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Wanda Binion v. U.S. Bank, N.A. , 699 F. App'x 412 ( 2017 )


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  •      Case: 16-11137      Document: 00514212110         Page: 1    Date Filed: 10/26/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11137                                   FILED
Summary Calendar                           October 26, 2017
Lyle W. Cayce
Clerk
WANDA D. BINION,
Plaintiff-Appellant
v.
U.S. BANK, N.A., As Trustee for New Century Home Equity Loan Trust,
Series 2002-A, Asset Backed Pass Through Certificates Series 2002-A,
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:15-CV-160
Before KING, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Wanda Binion appeals the dismissal of her pro se complaint against U.S.
Bank, N.A., as Trustee for New Century Home Equity Loan Trust Series 2002-
A, Asset Backed Pass Through Certificates, Series 2002-A (USB), that alleged
claims of fraud and violations of the Fair Debt Collection Practices Act, the
Fair Credit Reporting Act, the Texas Deceptive Trade Practices Act, and the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-11137      Document: 00514212110       Page: 2   Date Filed: 10/26/2017
No. 16-11137
Due Process Clause. This suit follows a state court summary judgment in favor
of USB in a foreclosure proceeding.           After Binion failed to object to the
magistrate judge’s report and recommendation that the complaint be
dismissed for failure to state a claim and as barred by res judicata and the
Rooker-Feldman doctrine, 1 the district court adopted the magistrate judge’s
findings and conclusions as its own and entered a judgment of dismissal.
Binion asserts also that her Seventh Amendment right to jury trial was
infringed. We affirm the judgment.
If a case is assigned to a magistrate judge without a party’s consent, as
the instant case was, the party is entitled to file objections within 14 days after
receiving a copy of the magistrate judge’s recommendation and to have those
objections reviewed de novo by the district court. See 28 U.S.C. § 636(b)(1);
FED. R. CIV. P. 72(b). If the party was advised of this requirement and the
consequences of noncompliance, as Binion was, the party’s failure to file timely
objections bars her, except for plain error, from challenging on appeal the
magistrate judge’s factual findings and legal conclusions that the district court
has accepted. See Douglass v. United Servs. Auto. Ass’n,
    79 F.3d 1415
    , 1428-
29 (5th Cir. 1996) (en banc), superseded on other grounds by § 636(b)(1).
The plain error standard requires that Binion show that there is an
error, that the error is clear or obvious, i.e., not “subject to reasonable dispute,”
and that the error affects the party’s substantial rights. Puckett v. United
States,
    556 U.S. 129
    , 135 (2009). If she makes all these showings, we have
discretion to correct the forfeited error if the error “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.”
    Id. (alteration in 
    original) (quoting United States v. Atkinson,
    297 U.S. 157
    , 160 (1936)).
1See Rooker v. Fidelity Trust Co.,
    263 U.S. 413 
    (1923); D.C. Court of Appeals v.
Feldman,
    460 U.S. 462 
    (1983).
2
Case: 16-11137    Document: 00514212110      Page: 3     Date Filed: 10/26/2017
No. 16-11137
Ordinarily,   a   contention   unaccompanied     by   “any    precedent    directly
supporting” it forms no basis for concluding that an alleged error is plain.
United States v. Miller,
    406 F.3d 323
    , 330 (5th Cir. 2005).
Binion fails to show that it is clear under the law of this circuit that her
Seventh Amendment right to a jury trial and her related right to due process
were violated by the state court’s grant of summary judgment to USB or by the
district court’s dismissal of the federal complaint. See
    Miller, 406 F.3d at 330
    ;
see also Haase v. Countrywide Home Loans, Inc.,
    748 F.3d 624
    , 631 n.5 (5th
Cir. 2014); Barrett v. Indep. Order of Foresters,
    625 F.2d 73
    , 75 (5th Cir. 1980)
(per curiam). Consequently, further plain error analysis is unnecessary. See
    Puckett, 556 U.S. at 135
    .
We reject also the argument that the underlying state court judgment
was procured by fraud and that consequently neither res judicata nor the
Rooker-Feldman doctrine bars Binion’s federal complaint or an amendment to
the complaint to add USB’s loan servicing agent as a defendant. Binion’s
allegations are insufficient to show that the state court judgment was procured
by fraud. See Martins v. BAC Home Loans Servicing, L.P.,
    722 F.3d 249
    , 252-
54 (5th Cir. 2013). As Binion fails to show clear or obvious error, further plain
error analysis is unnecessary. See
    Puckett, 556 U.S. at 135
    ;
    Miller, 406 F.3d at 330
    .
Binion’s attempt to incorporate by reference arguments raised in the
district court is unsuccessful. See Yohey v. Collins,
    985 F.2d 222
    , 224-25 (5th
Cir. 1993). As Binion has not shown that the district court plainly erred by
dismissing her claims based upon res judicata and the Rooker-Feldman
doctrine, we do not reach her arguments related to the merits of her claims.
AFFIRMED.
3