Case: 16-10276 Document: 00513821352 Page: 1 Date Filed: 01/04/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-10276
FILED
January 4, 2017
Summary Calendar
Lyle W. Cayce
Clerk
CHERYL JOHNSON–WILLIAMS, also known as Cheryl Angrum,
Plaintiff - Appellant
v.
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,
INCORPORATED; CITIMORTGAGE, INCORPORATED; SHELLEY
ORTOLANI, substitute trustees,
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:14-CV-3927
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
Defendant–Appellee CitiMortgage, Incorporated, noticed Plaintiff–
Appellant Cheryl Johnson–Williams’s home for a non-judicial foreclosure sale
after she defaulted on her note. Johnson–Williams then filed suit against
Defendants–Appellees in state district court, and the suit was removed to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10276
federal district court. The district court dismissed Johnson–Williams’s
complaint and denied her motion for reconsideration. Johnson–Williams now
appeals. We AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
In September 2006, Plaintiff–Appellant Cheryl Johnson–Williams, née
Angrum, purchased property located in Grand Prairie, Texas (the Property).
In connection with that purchase, she executed a Note in favor of Everett
Financial, Inc., d/b/a Supreme Lending (Everett). The Note was secured by a
Deed of Trust. The Deed of Trust named Defendant–Appellee Mortgage
Electronic Registration Systems, Inc. (MERS) 1 as the beneficiary of the Deed
of Trust “solely as the nominee for [Everett] . . . and [Everett’s] successors and
assigns.” The Deed of Trust provided that MERS “has the right: to exercise
any or all of [Everett’s or its successors and assigns’] interests, including, but
not limited to, the right to foreclose and sell the Property.” In January 2012,
MERS executed an Assignment of the Deed of Trust in favor of Defendant–
Appellee CitiMortgage, Inc. (CMI), who—following Johnson–Williams’s
default on the Note—noticed the property for an August 5, 2014, non-judicial
foreclosure sale. CMI bought the property at the foreclosure sale, with
Defendant–Appellee Shelley Ortolani executing the Substitute Trustee’s Deed
conveying the property to CMI.
1 As this court has previously recognized, “MERS is a membership organization whose
members include residential mortgage lenders and servicers, such as [Everett].” Harris Cty.
v. MERSCORP Inc., 791 F.3d 545, 549 (5th Cir. 2015). MERS operates an “electronic
registry . . . that tracks servicing rights and mortgage ownership in the United States.” Id.
“When a borrower obtains a home loan from a MERS-member bank, MERS is listed as the
‘beneficiary’ on the deed of trust. The promissory note, however, is executed in favor of the
bank.” Id.
2
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Johnson–Williams, proceeding pro se, filed suit in Texas state court
naming, in relevant part, MERS, CMI, and Ortolani as defendants. 2 She
asserted causes of actions for fraud (based at least in part on alleged violations
of section 12.002 of the Texas Civil Practice and Remedies Code) and slander
of title, and sought declaratory and injunctive relief. MERS and CMI removed
the case to the United States District Court for the Northern District of Texas,
asserting that Ortolani was improperly joined to defeat diversity jurisdiction. 3
The district court assigned the case to a magistrate judge for the resolution of
all non-dispositive pre-trial motions and for reports and recommendation
regarding dispositive motions. The magistrate judge issued a scheduling order
setting a July 2, 2015, deadline for Johnson–Williams to move to amend her
complaint or to add parties.
MERS and CMI moved for dismissal pursuant to Federal Rule of Civil
Procedure 12(b)(6). On July 16, 2015, the magistrate judge recommended that
the motion be granted. The magistrate judge recognized that courts typically
give pro se plaintiffs like Johnson–Williams an opportunity to amend their
complaint before dismissing it, but concluded that granting leave would be
futile because all of Johnson-Williams’s claims “are based on the invalid ‘show-
me-the-note’ and ‘split-the-note’ theories or . . . on the alleged invalidity of the
Assignment, which [Johnson–Williams] lacks standing to challenge.”
On August 7, 2015—more than a month after the deadline set by the
magistrate judge—Johnson–Williams moved to amend her complaint and to
add Everett and the Government National Mortgage Association (Ginnie Mae)
2 Johnson–Williams also initially named Everett as a defendant, but non-suited
Everett prior to removal.
3 Johnson–Williams does not dispute that Ortolani was improperly joined nor
consequently that diversity jurisdiction exists. See Rojas v. Wells Fargo Bank, N.A., 571 F.
App’x. 274, 277–78 (5th Cir. 2014) (per curiam) (recognizing substitute trustee on deed of
trust was improperly joined for purposes of destroying diversity jurisdiction).
