IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60179

Summary Calendar

KYRT M. WENTZELL; RHONDA E. WENTZELL, 

 Plaintiffs - Appellants

v.

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, successor by 

merger to Chase Home Finance, LLC, successor by merger to Chase 

Manhattan Mortgage Corporation, 

 Defendant - Appellee

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 1:14-CV-182

Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.

PER CURIAM:*

This appeal arises from the district court’s grant of Defendant-Appellee’s

motion to dismiss the Plaintiffs-Appellants’ complaint for failure to state a 

claim. Because the complaint fails to state a plausible claim for relief, 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

October 2, 2015

Lyle W. Cayce

Clerk

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I.

On October 19, 2001, Plaintiffs-Appellants Kyrt Wentzell and Rhonda E. 

Wentzell (“the Wentzells”) entered into a loan agreement with Bridges 

Mortgage Company (“Bridges”), in the principal amount of $128,118.00 with a 

6.875% yearly interest rate. The required monthly payment was $841.65. 

Under the terms of the loan, the Wentzells would be in default “by failing to 

pay in full any monthly payment.” The loan was secured by a Deed of Trust, 

which granted Bridges and its successors a security interest in the Wentzells’ 

real property located at 2248 Club Moss Circle, Biloxi, Mississippi (the 

“Property”). Under the Deed of Trust, the mortgagee could invoke the power of 

sale and begin foreclosure proceedings on the Property following any default 

by the Wentzells. In November 2001, Bridges assigned the loan to DefendantAppellee JPMorgan Chase Bank (“Chase”). 

Following Hurricane Katrina in August 2005, the Wentzells fell behind 

in making timely payments on the original loan. On June 1, 2006, they entered 

into a Loan Modification Agreement with Chase, resulting in a principal 

balance of $131,018.72, a yearly interest rate of 6.875%, and a new monthly 

payment of $909.97. The Wentzells “believed that they had secured the [2006] 

modification at the rate of 5.5%, but [were] told by representatives of Chase 

that the interest rate would be adjusted to the 5.5% sometime later after the 

modification had been executed.” 

The Wentzells allege that Chase never made the required modification 

and that Chase refused to address perceived discrepancies in their account 

activity history. The Wentzells further allege that, sometime before May 1, 

2009, they entered into another modification agreement with Chase that 

changed their yearly interest rate to 5.25%. The Wentzells attached the alleged 

modification to their Petition, but the document was not executed by Chase. 

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The unexecuted modification agreement provided for a 5.25% yearly interest 

rate, a principal balance of $148,318.14, and monthly payments of $935.47.

The Wentzells’ June 1, 2009, Mortgage Loan Statement reflected a 

principal balance of $148,232.41 with a 6.875% yearly interest rate, resulting 

in a due payment of $935.47. Chase’s November 23, 2009, Mortgage Loan 

Statement to the Wentzells also listed a 6.875% yearly interest rate and a due 

monthly payment of $935.47. The November 2009 Statement further indicated 

that the Wentzells’ past due payments totaled $5,326.02. The Wentzells allege

that when they questioned the accuracy of the interest rate, Chase insisted 

that the rate remained at 6.875%. Though they “continued to seek assistance 

from Chase . . . in correcting the interest rate,” it was “to no avail.” The

Wentzells made their last mortgage payment on or about July 22, 2009, and 

allege that they operated under the mistaken impression that their interest 

rate was 6.875%; they did not discover until after foreclosure that the 

statements listed “the apparent correct principal and interest amount” from 

the modification that lowered the rate to 5.25%. 

Chase initiated foreclosure proceedings several times, but the Wentzells 

successfully postponed the sales. Chase finally foreclosed the Property on May 

16, 2013, after the Wentzells “inadvertently” failed to recognize Chase’s notice 

of foreclosure. At the sale, Chase purchased the Property as the highest bidder. 

On July 1, 2013, Chase filed a complaint for unlawful entry and detainer in 

state court in Harrison County, Mississippi. The record does not indicate the 

disposition of the state court action. 

On April 14, 2014, the Wentzells filed a “Petition to Set Aside 

Foreclosure and for Other Appropriate Relief” (the “Petition”) in the Chancery 

Court of Harrison County, Mississippi, naming Chase as the defendant. In 

their Petition, the Wentzells asked the district court to exercise its “equitable 

powers” to “set[] aside the foreclosure sale . . . and reinstate the loan.” Chase 

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properly removed the action to federal district court based on diversity of 

citizenship. Chase then moved to dismiss the Petition for failure to state a 

claim under Federal Rule of Civil Procedure 12(b)(6). The district court 

concluded that the Wentzells failed to state a plausible claim for equitable 

relief and dismissed the action with prejudice. The Wentzells timely appealed.

II.

A.

