United States District Court, S.D. Texas, Houston Division
RAFAEL F. VAZQUEZ, Plaintiffs,
SELENE FINANCE, L.P., Defendants.
MEMORANDUM OPINION AND ORDER
Kenneth M. Hoyt United States District Judge
before the Court is the defendants', Selene Finance, L.P.
(“Selene”), Selene Finance, L.P., N.A., and
Loancare, a Division of FNF Servicing Inc. (collectively,
“the defendants”), motion for summary judgment
and motion for judgment on the pleadings pursuant to Federal
Rules of Civil Procedure 56 and 12(c), respectfully. (Dkt.
No. 6). The plaintiffs, Rafael F. Vazquez and Norma L.
Vazquez (collectively, the “plaintiffs”), have
failed to file a response to the defendants' motion and
the time for doing so has elapsed. Accordingly, pursuant to
this Court's local rules, the plaintiffs'
“[f]ailure to respond will be taken as a representation
of no opposition.” S.D. Tex. L.R. 7.4. After having
carefully considered the motion, the pleadings, the record
and the appropriate law, the Court determines that the
defendants' motion for summary judgment and motion for
judgment on the pleadings should be GRANTED.
case concerns the plaintiffs' challenge to the proposed
July 5, 2016, foreclosure sale of the real property located
at 24927 Garnet Shadow Lane, Katy, Texas 77494 (the
“Property”). On or about September 5, 2008, the
plaintiffs executed a Promissory Note (the
“Note”) payable to Lending Key, Inc.
(“Lending Key”) in the amount of $246, 163.00.
(Dkt. No. 6, Ex. 1-A). Simultaneously with the execution of
the Note, the plaintiffs executed a Deed of Trust (the
“Deed”) establishing a first lien on the
Property. (Id., Ex. 1-B). On or about September 9,
2010, Mortgage Electronic Registration Systems, Inc.
(“MERS”) as nominee of Lending Key assigned its
rights and interest under the Deed to Loancare, A Division of
FNF Servicing, Inc. (“Loancare”). (Id.,
Ex. 1-C). The Assignment was recorded on June 6, 2010, in the
real property records of Harris County, Texas as Doc. No.
2010111488. (Id.). On or about June 15, 2015,
Loancare assigned the Deed to Selene as evidenced by an
Assignment recorded in the real property records of Harris
County, Texas as Document No. 2015067546. (Id., Ex.
1-D). Selene is the current owner, holder, and record
assignee of the Note and Deed. (Id.). Selene is also
the current mortgage servicer and attorney-in-fact for
Loancare with regard to the subject loan. (Id., Ex.
plaintiffs do not dispute that they have defaulted on their
obligations under the Note and Deed and have made no payments
on the loan since November 1, 2010. The defendants, by way of
counsel, provided the plaintiffs with the requisite notices
of default and intent to accelerate as well as with notices
of acceleration. (Id., Ex. 1-E, 1-F). The Property
was scheduled for a foreclosure sale on July 5, 2016. (Dkt.
No. 1, Ex. C-1, ¶ 15).
1, 2016, the plaintiffs filed suit against the defendants in
the 268th Judicial District Court of Fort Bend County, Texas,
seeking to contest foreclosure of the Property, asserting
claims for violation of the Texas Debt Collection Practices
Act (“TDCPA”), estoppel, violations of the Texas
Deceptive Trade Practices Act (“DTPA”), breach of
contract, negligence and violation of the Consumer Financial
Protection Act (“CFPA”). (See Dkt. No.
1, Ex. C-1, ¶¶ 17-32). The defendants timely
removed the case to this Court, which has subject matter
jurisdiction pursuant to 28 U.S.C. § 1332. (See
Dkt. No. 1). The defendants now move for summary judgment and
judgment on the pleadings on the plaintiffs' claims.
