IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20080

Summary Calendar

GEORGE O. RILEY; TRENA RILEY,

Plaintiffs-Appellants

v.

WELLS FARGO BANK, N.A.; MORTGAGE ELECTRONIC REGISTRATION 

SYSTEM, also known as MERS; CRESTMARK MORTGAGE COMPANY; 

CORNERSTONE HOME LENDING, INCORPORATED; DOES 1 THROUGH 

100, inclusive; BARRETT DAFFIN FRAPPIER TURNER & ENGEL, L.L.P.,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:15-CV-1415

Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

George O. Riley and Trena Riley (the Rileys) sued the defendants, 

alleging violations of federal and state law in conjunction with the attempted 

and actual foreclosure on the Rileys’ property. The district court granted the 

defendants’ motions to dismiss and dismissed the Rileys’ complaint for failure 

 

* 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

March 16, 2018

Lyle W. Cayce

Clerk

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No. 17-20080

2

to state a claim upon which relief can be granted. The district court also denied 

the Rileys’ motion for relief from the judgment in a prior lawsuit and denied 

the Rileys leave to amend their complaint. The Rileys appeal these rulings 

and also move for judicial notice of various documents. For the reasons that 

follow, we affirm the judgment of the district court and deny the Rileys’ motion 

for judicial notice.

The asserted claims of defects in the defendants’ motions to dismiss were 

not timely raised in the district court and are thus waived. See Freeman v. 

Cnty. of Bexar, 142 F.3d 848, 851 (5th Cir. 1998); Requena-Rodriguez v. 

Pasquarell, 190 F.3d 299, 307 n.27 (5th Cir. 1999). The Rileys’ claim that the 

district court should have converted the defendants’ motions into motions for 

summary judgment, assuming that this claim is not waived, is unavailing. In 

deciding a motion to dismiss, the district court may consider matters of public 

record, such as public court filings. See Cinel v. Connick, 15 F.3d 1338, 1343 

n.6 (5th Cir. 1994).

The Rileys were not entitled to amend their complaint as a matter of 

course because they had already amended their complaint. See FED. R. CIV. P. 

15(a)(1)-(2). They have abandoned any challenge to the district court’s 

alternative grounds for denying leave to amend, prejudice to the defendants 

and further unreasonable delay, see Yohey v. Collins, 985 F.2d 222, 224-25 (5th 

Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 

748 (5th Cir. 1987), and thereby failed to demonstrate any abuse of discretion,

see Doe v. United States, 853 F.3d 792, 803 (5th Cir. 2017).

We do not need to decide whether the district court abused its discretion 

in concluding that the Rileys had to seek relief from the judgment in a prior 

lawsuit by moving for such relief in the court that adjudicated that lawsuit. 

Rodriguez v. Bank of Am., N.A., 693 F. App’x 376, 377 (5th Cir. 2017) (per 

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curiam), cert. denied, 2018 U.S. LEXIS 1630 (U.S. Mar. 5, 2018). The alleged 

manufacturing and forgery of documents by the defendants does not amount 

to fraud on the court within the meaning of Federal Rule of Civil Procedure 

60(d)(3). See Tu Nguyen v. Bank of Am., N.A., 516 F. App’x 332, 335 (5th Cir. 

2013). Any argument on appeal regarding Rule 60(d)(1) was not timely raised 

in the district court and is thus waived. Freeman, 142 F.3d at 851.

The district court did not err in concluding that the Rileys’ claims, other 

than for wrongful foreclosure, were or could have been raised in the prior 

lawsuit and were, therefore, barred by the res judicata effect of the judgment 

in that prior lawsuit. See Retractable Techs., Inc. v. Becton Dickinson & Co., 

842 F.3d 883, 898 (5th Cir. 2016), cert. denied, 137 S. Ct. 1349 (2017). The 

district court did not err in concluding that the Rileys failed to state a claim 

for wrongful foreclosure. See Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 

763, 766 (5th Cir. 2016). Their conclusional assertion that they pled the 

elements of this cause of action does not meaningfully challenge the district 

court’s conclusion that they failed to allege a cognizable defect in the 

foreclosure sale proceedings. See Brinkmann, 813 F.2d at 748. To the extent 

that the Rileys are also arguing that the district court ignored their separate 

claim that one of the defendants lacked authority to foreclose on their property, 

the district court did not err in concluding that such a claim was barred by res 

judicata. Lastly, the Rileys’ motion for judicial notice is denied as the 

documents are irrelevant to the dispositive issues in this appeal. See Dueling 

v. Devon Energy Corp., 623 F. App’x 127, 130 n.4 (5th Cir. 2015).

AFFIRMED; MOTION DENIED.

 Case: 17-20080 Document: 00514390308 Page: 3 Date Filed: 03/16/2018