3
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as defendants. Johnson–Williams’s proposed amended complaint largely
overlapped with her prior complaint, but did assert several new grounds for
relief. In relevant part, she asserted a claim for quiet title asking that the
Assignment be declared “invalid or unenforceable” because it was not recorded
in compliance with section 192.007 of the Texas Local Government Code.
The magistrate judge denied Johnson–Williams’s motion to amend and
add party defendants on August 13, concluding that amendment would be
futile. With respect to Johnson–Williams’s new quiet title claim based on an
alleged violation of section 192.007(a), the magistrate judge concluded that the
claim necessarily failed because section 192.007(a) does not require an
assignment be recorded in order to be effective as to the parties to such
assignment and, in any event, the Assignment was recorded.
On August 19, 2015, the district court—after reviewing for plain error
based on Johnson–Williams’s failure to object—concluded that the magistrate
judge’s recommendation for dismissal should be accepted and granted MERS
and CMI’s motion to dismiss. That same day, the district court rendered final
judgment dismissing Johnson–Williams’s suit with prejudice.
On August 24, 2015, Johnson–Williams moved for reconsideration under
Federal Rule of Civil Procedure 60(b). 4 Johnson–Williams’s motion did not
contest the dismissal of her claims; it conceded that Johnson–Williams’s live
4 Johnson–Williams’s motion did not identify the rule pursuant to which it was
brought. The district court and magistrate judge construed it is a Rule 60(b) motion based
on the newly discovered evidence it contained, not as a Rule 72(a) objection to the magistrate
judge’s denial of leave to amend and add party defendants. Johnson–Williams did not dispute
that characterization below and does not do so on appeal. Accordingly, she has not preserved
any potential argument that her motion for reconsideration should be construed as an
objection to the magistrate judge’s order, and concomitantly, has not preserved appellate
review of that order. See Fed. R. Civ. P. 72(a) (“A party may not assign as error a defect in
[a magistrate judge’s non-dispositive] order not timely objected to.”); see also, e.g., Flores v.
Sch. Bd. of De Soto Par., 116 F. App’x 504, 511 (5th Cir. 2004) (per curiam) (declining to
review magistrate judge’s denial of leave to amend where plaintiff failed to object to it in the
district court).
4
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complaint “did not properly assert . . . valid claims.” Rather, it asserted that
she should be granted leave to amend and add party defendants in light “of
newly discovered evidence and a factual witness”—namely, a chain of title
analysis opining that certain laws had been violated in the transfer and sale of
the Property, and the private investigator who prepared that analysis.
Johnson–Williams stated that she did not receive the chain of title analysis
until August 13, 2015, nearly a week after she moved for leave to amend and
add party defendants.
The magistrate judge recommended that Johnson–Williams’s Rule 60(b)
motion be denied, finding no indication that the chain of title analysis “was not
previously available to her” or “could not have been obtained earlier with
reasonable diligence.” The magistrate judge also found that, even if the chain
of title analysis was considered, it would not have produced a different outcome
because the theories implicated by the analysis—including the theory
“regarding the lack of recordation of the assignment, which implicates Tex.
Local Gov’t Code § 192.007(a)”—fail as a matter of law.
Johnson–Williams did not object to the magistrate judge’s
recommendation, and on March 3, 2016, the district court, after reviewing the
recommendation for plain error, accepted the recommendation and ordered
that Johnson–Williams’s motion for reconsideration be denied. Johnson–
Williams filed her notice of appeal on March 10, 2016, appealing only “the
Order dated March 3, 2016 (doc. 28) Accepting Findings and Recommendation
of the United States Magistrate Judge Denying Plaintiff/Appellant’s Motion
for Reconsideration filed August 24, 2015 (doc. 25).”
II. JURISDICTION
Before addressing the merits of Johnson–Williams’s appeal, “we must
identify the particular order or orders over which we have jurisdiction.”
Molina v. Equistar Chems. LP, 261 F. App’x 729, 731 (5th Cir. 2008) (per
5
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curiam). Relevant to this inquiry are three separate orders: (1) the district
court’s order accepting the magistrate judge’s recommendation to dismiss
Johnson–Williams’s claims with prejudice; (2) the magistrate judge’s order
denying Johnson–Williams’s motions for leave to amend and add party
defendants; and (3) the district court’s order accepting the magistrate judge’s
recommendation to deny Johnson–Williams’s Rule 60(b) motion. MERS and
CMI argue that we only have jurisdiction to review the third order because
that is the only order identified in Johnson–Williams’s notice of appeal. We
agree.
