Cao v. BSI Financial Services ( 2021 )


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  • Case: 21-20073   Document: 00516007058   Page: 1    Date Filed: 09/09/2021
    United States Court of Appeals
    for the Fifth Circuit
    United States Court of Appeals
    Fifth Circuit
    FILED
    September 9, 2021
    No. 21-20073                       Lyle W. Cayce
    Summary Calendar                          Clerk
    Angela Cao,
    Plaintiff—Appellant,
    versus
    BSI Financial Services, Incorporated; Christiana
    Trust, Wilmington Savings Fund Society, Stanwich
    Mortgage Loan Trust Series 2012-10; Stanwich
    Mortgage Acquisition Company, Incorporated;
    Carrington Mortgage Services, L.L.C.,
    Defendants—Appellees,
    ______________________________
    Angela Cao,
    Plaintiff—Appellant,
    versus
    Selene Finance, L.P.; MTGLQ Investors, L.P.,
    Defendants—Appellees.
    Case: 21-20073         Document: 00516007058         Page: 2   Date Filed: 09/09/2021
    No. 21-20073
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:17-CV-321
    Before King, Costa, and Ho, Circuit Judges.
    Per Curiam:*
    After defaulting on her mortgage, Angela Cao filed lawsuits against
    BSI Financial Services, Selene Finance, L.P., and MTGLQ Investors, L.P.,
    who were at different times the mortgage servicers for the loan. Cao sought
    to halt foreclosure on the property and asserted numerous claims. The
    district court consolidated the two matters into the present case.
    The defendants filed a motion for judgment on the pleadings and both
    Cao and the defendants sought summary judgment. The magistrate judge
    issued       her   Memorandum     and   Recommendations       (M&R),    which
    recommended dismissal of all but four of Cao’s claims against BSI, Selene,
    and MTGLQ. All parties objected. The district court, after reviewing the
    M&R, determined that all of Cao’s claims should be dismissed with
    prejudice. Some of those claims—fraud, conspiracy, conversion, negligence,
    and fraudulent transfer—were dismissed based on the pleadings. Other
    claims—breach of contract, duress, usury, Texas Theft Liability Act, Texas
    Debt Collections Act, Federal Debt Collections Practices Act, quiet title,
    wrongful foreclosure, and money had and received—were dismissed based
    on the summary judgment record. Cao filed an unsuccessful motion for
    reconsideration.
    *
    Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.
    2
    Case: 21-20073      Document: 00516007058          Page: 3   Date Filed: 09/09/2021
    No. 21-20073
    On appeal, Cao asserts seven challenges to the district court’s order.
    Although those include a merits challenge, she spends most of her brief
    arguing that the district court erred procedurally in dismissing her case.
    None of her arguments succeed.
    First, Cao argues that the court erred in its review of the magistrate’s
    M&R by reviewing some of the magistrate’s findings de novo, which led to
    the district court’s dismissals that the magistrate judge had not
    recommended. But the district court properly applied a de novo standard to
    the parts of the magistrate judge’s opinion to which a party had objected and
    reviewed only for clear error those portions to which no party objected. Fed.
    R. Civ. P. 72(b).
    Second, Cao argues that the court relied on matters outside of the
    pleadings by considering an exhibit that was not mentioned in objections to
    the M&R. But it is well-settled that the district court may consider the entire
    record in its decision on a summary judgment motion. Resolution Trust Corp.
    v. Starkey, 
    41 F.3d 1018
    , 1023–24 (5th Cir. 1995).
    Third, Cao argues that the district court improperly converted
    defendants’ motions for dismissal on the pleadings into a motion for
    summary judgment. That is not what happened. The defendants filed
    separate motions for summary judgment. It is those separate motions that
    were the basis for the grant of summary judgment.
    Fourth, the magistrate judge did not sua sponte reject Cao’s argument
    that she was entitled to tolling the statute of limitations. Defendants
    addressed tolling argument in their response to Cao’s motion for summary
    judgment.
    Fifth, Cao argues that dismissal on the pleadings was not warranted
    because the M&R contained undisputed material facts that favored Cao’s
    position. But she misunderstands what Defendants were challenging in their
    3
    Case: 21-20073      Document: 00516007058           Page: 4   Date Filed: 09/09/2021
    No. 21-20073
    Rule 12(c) motions for dismissal on the pleadings: Cao’s third amended
    complaint, not the M&R. Defendants raised their challenges to the M&R
    separately in their objections.
    Sixth, Cao challenges the merits of the summary judgment order,
    primarily on the conspiracy claim, and argues that she is actually entitled to
    summary judgment. Her cursory challenge to the merits is difficult to follow.
    In any event, we agree with the district court’s reasons for granting summary
    judgment in favor the defendants on the conspiracy and other claims.
    Finally, Cao’s substantial rights were not violated nor was she denied
    due process based on procedural errors she alleges the district court
    committed that led to an unfair process. As we have said, we do not see any
    procedural improprieties.
    ***
    We AFFIRM the judgment of the district court.
    4
    

Document Info

Docket Number: 21-20073

Filed Date: 9/9/2021

Precedential Status: Non-Precedential

Modified Date: 9/9/2021