### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-50195 Summary Calendar

JARIEL CASTILLO; COLUMBA CASTILLO, Plaintiffs-Appellants
v. OCWEN LOAN SERVICING, L.L.C.; FEDERAL HOME LOAN MORTGAGE CORPORATION, Defendants-Appellees

Appeal from the United States District Court for the Western District of Texas USDC No. 5:12-CV-559

Before KING, DAVIS, and ELROD, Circuit Judges. PER CURIAM: * Jariel and Columba Castillo appeal t h e district c ourt’s judgment dismissing their complaint against Ocwen Loan S ervicing, L.L.C., and Federal Home Loan Mortgage Corporation f or breach of a mortgage contract. For the reasons that follow, we AFFIRM the judgment of the district court. U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Septem ber 12, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 13-50195 Document: 00512371748 Page: 1 Date Filed: 09/12/2013No. 13-50195 I. FACTUAL AND PROCEDURAL BACKGROUND Jariel and C olumba Castillo entered into a mortga g e contract in August 2008 with T aylor, Bean & Whitaker Mortgage Corporation encumberi n g th e real property located at 2 1311 Liguria Drive, San Antonio, Texa s ( “ t h e Property”). Taylor, Bean & Whitaker later transferred and assigned t h e n o t e and liens securing the note to Ocwen Loan Servicing, L.L.C. (“Ocwen”). Less than two years after obtaining t h e i r mortgage, the Castillos fell behind on their monthly payments. I n November 2010, t he couple filed for bankruptcy. Ocwen allegedly informed J ariel Castillo that if he d i s missed his bankruptcy petition, i t would modify the terms of t he mortgage loan, and Ocwen sent the Castillos a proposed Loan Modification Agreement (“the Agreement”). The Castillos dismissed their bankruptcy petition and s igned and returned the Agreement o n N ovember 26, 2010. On November 30, 2010, the Castillos made their first mortgage payment under the terms of the Agreement. On December 17, 2010, the C astillos r eceived an account statement from Ocwen that purportedly did not reflect the terms of the Agreement. When Jariel Castillo contacted Ocwen to discuss the discrepancies, the representative allegedly told him that the information would be corrected in his upcoming January 2011 account statement. However, no January 2011 a ccount statement arrived. Jariel Castillo called Ocwen for guidance only to be told t h at he should continue to pay the amount reflected under the Agreement. The Castillos made additional payments i n February, March, and M ay 2 011. During this period, the Castillos never received a signed c o p y o f the Agreement, despite contacting Ocwen five separate times to notify them of this fact. In September 2011, Ocwen foreclosed o n the Property, a n d t h e Federal Home Loan Mortgage Corporation (“Freddie Mac”) purchased t h e h o me. The following January, Freddie M ac f iled a Petition for F orcible Entry and Detainer

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against the Castillos in Texas state court and received a judgment for possession of the Property. O n M a y 1 0, 2012, the Castillos sued Ocwen and Freddie M ac in Te x a s state court for breach o f contract, wrongful foreclosure , and fraud. They

a t t a c h e d to their c omplaint an affidavit f rom Jariel C astillo detailing his interactions with Ocwen; a copy of the Agreement signed only b y Jariel Castillo; five a ccount statements from Ocwen; a Default N o t i c e L etter; and a payment coupon. The state co u r t e n tered a temporary restraining order to prevent the eviction of the Castillos f rom the Property on M ay 10, 2 012, and a month later, Ocwen and Freddie Mac removed the matter to the D istrict C o u r t f o r the W e s tern District o f Texas. Ocwen and Freddie Mac t hen jointly mov e d t o dismiss the C astillos’ complaint for f ailure to state a claim, o r, in the alternative, for a more definite statement. The Castillos never f iled a r esponse in opposition to the motion. The d i strict c ourt granted the motion and dismissed the case with prejudice on August 7, 2012. It held that the complaint, including t he a ttached exhibits, failed to s tate facts to s upport s peci fic elements of each of the three claims. With respect to the breach of contract claim, the court found that since the Agree m e n t f

e ll under the statute of frauds, and since the C astillos had neither produced nor alleged that there was a writte n copy of t he Agreement signed by Ocwen, the C astillos had not pled t he e x i s t ence of a valid contract. Even if a valid c ontract existed, the c o urt further concluded that the Castillos’ allegations r evealed that they had b reached the terms of the Agreement since they had not made mortgage payments to Ocwen after May 2011. 1

