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King v. U.S. Bank, N.A.

Court: Court of Appeals for the Fifth Circuit
Date filed: 2021-07-22
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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   opinion should not be published and is not precedent except under the limited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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                                    No. 20-40858


   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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                                 No. 20-40858


   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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