Kanja v. Select Portfolio, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-20549
Summary Calendar

MOSES KANJA,

Plaintiff - Appellant

v.

SELECT PORTFOLIO SERVICING, INCORPORATED,

Defendant - Appellee

*****************************************************************

MOSES MWAURA KANJA,

Plaintiff - Appellant

v.

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

Defendant - Appellee

Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-738
USDC No. 4:18-CV-941

United States Court of Appeals
Fifth Circuit
FILED
March 10, 2020

Lyle W. Cayce
Clerk
Case: 19-20549 Document: 00515339706 Page: 1 Date Filed: 03/10/2020

No. 19-20549
2
Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Plaintiff Moses Kanja sued the Bank of New York Mellon Trust
Company, N.A., (the “Trustee”) and Select Portfolio Servicing, Inc. to prevent
a foreclosure sale of real property located in Sugar Land, Texas. But because
his sole claim was for injunctive relief and not supported by a viable cause of
action, the district court disposed of the suit on summary judgment. See Spady
v. Am.’s Servicing Co., No. H-11-2526, 2012 WL 1884115, at *5 (S.D. Tex.
May 21, 2012) (“A request for injunctive relief, absent a cause of action
supporting the entry of a judgment, is fatally defective and does not state a
claim.” (citing Butnaru v. Ford Motor Co., 84 S.W.3d 198, 210 (Tex. 2002))).
On appeal, the plaintiff has not demonstrated any error of law or fact
that would justify reversal. Kanja is not a debtor under the subject loan. Nor
is he a party under the relevant deed of trust. The interest he claims in the
property was acquired at a sheriff’s sale conducted pursuant to a judgment
obtained by a junior lienholder. His interest is thus subject to the Trustee’s
superior lien interest. See DTND Sierra Invs. LLC v. Bank of Am., N.A., 871 F.
Supp. 2d 567, 573 (W.D. Tex. 2012) (“Under Texas common law, foreclosure
does not terminate interests in the foreclosed real estate that are senior to the
lien being foreclosed, and the successful bidder at a junior lien foreclosure
takes title subject to the prior liens.”). Kanja never suggests that he satisfied
the existing mortgage lien held by the Trustee. Thus, under Texas law, when
the Trustee’s lien was foreclosed, Kanja’s interest was extinguished. See
Conseco Fin. Servicing Corp. v. J & J Mobile Homes, Inc., 120 S.W.3d 878, 883

*
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 5
TH
CIR. R. 47.5.4.
Case: 19-20549 Document: 00515339706 Page: 2 Date Filed: 03/10/2020

No. 19-20549
3
(Tex. App. 2003) (citing Nat’l W. Life Ins. Co. v. Acreman, 425 S.W.2d 815, 817–
18 (Tex. 1968)).
Kanja presses several other arguments on appeal, none of which were
raised before the district court. For that reason, we refuse to consider them.
See Estate of Duncan v. Comm’r, 890 F.3d 192, 202 (5th Cir. 2018) (“This court
will not consider arguments first raised on appeal . . . .”).
Having found no error of law or fact, we AFFIRM the judgment of the
district court.
Case: 19-20549 Document: 00515339706 Page: 3 Date Filed: 03/10/2020