United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. MILLER UNITED, STATES DISTRICT JUDGE.
before the court is amotion for summary judgment filed by
defendants Wells Fargo Bank, National Association
("Wells Fargo") and Ocwen Loan Servicing, L.L.C.
(collectively "Defendants"). Dkt. 17. Plaintiff
Ruben Maldonado responded in opposition. Dkt. 18. Defendants
replied. Dkt. 20. Having reviewed the motion, the response,
the reply, the evidentiary record, and the applicable law,
the court is of the opinion that the motion for summary
judgment should be GRANTED.
seeks to prevent the foreclosure sale of his property,
originally scheduled for November 1, 2016. Dkt. 17 at 1; Dkt.
17, Ex. B-2. On July 26, 2007, Maldonado executed an
adjustable rate note in favor of Option One Mortgage
Corporation ("Note"). Dkt. 18 at 2. The Note,
encumbering Maldonado's real property located at 18 Saint
Albans Court, Sugar Land, Texas 77479 ("Property"),
was in the amount of $319, 920.00. Dkt. 17, Ex. A-l. In
connection with this Note, Maldonado also executed a deed of
trust securing repayment of the Note, which was subsequently
assigned to Wells Fargo. Dkt. 17, Ex. D. Maldonado failed to
submit the monthly payment due on December 1, 2010, and Wells
Fargo produced a notice to cure the default dated January 15,
2015. Dkt. 17, Exs. A-2, 3. Maldonado failed to cure the
default, and a notice of acceleration was prepared, dated
October 6, 2016. Dkt. 17, Exs. B-l. Maldonado filed this suit
in the 268th Judicial District in Fort Bend
County, Texas. Dkt. 1. Defendants timely removed this action
to federal court based on diversity jurisdiction (Dkt. 1 at
3), and now move for summary judgment. Dkt. 17. Maldonado has
responded, and Defendants have replied. Dkts. 18, 20.
shall grant summary judgment when a "movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed.
R.Civ. P. 56(a). "[A] fact is genuinely in dispute only
if a reasonable jury could return a verdict for the
non-moving party." Fordoche, Inc. v. Texaco,
Inc., 463 F.3d 388, 392 (5th Cir. 2006). The moving
party bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If
the party meets its burden, the burden shifts to the
non-moving party to set forth specific facts showing a
genuine issue for trial. Fed.R.Civ.P. 56(e). The court must
view the evidence in the light most favorable to the
non-movant and draw all justifiable inferences in favor of
the non-movant. Envtl. Conservation Org. v. City of
Dall., 529 F.3d 519, 524 (5th Cir. 2008). Given that
this court sits in diversity jurisdiction over this action,
it is undisputed that the substantive law of Texas applies.
See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58
S.Ct. 817 (1938).
ask the court to dispose of Maldonado's claims as a
matter of law because Maldonado: (1) was in prior material
breach of the deed of trust, or in the alternative his claims
as to the adequacy of notice of foreclosure sale are not yet
ripe for disposition; (2) failed to tender the amount due on
the Note and therefore has failed to state a quiet title
claim; (3) asserted claims for declaratory and injunctive
relief not recognized as causes of action; and (4) failed to
state a cause of action that entitles him to attorneys'
fees. Dkt. 17 at 4-9. Maldonado contends that: (1) he never
received notice of a default, was not informed of a
reinstatement amount, and did not receive proper foreclosure
notice; (2) his claim to quiet title survives because he is
the undisputed owner of the Property as witnessed by a
recorded deed; and (3) his claims for declaratory judgment
survive because Defendants have failed to prove that he
received notice of acceleration.
Breach of Contract Claim
order to prevail on abreach of contract claim, a plaintiff
must demonstrate: (1) that a valid contract exists; (2)
performance or tendered performance; (3) that the defendant
has breached the contract; and (4) that the plaintiff
sustained damages as a result of the defendant's breach.
Mullins v. TestAmerica, Inc., 564 F.3d 386, 418 (5th
Cir. 2009); Brown v. Wells Fargo, N.A., No. H-l
3-3228, 2015 WL 926573, at *6 (S.D. Tex. Mar. 4, 2015)
(Miller, J.). A party to a contract who has failed to perform
his or her obligations is unable to maintain a suit for the
breach of said contract. Kaechler v. Bank of Am.,
N.A., No. H-12-423, 2013 WL 127555, at *3 (S.D. Tex.
Jan. 9, 2013) (Ellison, J.). Generally, the second element of
the claim cannot be established if a homeowner has defaulted
on a mortgage payment. See Brown, 2015 WL 926573, at
*3; Owens v. Bank of Am., N.A., No. H-l 1-2552, 2012
WL 912721, at *4 (S.D. Tex. Mar. 16, 2012) (Hoyt, J.)
("[T]he plaintiffs have undisputedly not performed their
contractual obligations because they have not stayed current
on their mortgage payments.").
claim that Maldonado has defaulted on his mortgage. Dkt. 17
at 5. In support of their claim, Defendants attach a detailed
transaction history and a notice of default illustrating the
breach. Dkt. 17, Exs. A-2, 3. Nowhere in his response does
Maldonado refute the fact that he became delinquent on his
mortgage payments. Dkt. 18. Maldonado cannot therefore
maintain a breach of contract claim based on the Note and
deed of trust.
original Petition, Maldonado claims he made efforts to
renegotiate his payments so as to make them more affordable,
and Defendants refused to cooperate. Dkt. 1-6 at 3. Although
Maldonado presents the court with no evidence for these
contentions, even if taken as true, they do not alter the
fact that Maldonado is in breach of the contract on which he
now seeks to sue. See Kaechler, 2013 WL 127555, at
*9 ("As explained, ongoing loan modifications do not
alter the fact that [the plaintiff] is in breach of the
argues that Defendants failed to record the Notice of
Substitute Trustee Sale prior to attempting foreclosure on
the Property, which violates the terms of the deed of trust
and raises an issue of material fact as to the breach of
contract claim. Dkt. 18 at 6. This point, likewise, does not
change the fact that Maldonado has defaulted on the Note.
Further, a defect in the foreclosure sale proceedings is
recognized under Texas law as an element of a wrongful
foreclosure claim, which a plaintiff can only maintain once a
foreclosure sale has occurred. See Martinez v. Am. Serv.
Co., No. H-12-2606, 2013 LEXIS 194514, at *8-9 (S.D.
Tex. Aug. 21, 2013) (Hittner, J.). It is undisputed that a
foreclosure sale has not occurred in this case, and in fact,
Maldonado asks the court to prevent foreclosure on the
Property. Dkt. 18 at 6. As the foreclosure sale never
actually occurred, this claim is not yet ripe for
disposition. See Martinez v. Am. Serv., 2013 LEXIS
194514, at *8-9; see also Johnson v. Wells Fargo Bank,
N.A., 999 F.Supp.2d 919, 932 (N.D. Tex. 2014).
Maldonado's breach of contract claim fails as a matter of
Claim to Remove ...