# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 21

- 20137

**Suri Holdings, L.L.C.,**

Plaintiff

— Appellant **,**

versus
**Argent Mortgage Company, L.L.C.; Citi Residential Lending, Incorporated; Nationwide Title Clearing,**  **Incorporated; Deutsche Bank National Trust Company,** as trustee for **Argent Securities Incorporated, Asset** 

**- Backed**  **Pass**

**- Through Certificates, Series 2005** 

**- W5;**  **O cwen Loan**  **Servicing, L.L.C.; PHH Mortgage Corporation,**

Defendants

— Appellees

**.**

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:19

- CV

- 3844

Before **King, Costa,** and **Willett,** Circuit Judges

**. Per Curiam**  **:** *

* Pursuant to **5th Circuit Rule** 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Circuit Rule** 47.5.4.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

### FILED December 16, 2021 Lyle W. Cayce Clerk Case: 21-20137 Document: 00516133915 Page: 1 Date Filed: 12/16/2021No. 21

- 20137

2 Suri Holdings sued various defendants in state court , including Nationwide Title Clearing, Deutsche Bank National Trust Company, and PHH Mortgage Corporation, 1 asserting various state

- la w claims to prevent the foreclosure of a Houston, Texas , property. After removal to federal court,

t he district court granted Nationwide Title Clearing ’s motion for judgment on the pleadings and Deutsche Bank National Trust Company and PHH Mortgage Corpora tion ’s motion for summary judgment. Suri Holdings appeals, arguing that the district court erred in granting those motions and
abused its discret ion in failing to grant discovery continuances. We
**AFFIRM** the district court’s judgment

. I. Background A couple purchased a property in Houston, Texas , by executing a $228,000 promissory note (the “ Note ” ) and security instrument (the

“ Deed of Trust ” ) in favor of a mortgage company. That mortgage company assigned the Deed of Trust to Deutsche Bank National Trust Company (“Deutsche Bank”) through a recorded C orporate A ssignment of D eed of
T rust (the “ Assignment ” ) and physically transferred the Note to Deutsche
Bank , endorsed in blank (i.e., without a payee specified). PHH Mortgage Corporation (“PHH” ) , under an agreement with Deutsche Bank, then became the servicer of the loan and obtained physical possession of the Note on Deutsche Bank’s behalf.

Suri Holdings (“Suri”) later acquired the property for $20,000 during a sale conducted by the Harris County Constable ’ s Office pursuant to

a state

- court judgment. Suri filed this lawsuit in state court to enjoin

1 Argent Mortgage Company, L.L.C. , and Citi Residential Lending, Inc ., were

never se rved and only appear in the case as the original lender and original mortgage servicer of the loan at issue

. PHH Mortgage Corporation is the successor by merger to Ocwen Loan Servicing, L

. L

. C. Case: 21-20137 Document: 00516133915 Page: 2 Date Filed: 12/16/2021No. 21

- 20137

3 foreclosure of the property, alleging that the Deed of Trust was unenforceable because the signature on the Assignment had been for g ed , an d
that Nationwide Title Clearing (“Nationwide”) created t hat forged Assignment. Suri alleged causes of action includ ing lack of standing to foreclose, quiet title, violations of Texas Civil Practice and Remedies Code § 12.002 (“Texas Civil Code § 12.002 ”) , negligence p er se, and gross negligence

. Deutsche Bank and PHH removed the c ase to federal court based on diversity jurisdiction. The district court rendered a scheduling order that required discovery to be completed by November 20, 2020 , and dispositive

motion filing by December 15, 2020 ; the order also scheduled a docket call for February 1, 2021. In May 2020 , Nationwide moved for judgment on the pleadings and Deutsche Bank and PHH moved for summary judgment.

Suri incorporated a motion for continuance into its responses to
d efendants’ motions , requesting 120 days to “continue any ruling” on the
motions. Suri al so filed an independent motion to continue. 2 In June 2020 , the district court granted Nationwide a judgment on the pleadings, concluding that Suri had no viable cause of action against Nationwide because the pleadings did not establish a case or controver sy between the parties. Almost eight months later, after no attempt by Suri to supplement the summary judgment record and after the close of discovery, the district court granted Deutsche Bank and PHH’s summary judgment motion. Suri appeals

2 Suri’s response to Nationwide’s motion was filed in May 2020, and Suri’s response to Deutsche Bank and PHH’s motion as well as Suri’s independent motion for continuance were filed in June 2020. Case: 21-20137 Document: 00516133915 Page: 3 Date Filed: 12/16/2021No. 21

- 20137

4 the district c ourt’s decisions on Nationwide’s motion for judgment on the pleadings and Suri’s own motions to continue.

