IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20639

Summary Calendar

CHARLES AUSTIN WHITTIER, III; YVETTE E. WHITTIER,

Plaintiffs – Appellants

v.

OCWEN LOAN SERVICING, L.L.C.; DEUTSCHE BANK NATIONAL 

TRUST COMPANY; MERSCORP, INCORPORATED,

Defendants – Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:12-cv-03095

Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Charles and Yvette Whittier brought suit raising federal and state law 

claims against the bank and loan servicing companies that were involved in 

the foreclosure on their property. The district court granted the defendants’ 

motion for summary judgment. We AFFIRM. 

* 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

December 3, 2014

Lyle W. Cayce

Clerk

 

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FACTS AND PROCEDURAL HISTORY

In September 2004, the Whittiers obtained a $264,000 loan from 

Fremont Investment & Loan to purchase property in Houston, Texas. To 

obtain the loan, the Whittiers executed an adjustable rate note made payable 

to Fremont. Fremont’s Senior Vice President indorsed1 the note in blank. The 

Whittiers also executed a deed of trust which identified the Whittiers as the 

borrowers and Fremont as the lender. The deed of trust further identified 

MERS as a nominee for Fremont and its successor and assigns and as a 

beneficiary under the instrument. 

Fremont assigned its servicing obligations to Litton Loan Servicing in 

March 2005. In 2007, the Whittiers and Litton agreed to convert their 

adjustable rate mortgage to a fixed rate mortgage. In November 2011, Litton 

transferred the loan servicing rights to Ocwen Loan Servicing. 

In 2012, MERS assigned the deed of trust to Deutsche Bank. After the

Whittiers defaulted, Deutsche Bank accelerated the note and foreclosed. In 

July 2012, the Whittiers filed suit against the defendants in Texas state court 

to halt the foreclosure proceedings. The defendants removed the case to the 

United States District Court for the Southern District of Texas based on federal 

question and diversity jurisdiction. Following removal, the Whittiers filed an 

amended complaint, seeking declaratory relief and asserting causes of action 

for violations of the Texas Debt Collection Act (“TDCA”), the Real Estate 

Settlement Procedures Act (“RESPA”), and the Texas Deceptive Trade 

Practices Act (“DTPA”); breach of contract; negligent misrepresentation; and

promissory estoppel. Both parties filed motions for summary judgment. The 

district court granted the defendants’ motion on all claims. The Whittiers now 

appeal. 

1 We use the spelling “indorse” and “indorsement” to be consistent with Texas statutes. 

2

 

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DISCUSSION

This court reviews a grant of summary judgment de novo, applying the 

same standard as the district court. Haverda v. Hays Cnty., 723 F.3d 586, 591 

(5th Cir. 2013). Summary judgment is appropriate “if the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” FED. R. CIV. P. 56(a). There is a genuine 

dispute of material fact “if the evidence is such that a reasonable jury could 

return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 248 (1986). In making this determination, this court must “consider 

evidence in the record in the light most favorable to the non-moving party and 

draw all reasonable inferences in favor of that party.” Bluebonnet Hotel 

Ventures, L.L.C. v. Wells Fargo Bank, N.A., 754 F.3d 272, 276 (5th Cir. 2014)

(citation omitted). 

On appeal, the Whitters raise a substantial number of issues. We have 

grouped them in order to respond in a focused way to what is relevant in 

deciding the appeal. 

I. Declaratory Judgment and the TDCA 

The Whittiers’ primary argument is that neither Deutsche Bank nor 

Ocwen is the current assignee, owner, or holder of the note or deed of trust and,

therefore, neither has the right to foreclose on the property. The district court 

rejected this claim and denied the Whittiers’ motion for declaratory relief.

