect Dixon’s efforts to s e ll the Property to a third p arty 4 since Dixon lost any s ellable interest in the Property when he defaulted on t he Note. Dixon appeals pro seherein. 5 II. On appeal, Dixon argues that: (1) the district c o urt erred by nullifying and subsequently amending the final judgment of t he state court in violation of the Rooker-Feldman Doctrine; (2) the district court erred in ruling that no i ssues of material fact existed at the s u m mary judgment proceedings; and, (3) that the district court abused its d iscretion in summarily dismissing all of D ixon’s claims

4 At the p roceed ings below , D ixon as s erted that he los t s everal p ros pective s ales on the Prop erty d ue to Chas e’s ref us al to coop erate and p rovid e the ap p rop riate p ap erw ork allow ing D ixon to p roceed w ith the sales

.

5 D ixon’s attorneys w ithd rew at the sum m ary jud g m ent p roceed ings below and since then, he has p roceed ed p ro se
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and counterclaims in violation of his Fourteenth Amendment Due Pro cess rights. 6We address each of these arguments in turn. This court reviews a district court’s grant of s ummary j udgment de novo. N at’l Cas. Co. v. W. World I ns. Co. , 669 F.3d 608, 612 ( 5th C ir. 20 1 2 ) ( c i t a t i o n omitted). A. The Rooker-Feldman Doctrine Dixon a rgues that the district court rende r e d i ts Final Judgment and Amended F inal Judgment in violation of t he Rooker-Feldman d o ctrine. Dixon asserts t hat the Final Judgm e n t was improper because it n ullified the state court default judgment and the Amended Fi n al Judgment was improper because it removed the title cloud created by the recordation of the stat e c o u r t default judgment previously rendered. We do not agree. The Rooker-Feldman doctrine bars lower federal courts from “exercising appellate jurisdiction over final state-court judgments.” See Ill. Cent. R.R. Co.

v. Guy , 682 F.3 d 3 8 1, 3 90 ( 5th Cir. 2 012) (internal quotation marks o mitted) (citation omitted). “It applies only in circumstances cl o s e l y akin to those address e d i n t he Rooker a nd Feldman decisions, in which a p arty suffered an adverse final judgment rendered by a state’s court o f l a s t r esort, and then initiated proceedings in a lower federal court seeking review and reversal of the state-court judgment.” Id

. (citations omitted); Dist. of Columb i a Co urt of Appeals v. Feldman , 460 U.S. 462 (1983); Rooker v. Fid. Trust Co. , 263 U .S. 413 (1923). “Accordingly, the doctrine usually applies only when a plaintiff e xplicitly

6 Although Chas e and Fred d ie M ac j oined the FD IC as a neces s ary p arty p urs uant to Fed

. R. Civ. P

. 19( a) , D ixon d id not as s ert any claim s or counterclaim s agains t the FD IC at the
s um m ary jud gm ent p roceed ings or on ap p eal herein. T heref ore, our d is cus s ion w ill be lim ited to Dixon’s claim s agains t C has e and Fred d ie M ac only. Se e In re Ka tri na Ca na l Brea ches Li tig
. , 620 F. 3d 455, 459 n. 3 ( 5th Cir. 2010) ( citation om itted ) (hold ing that argum ents not p res ented in Ap p ellant’s o p e n i n g brief are w aived) ; see a lso X L Sp eci a l ty Ins. C

o. v
. Ki ew i t O ff shore Serv ices, Ltd. , 513 F .3d 146, 153 ( 5th Cir. 2008) ( citation o m i t t e d ) (hold ing that an argum ent not rais ed bef ore the dis trict court cannot be as s erted f or the firs t tim e on ap p eal)

.

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attacks the validity of a state court’s judgment, though it can also apply if the plaintiff’s federal c laims are so inextricably intertwined with a state judgment that the federal court ‘is in essence being c alled upon to review the s tate court decision.’” Guy , 682 F.3d at 390-91 (citations omitted). The Rooker-Feldman doctri n e does not apply, however, when the party against whom the d o ctrine is invoked was not a party to the underlying state court proceeding. See Lance v. Dennis , 546 U.S. 459, 464 (2006) (citing J ohnson

v. De Grandy , 512 U .S. 9 97, 1006 (1994)). Additionally, this court has recognized that “the doctrine has n o application to a federal s uit brought by a nonparty to the state suit, nor does it preclude a party from litigating a n independent claim,

even one that denies a legal conclusion p reviously reached by a state court.” In

re Knezek , 37 0 F. App’x 4 49, 452 (5th Cir. 2010) (per c uriam) (unpublished) (citing E xxon Mobil Corp. v. Saudi Basic Indus. Corp. , 544 U.S. 280, 293 (2005)). Originally, the district court entered a Final Judgm e n t n u llifying the state court default judgment against WaMu. However, on the motion of App e llees, the district court a m ended that judgment a nd rendered an A mended Final Judgment rem o v i n g the “nullified” l anguage and substituting language indicating Freddie Mac’s superior title to the Property and removing the cloud created by the s tate court default judgment. Accordingly, the district court did not ultimately nullify the state court default judgment. 7 Moreover, Chase and Fr e d di e M a c w e r e non-parties to Dixon’s suit against W a M u, therefore, the R ooker-Feldman d octrine is inapplicable to bar thei r declaratory judgment action in the proceedings b elow

