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Temple v. Bank of America, N.A.

United States District Court, Fifth Circuit

December 30, 2013

SHIRLEY TEMPLE
v.
BANK OF AMERICA, N.A., ET AL

MEMORANDUM OPINION AND ORDER

AMOS L. MAZZANT, Magistrate Judge.

Pending before the Court is the Motion for Summary Judgment of Defendants Bank of America, N.A. successor by merger to BAC Home Loans Servicing, L.P. f/k/a Countrywide Home Loans Servicing, L.P. ("Bank of America") and U.S. Bank, N.A., Trustee for the Certificate-Holders of the SAIL 2005-1 Trust Fund ("Trustee") (Dkt. #46). The Court, having considered the relevant pleadings, finds that Defendants' Motion for Summary Judgment should be granted.

BACKGROUND

On or about October 29, 2004, Plaintiff Shirley Temple obtained a loan in the amount of $230, 200 from America's Wholesale Lender (the "Lender"). Plaintiff signed an Adjustable Rate Note wherein she promised to repay the loan through monthly payments of principal and interest beginning December 1, 2004, and ending November 1, 2034 (the "Note"). The Note defined an "Event of Default" to include the failure to "pay the full amount of each monthly payment on the date it is due...." The Lender subsequently endorsed the Note in blank and delivered the endorsed Note to the custodian for the SAIL 2005-1 Trust Fund on or about November 8, 2004.

To secure her payment obligations, Plaintiff also executed a Deed of Trust granting a first lien security interest in the property located at 5952 Stowell Drive, Frisco, Texas 75035 (the "Property"). The Deed of Trust was publicly recorded in the Collin County real property records as instrument number XXXX-XXXXXXX.

The Deed of Trust states that the lender is America's Wholesale Lender. The Deed of Trust also states that Mortgage Electronic Registration Systems, Inc. ("MERS") is a separate corporation that is acting solely as nominee for the Lender and Lender's successors and assigns, that MERS is the beneficiary under the Deed of Trust, that MERS has the power of sale and that MERS is empowered to assign that interest.

On December 13, 2011, MERS assigned its beneficial interest in the Deed of Trust to U.S. Bank, N.A., as Trustee for the Certificate-Holders of the SAIL 2005-1 Trust Fund (the "Assignment"). The Assignment was publicly recorded in the Collin County real property records as instrument number XXXX-XXXXXXXXXXXXX.

At all times since the inception of the Plaintiff's loan, Bank of America, or one of its predecessor entities, has been the mortgage servicer to whom Plaintiff would submit her monthly Note payments.

Plaintiff defaulted on her payment obligations and is more than fifty-seven (57) months behind on her contractual Note payments. Specifically, Plaintiff's last monthly payment was submitted on or about January 5, 2009, and was applied to the October 2008 installment. Plaintiff has not made a payment since, and is currently due for the November 2008 Note payment, and all payments coming due thereafter. Plaintiff has also failed to make required payments for property taxes and insurance, which have been advanced by the Defendants, resulting in an escrow deficiency of over $30, 000.

In response to Plaintiff's default, Bank of America, as mortgage servicer, sent a notice of default and intent to accelerate to the Plaintiff on January 6, 2009 ("Notice of Default"). The Notice of Default was mailed to the Property address via certified mail, return receipt requested, and specified that the Note was in default and that if Plaintiff did not cure the default within thirty (30) days, the maturity of the Note would be accelerated.

Plaintiff failed to cure her default in the time and manner proscribed in the Notice of Default. On March 26, 2012, Bank of America, N.A., by and through ReconTrust Company, N.A., sent Plaintiff written notice that the balance of her Note had been accelerated, and a subsequent letter on April 3, 2012, stating that the collateral pledged in the Deed of Trust would be sold at a non-judicial foreclosure sale on May 1, 2012 (the "Notice of Sale"). Both notices were mailed to the Property address via certified mail, return receipt requested. A copy of the Notice of Sale was also filed with the Collin County Clerk's Office and posted at the Collin County courthouse. Plaintiff has not attempted to cure her default or otherwise pay the accelerated balance of her loan.

During the pendency of this litigation, Wilmington Trust Company replaced U.S. Bank as the trustee of the SAIL 2005-1 Trust Fund. On November 8, 2012, U.S. Bank, N.A. filed an Assignment reflecting the new trustee of the trust.

On September 10, 2013, Defendants filed a Motion for Summary Judgment (Dkt. #46). On October 11, 2013, Plaintiff filed a response (Dkt. #50). On October 21, ...


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