The district court determined that Deutsche Bank was entitled to enforce 

the note because it had possession of the original note, bearing a blank 

indorsement. We agree. Under Texas law, a bank in possession of a note 

indorsed in blank is entitled to collect on it. The Texas statutory definition of 

“holder” includes someone who is in possession of a note payable to bearer. See

TEX. BUS. & COM. CODE ANN. § 1.201(b)(21). “When indorsed in blank, an 

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instrument becomes payable to bearer” – in this case, Deutsche Bank. Id. at § 

3.205(b). This court reached the same conclusion using a similar analysis in a 

non-precedential opinion. See Kiggundu v. Mortg. Elec. Registration Sys. Inc., 

469 F. App’x 330, 331 (5th Cir. 2012).

The Whittiers now argue that the note is not enforceable because it is 

not an original. This argument has no merit. First, there is no evidence that 

the note presented to the district court was not the original. Second, the 

original note is not required as evidence under Texas law. “[E]xistence of a 

note may be established by [a] photocopy of the promissory note, attached to 

an affidavit in which the affiant swears that the photocopy is a true and correct 

copy of the original note.” Martins v. BAC Home Loans Servicing, L.P., 722 

F.3d 249, 254 (5th Cir. 2013) (quotations and citation omitted). Here, a copy 

of the note was attached to the defendants’ motion for summary judgment 

along with an affidavit in which an Ocwen employee attested that all 

documents were “the original or exact duplicates of the original.” Accordingly, 

the defendants had possession of the note and were entitled to foreclose. 

The Whittiers next challenge the actual indorsement. They claim that 

the indorsement is improper because it was photocopied onto the note instead 

of stamped in ink. This argument is flawed for two reasons. First, the 

Whittiers present no evidence to support this argument. Second, even if the 

indorsement was produced by photocopying, it would still be valid. See TEX.

BUS & COM. CODE ANN. § 1.201 cmt. 37 (noting that a symbol may be printed, 

stamped, or written). The Whittiers also claim that the indorsement is not a 

valid blank indorsement because it was not expressly made payable to “bearer” 

or the “order of bearer.” Such words are not required to create a valid blank 

indorsement. TEX. BUS & COM. CODE ANN. § 3.205(b). Accordingly, the note 

contained a valid blank indorsement under Texas law. 

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The Whittiers further claim that the district court erred in holding that 

the defendants were also entitled to foreclose pursuant to the deed of trust. 

There is no need for us to discuss this alternative basis for the court’s decision.

We also need not address the Whittiers’ TDCA claim. The claim is based 

entirely on the contention that Ocwen was not entitled to act on Deutsche 

Bank’s behalf because the bank was not the “true mortgagee” of the debt. We 

have already held that Deutsche Bank is the holder of the note and thus the 

“true mortgagee.” The TDCA claim fails. 

II. RESPA

The Whittiers claim that the district court erred in granting the 

defendants summary judgment on their RESPA claim. RESPA requires a loan 

servicer to respond appropriately to a borrower’s qualified written request by 

certain deadlines. See 12 U.S.C. § 2605(e). To recover, a claimant must show 

that actual damages resulted from a RESPA violation. § 2605(e), (f). 

The parties do not dispute that the Whittiers sent Ocwen a qualified 

written request for account information. Ocwen responded to the request, but 

the font size made the response largely illegible. The district court did not 

reach the question of whether this illegible response constituted a failure to 

respond in a timely manner. Instead, the court determined that the 

defendants were entitled to summary judgment because the Whittiers failed to 

show any actual damages resulting from the response. The court rejected the 

Whittiers’ argument that harm to their credit rating and the expenses of 

litigation constitute actual damages. 

On appeal, the Whittiers argue that the district court should not have 

reached the question of damages. Rather, they submit that the court should 

have used its authority under Federal Rule of Civil Procedure 42(b) to bifurcate 

the issues of liability and damages. This argument is baseless. The Whittiers 

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present no law to suggest that bifurcation of a RESPA claim is mandatory. The 

rule merely provides that a court may order separate trials “[f]or convenience, 

to avoid prejudice, or to expedite and economize . . . .” FED. R. CIV. P. 42(b). 

We see no error in the district court’s procedural approach.