This court reviews a district court’s grant of a motion to dismiss under 

Rule 12(b)(6) de novo, “accepting all well-pleaded facts as true and viewing 

those facts in the light most favorable to the plaintiff.” Toy v. Holder, 714 F.3d 

881, 883 (5th Cir. 2013) (quoting Bustos v. Martini Club, Inc., 599 F.3d 458, 

461 (5th Cir. 2010)), cert. denied, 134 S. Ct. 650 (2013). “To survive a motion to 

dismiss, a complaint must contain sufficient factual matter, accepted as true, 

to state a claim to relief that is plausible on its face.” Id. (internal quotation

marks omitted). “A claim has facial plausibility when the plaintiff pleads 

factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.” Hale v. King, 642 F.3d 492, 499 

(5th Cir. 2011) (per curiam) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009)). “The well-pleaded facts must permit the court to infer ‘more than the 

mere possibility of misconduct.’”1 Id.

 

1 The Wentzells’ argument that Mississippi’s more lenient pleading standards apply 

in this diversity case is foreclosed by precedent. “[F]ederal courts sitting in diversity 

apply state substantive law and federal procedural law.” Nat’l Liab. & Fire Ins. Co. v. R & R 

Marine, Inc., 756 F.3d 825, 834 (5th Cir. 2014) (quoting Gasperini v. Ctr. for Humanities, 

Inc., 518 U.S. 415, 427 (1996)); see also Wigginton v. Bank of New York Mellon, 488 F. App’x 

868, 870 (5th Cir. 2012) (per curiam) (rejecting an appellant’s argument “that the district 

court erred by analyzing her complaint under the Federal Rules of Civil Procedure, rather 

than the less-demanding [state] pleading standards” and noting that there is “no right in 

federal court to retain more lenient state court procedural rules.”). 

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B.

In their Petition, the Wentzells seek equitable relief to “set[] aside the 

foreclosure sale . . . and reinstate the loan [with Chase].” Because federal 

jurisdiction in this case is based on diversity of citizenship, Mississippi 

substantive law applies. Nat’l Liab. & Fire Ins. Co., 756 F.3d at 834. Under 

Mississippi law, a court “has the power to relieve a mortgagor from the effect 

of an operative acceleration clause in a mortgage where the default of the 

mortgagor was the result of some unconscionable or inequitable conduct of the 

mortgagee.” Johnson v. Gore, 80 So. 2d 731, 736 (Miss. 1955). That is, “[e]quity 

will not relieve the mortgagor from the consequence of a default unless the 

mortgagee has done some act which makes it unconscionable for him to take 

advantage of it.” Id.; see also Nat’l Mortg. Co. v. Williams, 357 So. 2d 934, 937 

(Miss. 1978). 

Equity, however, is available only to those who “come with clean hands.” 

In re Estate of Richardson, 903 So. 2d 51, 55 (Miss. 2005) (quotation omitted); 

see also R.K. v. J.K., 946 So. 2d 764, 774 (Miss. 2007) (“It is one of the oldest 

and well known maxims that one seeking relief in equity must come with clean 

hands or face refusal by the court to aid in securing any right or granting any 

remedy.”). “[W]hen a successful affirmative defense appears on the face of the 

pleadings, dismissal under Rule 12(b)(6) may be appropriate.” Kansa 

Reinsurance Co., Ltd. v. Cong. Mortg. Corp. of Tex., 20 F.3d 1362, 1366 (5th 

Cir. 1994).

The Wentzells’ Petition contains no factual allegations that plausibly 

suggest that their default was caused by any conduct by Chase. Instead, the 

Wentzells allege that their “mistaken belief that [Chase] was charging them at 

the higher interest rate . . . resulted in the property being foreclosed.” Under 

the terms of the loan and the Deed of Trust, a failure to make timely monthly 

payments constitutes default and raises the potential of foreclosure. The 

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Wentzells essentially acknowledge their default, admitting in their Petition 

that they made their last loan payment “on or about July 22, 2009.” They do 

not allege that Chase’s conduct made them unable to make monthly payments. 

We thus agree with the district court that the Wentzells failed to plead 

“sufficient facts to demonstrate any unconscionable or inequitable conduct on 

the part of Chase which would rise to the level of excusing Plaintiffs from their 

default.” 

Even if the Wentzells’ allegations were sufficient to state a plausible 

claim for equitable relief, the Petition itself makes clear that the Wentzells’ 

claim is barred. The Wentzells made no mortgage payments during the nearly 

forty-six months between the July 22, 2009, mortgage payment and the

eventual foreclosure sale. They do not allege any excuse for this failure or that 

their monthly payment obligations ever ceased. Because the Wentzells 

breached their obligations under the loan agreement, they do not come with 

clean hands and are unable to obtain equitable relief. See, e.g., Scruggs v. 

Wyatt, 60 So. 3d 758, 772 (Miss. 2011) (“[T]he clean hands doctrine prevents a 

complaining party from obtaining equitable relief in court when he is guilty of 

willful misconduct in the transaction at issue.”) (emphasis, quotation, and 

alteration omitted); see also Kansa Reinsurance, 20 F.3d at 1366. 

Based on the allegations in their Petition and on the incorporated

documents, the Wentzells failed to state a plausible claim for equitable relief.

C.

