United States District Court, N.D. Texas, Fort Worth Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RAY, JR. UNITED STATES MAGISTRATE JUDGE
the Court are Defendants' Motion for Summary Judgment
(ECF No. 17), Brief in Support (ECF No. 18), and Appendix in
Support (ECF No. 19), filed February 6, 2017; Plaintiff's
Response and Brief to Defendants' Motion for Summary
Judgment (ECF No. 22) and Attachments (ECF No. 23), filed
February 27, 2017; and Defendants' Reply in Support of
Motion for Summary Judgment (ECF No. 24), filed March 9,
2017. United States District Judge Reed O'Connor referred
this case to the undersigned for pretrial management by Order
entered on February 24, 2017. ECF No. 20. A motion for
summary judgment is an enumerated dispositive motion to which
the undersigned may only make a recommendation to Judge
O'Connor. 28 U.S.C. § 636(b)(1)(A).
upon a full review of the relevant pleadings on file and
applicable legal authorities, the undersigned RECOMMENDS that
Judge O'Connor GRANT Defendants' Motion for Summary
Judgment (ECF No. 17).
Michael Baker (“Baker”) filed suit in the 348th
Judicial District Court of Tarrant County, Texas, alleging
breach of contract, breach of the Uniform Commercial Code
(“UCC”), and violations of the Texas Debt
Collection Act (“TDCA”) against Defendants U.S.
Bank, N.A., in its capacity as trustee for the registered
holders of CSFB home equity pass-through certificates series
2005-F1X1, and Ocwen Loan Servicing, LLC (collectively,
“Defendants”). ECF No. 1-3. Baker's claims
are based on the Defendants' foreclosure of a property
subject to the terms of a mortgage and deed of trust executed
by Defendant Ocwen as the lender and Baker's mother,
Evelyn L. Lewis, and her husband, Douglas C. Lewis, as
borrowers. Id.; ECF No. 19. On June 1, 2016,
Defendants removed this action based on diversity of
citizenship jurisdiction. ECF No. 1. Thereafter, Defendants
filed the instant Motion for Summary Judgment, contending
that (1) Baker is not entitled to relief on his breach of
contract claims because no contract exists between Baker and
Defendants, (2) Baker's claims under the TDCA are
time-barred, and (3) the UCC duty of good faith and fair
dealing does not apply to mortgages. ECF No. 17.
filed his Response, arguing that Defendants are not entitled
to summary judgment on the breach of contract claims because
Baker stepped into his mother's shoes with respect to the
loan when “the Property, with lien attached, passed to
Baker upon his mother's death[.]” ECF No. 22 at 6.
Baker also asserts that Defendants are not entitled to
summary judgment on his UCC claims because Defendant Ocwen
violated its “duty of good faith and fair dealing with
regard to its obligations under the Deed of Trust” by
requiring Baker to submit a loan assumption package but
failing to review it before instituting foreclosure.
Id. at 8. Baker did not address Defendants'
argument that Defendants are entitled to summary judgment on
his TDCA claims because he did not file suit within the
applicable statute of limitations. See ECF No. 22.
Summary Judgment Standard
to Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is proper when the pleadings and evidence illustrate
that no genuine issue exists as to any material fact, thereby
entitling the movant to judgment as a matter of law.
Fed.R.Civ.P. 56(c); Slaughter v. Southern Talc Co.,
949 F.2d 167, 170 (5th Cir. 1991). Disputes concerning
material facts are genuine if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Douglass v. United Servs. Auto.
Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). An issue is “material” if it
involves a fact that might affect the outcome of the suit
under the governing law. Anderson, 477 U.S. at 248;
Burgos v. Southwestern Bell Telephone Co., 20 F.3d
633, 635 (5th Cir. 1994). “The movant bears the burden
of identifying those portions of the record it believes
demonstrate the absence of a genuine issue of material
fact.” Triple Tee Golf, Inc. v. Nike, Inc.,
485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 322-25 (1986)).
movant carries his initial burden, the burden then shifts to
the nonmovant to show that the entry of summary judgment is
inappropriate. Celotex, 477 U.S. at 322-24;
Duckett v. City of Cedar Park, Tex., 950 F.2d 272,
276 (5th Cir. 1992). Although the nonmovant may satisfy this
burden by tendering depositions, affidavits, and other
competent evidence, “conclusory allegations,
speculation, and unsubstantiated assertions are inadequate to
satisfy the nonmovant's burden, ”
Douglass, 79 F.3d at 1429, as “the adverse
party's response . . . must set forth specific facts
showing that there is a genuine issue for trial.”
Fed.R.Civ.P. 56(e). Merely colorable evidence or evidence not
significantly probative, however, will not defeat a properly
supported motion for summary judgment. Anderson, 477
U.S. at 249-50. Furthermore, a mere scintilla of evidence
will not defeat a motion for summary judgment.
Anderson, 477 U.S. at 252; Davis v. Chevron
U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994).
judgment evidence is viewed in the light most favorable to
the party opposing the motion. Matsushita Elec. Indus.
Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Rosado v. Deters, 5 F.3d 119, 123 (5th Cir.
1993). In addition, factual controversies are resolved in
favor of the nonmovant, but only when both parties have
submitted evidence of contradictory facts, thus creating an
actual controversy. Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (en banc). In the absence of
any proof, however, the Court does not assume that the
nonmovant could or would prove the necessary facts.
making its determination on the motion, the Court looks at
the full record including the pleadings, depositions, answers
to interrogatories, admissions, and affidavits. Fed.R.Civ.P.
56(c); Williams v. Adams, 836 F.2d 958, 961 (5th
Cir. 1988). However, “the [Court's] function is not
[ ] to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249. The
movant's motion for summary judgment will be granted only
if he meets his burden and the nonmovant fails to make the
requisite showing that a genuine issue exists as to any
material fact. Fed.R.Civ.P. 56(e)(2).
claims do not invoke a federal question; therefore the Court
applies the law of the forum state, which here is Texas.
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
“Under the Erie doctrine, [courts] are bound
in diversity cases to apply the substantive law of the forum
state as interpreted by the state's highest court.”
Am. Nat. Gen. Ins. Co. v. Ryan, 274 F.3d 319, 328
(5th Cir. 2001) (citing Ladue v. Chevron U.S.A.,
Inc., 920 F.2d 272, 274 (5th Cir. 1991)). The Court
“look[s] to decisions of the state's highest court,
or in the absence of a final decision by that court on the
issue under consideration, [ ] must determine in [its] best