The Whittiers further argue that the district court incorrectly relied on 

another district court’s opinion to support its holding that the attorney’s fees 

and expenses of litigation they incurred cannot, as a matter of law, satisfy the 

actual damages requirement of a RESPA claim. See Steele v. Quantum 

Servicing Corp., No. 3:12-CV-2897-L, 2013 WL 3196544 (N.D. Tex. June 25, 

2013). The Steele court reached that conclusion because it found no authority 

to support the proposition that litigation fees and expenses are actual damages 

under RESPA. Id. at *8. We agree with the result, as RESPA allows for fees 

and expenses in addition to actual damages. See 12 U.S.C. § 2605(f). 

 

III. Breach of Contract and Negligent Misrepresentation 

In their breach of contract claim, the Whittiers allege Litton sent them 

a letter in 2011 promising a loan modification. The district court held that the 

claim was barred by the Statute of Frauds. 

Under Texas law, a loan agreement involving an amount in excess of 

$50,000 is not enforceable unless it is in writing and signed by the party to be 

bound. TEX. BUS. & COM. CODE ANN. § 26.02(b). It is undisputed that the 

Whittiers’ loan modification is subject to this provision. The parties do dispute, 

however, whether the letter satisfies the Statute of Frauds. 

The 2011 letter contains none of the terms of the alleged modification. 

Instead, the letter informs the Whittiers of the necessary steps that must be 

taken to qualify for a loan modification. It does not specify the actual 

modifications, if any, that would be made to the note and deed of trust. 

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Accordingly, the alleged modification fails to satisfy the Statute of Frauds and 

the Whittiers’ breach of contract claim is thereby barred. 

The Whittiers’ negligent misrepresentation claim necessarily also fails. 

A negligent misrepresentation claim “may not be used to circumvent the 

Statute of Frauds.” Lam v. Nguyen, 335 S.W.3d 786, 790 (Tex. App.—Dallas

2011). “[A]n indirect attempt to recover for the breach of an unenforceable 

promise is barred by the Statute of Frauds.” Id. (citation omitted). The 

Whittiers seek damages for an alleged negligent misrepresentation relating to 

the unenforceable 2011 letter. Allowing the Whittiers to pursue this claim 

would circumvent the Statute of Frauds. 

IV. Promissory Estoppel 

The district court also rejected the Whittiers’ claim for promissory 

estoppel. The claim is based on Ocwen’s alleged failure to grant a modification 

in 2011. As this court has previously noted in an unpublished opinion that we 

find persuasive, to succeed on a promissory estoppel claim, a plaintiff must 

introduce evidence demonstrating that a defendant promised to reduce a 

modification to a writing that would comply with the Statute of Frauds. Milton 

v. U.S. Bank Nat. Ass’n, 508 F. App’x 326, 329 (5th Cir. 2013) (citation omitted). 

The Whittiers have failed to satisfy this burden. 

V. DTPA 

The Whittiers also raised a DTPA claim. They have waived review of 

this issue on appeal. “Failure to provide any legal or factual analysis of an 

issue results in waiver.” Am. States Ins. Co. v. Bailey, 133 F.3d 363, 372 (5th 

Cir. 1998) (citation omitted). While the Whittiers identify the DTPA in their 

list of issues on appeal, they fail to provide any factual or legal analysis of the 

issue and it is therefore waived. 

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VI. Counterclaims

The Whittiers’ final issue relates to the district court’s grant of summary 

judgment to the defendants on their counterclaims. They argue the district 

court erred for two reasons. The first argument is merely a recitation of their 

previous contention that the defendants were not proper holders of the note. 

The second argument suggests that the defendants’ counterclaims were 

not properly pled. The Whittiers argue that the defendants failed to repeat 

their counterclaims in their answer to the first amended complaint. The 

district court held that this argument was waived because the Whittiers 

responded to the counterclaims in an answer. Technical defects in presenting 

affirmative defenses may be waived by a plaintiff’s response to the defense. 

Bradberry v. Jefferson Cnty, Tex., 732 F.3d 540, 553 (5th Cir. 2013). We 

conclude that any procedural error was waived here.

AFFIRMED.

 

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