1 O n ap peal, the Cas tillos d o not ad d res s the dis trict court’s d is m is s al of their w rongf ul d is clos ure and f

raud claim s . Since the Cas tillos have aband oned thes e claim s on ap p eal, w e need not ad d res s them

. See M a ckey v . A strue, 486 F. Ap p ’ x 4 2 1 , 4 2 3 ( 5 th C ir. 2012) ( per curiam ) (unp ublis hed) ( “Becaus e [the ap p ellant] f ails to ad d res s the d is trict court’s r eas ons f or d is m is s ing his claim s , he has aband oned all is s ues on ap p eal. ”)

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The Castillos moved to alter or amend the judgment, arguing that under the doctrine of partial performance, the Agr e e m e nt w as enforceable. T he district court rejected the Castillos’ partial performance argume nt, reasoning that the C a s till o s ’ sporadic payments did not constitute p artial performance. T he district

co u r t r e i t e rated its conclusion that even if there were a valid contract, the Castillos breached that c ontract when they ceased paym e n t s a f ter May 2011. Lastly, it rejected the Castillos’ contention that Ocwen breached the Agreement in early 2011, before the Castillos stopped m a king their mortgage payments. A month a fter the district court denied the Castillos’ motion to amend, the Castillos timely appealed. I I. STANDARD OF REVIEW This court reviews a district court’s grant of a motion t o dismiss d e novo. Bowlby v . City of A berdeen, Miss. , 681 F.3d 2 15, 219 ( 5 t h C i r. 2012). In reviewing the complaint, we accept all well-pleaded facts as true and view those facts in the light most favorable to t he plaintif f

. I d. The facts taken as true must, however, “state a claim that is p l ausible o n i t s face.” Amacker v. Renaissance Asset Mgmt. LLC, 657 F.3d 252, 2 54 (5th Cir. 2011). “A claim has facial plausibility w hen the plaintiff pleads factual content that allows the court to dr aw the r easonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 5 5 6 U

. S

. 6 6 2 , 678 (2009). This i ncludes the basic requirement that the fact s plausibly establish each required element for each legal claim. Id. at 682–83; Bell Atl. Corp. v. Twombly , 550 U.S. 5 44, 5 57 (2007). However, a complaint i s insufficient if it offers only “labels and conclusions,” or “a formulaic rec i t a tion of the elements of a cause of action.” Iqbal , 556 US. at 678 (quoting Twombly , 550 U.S. at 555).

4 Case: 13-50195 Document: 00512371748 Page: 4 Date Filed: 09/12/2013No. 13-50195 III. DISCUSSION The Castillos appeal the distr i c t c o u rt’s dismissal of their breach of contract claim for substantially the same reasons contai n e d i n t heir motion to amend o r alter th e judgment. First, they argue that the statute of f rauds does not bar the enforcemen t o f t he Agreement since their p ayments under the Agreement c o n s t ituted partial performance. Second, t h ey claim that Ocwen brea c h e d the Agreement in early 2011, suggesting, but not explicitly stating, t h a t this justified their later failure t o make p ayments. Additionally, the Castillos m ak e g e n e r ali z e d ar gu m e nt s th at th e y satisfied the pleading standards and that Ocwen and Freddie Mac are on notice of the claims against them. A breach of contract claim under Texas law requires: “(1) the existence of

a valid contract; (2) performance or t e n d e r ed performance by t he plaintiff; (3) breach of the contract b y the defendant; and (4) dam a g e s sustained by the plaintiff as a result o f the breach.” Smith Int’l, Inc. v . Egle Group, LLC, 490 F.3d 380, 387 (5th Cir. 2007); see Sauceda v. GM A C M o r tg
. C orp. , 268 S.W.3d 135, 140 (Tex. App.–Corpus Christi 2008, no pet.) (citing Southwell v. U ni v. of Incarn a t e W

