Case: 12-10136 Document: 00511988633 Page: 1 Date Filed: 09/14/2012 IN E UNITED STATES COURT OF APPEALS FOR E FIF CIRCUIT DR. JANE GRAYSON WIGGINTON, v. No.12-10136 Summary Calendar E BANK OF NEW YORK MELLON, as Trustee for the Benefit of the Certificateholders Cwabs, Incorporated. Asset Backed Certificates, Series 2007-9; BAC HOME LOANS SERVICING, L.P.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INCORPORATED, Plaintiff - Appellant Defendants - Appellees United States Court of Appeals Fifth Circuit F I L E D September 14, 2012 Lyle W. Cayce Clerk Appeal from the United States District Court for the Northern District of Texas USDC No.3:10-CV-2128 Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges. PER CURIAM: * Dr. Jane Wigginton ( Appellant ) appeals the district court s dismissal of her petition against defendants Bank of New York Mellon Corporation * Pursuant to 5 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 CIR. R. 47.5.4.
Case: 12-10136 Document: 00511988633 Page: 2 Date Filed: 09/14/2012 No. 12-10136 ( BONY ), BAC Home Loans Servicing, LP ( BAC ), and Mortgage Electronic Registration Systems, Inc. ( MERS ) (collectively the defendants ) for failure to state a claim. She also appeals the district court s refusal to grant leave to amend her complaint and its failure to reconsider these rulings. We AFFIRM. On April 25, 2007, Wigginton executed a home equity promissory note payable to Countrywide Home Loans, Inc. ( Countrywide ) and a deed of trust identifying MERS as the beneficiary and Countrywide s nominee. She defaulted on the loan. On October 3, 2008, BAC, acting as the loan servicer, sent Wigginton a notice of default and intent to accelerate ( default notice ) indicating that Wigginton was two months in arrears on her mortgage. On January 6, 2010, BAC sent Wigginton a second default notice. On March 3, 2010, MERS assigned its interest and transferred the note to Mellon. Two weeks later, Wigginton received a standard adjustable rate mortgage notice ( rate notice ) from Bank of America Home Loans (successor by merger to BAC), reporting a rate adjustment effective May 1, 2010. On August 18, 2010, BONY filed an application for an order of foreclosure. Appellant commenced this action in state court, seeking to avoid enforcement of her agreement on several theories. The defendants removed to federal court on the basis of diversity jurisdiction. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts to state a claim to relief that is plausible on its face. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)), cert. denied, 552 U.S. 1182 (2008). The court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff. Id. (internal quotation marks and citation omitted). The Supreme Court directs that a court with a Rule 12(b)(6) motion to dismiss before it may begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 1950 (2009). The 2
Case: 12-10136 Document: 00511988633 Page: 3 Date Filed: 09/14/2012 No. 12-10136 court then determines whether the well-pleaded factual allegations permit the court to infer more than the mere possibility of misconduct[.] Id. Appellant raises numerous interrelated issues on appeal, most of which were fully and correctly addressed by the district court. Nowhere does she allege that she has cured her default, made any payments on the loan since October 3, 2008, or surrendered the property at 3635 Mockingbird Lane in Dallas. First, Wigginton contends that the district court erred in its analysis of her unenforceable split note theory that underlies her breach of contract and other claims. The district court s analysis was correct because Texas law rejects this theory. See ROA at 297 99. Second, she contends that the district court erred in its analysis of her theories of waiver and equitable estoppel, which assert that the lenders could not foreclose after the change of rate notice went out, because this implied the continuation of the note. We disagree. The district court s analysis of her pleading deficiency is fully persuasive. See ROA at 299 301. Third, Appellant argues that the district court erred by analyzing her complaint under the Federal Rules of Civil Procedure, rather than the lessdemanding Texas pleading standards, and she contends she was denied the opportunity to replead after her suit was removed to federal court. She also argues that the district court erred when it denied her leave to amend her pleadings in its order of December 5, 2011. The district court based its denial of leave to amend on the fact that her proposed amended complaint could not survive a Rule 12(b)(6) motion any better than the unamended complaint. Thus, Appellant plainly received the opportunity to replead, but she offered a new complaint that still could not survive Rule 12(b)(6). See ROA 364 65. The district court neither erred nor abused its discretion. She had no right in federal court to retain more lenient state court procedural rules. Fourth, Appellant argues that the district court erred by dismissing her unreasonable collection efforts claim based solely on its rejection of the split-note 3