II. Standard of Review

We review district court decisions on motions for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) using the same
standard as motions under Federal Rule of Civil Procedure 12(b)(6), which
are reviewed de novo. Johnson v. Johnson , 385 F.3d 503, 529 (5th Cir. 2004)

. Similarly, we review district court decisions for summary judgment de novo
and affirm the district court ’ s grant of summary judgment on any ground supported by the record

. Smith v. Reg’l Transit Auth. , 827 F.3d 412, 417 (5th Cir. 2016)

. Denials of Rule 56(d) motion s for discovery are review ed for an abuse of discretion. Id.

III. Discussion

We begin by determining whether the district court properly granted Nationwide’s motion for judgment on the pleadings

. 3 Then , we turn to

3 Suri also appeals the district court’s implicit denial of its motion for continuance, which requested further discovery i n response to Nationwide’s 12(c) motion. The district

court , in the introduction of its order granting Nationwide’s motion, stated that “the plaintiff’s motion for continuance should be denied

. ” However, the court did not analyze the issue or include decre tal language on the issue. By ruling on the motion for judgment on the pleadings, Suri argues that the court implicitly denied Suri’s motion. Specifically, Suri argues on appeal that the district court cut its discovery with Nationwide short by ruling on N ationwide’s motion two days before its interrogatory responses were due to Suri. Discovery responses, however, are irrelevant to 12(c) determinations, which, like 12(b)(6) determinations, are based on the pleadings

— not discoverable evidence. “ A motion brou ght pursuant to [Federal Rule of Civil Procedure] 12(c) is designed to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts

. ” Hebert Abstract Co. v. Touchstone Props

. , Ltd. , 914 F.2d 74, 76 (5th Cir. 1990) (emphasis added) (citing 5A **Charles Alan Wright & Arthur R. Mille**  **r, Federal Practice** 

**and Procedure**  § 1367 at 509

- 10 (1990) ). Case: 21-20137 Document: 00516133915 Page: 4 Date Filed: 12/16/2021No. 21

- 20137

5 whether the district court properly granted Deutsche Bank and PHH’s motion for summary judgment.

A. The District Court’s Judgment on the Pleadings in Favor of
Nationwide
Suri’s petition asserts a c laim for a declaratory judgment for lack of standing to foreclose, a claim to quiet title, and claims for violations of Texas Civil Code § 12.002, negligence p er se , and gross negligence, but Suri appeals only the district court ’s judgment on the pleadings in favor of Nationwide as to Nationwide’s lack of standing to foreclose and Texas Civil Code § 12.002. We take each in turn. The district court granted Nation wide a judgment on the pleadings on ripeness grounds as to both appealed causes of action , 4
which we review de novo. TOTAL Gas & Power N. Am., Inc. v. Fed. Energy Regul. Comm ’ n , 859 F.3d 325, 332 (5th Cir. 2017), as revised (July 10, 2017)

. 1. Nationwide’ s Alleged Lack of Standing to Foreclose
The Supreme Court has held “ that an appropriate action for declaratory relief can be a case or controversy under Article III .” MedImmune, Inc. v. Genentech, Inc. , 549 U.S. 118, 126 (2007)

. To determine whether a particular action for declaratory relief constitutes a case or
controversy, “the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between

4 Instead of arguing for the existence of a case or controversy between it and Nationwide for purposes of the lack

- of

- standing

- to

- foreclose cause of action, Suri asks us to conclude that forgery is a valid cause of action under Texas law for which a declaratory judgment is warranted in this case. T hese arguments, as well as the additional assertion of a forgery cause of action against Nationwide , were not presented to the district court, so we decline to decide these questions in the first instance. See Montano v. Texas , 867 F.3d 540, 546 (5th Cir. 2017) ( “ [A] court of appeals sits as a court of review, not of first view.” (quoting United States v. Vicencio , 647 F. App ’ x 170, 177 (4th Cir. 2016) (per curiam) (unpublished) )). Case: 21-20137 Document: 00516133915 Page: 5 Date Filed: 12/16/2021No. 21