ord , 974 S.W.2d 351, 354–55 (Tex. App.–San Antonio 1998, pet ref’d)). When the c ontract at issue is a l oan agree m e n t o r a material modification to a loan agreement that exceeds $50,000, the contract is subject to the statute o f frauds, r endering it unenforceable unless it is i n writing and signed by the p arty against whom enforcement i s sought. See Tex. Bus. & Com. Code Ann. § 26.02(b) (West 2009); Ramming v. J PMorgan Ch a s e Bank, N.A. , CIV.A. H-10-5011, 2012 WL 1122791, at *3 (S.D. Tex. Apr. 3, 2012) (citing Foster

v. Mut. Savs. Ass’n , 602 S.W.2d 98, 100 (Tex. App.–Fort Worth 1 980, no writ)). There are exceptions to the statute of frauds, and c ontracts t hat have been partially performed may be enforceable e ven in the absence of a s igned, written document. See Sewing v. Bowman , 371 S.W.3d 321, 3 46 (Tex. App.–Houston [1st Dist.] 2012, pet. di s m ’ d). The court should enforce an o ral agreement when

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“denying enforcement would itself amount t o a fraud.” Bank of Tex., N.A. v. Gaubert , 286 S

. W.3d 546, 554 (Tex. App.–Dallas 2009, p e t. dism’ d w .o.j.) (ci t a t i o ns omitted). To trump the requirements of the statute of frauds, the partial performance must “be ‘unequivoca l l y r e f erable’ to the alleged oral agreement and corroborate the existence of that agreement; they ‘must be such

as could have b een d one wit h n o other design than to fulfill t h e particular agreement s ought to be enforced.’” I d. (quoting Exxon Corp. v. Breezevale Ltd. , 82 S.W.3d 429, 439–40 (Tex. App.–Dallas 2002, pet. denied)). The Castillos have not pled facts sufficient to allege the existence of a valid contract, which is a crucial element of a breach of contact claim. They concede that the Agreement is s ubject to the statute of frauds; however, t he copy of the Agreement s ubmitted with their complaint was not signed by Ocwen, and they have not alleged that Ocwen signed t he Agreement. They attempt to skirt the statute of frauds by raising the doctrine of p artial performance, pointing to their five payments b etween N ovember 2010 and May 2011 as performa n c e of their obligations under the Agreement. The d i s t r i c t court p roperly concluded that the Castillos’ f ive payments

were not unequivocally referable to the t erms of t he Agreement. In so holding, the court noted that the payments could have been made to satisfy the August 2008 mortgage contract. F urthermore, the payments did not conform with the contours of the Agreement. The Agreement required that the Castillos make an initial payment o f $3,332.63 on or before Decem b e r 1, 2010, in addition to $2,355.89 on the f

irst of every month beginning on December 1, 2010, and until the note and m odification were paid in full. Yet, the Castillos a llege that they made the following payments to Ocwen: $3,332.63 on November 30, 2010; $3,332.6 3 o n February 10, 2011; t wo separate payments of $3,284.15 on February 2 2, 2 011; $3,503.46 o n March 15, 2011; and $3,284.15 on May 16, 2011. These payments do not match the outlined payment schedule, so the Castillos’

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actions w ere n ot “unequivocally r e f e r a b le” to t he Agreement. Moreover, the Castillos do not allege that they made a single p ayment in J une, July, August,

or September 2011, and the absence of t hese p ayments prevents the plausible inference that the couple had “no other d e sign than to fulfill the particular

a g r eement.” Exxon Corp. , 82 S .W.3d at 439–40. T hus, t he district c o u r t correctly declined to apply the partial performance doctrine in this matter. The Castillos failed t o plead the facts necessary to establish the first element of their breach of contract claim: the existence of a valid contract. Since there is no valid contract, we need not evaluate the Castillos’ second argument that their breach was justified because Ocwen allegedly breached the contract first. Lastly, w e r eject the Castillos’ generalized assertions that their pleadings satisfied Federal Rule of Civil Procedure 8 and placed Ocwen and Freddie Mac

on s ufficient notice of the claims against them. This argument is disingenuous given that the Castillos plainly did not articulate any facts, let alone plausible facts, to support several elements of their enumerated claims. IV. CONCLUSION For the foregoing reasons, the judgment of t he distr i c t c o u rt is AFFIRMED.

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