The Wentzells’ wrongful foreclosure claim is also precluded.2 Under 

Mississippi law, “[a] foreclosure under the power of sale is properly conducted 

 

2 It is unclear whether the Wentzells presented a wrongful foreclosure claim in the 

district court. Neither the claim nor facts suggesting the claim appear in the Petition or in

the Wentzells’ Response to Chase’s Motion to Dismiss. The district court, however, concluded 

that the Wentzells “fail[ed] to state a plausible wrongful foreclosure claim.” Thus, we choose 

to address the argument.

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if the constitutional, statutory, and contractual requirements entered into by 

the parties are met.” Lake Hillsdale Estates, Inc. v. Galloway, 473 So. 2d 461, 

465 (Miss. 1985) (citing Peoples Bank & Tr. Co. v. L. & T. Developers, 434 So. 

2d 699 (Miss. 1983)). A mortgagor may also recover for wrongful foreclosure 

“where an unlawful foreclosure is attempted solely from a malicious desire to 

injure the mortgagor . . . [or] where the foreclosure is conducted negligently or 

in bad faith.” Nat’l Mortg. Co., 357 So. 2d at 935–36 (quotation omitted). 

The Wentzells’ Petition does not allege that Chase violated the 

constitutional, statutory, or contractual requirements for foreclosure. The 

Wentzells similarly do not allege that Chase’s foreclosure was unlawful, 

motivated by bad faith, or conducted negligently. The Petition thus states no 

claim for wrongful foreclosure. See Lake Hillsdale Estates, Inc., 473 So. 2d at 

465; Nat’l Mortg. Co., 357 So. 2d at 935–36.

Further, in the district court, the Wentzells did not argue that Chase’s 

alleged “dual tracking” procedure3—or indeed any of Chase’s conduct—

amounted to a wrongful foreclosure. This new argument is thus waived. See 

Fruge v. Amerisure Mut. Ins. Co., 663 F.3d 743, 747 (5th Cir. 2011) (“Failure 

to raise an argument before the district court waives that argument . . . .”) (per 

curiam). Even if the Wentzells were now allowed to raise this new theory, they

acknowledge that Mississippi law contains no statutory prohibition of dual

tracking.4 The Deed of Trust also explicitly provides that any “forbearance by 

 

3 Dual tracking occurs “where a servicer moves forward with foreclosure while 

simultaneously working with the borrower to avoid foreclosure.” See Press Release, 

Consumer Financial Protection Bureau, CFPB Rules Establish Strong Protections for 

Homeowners Facing Foreclosure (Jan. 17, 2013), available at 

http://www.consumerfinance.gov/newsroom/consumer-financial-protection-bureau-rulesestablish-strong-protections-for-homeowners-facing-foreclosure/.

4 Federal regulations restrict a mortgage servicer’s ability to engage in dual tracking. 

See 12 C.F.R. § 1024.41. Courts have recognized a federal cause of action against a servicer 

for “dual tracking” under this provision. See, e.g., Houle v. Green Tree Servicing, No. 14-CV14654, 2015 WL 1867526, at *3 (E.D. Mich. Apr. 23, 2015) (“Borrowers have a private right 

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[Chase] in exercising any right or remedy shall not be a waiver of or preclude 

the exercise of any right or remedy.” The Wentzells fail to allege any conduct

by Chase that was contrary to law or to the terms of the Deed of Trust. Thus, 

the factual allegations in the Petition do not support a claim of wrongful 

foreclosure.

D.

The Wentzells also assert additional claims of promissory estoppel and

detrimental reliance; they further contend that Chase is equitably estopped 

from enforcing the loan agreement. These arguments were not presented to the 

district court and are thus waived.5 Fruge, 663 F.3d at 747.

III.

Finally, the Wentzells request leave to amend the Petition to include new 

factual allegations. Under Rule 15(a), the “court should freely give leave [to 

amend a complaint] when justice so requires.” Fed. R. Civ. P. 15(a)(2). 

However, a party must “expressly request” leave to amend. See United States 

ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 387 (5th Cir. 

2003). “A party who neglects to ask the district court for leave to amend cannot 

expect to receive such a dispensation from the court of appeals.” Id. The 

Wentzells never requested leave to amend at the district court. They are thus 

not entitled to such relief from this court. See Willard, 336 F.3d at 387. 

 

of action against lenders who evaluate a loss mitigation application while at the same time 

pursuing foreclosure.”). The federal restrictions, however, apply only to a borrower’s first loss 

mitigation application. See 12 C.F.R. § 1024.41(i). Since the Wentzells’ claims relate to later 

alleged loan modifications, they have not stated a claim even under the federal regulation. 

5 Even if we were to consider these new arguments, the Wentzells’ Petition would 

remain deficient. The Petition alleges only that the Wentzells “detrimentally relied on 

[Chase’s] incorrect reporting of the interest rate.” The Wentzells did not allege that Chase 

represented that it (1) would not foreclose on the Property, (2) would elect not to exercise its 

contractual remedies for the Wentzells’ default, or (3) would excuse the Wentzells’ late 

payments during the time of the alleged loan modifications or interest rate disputes. Thus, 

even accepting the Petition’s factual allegations as true, we conclude that it fails “to state a 

claim to relief that is plausible on its face.” Toy, 714 F.3d at 883. 

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IV.

For the foregoing reasons, the judgment of the district court is 

AFFIRMED.

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