IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50308

Summary Calendar

MARK MAHAVIER, as Power of Attorney for Willard Mahavier, 

 Plaintiff - Appellant

v.

PNC BANK, NATIONAL ASSOCIATION, 

 Defendant - Appellee

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 5:13-CV-704

Before WIENER, HIGGINSON, and COSTA, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:*

Willard Mahavier defaulted on his home mortgage held by PNC Bank. 

PNC posted the property for foreclosure. Mahavier then sued PNC in state 

court, seeking to enjoin the foreclosure. Mahavier claimed, among other things, 

that PNC breached its contract with Mahavier by failing to properly credit 

payments that it had received from him. PNC moved for summary judgment, 

which the district court granted. The district court held that Mahavier could 

 

* 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

January 29, 2016

Lyle W. Cayce

Clerk

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No. 15-50308

2

not bring a claim for breach of contract because he had breached his contract 

with PNC first by defaulting on his payment obligations. The court dismissed 

his remaining claims on other grounds.

Mahavier now appeals, challenging only the district court’s dismissal of 

his breach-of-contract claim. We review de novo a district court’s grant of a 

motion for summary judgment. See Harris Cnty. Texas v. MERSCORP Inc., 

791 F.3d 545, 551 (5th Cir. 2015).

The summary judgment record shows the following undisputed facts. In 

August 2000, Mahavier took out a residential mortgage to buy a house in San 

Antonio. In February 2006, he refinanced the mortgage with Merrill Lynch. To 

provide security for the refinanced loan, Mahavier signed two documents in 

Merrill Lynch’s favor: (1) a deed of trust, which secured the loan with a lien on 

the house, and (2) a “mortgage pledge agreement for securities account,” which 

secured the loan with a security interest in Mahavier’s Merrill Lynch 

brokerage account, then worth about fifty thousand dollars. Merrill Lynch 

later assigned the loan and the related security interests to PNC.

On appeal, Mahavier challenges the district court’s dismissal of his claim 

against PNC for breach of the deed of trust. To prove his breach-of-contract 

claim under Texas law, Mahavier must be able to show, among other things, 

that he “perform[ed] or tendered performance” under the deed of trust. 

Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 837 

(Tex. App. 2014). Here, the deed of trust provided, in relevant part, that 

“[Mahavier] shall pay when due the principal of, and interest on, the debt 

evidenced by the Note and any prepayment charges and late charges due under 

the Note.” In 2010, Mahavier defaulted on the note. By May 2013, he was 

“seriously in default.” Thus, by May 2013, Mahavier was in breach of the deed 

of trust—which means he cannot establish the second element of his breachof-contract claim. So the district court properly dismissed it.

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In response, Mahavier argues that money taken by PNC from his 

brokerage account cured his default. It did not. In 2013, when Mahavier had 

been in default for three years, PNC exercised its power under the pledge 

agreement to liquidate the brokerage account, then worth $56,680.12, and 

apply the proceeds to the loan. 

The pledge agreement provides, in relevant part:

6. Remedies Upon Default Under Loan Documents.

(a) In the event that Borrower fails to make any payment due 

under the Loan or otherwise is in default under the Loan 

Documents1 (an “Event of Default”), [lender] may at its option sell

or otherwise dispose of all or any part of the [account] and may 

apply to the proceeds . . . to any and all amounts due and owing on 

the Loan . . .

(d) Neither the sale or other disposition of Collateral by 

[Lender] . . . shall be deemed (i) to cure any default under the Loan 

Documents; (ii) a tender of arrearages or of performance sufficient 

to require reinstatement of the Loan; (iii) a waiver of acceleration 

or of the right to accelerate the Loan; or (iv) a waiver of any of 

[Lender’s] other rights under the Loan Documents. 

PNC applied $37,184.68 from the brokerage account to Mahavier’s mortgage 

and sent Mahavier a check for the remaining $19,495.44. Of the amount that 

PNC applied to the mortgage, $19,047.28 went to interest and $18,137.36 to 

outstanding principal. The brokerage-account funds reduced Mahavier’s 

principal balance from $112,210.48 to $93,073.06. By the plain terms of the 

pledge agreement, PNC was permitted, in the event of default, to apply the 

brokerage-account funds to Mahavier’s loan. That is exactly what PNC did. 

The pledge agreement also expressly provides that those funds would not be 

“deemed . . . to cure any default.” Thus, Mahavier has not shown that the 

 

1 “Loan Documents” is defined as the “[N]ote, the Security Document (as defined 

below), any Assignment of Lease and any other documents (other than this Agreement) 

executed by Borrower and delivered to [lender], evidencing or securing the Loan.”

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district court erred by finding him in default and therefore in breach of his 

agreement with PNC. That means he also has not shown that district court 

erred by holding that his breach-of-contract claim was barred by his own 

breach.

The judgment of the district court is affirmed.

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