Grant Pollet v. Aurora Loan Services, et al

Filing

UNPUBLISHED OPINION FILED. [11-50059 Affirmed in Part, Dismissed in Part for Lack of Jurisdiction, Dismissed in Part as Moot] Judge: PEH , Judge: WED , Judge: JWE Mandate pull date is 01/11/2012 [11-50059]

Case: 11-50059

Document: 00511703289

Page: 1

Date Filed: 12/21/2011

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-50059
Summary Calendar

December 21, 2011
Lyle W. Cayce
Clerk

GRANT POLLETT,
Plaintiff-Appellant
v.
AURORA LOAN SERVICES; MERSCORP INC; BELVIDERE NETWORKING
ENTERPRISES, doing business as Origin Funding, L.L.C.,
Defendants-Appellees

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:10-CV-580

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Grant Pollett appeals the denial of a temporary restraining order and
restraining order/preliminary injunction1 seeking to stop Aurora Loan Services
(Aurora) from foreclosing on his home, the dismissal of his fraud and “wrongful
foreclosure” claims against Aurora for failure to state claims upon which relief
can be granted, the dismissal of Belvidere Networking Enteprises (Belvidere) for

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1

In his motion for a restraining order, Pollett requested a preliminary injunction.

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lack of timely service, and the denial of his motion for reconsideration. Pollett
raised numerous additional claims in the district court that he did not brief here;
therefore, those claims have been abandoned.2
We lack jurisdiction to review the denial of Pollett’s motion for a
temporary restraining order,3 and the appeal of Pollett’s motion for a restraining
order/preliminary injunction is moot because Aurora has already foreclosed on
his home.4

Therefore, we dismiss those claims respectively for lack of

jurisdiction and for mootness.
With respect to Pollett’s assertion that the district court erred in
dismissing his claims against Aurora for fraud and for wrongful foreclosure, we
review a district court’s grant of a motion to dismiss for failure to state a claim
de novo, accepting all well-pleaded facts as true and viewing those facts in the
light most favorable to the plaintiff.5 The plaintiff must allege sufficient facts
to suggest a plausible ground for relief.6
The district court correctly determined that Pollett had failed to state a
claim for wrongful foreclosure under Texas law because he failed to plead all
elements of that cause of action. In particular, he failed to allege (1) that his
home sold for a grossly inadequate selling price and (2) a causal connection
between a defect in the foreclosure sale proceedings and the grossly inadequate
selling price.7 Likewise, the district court did not err in dismissing Pollett’s

2

See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

3

See In re Lieb, 915 F.2d 180, 183 (5th Cir. 1990).

4

See Marilyn T., Inc. v. Evans, 803 F.2d 1383, 1384-85 (5th Cir. 1986) (determining
that the appeal of a preliminary injunction was moot because no order of the court could affect
the parties’ rights with respect to the injunction that it was called upon to review), abrogated
on other grounds by Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 (1991).
5

See Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010).

6

See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

7

See Sauceda v. GMAC Mortg. Corp., 268 S.W.3d 135, 139 (Tex. App. 2008).

2

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fraud claim against Aurora because he did not plead this claim with specificity.8
Although he alleged that Aurora told him to default on his mortgage so that he
would qualify for a loan modification and that it would not foreclose despite the
default, he did not allege in the district court when and where Aurora’s allegedly
fraudulent statements were made.9
With respect to Pollett’s challenge to the dismissal of Belvidere for lack of
timely service, the district court dismissed Belvidere before 120 days from the
date Belvidere was named as a defendant had elapsed. Further, the court failed
to give Pollett notice of its intent to dismiss Belvidere.10 Nevertheless, even if
the district court abused its discretion,11 we can “affirm the district court’s
judgment on any grounds supported by the record.”12 The only claim that Pollett
raises on appeal with respect to Belvidere is that it engaged in predatory lending
practices under the Texas Deceptive Trade Practices Act (DTPA) because it sold
him a loan that was designed to be unaffordable. Pollett has failed to state a
claim against Belvidere pursuant to the DTPA because he alleges only that
Belvidere sold him a loan that was designed to be unaffordable and that it
should not have done so. Pollett has not alleged sufficient facts to suggest a
plausible ground for relief because he has not adequately alleged (1) that he was
victimized by false, misleading, or deceptive acts, failures to disclose, or an

8

See FED. R. CIV. P. 9(b); see also Flaherty & Crumrine Preferred Income Fund, Inc. v.
TXU Corp., 565 F.3d 200, 207 (5th Cir. 2009) (stating that Rule 9(b) requires the plaintiff to
specify the statements contended to be fraudulent, identify the speaker, state when and where
the statements were made, and explain why the statements were fraudulent).
9

See Flaherty & Crumrine, 565 F.3d at 207.

10

See FED. R. CIV. P. 4(m).

11

See Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 445 (5th Cir. 1996).

12

Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992).

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unconscionable course of action, (2) which was a “producing cause” of damages.13
We therefore affirm the district court’s dismissal of the claims against Belvidere
on this alternate ground.
The district court did not abuse its discretion in denying Pollett’s motion
for reconsideration pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure,14 wherein he argued that the substitute trustee was prohibited by
Texas Property Code § 51.0074(b)(1) from advocating on Aurora’s behalf at the
injunction hearing. Because Pollett presented no evidence establishing the
identity of the substitute trustee or any authority supporting his position, he has
failed to establish that the district court based its decision to deny his motion on
an erroneous view of the law or on a clearly erroneous assessment of the
evidence.15
APPEAL DISMISSED IN PART FOR LACK OF JURISDICTION AND IN
PART AS MOOT; AFFIRMED IN PART.

13

Streber v. Hunter, 221 F.3d 701, 727 (5th Cir. 2000); see also TEX. BUS. & COM. CODE
§§ 17.44, 17.46(a), 17.50(a)(1); Iqbal, 129 S. Ct. at 1949.
14

See Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005).

15

See id.

4