- 20137

6 parties having ad verse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Id. at 127 (quoting Md

. Cas

. Co. v. Pac

. Coal & Oil Co. , 312 U.S. 270, 273 (1941)). In a declaratory judgment action, “[b]ased on the facts alleg ed, there must be a substantial and continuing controversy between two adverse parties.” Bauer v. Texas , 341 F.3d 352, 358 (5th Cir. 2003) (emphasis added)

. The facts that Suri alleged fall short of demonstrating a substantial
controversy between the parties over interest in the property

. None of the assignment language transferring the property interests from the original mortgage company to Deutsche Bank names Nationwide. Suri also did not indep endently allege that Nationwide was ever a noteholder or lienholder against the property. In fact, t he parties agree that the original petition does not argue that Nationwide has ever had , or even claimed , an interest in the
property. Moreover, a claim is not ripe for adjudication “[i]f the purported injury is ‘ contingent [ on ] future events that may not occur as anticipated, or indeed may not occur at all .’” Lopez v. City of Houston , 617 F.3d 336, 342 (5th
Cir. 2010) (second alteration in original) (quoting Thomas v. Union Carbide Agric. Prods. Co. , 473 U.S. 568, 580

- 81 (1985)) . Suri anticipates that Nationwide might, at some point in the future, assert a legal interest in the property, but Nationwide has not done so to date. Accordingly, there is no

case or controversy between the parties to warrant the consideration , on the merits, of a declaratory judgment announcing Nationwide’s lack of standing to foreclose on the property in dispute. So we **AFFIRM** the district court’s dismissal of this cause of action. 2. Nationwide’s Alleged Violation of Texas Civil Code § 12.002

Unlike the claim of lack of standing to foreclose, Suri’s claim against Nationwide for an alleged violation of Texas Civil Code § 12.002 is ripe Case: 21-20137 Document: 00516133915 Page: 6 Date Filed: 12/16/2021No. 21

- 20137

7 because it presents a “ controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or
abstract.” Babbitt v. United Farm Workers Nat ’l Union , 442 U.S. 289, 298 (1979) (quoting Ry

. Mail Ass ’ n v. Corsi , 326 U.S. 88, 93 (1945) )

. T he district

court seems to have dismiss ed this cause of action against Nationwide on the same ripeness grounds as the declaratory

- relief claim. The court reasoned as follows:

T o maintain a suit for declaratory relief a party must plead facts establishing a “ case or controversy ” between the parties. Here the plaintiff fails to state a viable cause of action against the defendant either by its original suit or its response to the defendant’s motion for judgment on the pleadings. Equally cogent reasoning leads the Court to conclude that the remaining claims and assertions that are based on state statutes and common law are also foreclosed. However, the district court presents no fur ther analysis about why the claim under the “state statute” is not ripe. We are not convinced. Although the claim of lack of standing to foreclose rests on the assumption that Nationwide has, or would in the future assert , an interest in the property, the same cannot be said of the § 12.002 claim because a dispute
under the statute does not require a defendant to assert an interest in
property

. Texas Civil Code § 12.002 (a) provides: A person may not make, present, or use a document or other record with: ( 1) knowledge that the document or other record is

. . . a fraudulent lien or claim against real or personal property or an interest in real or personal property; (2) intent that the document . . . be given the same legal effect as a court record . . . evid encing a valid lien or claim against real or
person al property . . . ; and (3) intent to cause another person to suffer: . . . (B) financial injury. Case: 21-20137 Document: 00516133915 Page: 7 Date Filed: 12/16/2021No. 21

- 20137

8 So rather than being a controversy about who has what property interests, this cause of action is about the improper “mak[ing], present[ing], or us[ing]” of a “document or other record.” Id. Suri alleges that Nationwide “made, presented, or used” the “notices of sale” posted on the ForecloseHouston.com website, and thereby violated § 12.002

— giving rise

to a controversy

. Thus, this cause of action is ripe and can be assessed on the
merits.
Suri, however, like the homeowner in Reece v. U.S. Bank Nat ’l A s s ’ n , 762 F.3d 422 (5th Cir. 2014), failed to plead facts sufficient to meet an element of a claim under § 12. 002 (a). Specifically, Suri failed to offer facts demonstrating Nationwide’s “ intent to cause [Suri] . . . financial injury.” § 12.002(a) (3) (emphasis added)