Case: 12-10136 Document: 00511988633 Page: 4 Date Filed: 09/14/2012 No. 12-10136 theory, since this was a separate claim to the extent it did not depend on that theory. We assume arguendo this assertion is correct, although any alternative basis of her unreasonable collection efforts claim is not clear from her complaint. Compare ROA at 31 with ROA at 297. But even taken as a separate claim, her complaint alleges no facts amounting to unreasonable collection efforts. The facts alleged by Appellant cannot render it plausible that the defendants exercised efforts which a person of ordinary prudence in the exercise of ordinary care on his part would have not exercised under the same or similar circumstances. See Emp. Fin. Co. v. Lathram, 363 S.W. 2d 899, 901 (Tex.App. Ft. Worth 1962), aff d in part, rev d in part on other grounds, 369 S.W. 2d 927 (Tex. 1963). Fifth, Appellant alleges the district court erred by dismissing her anticipatory breach of contract and Texas Debt Collection Practices Act ( TDCA ) claims based on its rejection of the waiver theory. It is true that the TDCA claim does not necessarily depend wholly upon Appellant s theory of waiver. Compare ROA at 30 with ROA at 299 301. If Appellant had alleged facts that could render plausible her conclusory statement that any defendant used a deceptive means to collect a debt, this claim could go forward. She has not. The nearest thing to an alleged misrepresentation or deceptive means in the proposed amended complaint is the rate adjustment notice, which is not alleged to contain any false or misleading statement. See ROA 317. Appellant s theory of anticipatory breach fails because it depends on her properly-rejected 1 waiver and split-note theories. See ROA 313 16. Finally, the district court properly disposed of her claims requesting an accounting and declaratory judgment. See ROA at 301 03. 1 We do not analyze defamation because Wigginton disclaims that she pled it as a separate cause of action. 4
Case: 12-10136 Document: 00511988633 Page: 5 Date Filed: 09/14/2012 No. 12-10136 Winning a free house simply because the mortgage lenders sought to use normal means to recover it from a defaulted debtor would indeed be a lucky strike. But such windfalls are the province of the sweepstakes, not of the federal courts. Dr. Wigginton has apparently enjoyed years of free housing while pursuing this meritless litigation. The judgment of the district court is AFFIRMED. 5
Case: 12-10136 Document: 00511988639 Page: 1 Date Filed: 09/14/2012 UNITED STATES COURT OF APPEALS FOR E FIF CIRCUIT BILL OF COSTS NOTE: The Bill of Costs is due in this office within 14 days from the date of the opinion, See FED. R. APP. P. & 5 CIR. R. 39. Untimely bills of costs must be accompanied by a separate motion to file out of time, which the court may deny. v. No. The Clerk is requested to tax the following costs against: COSTS TAXABLE UNDER th Fed. R. App. P. & 5 Cir. R. 39 REQUESTED ALLOWED (If different from amount requested) No. of Copies Pages Per Copy Cost per Page* Total Cost No. of Documents Pages per Document Cost per Page* Total Cost Docket Fee ($450.00) Appendix or Record Excerpts Appellant s Brief Appellee s Brief Appellant s Reply Brief Other: Total $ Costs are taxed in the amount of $ Costs are hereby taxed in the amount of $ this day of,. State of County of LYLE W.CAYCE, CLERK By Deputy Clerk I, do hereby swear under penalty of perjury that the services for which fees have been charged were incurred in this action and that the services for which fees have been charged were actually and necessarily performed. A copy of this Bill of Costs was this day mailed to opposing counsel, with postage fully prepaid thereon. This day of,. *SEE REVERSE SIDE FOR RULES GOVERNING TAXATION OF COSTS (Signature) Attorney for
