United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ UNITED STATES DISTRICT JUDGE
date, the Court considered the status of the above-captioned
case, along with Plaintiff's recent filing titled
“Plaintiff's [sic] Response to Defendant [sic]
Motion for Summary Judgment In the Alternative Motion to
Dismiss.” Docket no. 17. To the extent that this filing
is a motion, it is DENIED in all respects.
March 6, 2017, the Kirchners filed their original petition to
quiet title and for declaratory judgment in the 198th
Judicial District Court of Bandera County, Texas. Docket no.
1-1 at 22. Their original petition seeks to invalidate the
home equity loan on their property because it allegedly
violates the Texas Constitution, and asks that Defendant
Deutsche Bank National Trust Company be barred from
foreclosing on the property. Id. at 25-26. In
particular, the Kirchners point to two reasons why the home
equity loan allegedly violates the Texas Constitution-(1)
Plaintiff Debra Kirchner did not sign the note, rendering it
invalid under Section 50(a)(6)(A), Article XVI of the Texas
Constitution which requires that a home equity loan be
“secured by a voluntary lien on the homestead created
under a written agreement with the consent of each owner and
each owner's spouse”; and (2) Closing fees
associated with the Loan exceeded 3%, in violation of Article
XVI § 50(a)(6)(E) of the Texas Constitution.
10, 2017, the Kirchners filed a motion to remand. Docket no.
4. Deutsche Bank responded that day. Docket no. 6. On May 11,
the Kirchners filed an amended motion to remand, which made
essentially the same legal arguments as the original motion
while providing some factual clarity. Docket no. 7. On May
18, the Court issued an order denying both motions. Docket
8, 2017, Defendant filed a motion for summary judgment.
Docket no. 15. The Local Rules allowed Plaintiffs 14 days to
respond. Local Rule CV-7(e)(2). Plaintiffs did not file a
29, 2017, the Court held a status conference on this case.
Neither Plaintiffs nor Plaintiffs' counsel, Mr. Samuel
Judge Brown, appeared or gave the Court warning that they
would not attend. At the status conference, the Court heard
limited argument from Defendant regarding the motion for
summary judgment. After doing so, the Court confirmed that
neither Plaintiffs nor Plaintiffs' counsel were in
attendance, and orally granted the motion for summary
point on June 29, the Clerks' Office received a document
from Plaintiffs' counsel titled “Plaintiff's
[sic] Response to Defendant [sic] Motion for Summary Judgment
In the Alternative Motion to Dismiss.” Docket no. 17.
This filing was docketed the next day.
purpose of Plaintiffs' June 29 filing is unclear. Its
title indicates that it is a response to Defendant's
motion for summary judgment, and at points, it is. But it is
not timely, both because it was filed more than 14 days after
the motion for summary judgment and because the Court has
already granted summary judgment. The title also indicates
that it is a motion to dismiss, but it does not seek
dismissal of Plaintiffs' own claims, and Defendant does
not assert any affirmative claims in this lawsuit. A large
portion of the filing asks that this Court remand this action
to the state court, which was the subject of two prior
motions that the Court denied.
these reasons, it is unclear what relief Plaintiffs seek by
their filing-they could be filing an untimely response to the
motion for summary judgment, a timely motion for
reconsideration of the Court's grant of summary judgment,
a motion to remand (or for reconsideration of the previous
remand decision), or a motion to dismiss. In any event, the
purpose of this order is to briefly address Plaintiffs'
positions, and explain the reasons why any relief sought by
this filing is denied.
Plaintiffs' response presents no applicable arguments
against Defendant's Motion for summary judgment.
initial matter, the Court again notes that to the extent
Plaintiffs are responding to Defendant's motion for
summary judgment, this response is untimely and subject to
being stricken on that ground.
the Court has analyzed the contentions of the response and
found them to be without merit; though Plaintiffs repeatedly
attack the validity of the home equity lien, none of the
bases for these attacks address Defendant's arguments.
Plaintiffs first argue that Defendant has been given notice
of defects in the loan and has not cured the defects within
60 days, but this argument assumes that there are defects in
the loan, which there are not for reasons discussed below.
Plaintiffs next argue that Defendant did not send notices of
default, acceleration, and sale in accordance with the Texas
Property Code, but these are not allegations made in
Plaintiffs' complaint and are not properly before the
Court. Plaintiffs' third and final argument on the merits
is that “[d]ismissal in this case is also required, as
the four-year statute of limitations bars ...