Case: 20-40858 Document: 00515949243 Page: 1 Date Filed: 07/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 22, 2021
No. 20-40858
Lyle W. Cayce
Clerk
John C. King,
Plaintiff—Appellant,
versus
U.S. Bank, N.A.; Select Portfolio Servicing,
Incorporated,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:19-CV-181
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Following a mortgage default in 2008, John King has continued to
reside at 11898 Eastpark Lane, Frisco, Texas, without making a single
mortgage payment or otherwise coming to terms with his creditors. In order
to forestall foreclosure, he has turned to the courts. Indeed, this is at least
*
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opinion should not be published and is not precedent except under the limited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.
Case: 20-40858 Document: 00515949243 Page: 2 Date Filed: 07/22/2021
No. 20-40858
the ninth civil action considering the foreclosure rights of King’s creditors.
It ought to be the last because King’s case, and all of its predecessors, have
no merit.
I.
Plaintiff John King (“Plaintiff” or “King”) purchased the property in
question along with his then-wife Genevieve King in 2006. In order to make
the purchase, they obtained a loan in the amount of $192,700. The Kings
missed a scheduled payment in April 2008, and the loan went into default.
No one ever made another payment.
The Kings divorced in 2009. John King was awarded the whole
property at 11898 Eastpark Lane. The defendants to this action maintain that
Genevieve King currently has no interest in the property. Plaintiff alleges
that he and Genevieve remarried in 2011, but he agrees with the defendants
that Genevieve does not have an interest in the property. Since Genevieve is
not a party to this action, and all the parties agree that she has no ownership
interest, we accept that as true for purposes of this suit.
At the time of foreclosure, the holder of the loan was U.S. Bank, and
the servicer was Select Portfolio Servicing, Inc., (“SPS”) (collectively,
“Defendants”). U.S. Bank granted SPS limited power of attorney in 2014.
That agreement granted SPS authority “to use or take any lawful means for
recovery by legal process or otherwise, including but not limited to the
substitution of trustee serving under a Deed of Trust . . .” in order to recover
any sum of money or property interest owed the Trustee.
In April 2018, SPS hired the law firm Mackie, Wolf, Zientz & Mann,
P.C., to administer foreclosure proceedings. L. Keller Mackie, an attorney at
the firm, proceeded to appoint several substitute trustees under the Deed of
Trust. On March 5, 2019, a foreclosure sale was executed. U.S. Bank bought
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No. 20-40858
the property. At the time of the sale, no payment had been made on the loan
since April 2008 and over $413,000 was owed.
Plaintiff brought this trespass-to-try-title action, which also alleges
violations of the Deed of Trust and Texas Property Code, in Texas state
court. The case was removed to federal district court by the defendants. A
magistrate judge recommended that the action be dismissed with prejudice.
The district court adopted that recommendation and granted the defendants’
motion for summary judgment. Plaintiff timely appealed.
II.
We review a grant of summary judgment de novo. West v. City of
Houston, 960 F.3d 736, 740 (5th Cir. 2020) (per curiam). Summary judgment
is appropriate if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). A dispute is genuine if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986). A fact is material if it “might affect
the outcome of the suit.” Id. We view the evidence in the light most
favorable to the nonmovant and draw all reasonable inferences in that party’s
favor. Adams v. Alcolac, Inc., 974 F.3d 540, 543 (5th Cir. 2020) (per curiam).
III.
King brought a trespass-to-try-title claim, which is the legal
mechanism for resolving competing claims to real property under Texas law,
in the court below. See Tex. Prop. Code § 22.001(a). A magistrate
judge recommended that the claim be dismissed for three reasons: (1) King
has not been dispossessed of the property; (2) King attempts to prevail based
on the alleged weakness of the mortgage-holder’s title rather than on the
strength of his own; and (3) King has not tendered the amount due on the
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loan. The district court dismissed the claim on the first ground—
dispossession.
We find this claim most easily resolved on the final issue discussed by
the magistrate judge. Because it is undisputed that King has not tendered the
amount due on the loan, his trespass-to-try-title claim fails. See, e.g., Browne
v. King, 235 S.W. 522, 523–24 (Tex. 1921); Lopez v. Wells Fargo Bank, N.A.,
2020 WL 224485 at *3 (S.D. Tex. 2020) (“Plaintiff may not prevail on a
trespass to try title action without paying the amount due on the mortgage
loan.”) (citation omitted).
IV.
King also alleges violations of the Texas Property Code and the Deed
of Trust. More specifically, King complains that (1) L. Keller Mackie lacked
proper written authorization to appoint a substitute trustee; (2) the addresses
of the substitute trustees were not provided as required; and (3) the language
in the Foreclosure Sale Deed is inadequate to effect a conveyance. With
respect to the first complaint, the district court found that King lacked
standing to challenge the appointment, as he is not a party to the agreement
between SPS and L. Keller Mackie. We agree. King’s complaints about the
addresses of the substitute trustees and the fact that the deed of sale uses the
past-tense language “GRANTED, SOLD, and CONVEYED” border on
frivolous.
V.
Notwithstanding the myriad technicalities alleged, King has no valid
claim to the property because he and his then-wife Genevieve defaulted on
the mortgage in 2008, and he has since made no effort to cure the default or
reach an agreement with the mortgage-holder. With respect to the
foreclosure sale, whatever technical imperfections may have occurred with
respect to the appointment of substitute trustees is a matter between the loan
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servicer and L. Keller Mackie that has no effect on King’s rights. King’s
other objections to the sale are patently frivolous and merit no further
discussion. For the reasons discussed above, the judgment of the district
court is hereby AFFIRMED.
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