Federal Rule of Appellate Procedure 3(c)(1)(B) provides that “[t]he notice
of appeal must . . . designate the judgment, order, or part thereof being
appealed.” This dictate is jurisdictional in nature, and its satisfaction is a
prerequisite to appellate review. See Smith v. Barry, 502 U.S. 244, 248 (1992);
see also Lockett v. Anderson, 230 F.3d 695, 699–700 (5th Cir. 2000). Although
this court will liberally construe notices of appeal to find compliance, we may
not waive the requirement altogether. See Torres v. Oakland Scavenger Co.,
487 U.S. 312, 317–18 (1998); see also Molina, 261 F. App’x at 732. “Where the
appellant notices the appeal of a specified judgment only or a part thereof, . . .
this court has no jurisdiction to review other judgments or issues which are not
expressly referred to and which are not impliedly intended for appeal.” Molina,
261 F. App’x at 732 (omission in original) (quoting Pope v. MCI Telecomms.
Corp., 937 F.2d 258, 266 (5th Cir. 1991)); see also Finch v. Fort Bend Indep.
Sch. Dist., 333 F.3d 555, 565 (5th Cir. 2003). Thus, this court only has
jurisdiction to review an unmentioned ruling where the intent to appeal that
ruling is “apparent” or “clear.” R.P. ex rel. R.P. v. Alamo Heights Indep. Sch.
Dist., 703 F.3d 801, 808 (5th Cir. 2012) (first quoting C.A. May Marine Supply
Co. v. Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir. 1981), then quoting
6
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Alberta Energy Partners v. Blast Energy Servs., Inc., 593 F.3d 418, 424 n.3 (5th
Cir. 2010)).
Here, it is neither apparent nor clear that Johnson–Williams intended
to appeal the dismissal of her claims or the denial of leave to amend and to add
party defendants separate from the denial of her Rule 60(b) motion. Johnson–
Williams’s notice of appeal only refers to the denial of her Rule 60(b) motion.
In that motion, Johnson–Williams sought reconsideration of the denial of leave
to amend and add party defendants in light of evidence she received after she
filed her motions for leave to amend and to add party defendants (not the
record at the time of the magistrate judge’s denial), and expressly recognized
that dismissal of her claims was proper because her live complaint “did not
properly assert . . . valid claims.” This suggests that Johnson–Williams,
consistent with her notice of appeal, did not intend to appeal those underlying
orders. Moreover, it is not apparent or clear from Johnson–Williams’s briefing
on appeal that she intended to appeal anything other than the denial of her
Rule 60(b) motion. 5 Under these circumstances, our jurisdiction is limited to
reviewing the denial of Johnson–Williams’s Rule 60(b) motion. See Molina,
5 Johnson–Williams’s brief does contain separate arguments regarding the denial of
her motion for reconsideration and the denial of leave to amend and add party defendants.
But, importantly, the section addressing denial of leave to amend and add party defendants
does not argue that leave was improperly denied based on the record at the time of the
magistrate judge’s denial. Rather, it relies upon the “newly discovered information”
contained in her Rule 60(b) motion. This reliance on evidence that was not in the record at
the time the magistrate judge’s original decision suggests Johnson–Williams intended to only
appeal the denial of the Rule 60(b) motion. See Molina, 261 F. App’x at 732 n.2. Similarly,
while Johnson–Williams’s brief contains a separate section arguing that she has standing to
challenge the Assignment, Johnson–Williams’s brief does not make clear her intent to appeal
the dismissal of her claims. Johnson–Williams’s brief, for instance, assumes that MERS and
CMI “were right in their assertions in their Motion to Dismiss”; does not pray that the
dismissal order be vacated; and grounds her standing argument in MERS and CMI’s alleged
violation of section 192.007 of the Texas Local Government Code—a claim she did not assert
in her dismissed complaint. Thus, Johnson–Williams’s argument appears to be that, in light
of the evidence contained in her Rule 60(b) motion, amendment would not be futile—not that
the district court’s underlying dismissal order was erroneous.
7
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261 F. App’x at 732 & n.2 (concluding court lacked jurisdiction to review
summary judgment order where notice of appeal only identified the denial of a
Rule 59(e) motion that sought reconsideration of that order based on “newly
discovered” evidence).
III. NO PLAIN ERROR
We generally review the denial of a motion for reconsideration under
Rule 60(b) for abuse of discretion. See Perez v. Stephens, 745 F.3d 174, 177
(5th Cir. 2014). Our review, however, is limited to plain error when the
complaining party failed to object to the magistrate judge’s recommendation
after the party was warned of the consequences of failure to object. See
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en
banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1). 6 Here, the
magistrate judge’s written report recommending denial of Johnson–Williams’s
Rule 60(b) motion warned that “[f]ailure to file specific written objections
[within 14 days of service] will bar the aggrieved party from appealing the
factual findings and legal conclusions of the magistrate judge that are accepted
and adopted by the district court, except upon grounds of plain error.” Yet
Johnson–Williams did not file any written objections to the magistrate judge’s
recommendation. Accordingly, we review the denial of Johnson–Williams’s
motion for reconsideration for only plain error. To establish plain error,
Johnson–Williams “must show (1) error (2) that is plain and (3) that affects
[her] substantial rights.” Lawrence v. Fed. Home Loan Mortg. Corp., 808 F.3d
670, 675 (5th Cir. 2015). “Even if those three prongs are satisfied, we have the
discretion to remedy the error but only if (4) it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.