. Se e Lance , 546 U.S. at 464; In re Knezek , 370 F. App’x at 452. Further, as pointed o ut by Appellees, the

7 Ad d itionally, as stated i nf ra , on June 2012 the Texas s tate court granted s um m ary jud gm ent in f

avo r o f t h e F D IC and vacated the Ap ril 28, 2010 d ef ault j ud g m ent agains t WaM u. See FDIC, a s recei v er f or Wa sh. M

ut. Ba nk, v
. D ixon , No. 11- cv- 0690 (June 8, 2012)

.

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declaratory judgment action did not seek to nullify t h e state court default judgment. Rather, it s ought to have Freddie Mac’s t itle to the Property declared superior to Dixon’s and t o have the cloud c r e a ted by the s tate court default judgment removed. Accordingly, we hold that the district c ourt’s judgment was not rendered in violation of the Rooker-Feldmandoctrine. Id

. B. Validity of the Foreclosure Proceedings Next, D i x o n challenges the validity of the f oreclosure proceedings as conducted by C hase. Dixon claims that Chase has failed t o prove chain of title to the Note and the d eed of trust evidencing that it had the right to foreclose on the Property. We disagree. The record shows that Chase entered into the P&A A g r e ement w ith the FDIC a nd thereby a greed t o purchase all loans and loan commitments of WaMu. Dix o n d o e s n o t dispute that his loan was formerly serviced by WaMu before it

was p laced in receivership and its a ssets (including all loan commitments) were subsequently acquired by Chase. Nor does Dixon dispute that h e was notified by C hase in 2008 that it was the replacement mortgagee and servicer o f Dixon’s loan. Moreover, as we have previously held, “the chain of assignments is itself sufficient t o establish standing to foreclose, e ven without the original n o te.” Wheeler v. JP Morgan Chase Bank, N.A. , No. 4:13–cv–364, 2 013 WL 3965304, at *3 (S.D. Tex. Aug. 1, 2 013) (citation omitted)). H e r e , c o n t r ary to Dixon’s allegations, Chase has provided sufficient documentation demonstrating that it acquired Dixon’s loan b y purchasing fro m t h e FDIC the loan commitments of WaMu t h a t w e r e p l a c e d i n t o the receivership a fter WaMu was d eclared i nsolvent

- and that WaMu was the s uccessor in i nterest to PNC - the original p arty with

w hom D ixon executed the deed of trust. Any m isunderstandings D i x o n m a y have about the chain of assignments are not supported b y D ixon’s arguments on appeal or the record.

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A d ditionally, the record indicates that Chase provi d e d t h e r e qu i r e d n o t i c e s to Dixon prior to the foreclosure pro c e e d i n gs. Contained in the r ecord is the notice of default and o pportunity to c u re that was provided to Dixon in 2008, as is the note of acceleration along w ith notice of sale in 2010. The dates on these notices indi c a t e that Chase complied with the terms of the deed of trust (requiring 30 days n otice prior to acceleration) as w e l l a s the notice requirements

se t f orth in the Texas Property Code (requiring 2 0 d ays notice prior to acceleration). See Tex. Prop. C ode § 51.002(d). We are not persuaded by Dixon’s argument that the t wo year lag t ime between the 2008 default notice and the 2010 notice of acceleration s o m e h o w invalidated the f oreclosure proceedings. More significantly, however, Dixon has failed to provide evidence that he retained valid title to the Property o r that h is title, i f v a l i d , i s superior to that of Appellees. See Frick s v
. Hancock , 45 S .W.3d 322, 327 (Tex. App.—Corpus Christi 2 001, no p et.) (citation omitted) (holding that a plaintiff “must prove and

recover on the strength of his own t i t l e , n o t the weakness of his a dversary’s title.”). Dixon’s ultimate and continuing default on the Note payments, in and of itself, constituted a breach of the terms of t he Note a n d t h e deed of trust which effectivel y n e g a ted any potential ownership or v alid title he could have held to the Property. Accordingly, we hold t hat the d i stric t c o u rt did n ot err in rendering judgment in favor o f Appellees as to the propriety of the foreclosure proceedings, Freddie Mac’s s u perior title to the Property, a nd t he removal o f the c loud on the title r esulting from t he recordation of th e ( n o w v acated) state court default judgment. C. Dixon’s Due Process Arguments Dixon’s c ounterclaims against Appellees in the summary j u d g m e n t proceedings included allegations of trespas s to title and suit to quiet title, slander o f title, wrongful foreclosure, tortious interference, alter ego and single

