David Johnson v. Real Estate Mtge Network, Inc., et al

Filing

UNPUBLISHED OPINION FILED. [17-20347 Affirmed ] Judge: EGJ , Judge: PRO , Judge: CH Mandate issue date is 12/26/2017 [17-20347]

Case: 17-20347

Document: 00514257951

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Date Filed: 12/01/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-20347
Summary Calendar
DAVID JOHNSON,

United States Court of Appeals
Fifth Circuit

FILED
December 1, 2017
Lyle W. Cayce
Clerk

Plaintiff - Appellant
v.
REAL ESTATE MORTGAGE NETWORK, INCORPORATED; FEDERAL
NATIONAL MORTGAGE ASSOCIATION, AS TRUSTEE; BRANCH
BANKING AND TRUST COMPANY; MORTGAGE ELECTRONIC
REGISTRATION SYSTEM, INCORPORATED; HOMEBRIDGE FINANCIAL
SERVICES, INCORPORATED, formerly known as Real Estate Mortgage
Network, Incorporated,
Defendants - Appellees

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CV-748
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
In 2008, the appellant, David Johnson, obtained a home equity loan,
secured by his principal residence, from Real Estate Mortgage Network, Inc.
(REMNI). Johnson’s loan was assigned to the Federal National Mortgage
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Association (FNMA) in October 2008. After Johnson defaulted on the loan in
2014, Branch Banking and Trust Company (BBTC), which serviced the loan
for FNMA, sent Johnson a Notice of Default.
In March 2016, Johnson, pro se, filed a complaint against Homebridge
Financial

Services

Inc.

(formerly

known

as

REMNI;

collectively,

“REMNI/Homebridge”), FNMA, BBTC, and Mortgage Electronic Registration
System (“MERS”). Liberally construed, his complaint alleges that the loan
transaction is null and void because REMNI failed to disclose its intent to sell
the loan. He asserted claims for quiet title, violation of the Texas Deceptive
Trade Practices–Consumer Protection Act (DTPA), and filing fraudulent court
records and fraudulent claims against real property.

FNMA, BBTC, and

MERS counterclaimed for foreclosure and moved for summary judgment.
On April 18, 2017, the district court granted the motion for summary
judgment filed by FNMA, BBTC, and MERS. Johnson filed a notice of appeal
on May 15. On May 22, FNMA, BBTC, and MERS moved to certify the order
granting summary judgment as final. On June 9, after Johnson failed to
appear for a docket call, the district court granted REMNI/Homebridge’s
motion to dismiss for failure to prosecute. The district court entered a final
judgment that same day.
Before we address Johnson’s contentions on appeal, we note that
Johnson’s notice of appeal from the summary judgment dismissing the claims
against some, but not all, of the defendants, was premature. Nevertheless,
because the district court could have certified that the summary judgment was
appealable, and it subsequently entered a final judgment, the notice of appeal
gives us appellate jurisdiction over the summary judgment. See Boudreaux v.
Swift Transp. Co., Inc., 402 F.3d 539, 539 n.1 (5th Cir. 2005).

However,

because Johnson did not file a notice of appeal from the final judgment, which
dismissed his remaining claims against REMNI/Homebridge, we do not have
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jurisdiction

to

consider

the

dismissal

of

his

claims

against

REMNI/Homebridge.
In support of his claim to quiet title, Johnson asserted that the entire
loan transaction is null and void, and the defendants’ claim on his title is
invalid and unenforceable, because REMNI/Homebridge acted as a broker, did
not fund the note and thus does not meet the definition of a lender; and because
REMNI/Homebridge did not disclose to him that his loan would be sold.
Johnson failed to provide any evidence in support of his assertion that
REMNI/Homebridge is not a lender. Further, as the district court noted, the
Security Instrument signed by Johnson states that the note can be sold without
notice to the borrower.

To the extent that Johnson complains about

REMNI/Homebridge’s failure to respond to discovery, we lack jurisdiction to
consider those arguments because Johnson did not appeal the dismissal of
REMNI/Homebridge. Because Johnson failed to establish the existence of a
genuine issue of material fact as to the validity of the defendants’ claim on the
title to the property, the district court did not err by granting summary
judgment on Johnson’s claim for quiet title.
Johnson’s DTPA claim is also based on his assertion that REMNI failed
to inform him that it intended to sell his loan. The district court granted
summary judgment on the ground that Johnson is not a consumer within the
meaning of the DTPA. Johnson argues that a person does not need to qualify
as a consumer to recover under the DTPA. As we have noted, Johnson did not
appeal the dismissal of REMNI/Homebridge, so we lack jurisdiction to consider
any claims against it for failing to disclose to Johnson that his loan could be
sold. Moreover, to the extent that Johnson’s DTPA claim is asserted against
the remaining defendants, the Security Instrument that Johnson signed
explicitly informed him that the loan could be sold. The district court did not
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err by granting summary judgment for FNMA, BBTC, and MERS to the extent
that this claim pertains to those defendants.
Regarding Johnson’s claims that the defendants filed knowingly
fraudulent documents and asserted fraudulent claims against his property,
and the defendants’ counterclaim for judicial foreclosure, the district court held
that Johnson had offered no evidence to support his claims or to counter the
evidence submitted by the defendants.

To establish FNMA’s claim of

ownership of the note, FNMA, BBTC, and MERS submitted the declaration of
Patrick Carper, a Vice President at BBTC. Carper stated that Johnson’s note
was sold and assigned to FNMA on October 1, 2008, and that BBTC is the
servicer of the loan and holder of the note on behalf of FNMA.

Johnson

challenged Carper’s declaration by arguing that the assignment of the note
was void because the deed was not transferred until August 2014. He also
argues, without any supporting evidence, that BBTC fabricated the
assignment documents for the purpose of defrauding him. The district court
held that Johnson lacked standing to challenge the validity of the assignment
of the note from REMNI/Homebridge to FNMA. Based on our de novo review
of the record, we agree with the district court that Johnson failed to establish
the existence of a genuine issue of material fact. We therefore hold that the
district court did not err by granting summary judgment for the defendants on
their counterclaim for foreclosure and on Johnson’s claims for filing fraudulent
court records and fraudulent claims against real property.
Johnson failed to establish the existence of a genuine issue of material
fact. Therefore, we reject his contention that the grant of summary judgment
violated his Seventh Amendment right to a jury trial.
The judgment of the district court is
AFFIRMED.
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