6 28 U.S.C. § 636(b)(1) expanded the period during which a party could object to the
magistrate judge’s recommendation from 10 days after service to 14 days. It otherwise left
the holding of Douglass intact.
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“Under Rule 60(b)(2), ‘to succeed on a motion for relief from judgment
based on newly discovered evidence, our law provides that a movant must
demonstrate: (1) that [she] exercised due diligence in obtaining the
information; and (2) that the evidence is material and controlling and clearly
would have produced a different result if present before the original
judgment.’” Hesling v. CSX Transp., Inc., 396 F.3d 632, 639 (5th Cir. 2005)
(alteration omitted) (quoting Goldstein v. MCI WorldCom, 340 F.3d 238, 257
(5th Cir. 2003)). 7 Johnson–Williams has failed to make either showing. As an
initial matter, she has not explained why she could not have obtained the chain
of title analysis before judgment was rendered. All of the documents relied
upon in the analysis predate the lawsuit, and the affidavit from the author of
the analysis does not indicate that he was unavailable to conduct the analysis
before judgment was rendered. The mere fact that Johnson–Williams did not
obtain the analysis until after judgment was rendered does not establish that
it could not have been obtained before then with the exercise of diligence. See
Thermacor Process, L.P. v. BASF Corp., 567 F.3d 736, 744 (5th Cir. 2009)
(concluding district court did not abuse its discretion in denying Rule 60(b)
motion where movant did not receive evidence until after judgment, but failed
to show that it could not have been obtained that evidence before judgment
with due diligence).
In any event, the chain of title analysis would not have changed the
outcome of the lawsuit. Drawing on that analysis, Johnson–William argues
7 On appeal, Johnson–Williams asserts that her Rule 60(b) motion can also be
construed as one alleging fraud, misrepresentation, or misconduct, and thus analyzed under
Rule 60(b)(3). We do not reach this issue, however, because Johnson–Williams did not raise
it below and provides no argument in support of this assertion on appeal. See Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993) (recognizing that, while this court grants leeway to
pro se litigants, they still may not raise new issues on appeal and must brief arguments to
preserve them).
9
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that she can state a quiet title claim because the Assignment was not recorded
in compliance with section 192.007(a) of the Texas Local Government Code and
is, therefore, invalid. 8 As we have repeatedly explained, section 192.007(a)
does not impose a duty to record, and thus does not invalidate deeds of trust
merely because subsequent assignments of that deed are not recorded. See
Harris Cty. v. MERSCORP, Inc., 791 F.3d 545, 554–56 (5th Cir. 2015)
(collecting cases where “this court has already explained that it discerns no
duty to record in the text of section 192.007”). But even if that were not the
case, Johnson–Williams’s quiet title claim would still necessarily fail. “Under
Texas law, a plaintiff asserting a quiet title claim has the burden of
establishing his superior right to the property and ‘[can]not rely on the
weakness of his adversary’s title.’” Mason v. Fremont Inv. & Loan, --- F. App’x
---, 2016 WL 6652692, at *2 (5th Cir. 2016) (per curiam) (alteration in original)
(quoting Fricks v. Hancock, 45 S.W.3d 322, 327 (Tex. App.—Corpus Christi
2001, no pet.)); see also Hudson v. JP Morgan Chase Bank, N.A., 541 F. App’x
380, 385 (5th Cir. 2013) (per curiam). “[A]rguments that merely question the
validity of an assignment of a deed of trust . . . are not a sufficient basis for a
quiet title action under Texas law.” Mason, 2016 WL 6652692, at *2 (omission
in original) (quoting Warren v. Bank of Am., N.A., 566 F. App’x 379, 383 (5th
Cir. 2014) (per curiam)); see also Hudson, 541 F. App’x at 385. Because
Johnson–Williams merely questions the validity of the Assignment, without
demonstrating her superior right to the property, she cannot state a quiet title
claim. Mason, 2016 WL 6652692, at *2; see also Hudson, 541 F. App’x at 385.
8 Because Johnson–Williams does not address any of the other claims she asserted
below in her brief, they have not been preserved for this court’s review. See Mapes v. Bishop,
541 F.3d 582, 584 (5th Cir. 2008) (per curiam) (“Although pro se briefs are afforded liberal
construction, even pro se litigants must brief arguments in order to preserve them.” (citation
omitted)).
10
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The district court, therefore, did not plainly err in denying Johnson–Williams’s
motion for reconsideration.
IV. CONCLUSION
For the foregoing reasons we AFFIRM the judgment of the district court.
11