United States District Court, N.D. Texas, Dallas Division
ANGELA B. PUTTY, Plaintiff,
FEDERAL NATIONAL MORTGAGE ASSOCIATION a/k/a FANNIE MAE, Defendant.
MEMORANDUM OPINION AND ORDER
A. FITZWATER UNITED STATES DISTRICT JUDGE.
removed action arising from the attempted foreclosure of
plaintiff's residence, defendant moves for summary
judgment. Concluding that plaintiff has failed to create a
genuine issue of material fact on any of her claims, the
court grants defendant's motion and dismisses this
lawsuit with prejudice by judgment filed today.
plaintiff Angela B. Putty (“Putty”) and her
husband Tony B. Putty (collectively, the
“Puttys”) purchased real property
(“Property”) located in Midlothian,
Texas. To fund the purchase, the Puttys executed
a promissory note (“Note”) in the principal sum
of $113, 600, payable to NationsBanc Mortgage Corporation
(“NationsBanc”). They also executed a Deed of
Trust (“DOT”), granting NationsBanc a security
interest in the Property.
assigned the DOT to Bank of America, N.A.
(“BOA”), and BOA in turn assigned the DOT to
defendant Federal National Mortgage Association a/k/a Fannie
Mae (“Fannie Mae”). In 2012 the Puttys became
delinquent on their loan. In 2015 Fannie Mae mailed the
Puttys a Notice of Default and Intent to Accelerate. When the
Puttys failed to cure the default, the balance of the Note
was accelerated, and the Property was posted for foreclosure.
Fannie Mae purchased the Property at the substitute
trustee's sale, filed an eviction action against the
Puttys, and obtained a default judgment.
then filed the instant lawsuit against Fannie Mae in state
court, alleging claims for vicarious liability under agency
and apparent agency theories, violation of her due process
rights under the United States and Texas Constitutions,
eviction abuse, breach of contract, violation of the Texas
Debt Collection Act (“TDCA”), Tex. Fin. Code Ann.
§ 392.303 & 392.304 (West 2016), and wrongful
foreclosure. Fannie Mae removed the case to this court and
now moves for summary judgment on all of Putty's claims.
Putty opposes the motion.
party moves for summary judgment on claims on which the
opposing party will bear the burden of proof at trial, the
moving party can meet its summary judgment obligation by
pointing the court to the absence of admissible evidence to
support the nonmovant's claims. See Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). Once the moving party
does so, the nonmovant must go beyond her pleadings and
designate specific facts showing there is a genuine issue for
trial. See Id. at 324; Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per
curiam). An issue is genuine if the evidence is such that a
reasonable jury could return a verdict in the nonmovant's
favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The nonmovant's failure to produce proof
as to any essential element of a claim renders all other
facts immaterial. See TruGreen Landcare, L.L.C. v.
Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007)
(Fitzwater, J.). Summary judgment is mandatory if the
nonmovant fails to meet this burden. Little, 37 F.3d
court begins with Fannie Mae's motion for summary
judgment dismissing Putty's breach of contract claim.
elements of a claim for breach of contract under Texas law
are “(1) the existence of a valid contract, (2)
plaintiff's performance of duties under the contract, (3)
defendant['s] breach of the contract, and (4) damages to
plaintiff resulting from the breach.” Orthoflex,
Inc. v. ThermoTek, Inc., 983 F.Supp.2d 866, 872 (N.D.
Tex. 2013) (Fitzwater, C.J.) (citation omitted), appeal
docketed, No. 16-11381 (5th Cir. Sept. 16, 2016). Fannie
Mae moves for summary judgment on Putty's breach of
contract claim, contending that Putty has admitted that she
defaulted on payments on the Note. In the alternative, Fannie
Mae contends that it is entitled to summary judgment on this
claim because Putty has failed to state a claim. It posits
that, to the extent she alleges the monthly statement amounts
were inconsistent, that Fannie Mae's predecessor
committed unspecified “accounting mistakes, ” and
that she is entitled to an accounting, mortgage lenders have
no general obligation to prepare an accounting before
foreclosure can proceed; to the extent Putty alleges that
Fannie Mae failed to properly apply payments to the loan
following her default, she fails to identify evidence of any
specific payments allegedly not properly accounted for; to
the extent Putty complains that Fannie Mae wrongfully applied
principal reduction payments to the escrow balance and/or
past due balances, Putty expressly agreed (in the loan
document itself) to payments being applied this way; to the
extent Putty complains that the prior servicer held an
insurance check in escrow for an extended period of time that
was needed for repairs to the Property, there are no factual
allegations or evidence establishing that holding insurance
proceeds breaches any obligation under the loan, and, in any
event, this claim is barred by Putty's prior breach of
the loan; and Putty has no evidence that she maintained
insurance on the Property or timely provided evidence of
coverage to Fannie Mae or its predecessors.
has not responded to Fannie Mae's arguments. Although
Putty's failure to respond does not permit the court to
enter a “default” summary judgment on this claim,
see,e.g., Tutton v. Garland Indep. Sch.
Dist., 733 F.Supp. 1113, 1117 (N.D. Tex. 1990)
(Fitzwater, J.), “[a] summary judgment nonmovant who
does not respond to the motion is relegated to her unsworn
pleadings, which do not constitute summary judgment evidence,
” Bookman v. Shubzda, 945 F.Supp. 999, ...