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Putty v. Federal National Mortgage Association

United States District Court, N.D. Texas, Dallas Division

November 3, 2017

ANGELA B. PUTTY, Plaintiff,



         In this 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.


         In 1998 plaintiff Angela B. Putty (“Putty”) and her husband Tony B. Putty (collectively, the “Puttys”) purchased real property (“Property”) located in Midlothian, Texas.[1] 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.

         NationsBanc 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.[2]

         Putty 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.


         When a 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 at 1076.


         The court begins with Fannie Mae's motion for summary judgment dismissing Putty's breach of contract claim.


         The 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.


         Putty 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, ...

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