Richard Wolf v. Bank of America, N.A., et a

Case: 14-41227 Document: 00513349214 Page: 1 Date Filed: 01/20/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 14-41227
Summary Calendar
United States Court of Appeals
Fifth Circuit

FILED
January 20, 2016
RICHARD B. WOLF; MARCIA A. WOLF,
Lyle W. Cayce
Clerk
Plaintiffs-Appellants

v.

BANK OF AMERICA NATIONAL ASSOCIATION; MARVIN
BLANKENSHIP, Manager, Bank of America, N.A.; KIANIE KING, CRM,
Bank of American, N.A.; JIMMY WIDDLE, Complaints Manager, Bank of
America, N.A.; PHIL GONZALEZ, VP Home Retention, Bank of America, N.A.,

Defendants-Appellees

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:13-CV-212

Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Marcia A. and Richard B. Wolf (hereinafter “the Wolfs”) filed a civil
complaint against the Bank of America, N.A. (BOA) and several of its
employees. The complaint arises from the Wolfs’ attempt to refinance their
residence. The parties consented to proceed before the magistrate judge. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-41227

BOA moved to dismiss the complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim for relief.
In granting the motion to dismiss, the magistrate judge noted that the
Wolfs raised no specific causes of action but addressed their allegations as
claims of fraud, breach of contract, violation of the Racketeer Influenced and
Corrupt Organizations Act (RICO), and violation of the Fair Housing Act
(FHA). The Wolfs’ pro se brief, as all of their other pleadings, is rambling and
disjointed. Liberally construed, the Wolfs challenge the dismissal for failure
to state a claim of the fraud, breach-of-contract, RICO, and FHA based causes
of action. See Haines v. Kerner, 404 U.S. 519, 520 (1972). A complaint fails to
state a claim upon which relief can be granted when it does not contain
“sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks and citation omitted); see Coleman v. Sweetin, 745 F.3d 756,
763 (5th Cir. 2014). All well-pleaded facts are viewed in a light most favorable
to the plaintiff. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th
Cir. 2007).
In a diversity action, the substantive law of the forum state applies.
Mills v. Davis Oil Co., 11 F.3d 1298, 1304 (5th Cir. 1994). Fraud under Texas
law is a “material misrepresentation, which was false, and which was either
known to be false when made or was asserted without knowledge of its truth,
which was intended to be acted upon, which was relied upon, and which caused
injury.” Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc.,
960 S.W.2d 41, 47 (Tex. 1998) (quoting Sears, Roebuck & Co. v. Meadows, 877
S.W.2d 281, 282 (Tex. 1994)). The Wolfs’ claim that the BOA did not produce
the original note did not allege a material misrepresentation because Texas
law does not require that the original note be produced in order to foreclose.

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No. 14-41227

See Martins v. BAC Home Loans Serv., L.P., 722 F.3d 249, 253 (5th Cir. 2013).
The Wolfs’ argument that the note and deed of trust were been impermissibly
“split” is likewise without merit. See id. at 255. Additionally, the Wolfs do not
assert that they did not sign the original note. The Wolfs also argue that the
securitization of the note was a fraudulent act that rendered the original note
unenforceable. There is no support under Texas law for the proposition that
the securitization of a note renders the note unenforceable. Warren v. Bank of
America, N.A., 566 F. App’x 379, 383 (5th Cir. 2014); Martins, 722 F.3d at 254-
55.
Under Texas law, a breach of contract claim requires: “(1) the existence
of a valid contract; (2) that the plaintiff performed or tendered performance;
(3) that the defendant breached the contract; and (4) that the plaintiff was
damaged as a result of the breach.” Frost Nat’l Bank v. Burge, 29 S.W.3d 580,
593 (Tex. App. 2000). The Wolfs have not alleged that any specific contractual
clause was breached or that they were damaged in any way by the allegedly
improper assignment and securitization of the note.
Claims under RICO, 18 U.S.C. § 1962, have three common elements:
“(1) a person who engages in (2) a pattern of racketeering activity,
(3) connected to the acquisition, establishment, conduct, or control of an
enterprise.” Abraham v. Singh, 480 F.3d 351, 355 (5th Cir. 2007) (quoting
Word of Faith World Outreach Ctr. Church, Inc. v. Sawyer, 90 F.3d 118, 122
(5th Cir.1996)). The Wolfs have failed to allege any facts indicating that the
BOA was associated with anyone to form an enterprise under RICO. Their
allegations on this point are baseless.
Under the FHA, it is unlawful to discriminate in the sale or rental of
housing against any person based on race, color, religion, sex, handicap,
familial status, or national origin. 42 U.S.C. § 3604. To allege a violation of

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No. 14-41227

the FHA the Wolfs must have alleged discriminatory intent or a significant
discriminatory effect. See Simms v. First Gibraltar Bank, 83 F.3d 1546, 1555
(5th Cir. 1996). The Wolfs have failed to make such an allegation.
The Wolfs do not argue that the magistrate judge failed to address any
of the claims presented in the district court. To the extent that they are
attempting to raise new issues in their brief, claims raised for the first time on
appeal will not be considered. Stewart Glass & Mirror, Inc. v. U.S. Auto Glass
Discount Ctrs., Inc., 200 F.3d 307, 316-17 (5th Cir. 2000).
The Wolfs have filed a motion for summary judgment in this court. The
motion is DENIED. See United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994)
(addressing meaningless motion filed in the district court).
AFFIRMED; MOTION DENIED.

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