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 lenders won a battle for a constitutional amendment

allowing 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 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

November 13, 2018

Lyle W. Cayce

Clerk

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No. 18-20060

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Provisions for Home Equity Lending, 9 TEX. TECH. ADMIN. 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 TEX. CONST., 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 an 

acknowledgment 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 solution 

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 provisions 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 TEX. CONST., art. XVI, 

§ 50(a)(6)(Q)(x) (“[A]ny holder of the note for the extension of credit shall forfeit 

all principal and interest of the extension of credit if the lender or holder fails 

to comply . . . .”).

Deutsche moved for summary judgment, and in her response, Rodriguez 

abandoned four of the six constitutional provisions on which she originally 

relied. She also stated that she “seeks forfeiture through her breach of contract 

claim, not through quiet title.” Although she made arguments that might 

support her quiet title claim, the words “quiet title” appeared nowhere else in 

her response. 

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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 district 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. But 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 limited 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 conditions 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.” TEX. CONST., art. XVI, 

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

agreement 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 her motion for 

reconsideration. And her brief sets out the standard of review for the denial of those motions, 

not for summary judgments. But we nevertheless review the summary judgment because 

Rodriguez’s brief plainly takes issue with the summary judgment itself, not the district 

court’s declining to reconsider it, and Deutsche’s brief 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 district court’s dismissal of her breach of contract claim on 

limitations grounds.

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signature. The problem is that the “executed” language was not part of this 

requirement when Rodriguez’s loan 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.” TEX. CONST., art. XVI, 

§ 50(a)(6)(Q)(v) (amended Nov. 6, 2007). She admits the lender did that, so her 

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.” TEX. CONST., art. XVI, § 50(a)(6)(Q)(ix). 

To get past summary judgment, Rodriguez had to show a genuine issue 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 Acknowledgement of Fair Market Value,” 

which she signed, and a copy of the “Lender’s Acknowledgement of Fair Market 

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 

owner of the Property have signed a written acknowledgement 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 

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acknowledgment, she failed to establish a genuine issue of fact on section 

50(a)(6)(Q)(ix).

* * *

The judgment is AFFIRMED.

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