. 5 Instead, Suri alleges only that “the fraudulent business practice of filing a false claim to a s uperior mortgage interest in the property” caused “future title

- holders like Plaintiff to suffer financial injury.” But this says nothing about Nationwide’s intent and so fails
to state a claim under § 12.002(a)

. Thus, Suri’s allegations of intent to cause injury amount to nothing more than “a formulaic recitation of the [third] element[] of [this] cause of action.” Bell Atl. Corp. v. Twombly , 550 U.S. 544,
555 (2007)

. Accordingly, we **AFFIRM** the district court ’s or der granting Nationwide’s motion for judgment on the pleadings

. B. The District Court’s Summary Judgment in Favor of Deutsche Bank
and PHH
Suri appeals the district court’s summary judgment in favor of
Deutsche Bank and PHH on the procedural grounds that t he district court

5 We do not decide whether a document assigning a deed of trust constitutes a “lien or claim” under § 12.002(a)

. Case: 21-20137 Document: 00516133915 Page: 8 Date Filed: 12/16/2021No. 21

- 20137

9 abused its discretion by implicitly denying its motion for continuance

. Motions brought under Federal Rule of Civil Procedure 56(d) are “broadly favored” to “safeguard non

- moving parties from summary judgment motions that they cannot ade quately oppose.” Am. Fam. Life Assur ance Co. of Columbus v. Biles , 714 F.3d 887, 894 (5th Cir. 2013) (per curiam) (quoting Culwell v. City of Fort Worth , 468 F.3d 868, 871 (5th Cir. 2006))

. 6 Federal Rule of Civil Procedure 56(d) provides:

If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to
take discovery; or (3) issue any other appropriate order.
In June 2020, Suri submitted its motions for continuance, which requested a 120

- day discovery continuance

. At that point in the case, Suri
had been conducting discovery for four months 7 and still had f ive months left in the discovery period that was agreed on by the parties and approved by the

court

. Within this agreed

- on discovery period , ending on November 20, 2020, the district court neither granted nor denied the motion

. Instead, on February 8, 2021 , 80 days after the discovery period had ended, the district

6 S imilar to our court in Culwell , we note that granting Suri’s request for a 120

- day extension would have required altering the deadline for concluding discovery set by the scheduling order, which the district court has broad discretion to enforce. 468 F.3d at 872 (citing Geiserman v. MacDonald , 893 F.2d 787, 790 (5th Cir. 1990) )

.

7 The parties agre ed on February 14, 2020, to a case management plan involving discovery. Case: 21-20137 Document: 00516133915 Page: 9 Date Filed: 12/16/2021No. 21

- 20137

10 court granted Deutsche Bank and PHH’s summary judgment motion, remaining silent on Suri’s motion for discovery continuance. 8 Suri argues that this failure to grant its motion for discovery continuance was an abuse of the district court’s discretion. We disagree. If a requesting party “has not diligently pursued discovery ,” then “ she is not entitled to relief” under Rule 56(d)

. M cKay v. Novartis Pharm. Corp. , 751 F.3d 694, 700 (5th Cir. 2014) (quoting Beattie v. Madison Cnty. Sch. Dist. , 254 F.3d 595, 606 (5th Cir. 2001) )

. In its response to Deutsche Bank and PHH’s motion for summary judgment, submitted on June 16, 2020, Suri note s that it “sent forgery

- related discovery requests to Nationwide” and that “Nationwide has not responded yet, and will not need to respond until June 25[, 2020].” The district court deferred ruling on the summary judgment motion until February 2021 . Thus, the district court did not abuse its discretion by deferring consideration of the summary judgment motion until after discovery closed

— 237 days after Suri’s motion for discovery
continuance was filed . Accordingly, we **AFFIRM** the district court’s grant of De utsche Bank and PHH’s motion for summary judgment.

IV. Conclusion For the foregoing reasons, we **AFFIRM** the district court’s take

nothing judgment against Suri

.

8 The district court’s Memorandum and Order notes that Suri’s response was “before the Court,” but it does not address the motion for continuance in that response; nor does the court a ddress Suri’s independent motion for continuance in its order. Case: 21-20137 Document: 00516133915 Page: 10 Date Filed: 12/16/2021