dissenting:
The issue presented by the parties in this case is straightforward: whether, by asserting thát Security’s deficiency judgment against him should be annulled pursuant to Louisiana law, Eitmann has raised a genuine issue of material fact. Because I believe that Eitmann has failed to establish a basis upon which to’ annul Security’s deficiency judgment, I respectfully dissent from the majority’s decision to vacate the judgment of the district court and remand this case to give Eitmann another bite at the apple.
“On an appeal from summary judgment, the reviewing court cannot consider arguments or factual allegations raised for the first time....” James v. McCaw Cellular Communications, Inc., 988 F.2d 583, 585 (5th Cir.1993); see also McCann v. Texas City Refining, Inc., 984 F.2d 667, 673 (5th Cir.1993) (“It is the unwavering rule in this Circuit that issues raised for the first time on appeal are reviewed only for plain error.”). We have also held repeatedly that “issues not briefed, or set forth in the list of issues presented, are waived.” Atwood v. Union Carbide Corp., 847 F.2d 278, 280 (5th Cir. 1988), cert. denied, 489 U.S. 1079, 109 S.Ct. 1531, 103 L.Ed.2d 836 (1989).
Eitmann’s only challenge to the deficiency judgment against him is that it should be annulled pursuant to Article 2004 of the Louisiana Code of Civil Procedure.1 Eitmann *544asserts that, because Security received a payment of $12,149.34' from Guaranty after obtaining its deficiency judgment against him, Security’s enforcement of its deficiency judgment would constitute an “unconscionable and ill practice.” Therefore, according to Eitmann, Security’s deficiency judgment should be annulled pursuant to Article 2004 of the Louisiana Code of Civil Procedure, which provides that “[a] final judgment obtained by fraud or ill practices may be annulled.”
A judgment has been obtained by fraud or ill practices pursuant to Article 2004 when (1) the circumstances under which the judgment was rendered show the deprivation of legal rights of the litigant who seeks relief, and (2) the enforcement of the judgment would be unconscionable and inequitable. State v. Batchelor, 597 So.2d 1132, 1135 (La.App.), unit denied, 604 So.2d 964 (La.1992); Kem Search, Inc. v. Sheffield, 434 So.2d 1067,1070 (La.1983). Security obtained its deficiency judgment against Eitmann so that it could collect the unpaid balance of the loan it made to him, and Eitmann never appealed from that judgment. Eitmann brought this action only when Security sought to enforce its deficiency judgment by seizing his Airline Park property. Moreover, Security received no money pursuant to its policy with Guaranty until after it hád obtained its deficiency judgment against Eitmann, and tbe record establishes that Eitmann is neither a party to nor beneficiary of that policy.2
The majority believes that Guaranty’s potential subrogation rights against Eitmann pursuant to the mortgage insurance policy present a basis for Eitmann’s assertion that the deficiency judgment against him was rendered under circumstances showing a deprivation of his legal rights in accordance with Article 2004. It is well established under Louisiana law that “[a]n action for nullity cannot be substituted for a timely appeal[,]”3 and that “a judgment should not be annulled under ordinary circumstances simply because there was lack of diligent presentation of a valid defense which could have been pleaded before judgment.” Williams, 427 So.2d at 940; Muller v. Michel Lecler, Inc., 266 So.2d 916, 918 (La.App.1972)., Because (1) Eit-mann’s challenge is based upon an insurance policy to which Eitmann was neither a party nor beneficiary, (2) as is evidenced by his payment of premiums on the insurance policy and the fact that it was a precondition for obtaining his loan from Security, Eitmann knew of the policy’s existence at the time Security brought its deficiency action against him but never raised any issue about mortgage insurance or subrogation when challenging that action, (3) Eitmann never appealed from the underlying deficiency judgment, and (4) Security received no payment under the terms of its policy with Guaranty until after obtaining a deficiency judgment against Eitmann, I cannot join the majority in concluding that Eitmann’s Article 2004 claim has any merit and that a rational trier of fact could find in his favor. See Williams, 427 So.2d at 939-40; see also Amoco Produc*545tion Co. v. Horwell Energy, Inc., 969 F.2d 146, 147-48 (5th Cir.1992) (If a rational trier of fact, based upon the record as a whole, could not find for the non-moving party, there is no genuine issue for trial).
Private mortgage insurance like that structured by Security and Guaranty is somewhat troubling in that borrowers like Eitmann pay premiums for insurance from which the only benefit that they derive is obtaining a loan that they might not otherwise be able to obtain. Nevertheless, we are not Eitmann’s attorneys; we are judges and we do not have a roving warrant to correct Eitmann’s litigation mistakes in this lawsuit and the predecessor suit on a note because we are troubled by private mortgage insurance generally. Eitmann has failed to establish a legitimate claim pursuant to section 2004, and this is the only claim Eitmann’s attorneys have properly brought before us. Accordingly, I would conclude that the RTC in its capacity as conservator and receiver for Security was entitled to summary judgment as a matter of law, and I would affirm. See Fed.R.Civ.P. 56(c); Amoco, 969 F.2d at 147-48.
. Although, on appeal, Eitmann has also raised a disclosure challenge to his arrangement with Security pursuant to the Truth in Lending Act, 15 U.S.C. § 1601, et seq., Eitmann did not adequate*544ly raise this issue below. Therefore, it is not properly before this court. James v. McCaw, 988 F.2d at 585; see also McCann v. Texas, 984 F.2d at 673.
. Under Louisiana law, a third-party-beneficiary contract will be found "only when the contract clearly contemplated the benefit to the third person as its condition or consideration!)]" and the benefit bestowed to the third party must be more than merely incidental to die contract. New Orleans Public Service, Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 467 (5th Cir.1984) (emphasis in original), cert. denied, 469 U.S. 1019, 105 S.Ct. 434, 83 L.Ed.2d 360 (1984); see Wallace v. Texaco, Inc., 681 F.2d 1088, 1090 (5th Cir.1982) (the contract must reveal that the contracting parties intended to benefit the third party); see also La.Civ.Code Ann. art. 1978 (West 1990) ("A contracting party may stipulate a benefit for a third person called a third party beneficiary.”). The unambiguous language of paragraph 26 of the mortgage insurance policy in the case before us expressly states that Eitmann is not a beneficiary, and paragraph 18 expressly states that Security did not give up its right to collect the full amount of the loan from Eitmann by entering into its agreement with Guaranty. Specifically, paragraph 26 provides that "[t]he Borrower or any successive owner of the Real Estate is not included as a beneficiary or an insured under the Policy.” Paragraph 18 provides that "[a]ny payment pursuant to Section 18(a) or Section 18(b) hereof shall not be applied, or be considered by the borrower to be applied, to the payment of the Loan."
. Williams v. N.Y. Fire & Marine Ins. Co., 427 So.2d 938, 939 (La.App.1983).