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Vazquez v. Selene Finance, L.P.

United States District Court, S.D. Texas, Houston Division

May 31, 2017

RAFAEL F. VAZQUEZ, Plaintiffs,
v.
SELENE FINANCE, L.P., Defendants.

          MEMORANDUM OPINION AND ORDER

          Kenneth M. Hoyt United States District Judge

         I. INTRODUCTION

         Pending 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.

         II. FACTUAL OVERVIEW

         This 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. 1-D).

         The 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).

         On July 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.

         III. SUMMARY JUDGMENT STANDARD

         Rule 56 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).

         If the 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. 1998)).

         “A 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)).

         The 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.

         IV. ANALYSIS & DISCUSSION

         A. The Plaintiffs' Texas Debt Collection ...


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