### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 18

- 20060

FLORA CARMEN RODRIGUEZ,

Plaintiff

- Appellant

v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR FIRST FRANKLIN MORTGAGE LOAN TRUST 2006

- FF11, MORTGAGE PASS

- THROUGH CERTIFICATES, SERIES 2006

- FF11,

Defendant

- Appellee

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:16

- CV

- 1597

Before DAVIS, COSTA, and OLDHAM, Circuit Judges

. PER CURIAM: * In 1997, Texas len ders won a battle for a constitutional amendment
allow ing home equity loans to be secured by homesteads

— a victory that one commentator has called “a clear case of ‘be careful what you ask for because you just might get it.’” Ann Graham, Where Agencies, the Courts, and the Legislature Collide: Ten Years of Interpreting the Texas Constitutional

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 13, 2018 Lyle W. Cayce Clerk Case: 18-20060 Document: 00514720792 Page: 1 Date Filed: 11/13/2018No. 18

- 20060

2 Provisions for Home Equity Lending , 9 T EX

. T ECH

. A DMIN

. L.J. 69, 73 (2007).
The amendment came with a long list of detailed conditions, failure of any one of which renders a lien invalid. See T EX

. C ONST

. , art. XVI, § 50(a) (6) , (c). In this case, Flora Rodriguez relies on two such conditions

— one requiring that she receive certain documents, and the other requiring that the parties sign a n acknowledg ment of fair market value

— to stave off Deutsche Bank National Trust Company’s attempt to foreclose. The district court granted summary judgment for Deutsche, and we AFFIRM

. I. Rodriguez obtained a home equity loan for $100,001 from First Franklin in May 2006. First Franklin later assigned the loan to Deutsche

. After years of missed payments and attempts by the loan ’s servicer to work out a s olution other than foreclosure, Deutsche sought and obtained a foreclosure order in March 2016. Rodriguez responded with a lawsuit . Her quiet title claim sought to invalidate the lien as having violated six provision s of the Texas Constitution, and her breach of contract claim based on those same violations sought forfeiture of the principal and interest she owed. See T EX

. C ONST ., art. XVI, § 50(a)(6)(Q)(x) (“[A]ny holder of the note for the extension of credit shall forfeit all principal an d interest of the extension of credit if the lender or holder fails to comply .

. . .”). Deutsche moved for summary judg ment, and in her response, Rodriguez abandoned four of the six constitutional provisions o n which she originally
relied. She also stated that she “seeks forfeiture through her breach of contract
cl aim, not through quiet title.” Although she made argument s that might support her quiet title claim, the words “quiet title” appear ed nowhere else in her response. Case: 18-20060 Document: 00514720792 Page: 2 Date Filed: 11/13/2018No. 18

- 20060

3 The district court granted summary judgment, finding that Rodriguez had waived her quiet title claim and that her breach of contract claim was
time

- barred

. Rodriguez moved for reconsideration, arguing that she had not waived her quiet title claim

. The distric t court declined to reconsider, and Rodriguez appealed. 1
II. The parties dispute whether the district court properly determined that Rodriguez waived her quiet title claim. Bu t as we ultimately conclude that summary judgment would have been proper on the merits , we do not address the waiver question. See R.P. v. Alamo Heights Indep. Sch. Dist. , 703 F.3d at
811 (5th Cir. 2012) (“We are not limi ted to the district court’s reasons for its grant of summary judgment and may affirm the district court’s summary judgment on any ground raised below and supported by the record.” (cleaned up)). A. The first constitutional provision Rodriguez invokes con ditions the validity of a lien on the owner’s receiving “all executed documents signed by the owner at closing related to the extension of credit.” T EX

. C ONST

. , art. XVI, § 50(a) (6) (Q)(v). Rodriguez asserts that while she received copies of the lien

agre ement and fair market value acknowledgement with her signature, she never received the “executed” copies that would also have had First Franklin ’s

1 In her notice of appeal, Rodriguez said she appealed from h er motion for reconsider ation. And her brief sets out the standard of review for the denial of those motions , not for summary judgment s

. But we nevertheless review the summary judgment because Rodriguez’s brief plainly takes issue with the summary judgment itself, not the distr ict court’s declining to reconsider it, and Deutsche’s bri ef defends the summary judgment

. See R.P. v. Alamo Heights Indep. Sch. Dist. , 703 F.3d 801, 808 (5th Cir. 2012); Fletcher v. Apfel , 210 F.3d 510, 512 (5th Cir. 2000). Rodriguez appeals only the dismissal of her quiet title claim, so we do not address the d istrict court’s dismissal of her breach of contract claim on limitations grounds. Case: 18-20060 Document: 00514720792 Page: 3 Date Filed: 11/13/2018No. 18

- 20060

4 signature

. The problem is that the “executed” language was not part of this requirement when Rodriguez’s loa n issued. The version of section 50(a)(6)(Q )(v) in effect when her loan closed required only that the lender “provide the owner of the homestead a copy of all documents signed by the

owner related to the extension of credit.” T EX

. C ONST

. , art. XVI, § 50(a) (6) (Q)(v) (amended Nov. 6, 2007). She admits the lender did that, so h er section 50(a) (6) (Q)(v) claim fails.
B. The second provision on which Rodriguez relies conditions the validity of a lien on “the owner of the homestead and the lender sign[ing ] a written acknowledgment as to the fair market value of the homestead property on the date the extension of credit is made.” T EX

. C ONST ., art. XVI, § 50(a)(6)(Q)(ix).
T o get past summary judgment, Rodriguez had to show a genuine is sue of material fact to be resolved at trial , a burden that “is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 ( 5th Cir. 1994) (en banc) (cleaned up). In her attempt to meet that burden, Rodriguez attached to her summary judgment opposition a copy of the “Owner’s Acknowledg e ment of Fair Market Value,” which she signed, and a copy of the “Lender’s Acknowledg e ment of Fair Mar ket Value,” which is unsigned. But Deutsche submitted a copy (albeit undated) that First Franklin did sign. Deutsche also pointed to a “Texas Home Equity Affidavit and Agreement,” in which Rodriguez swore at closing that “The Lender and each

own er of the Property have signed a written acknowledg e ment as to the fair market value of the Property.” As Rodriguez did not produce anything to undermine this evidence that First Franklin did sign the fair market value Case: 18-20060 Document: 00514720792 Page: 4 Date Filed: 11/13/2018No. 18

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5 acknowledgment, she failed to establ ish a genuine issue of fact on section 50(a)(6)(Q)(ix).

* * * The judgment is AFFIRMED. Case: 18-20060 Document: 00514720792 Page: 5 Date Filed: 11/13/2018