Case: 12-10136 Document: 00511988639 Page: 2 Date Filed: 09/14/2012 FIF CIRCUIT RULE 39 39.1 Taxable Rates. The cost of reproducing necessary copies of the brief, appendices, or record excerpts shall be taxed at a rate not higher than $0.15 per page, including cover, index, and internal pages, for any for of reproduction costs. The cost of the binding required by 5 CIR. R. 32.2.3that mandates that briefs must lie reasonably flat when open shall be a taxable cost but not limited to the foregoing rate. This rate is intended to approximate the current cost of the most economical acceptable method of reproduction generally available; and the clerk shall, at reasonable intervals, examine and review it to reflect current rates. Taxable costs will be authorized for up to 15 copies for a brief and 10 copies of an appendix or record excerpts, unless the clerk gives advance approval for additional copies. 39.2 Nonrecovery of Mailing and Commercial Delivery Service Costs. Mailing and commercial delivery fees incurred in transmitting briefs are not recoverable as taxable costs. 39.3 Time for Filing Bills of Costs. The clerk must receive bills of costs and any objections within the times set forth in FED. R. APP. P. 39(D). See 5 CIR. R. 26.1. FED. R. APP. P. 39. COSTS (a) Against Whom Assessed. The following rules apply unless the law provides or the court orders otherwise; (1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise; (2) if a judgment is affirmed, costs are taxed against the appellant; (3) if a judgment is reversed, costs are taxed against the appellee; (4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders. (b) Costs For and Against the United States. Costs for or against the United States, its agency or officer will be assessed under Rule 39(a) only if authorized by law. ) Costs of Copies Each court of appeals must, by local rule, fix the maximum rate for taxing the cost of producing necessary copies of a brief or appendix, or copies of records authorized by rule 30(f). The rate must not exceed that generally charged for such work in the area where the clerk s office is located and should encourage economical methods of copying. (d) Bill of costs: Objections; Insertion in Mandate. (1) A party who wants costs taxed must within 14 days after entry of judgment file with the circuit clerk, with proof of service, an itemized and verified bill of costs. (2) Objections must be filed within 14 days after service of the bill of costs, unless the court extends the time. (3) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate must not be delayed for taxing costs. If the mandate issues before costs are finally determined, the district clerk must upon the circuit clerk s request add the statement of costs, or any amendment of it, to the mandate. (e) Costs of Appeal Taxable in the District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs under this rule: (1) the preparation and transmission of the record; (2) the reporter s transcript, if needed to determine the appeal; (3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal; and (4) the fee for filing the notice of appeal.
Case: 12-10136 Document: 00511988640 Page: 1 Date Filed: 09/14/2012 LYLE W. CAYCE CLERK United States Court of Appeals FIF CIRCUIT OFFICE OF E CLERK TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130 September 14, 2012 MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW Regarding: Fifth Circuit Statement on Petitions for Rehearing or Rehearing En Banc No. 12-10136, Jane Wigginton v. Bank of New York Mellon USDC No. 3:10-CV-2128 --------------------------------------------------- Enclosed is a copy of the court's decision. The court has entered judgment under FED. R. APP. P. 36. (However, the opinion may yet contain typographical or printing errors which are subject to correction.) FED. R. APP. P. 39 through 41, and 5 CIR. RULES 35, 39, and 41 govern costs, rehearings, and mandates. 5 CIR. RULES 35 and 40 require you to attach to your petition for panel rehearing or rehearing en banc an unmarked copy of the court's opinion or order. Please read carefully the Internal Operating Procedures (IOP's) following FED. R. APP. P. 40 and 5 CIR. R. 35 for a discussion of when a rehearing may be appropriate, the legal standards applied and sanctions which may be imposed if you make a nonmeritorious petition for rehearing en banc. Direct Criminal Appeals. 5 CIR. R. 41 provides that a motion for a stay of mandate under FED. R. APP. P. 41 will not be granted simply upon request. The petition must set forth good cause for a stay or clearly demonstrate that a substantial question will be presented to the Supreme Court. Otherwise, this court may deny the motion and issue the mandate immediately. Pro Se Cases. If you were unsuccessful in the district court and/or on appeal, and are considering filing a petition for certiorari in the United States Supreme Court, you do not need to file a motion for stay of mandate under FED. R. APP. P. 41. The issuance of the mandate does not affect the time, or your right, to file with the Supreme Court. The judgment entered provides that plaintiff-appellant pay to defendants-appellees the costs on appeal. Enclosure(s) Mr. Nathan Templeton Anderson Mr. Richard Dwayne Danner Mr. Robert Thompson Mowrey Mr. Jack B. Peacock Jr. Sincerely, LYLE W. CAYCE, Clerk By: Joseph M. Armato, Deputy Clerk