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Van Buren v. Green Tree Servicing LLC

United States District Court, N.D. Texas, Dallas Division

April 21, 2017



          Sam A. Lindsay United States District Judge

         Before the court is Defendant Ditech Financial LLC f/k/a Green Tree Servicing, LLC's Motion for Final Summary Judgment (Doc. 20), filed June 1, 2016. After careful consideration of the motion and brief, response and brief, reply, appendix, record, and applicable law, the court grants Defendant Ditech Financial LLC f/k/a Green Tree Servicing, LLC's Motion for Final Summary Judgment.

         I. Procedural and Factual Background

         Plaintiff Michael Van Buren (“Plaintiff” or “Van Buren”) filed this action against Defendant Ditech Financial LLC f/k/a Green Tree Servicing, LLC, (“Defendant” or “Ditech”) on November 26, 2014, in the 191st Judicial District Court of Dallas County, Texas. Plaintiff['s] Original Petition (“Petition”) requested a temporary restraining order to prevent Defendant from foreclosing on his real property located at 1057 Alyssa Lane, Carrolton, Texas 75006 (“the Property”), and the state court entered the temporary restraining order on December 1, 2014. On December 23, 2014, Defendant removed this action to federal court pursuant to 28 U.S.C. § 1332(a), contending that there was complete diversity between the parties and the amount and controversy exceeded $75, 000, excluding interest and costs. On October 12, 2015, the parties filed a Joint Motion to Abate Case “to give Plaintiff the opportunity to apply and be considered for a loan modification.” Br. in Supp. of Pl.'s Resp. 5. On October 13, 2015, instead of granting the Joint Motion to Abate Case, the court administratively closed the action. “During the time the case was administratively closed, Plaintiff never submitted a loan modification application.” Id. at 6. On April 21, 2016, Defendant moved to reopen the case, and it filed a motion for summary judgment on June 1, 2016.

         Van Buren executed an Interest Only Fixed Rate Note (“Note”) for $145, 350 on the Property on July 30, 2007. The Note was secured by a Deed of Trust on the Property. The Note and Deed of Trust will collectively be referred to as “the Mortgage.” On April 15, 2014, Defendant and the previous loan servicer, Everhome, sent Van Buren a Notice of Servicing Transfer to inform him that Defendant would be servicing his loan. Van Buren sought to modify the Mortgage after he fell behind on his payments, and he contends that Defendant promised him that he would be allowed to modify the terms of his Mortgage. Van Buren contends that while the loan was being evaluated for a modification, Defendant defaulted the Mortgage and placed the Property into foreclosure. Plaintiff further alleges that Defendant failed to indicate where he stood in the modification process and represented on multiple occasions that the Property would not be sold, and that Defendant was working to remove the Notice of Foreclosure. Plaintiff's Complaint requests a temporary restraining order to prevent the sale of the Property.

         Given the paucity of the Complaint, it is unclear to the court what other remedies Plaintiff seeks besides a temporary restraining order. Defendant contends that Plaintiff does not state any actionable claims. Defendant argues that under a liberal reading of the facts, Plaintiff may be unsuccessfully attempting to raise claims for breach of contract and violation of the Real Estate Settlement Procedures Act (“RESPA”). Defendant moves for summary judgment, contending that Van Buren has no viable cause of action and that no genuine dispute of material fact exists regarding any claim of Plaintiff.

         II. Summary Judgment Standard

         Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all facts and inferences in the light most favorable to the nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). Further, a court “may not make credibility determinations or weigh the evidence” in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.

         Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine dispute of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). On the other hand, “if the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). “[When] the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.'” Matsushita, 475 U.S. at 587. (citation omitted). Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).

         The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). “Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues that are “irrelevant and unnecessary” will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

         III. Discussion

         A. Breach of Contract Claim

         Defendant contends that Van Buren may have loosely alluded to a breach of contract claim by alleging that Ditech reviewed his account and told him that he qualified for a loan modification, and then informed him of an impending foreclosure on his Property. Defendant further contends that to the extent that Plaintiff raises such a claim, there is no genuine dispute as to any material fact that it did not beach a contract. To support this argument, Defendant contends that Plaintiff fails to identify any contract with Defendant or how it was breached, and that any oral contract is prohibited by the statute of frauds. Further, Defendant contends that Plaintiff, at best, has alleged an oral agreement to modify the loan, which is barred by the statute of frauds and the loan agreement. Defendant also contends that the summary judgment evidence shows that Van Buren defaulted on his Mortgage payments and then began loan modification discussions with Defendant. Defendant contends that these discussions did not include a written modification to the loan. Moreover, Defendant contends that there is no genuine dispute that Van Buren has defaulted on the Mortgage and he has not paid all sums due and owing under the Note in full. Because Van Buren has breached the contract, Defendant contends that his breach of contract claim fails as a matter of law.

         Plaintiff responds by alleging that the Petition raises a claim for breach of contract and that he is entitled for equitable relief under a theory of promissory estoppel. Plaintiff contends that his promissory estoppel relief is not barred by the statute of frauds. Plaintiff argues that he relied on Defendant's promise to permit him an opportunity to modify the Mortgage prior to foreclosure. In reliance on this promise, Plaintiff contends that he did not ...

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