Richard Alsenz v. Aurora Bank, FSB, et al
UNPUBLISHED OPINION FILED. [12-20524 Affirmed] Judge: CDK, Judge: JLD, Judge: GJC. Mandate pull date is 06/28/2017 [12-20524]
Date Filed: 06/07/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
June 7, 2017
Lyle W. Cayce
RICHARD H. ALSENZ,
CAL-WESTERN RECONVEYANCE CORPORATION,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CV-186
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Richard Alsenz sued Aurora Bank, FSB; Aurora Loan Services, L.L.C.,
and Cal-Western Reconveyance Corporation. He raised the same foreclosurerelated claims against all three entities. Cal-Western’s role was as a trustee
for Aurora Bank. It initiated the foreclosure proceedings and notified Alsenz
that his loan was being accelerated.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 06/07/2017
Back in 2012, the district court dismissed all of the claims pursuant to
Rule 12(b)(6) for failure to state a claim. The dismissal order treated all three
defendants collectively and used the same rationales for dismissing each of
them from the suit.
Alsenz appealed. While the appeal was pending, in June 2013, CalWestern filed a suggestion of bankruptcy and notice of automatic stay. That
stayed the entire appeal for more than two years. In November 2015, the
Aurora Defendants moved to lift the stay for all parties except Cal-Western,
which was still in bankruptcy. We granted that motion and later decided the
appeal as to the Aurora Defendants. We affirmed the district court’s dismissal.
Alsenz v. Aurora Bank, FSB, 641 F. App’x. 359 (5th Cir. 2016).
Cal-Western recently notified the court that its bankruptcy case has
finally closed. So we can now decide the appeal as to Cal-Western.
Alsenz gave no reason in his briefing below or in this court for treating
Cal-Western any differently for purposes of the motion to dismiss. The district
court’s order also made no distinction. Indeed, the similarity of the legal
posture is evident from Cal-Western’s filing a letter to adopt the Aurora brief
rather than file its own. The reasoning our court gave last year in affirming
the dismissal thus applies equally to Cal-Western.
The judgment entered in favor of Cal-Western is AFFIRMED.
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