Moses Kanja v. Select Portfolio Svc, Inc. ( 2020 )


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  •      Case: 19-20549   Document: 00515339706   Page: 1   Date Filed: 03/10/2020
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 19-20549                      March 10, 2020
    Summary Calendar
    Lyle W. Cayce
    Clerk
    MOSES KANJA,
    Plaintiff - Appellant
    v.
    SELECT PORTFOLIO SERVICING, INCORPORATED,
    Defendant - Appellee
    *****************************************************************
    MOSES MWAURA KANJA,
    Plaintiff - Appellant
    v.
    THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
    Defendant - Appellee
    Appeals from the United States District Court
    for the Southern District of Texas
    USDC No. 4:18-CV-738
    USDC No. 4:18-CV-941
    Case: 19-20549      Document: 00515339706         Page: 2    Date Filed: 03/10/2020
    No. 19-20549
    Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    Plaintiff Moses Kanja sued the Bank of New York Mellon Trust
    Company, N.A., (the “Trustee”) and Select Portfolio Servicing, Inc. to prevent
    a foreclosure sale of real property located in Sugar Land, Texas. But because
    his sole claim was for injunctive relief and not supported by a viable cause of
    action, the district court disposed of the suit on summary judgment. See Spady
    v. Am.’s Servicing Co., No. H-11-2526, 
    2012 WL 1884115
    , at *5 (S.D. Tex.
    May 21, 2012) (“A request for injunctive relief, absent a cause of action
    supporting the entry of a judgment, is fatally defective and does not state a
    claim.” (citing Butnaru v. Ford Motor Co., 
    84 S.W.3d 198
    , 210 (Tex. 2002))).
    On appeal, the plaintiff has not demonstrated any error of law or fact
    that would justify reversal. Kanja is not a debtor under the subject loan. Nor
    is he a party under the relevant deed of trust. The interest he claims in the
    property was acquired at a sheriff’s sale conducted pursuant to a judgment
    obtained by a junior lienholder. His interest is thus subject to the Trustee’s
    superior lien interest. See DTND Sierra Invs. LLC v. Bank of Am., N.A., 871 F.
    Supp. 2d 567, 573 (W.D. Tex. 2012) (“Under Texas common law, foreclosure
    does not terminate interests in the foreclosed real estate that are senior to the
    lien being foreclosed, and the successful bidder at a junior lien foreclosure
    takes title subject to the prior liens.”). Kanja never suggests that he satisfied
    the existing mortgage lien held by the Trustee. Thus, under Texas law, when
    the Trustee’s lien was foreclosed, Kanja’s interest was extinguished.                  See
    Conseco Fin. Servicing Corp. v. J & J Mobile Homes, Inc., 
    120 S.W.3d 878
    , 883
    * 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.
    2
    Case: 19-20549     Document: 00515339706      Page: 3   Date Filed: 03/10/2020
    No. 19-20549
    (Tex. App. 2003) (citing Nat’l W. Life Ins. Co. v. Acreman, 
    425 S.W.2d 815
    , 817–
    18 (Tex. 1968)).
    Kanja presses several other arguments on appeal, none of which were
    raised before the district court. For that reason, we refuse to consider them.
    See Estate of Duncan v. Comm’r, 
    890 F.3d 192
    , 202 (5th Cir. 2018) (“This court
    will not consider arguments first raised on appeal . . . .”).
    Having found no error of law or fact, we AFFIRM the judgment of the
    district court.
    3