Neil Gillespie, et al v. BAC Home Loans Servicing, L.P., et al

Filing

UNPUBLISHED OPINION FILED. [13-10463 Affirmed ] Judge: CDK , Judge: WED , Judge: JWE Mandate pull date is 03/21/2014 [13-10463]

Case: 13-10463

Document: 00512548002

Page: 1

Date Filed: 02/28/2014

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

No. 13-10463
Summary Calendar

FILED
February 28, 2014
Lyle W. Cayce
Clerk

NEIL GILLESPIE; ONA GILLESPIE,
Plaintiffs-Appellants
v.
BAC HOME LOANS SERVICING, L.P.; FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:11-CV-388
Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
Neil Gillespie and Ona Gillespie have appealed the district court’s orders
granting the motion to dismiss of the Federal National Mortgage Association
(Fannie Mae) and the motion for summary judgment of BAC Home Loans
Servicing, L.P. (BAC). In their second amended complaint, the appellants
complained that their home was placed in foreclosure proceedings,

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

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notwithstanding their participation in the Home Affordable Modification
Program.
The appellants contend for the first time on appeal that BAC has
“unclean hands” because it has “acted deceptively and fraudulently since the
inception of this case and throughout these proceedings.” In reviewing an
order granting summary judgment, we will not consider arguments that were
not presented to the district court. Stults v. Conoco, Inc., 76 F.3d 651, 657 (5th
Cir. 1996). In any event, the appellants have not shown that the doctrine of
unclean hands is relevant to the disposition of an issue in this appeal. See
Bagby Elevator Co., Inc. v. Schindler Elevator Corp., 609 F.3d 768, 774 (5th
Cir. 2010).
The appellants contend that the district court erred in granting BAC’s
motion for summary judgment with respect to their breach-of-contract claim.
We review de novo a grant of summary judgment, applying the same standard
as the district court. Nickell v. Beau View of Biloxi, LLC, 636 F.3d 752, 754
(5th Cir. 2011). “The [district] court shall grant summary judgment 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).
Under the state statute of frauds, “[a] loan agreement in which the
amount involved in the loan agreement exceeds $50,000 in value is not
enforceable unless the agreement is in writing and signed by the party to be
bound or by that party’s authorized representative.” TEX. BUS. & COMM. CODE
ANN. § 26.02(b) (West 2009); see also Martins v. BAC Home Loans Servicing,
LP, 722 F.3d 249, 256-57 (5th Cir. 2013) (purported agreement to modify
mortgage loan governed by statute of frauds).
The appellants do not contend that they had a written agreement with
BAC to modify their loan. Instead, they contend that BAC orally promised to

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modify the loan and that they relied on that promise. Their argument, liberally
construed, is that BAC was barred from foreclosing by promissory estoppel.
See Martins, 722 F.3d at 256. For the doctrine of promissory estoppel to apply
in this context, however, a borrower would have to present evidence of
a promise on the part of the lender or its agents to sign a written agreement,
which had been prepared and which would satisfy the requirements of the
statute of frauds. Id. at 256-57. There is no evidence of such a promise in this
case. See id. Because the appellants have not overcome the statute of frauds
defense, they have not shown that the district court erred in granting summary
judgment as to their breach-of-contract claim. See id.
The appellants contend that the district court erred in dismissing their
claims against Fannie Mae for violations of several sections of the Texas
Finance Code.

See generally TEX. FIN. CODE ANN. §§ 392.301(a)(8),

392.304(a)(8), & 392.404(a) (West 2006). We conduct a de novo review of the
district court’s grant of a Rule 12(b)(6) motion. In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007). “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal quotation marks and citation omitted).
Given that the appellants have not shown that BAC’s actions were
wrongful, they cannot show, based on their conclusional assertion that Fannie
Mae was aware of BAC’s conduct, that the district court erred in concluding
that the appellants had failed to allege that Fannie Mae violated sections
392.301(a)(8) and 392.304(a)(8) of the Finance Code. See Iqbal, 556 U.S. at
678. The judgment is
AFFIRMED.

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