Cuauhtli v. Chase Home Finance LLC , 252 F. App'x 690 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 31, 2007
No. 07-10352 Charles R. Fulbruge III
Summary Calendar Clerk
NANETTE A CUAUHTLI
Plaintiff–Appellant
v.
CHASE HOME FINANCE LLC
Defendant–Appellee
Appeal from the United States District Court
for the Northern District of Texas
No. 4:06-CV-00472
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Nanette A. Cuauhtli (Mrs. Cuauhtli) appeals a grant of summary
judgment to Chase Home Finance LLC (CHF). We affirm.
I
In 1999, Mrs. Cuauhtli’s husband (Mr. Cuauhtli) signed a promissory note
(Note) in the amount of $80,000, payable to the order of Chase Manhattan
Mortgage Corporation (CMMC). Mr. Cuauhtli simultaneously executed a deed
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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of trust encumbering the property at 7006 Port Phillip Drive, Arlington, Texas
(Property). Mrs. Cuauhtli did not sign the Note or deed of trust. CHF is a
successor by merger to CMMC and was assigned the Note and deed of trust. Mr.
Cuauhtli became delinquent in making the required payments on the Note. In
December, 2005 and January, 2006 CHF sent two letters informing Mr. Cuauhtli
of his delinquency, his requirements to cure the delinquency, and notice that
CHF might accelerate the loan and initiate foreclosure. Mr. Cuauhtli did not
cure the default. CHF sent Mr. Cuauhtli a third letter on February 7, 2006
informing Mr. Cuauhtli that his loan had been forwarded to an attorney–trustee
for immediate foreclosure proceedings. CHF’s trustee sold the house at public
auction on April 4, 2006.
Mrs. Cuauhtli brought this suit in Texas state court against CHF alleging
wrongful foreclosure. CHF timely removed to federal court on the basis of
diversity of citizenship. CHF moved for summary judgment. Finding no
irregularities in the foreclosure sale, the district court granted CHF’s motion.
Mrs. Cuauhtli timely appealed.
II
We review the grant of summary judgment de novo, applying the same
standard as the district court.1 Mrs. Cuauhtli’s only claim below was for
wrongful foreclosure under Texas law. On appeal, Mrs. Cuauhtli advances
several theories that were never brought before the district court. She argues
that CHF: waived its right to accelerate payment on the Note by entering into
a forbearance agreement, breached its duty of good faith and fair dealing,
engaged in deceptive trade practices, and committed fraud. But “[i]t is well
1
See Warfield v. Byron, 436 F.3d 551, 557 (5th Cir. 2006) (citation omitted).
2
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settled that we do not consider issues raised for the first time on appeal,”2 so
those issues are waived.
The only point of legal error that Mrs. Cuauhtli has preserved is her
argument that she was entitled to the same notices of acceleration and
foreclosure that Mr. Cuauhtli was, despite the fact that she was not a signatory
to the Note or deed of trust, since she shared ownership of the Property under
Texas community property law. But “[t]here is no requirement that personal
notice be given to persons who were not parties to the deed of trust” in
foreclosure sales.3 The personal notice that must be given to debtors is not owed
to residents of the property who are not personally liable for the debt.4 Mrs.
Cuauhtli was therefore not entitled to personal notice, and this assignment of
error is without merit.
III
For these reasons, the order of the district court is AFFIRMED.
2
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 344 n.3 (5th Cir. 2007).
3
Am. Sav. and Loan Ass’n of Houston v. Musick, 531 S.W.2d 581, 588 (Tex. 1976); see
also Stanley v. CitiFinancial Mortgage Co., Inc., 121 S.W.3d 811, 817 (Tex. App.—Beaumont
2003).
4
See Hausmann v. Texas Sav. & Loan Ass’n, 585 S.W.2d 796, 799-800 (Tex. Civ.
App.—El Paso 1979).
3