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business enterpri s e , a n d fraud. Dixon asserts on appeal that his due process rights w ere violated wh en the district court summarily dismissed his counterclaims without hearing or explanation. We do not agree. As this court has held, under Rule 56, a district court’s dismissal of counterclaims because they fail as a matter of law based on the undisputed facts is appropriate. See N

at’l Cas. Co. v. Kiva Const. & Eng’g, Inc. , 496 F. App’x 446, 451-52 (5th Cir. 2012) (per curiam) (unpublished) (citing Fed. R. C iv. P

. 56). While it is true that Rule 56 provides that a “court should state on the record the

reasons f

or granting or deny i n g t he motion,” Dixon cites no authority in this

c i r c u i t or otherwise mandating the degree to which a summary judgme n t o p i n i o n should be detailed. Id

. at 451-53 (holding that the district c o urt did not err by entering final judgment “summarily dismiss[ing] Defendants’ counterclaims for ‘breach of contract, b ad faith and/or deceptive trade and/or claims o r settlement in violation of the applicable law’”). Here, the dist r i c t c ourt stated that it conside r e d t h e motion for summary judgment, the briefs in support and in opposition, the r e lated documents, and the arguments attendant. The memorandum opinion f urther stated that t h e material facts were not in dispute

a n d that Dixon’s “opposition to Chase Bank’s case in chief, and h i s counterclaims, [were] unmeritorious.” N either the record nor the district court’s judgment o r memorandum opinion indicate that Dixon w as deprived of the right to have his c laims heard. Id

. Consequently, we hold t h a t D i xon’s due process arguments fail. F u r t h e r , i n l i g h t o f o u r h o l d ing that the district c o u r t d i d n o t e r r i n rendering summary judgment in favor of Appellees with regard to validity of the foreclosure proceedings and Freddie Mac’s superi o r title to the Property, we pretermit d i scussion of the following arguments advanced by Dixon on appeal: (1) trespass to title and s uit to quiet t itle; (2) s l a nder o f title; (3) wrongful foreclosure; (4) tortious interference; and, (5) fraud.

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Finally, we a lso hold that D ixon’s c ounterclaim o f a lter ego and single business enterprise fails. As this court has stated, in determining w hether an alter e go relationship exists, it m u s t f irst decide whether the “two enterprises have s ubstantially identical m anagement, bu s iness purpose, operation, equipment, customers, s u p ervision, and o wnership.” J. Vallery Elec., Inc. v. NLRB , 337 F.3d 446, 4 51 (5th Cir. 2 0 0 3) (citation omitted). Second, the court “must gauge whether there was an unlawful motive b ehind the creation of the

new business entity, d etermining whether t here was a ‘disguised continuance’

or ‘attempt to avoid the obligati o n s o f [an existing]

. . . agreement through a sham transaction or technical change in operations.’” Id . (citation omitted). As we have stated, the record clearly in di c a t es that Chase acquired certain assets, including all loans a nd loan c ommitments t hat were formerly serviced by WaMu, after WaMu was declared insolvent and placed into a receivership with the FDIC. Chase notified D ixon of the changes, including the fact that WaMu had been closed by the O ffice of Thrift Supervision and the FDIC a nd that Chase would be the r eplacement mortagee and servicer for Dixon’s loan. C hase even explained to Dixon that Chase would continue to service Dixo n ’ s loan under WaMu’s name for p urposes o f convenience during t he transitionary period after which Chase acquired WaMu’s assets, but that after th a t time, the name “WaMu” would n o longer be used. As pointed o ut b y t he district cou r t , while Dixon may not h ave fully understood the transfer process, his confusion does not undermine th e v a l i d i t y of the transfer. Nor does it support a finding by this court that an alter ego relationship was formed between Chase and WaMu when Chase a cquired WaMu’s assets after its insolvency. See J. V allery Elec., Inc. , 337 F.3d at 451.

11 Case: 12-40590 Document: 00512399012 Page: 11 Date Filed: 10/07/2013No. 12-40590 I II. For the foregoing r eason s , we AFFIRM the d i strict c o urt’s summary judgment in f

a v o r of Appellees, Chase and Freddie Mac, dismissing in total Dixon’s claims and counterclaims.

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