SUMMARY JUDGMENT STANDARD
of the Federal Rules of Civil Procedure authorizes summary
judgment against a party who fails to make a sufficient
showing of the existence of an element essential to the
party's case and on which that party bears the burden at
trial. See Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc). The movant bears the
initial burden of “informing the district court of the
basis for its motion” and identifying those portions of
the record “which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex,
477 U.S. at 323; see also Martinez v. Schlumber,
Ltd., 338 F.3d 407, 411 (5th Cir. 2003). Summary
judgment is appropriate where “the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(c).
movant meets its burden, the burden then shifts to the
nonmovant to “go beyond the pleadings and designate
specific facts showing that there is a genuine issue for
trial.” Stults v. Conoco, Inc., 76 F.3d 651,
656 (5th Cir. 1996) (citing Tubacex, Inc. v. M/V
Risan, 45 F.3d 951, 954 (5th Cir. 1995);
Little, 37 F.3d at 1075). “To meet this
burden, the nonmovant must ‘identify specific evidence
in the record and articulate the ‘precise manner'
in which that evidence support[s] [its] claim[s].'”
Stults, 76 F.3d at 656 (citing Forsyth v.
Barr, 19 F.3d 1527, 1537 (5th Cir.), cert.
denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127
(1994)). It may not satisfy its burden “with some
metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.” Little, 37 F.3d at
1075 (internal quotation marks and citations omitted).
Instead, it “must set forth specific facts showing the
existence of a ‘genuine' issue concerning every
essential component of its case.” Am. Eagle
Airlines, Inc. v. Air Line Pilots Ass'n, Intern.,
343 F.3d 401, 405 (5th Cir. 2003) (citing Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.
fact is material only if its resolution would affect the
outcome of the action, . . . and an issue is genuine only
‘if the evidence is sufficient for a reasonable jury to
return a verdict for the [nonmovant].'” Wiley
v. State Farm Fire and Cas. Co., 585 F.3d 206, 210 (5th
Cir. 2009) (internal citations omitted). When determining
whether a genuine issue of material fact has been
established, a reviewing court is required to construe
“all facts and inferences . . . in the light most
favorable to the [nonmovant].” Boudreaux v. Swift
Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005)
(citing Armstrong v. Am. Home Shield Corp., 333 F.3d
566, 568 (5th Cir. 2003)). Likewise, all “factual
controversies [are to be resolved] in favor of the
[nonmovant], but only where there is an actual controversy,
that is, when both parties have submitted evidence of
contradictory facts.” Boudreaux, 402 F.3d at
540 (citing Little, 37 F.3d at 1075 (emphasis
omitted)). Nonetheless, a reviewing court is not permitted to
“weigh the evidence or evaluate the credibility of
witnesses.” Boudreaux, 402 F.3d at 540
(quoting Morris, 144 F.3d at 380). Thus,
“[t]he appropriate inquiry [on summary judgment] is
‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.'” Septimus v. Univ. of Hous., 399
F.3d 601, 609 (5th Cir. 2005) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251 - 52 (1986)).
plaintiffs in this case have not filed a response to the
defendants' motion for summary judgment. According to
this Court's local rules, responses to motions are due
within twenty-one days unless the time is extended. S.D. Tex.
L.R. 7.3. A failure to respond is “taken as a
representation of no opposition.” S.D. Tex. L.R. 7.4.
Notwithstanding the plaintiffs' failure to file a
response, summary judgment may not be awarded by default.
See Hibernia Nat'l Bank v. Admin. Cent.
Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985).
“A motion for summary judgment cannot be granted simply
because there is no opposition, even if failure to oppose
violated a local rule.” Hetzel v. Bethlehem Steel
Corp., 50 F.3d 360, 362 n.3 (5th Cir. 1995) (citing
Hibernia Nat'l Bank, 776 F.2d at 1279).
To this end, the defendants, as “[t]he movants[, ] have
the burden of establishing the absence of a genuine issue of
material fact and, unless [they] have done so, the court may
not grant the motion, regardless of whether any response was
filed.” See Hetzel, 50 F.3d at 362 n.3.
Nevertheless, in determining whether summary judgment is
appropriate, a district court may accept as undisputed the
facts set forth in the motion. See Eversley v. MBank
Dallas, 843 F.2d 172, 174 (5th Cir. 1988) (internal
citations omitted). Accordingly, this Court accepts the
defendants' facts and evidence as undisputed.
ANALYSIS & DISCUSSION
The Plaintiffs' Texas Debt Collection ...