United States District Court, E.D. Texas, Sherman Division
HAROLD W. CRISWELL AND MARY EVELYN CRISWELL, Plaintiff,
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR FFMLT TRUST 2005-FF2, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2005-FF2; SPECIALIZED LOAN SERVICING LLC; AND BANK OF AMERICA, Defendants.
MEMORANDUM OPINION AND ORDER
KIMBERLY C. PRIEST JOHNSON, UNITED STATES MAGISTRATE JUDGE
before the Court is Defendants Deutsche Bank National Trust
Company, as Trustee for FFMLT Trust 2005-FF2, Mortgage
Pass-Through Certificates, Series 2005-FF2 (“Deutsche
Bank”) and Specialized Loan Servicing LLC's
(“SLS”) (collectively, the “Deutsche
Defendants”) Motion for Summary Judgment (the
“Motion”) (Dkt. 53), filed on August 31, 2017.
Plaintiffs Harold W. Criswell and Mary Evelyn Criswell
(“Plaintiffs”) filed a response (Dkt. 56), and
the Deutsche Defendants filed a reply (Dkt. 58). As set forth
below, the Court finds the Motion (Dkt. 53) is
GRANTED, and Plaintiffs should take nothing
by their claims against Defendant Deutsche Bank and Defendant
apparently filed this lawsuit in response to the initiation
of foreclosure proceedings against the real property located
at 1905 Dublin Road, Plano, Texas 75094 (the
“Property”). Plaintiffs' Second Amended
Complaint (the “Complaint”) (Dkt. 26) is the
operative complaint herein. On September 27, 2004, Plaintiff
Harold Criswell executed a Texas home equity note (the
“Note”) in favor of First Franklin Financial
Corporation (“First Franklin”). See Dkt.
26 at ¶ 10. As security for the Note, Plaintiffs
executed a Texas home equity security instrument (the
“Security Instrument”). Id. at ¶
11. The “Note” and the “Security
Instrument” are collectively referred to herein as the
March 2014, Defendant Bank of America, N.A.
(“BANA”),  then the loan's servicer, approved
Plaintiffs for a trial modification of the original loan.
Id. at 13. The trial modification required
Plaintiffs to make three payments under a Trial Period Plan
(“TPP”). Id. at ¶ 13, 15-26;
see also Dkt. 56-3. Plaintiffs allege they
successfully made the trial payments as required under the
TPP, but were not subsequently provided a copy of the
executed loan modification agreement. Dkt. 26 at ¶ 15.
On or about April 1, 2014 (during the Trial Period),
Defendant BANA transferred the servicing of the Loan to
Defendant SLS. Id. at ¶ 17. According to
Plaintiffs, SLS continued to accept payments in the modified
amount “for a period of time, ” but also failed
to provide Plaintiffs with “fully executed permanent
documents for a Modified Loan.” Id. at ¶
October 20, 2014, First Franklin assigned the Deed of Trust
to Defendant Deutsche Bank, and Deutsche Bank asserts that
the Deed was recorded in the real property records of Collin
County, Texas, on or about August 18, 2015. See Dkt.
53 at 8. On or about March 17, 2016, Defendant Deutsche Bank
filed a foreclosure proceeding against Plaintiffs.
See Dkt. 26 at ¶ 25.
Complaint asserts two breach of contract claims (Count One
and Count Two). Although the Deutsche Defendants assert the
Breach of Contract claim identified in Count Two is the sole
claim against them (see Dkt. 53 at 5), the Court
finds that at least some of the Count One allegations also
appear to apply to the Deutsche Defendants. See,
e.g., Dkt. 26 at ¶ 32 (“Defendant [BANA] and
its alleged or putative assignees SLS and Deutsche, have
failed to abide by the Modification Program. . . .”);
¶ 33 (“Defendant [BANA] and its assignees SLS and
Deutsche's breach caused the Plaintiffs injury. . .
.”). Thus, it is not accurate to say that only Count
Two is applicable to the Deutsche Defendants. However, having
compared the allegations in Count One and Count Two, the
Court finds them to be substantially similar, if not
identical. Plaintiffs' common-law fraud claim (Count
Three) appears to be asserted only against Defendant BANA.
judgment is appropriate when, viewing the evidence and all
justifiable inferences in the light most favorable to the
non-moving party, there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(c); Hunt v. Cromartie, 526 U.S.
541, 549 (1999). The appropriate inquiry 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.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
party moving for summary judgment has the initial burden to
prove there are no genuine issues of material fact for trial.
Provident Life & Accident Ins. Co. v. Goel, 274
F.3d 984, 991 (5th Cir. 2001). In sustaining this burden, the
movant must identify those portions of pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
The moving party, however, “need not negate the
elements of the nonmovant's case.” Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en
banc). The movant's burden is only to point out the
absence of evidence supporting the nonmoving party's
case. Stults v. Conoco, Inc., 76 F.3d 651, 655 (5th
response, the nonmovant's motion “may not rest upon
mere allegations contained in the pleadings, but must set
forth and support by summary judgment evidence specific facts
showing the existence of a genuine issue for trial.”
Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455,
458 (5th Cir. 1998) (citing Anderson, 477 U.S. at
255-57). Once the moving party makes a properly supported
motion for summary judgment, the nonmoving party must look
beyond the pleadings and designate specific facts in the
record to show there is a genuine issue for trial.
Stults, 76 F.3d at 655. The citations to evidence
must be specific, as the district court is not required to
“scour the record” to determine whether the
evidence raises a genuine issue of material fact. E.D. Tex.
Local R. CV-56(d). Neither “conclusory
allegations” nor “unsubstantiated
assertions” will satisfy the nonmovant's burden.
Stults, 76 F.3d at 655.
Deutsche Defendants have submitted the following evidence in
support of their Motion:
Exhibit A: Declaration of Cynthia Wallace, Second Assistant
Vice President of Default Administration for SLS, with
a. Exhibit A.1: Copy of the Note, dated September 27, 2004;
b. Exhibit A.2: Copy of the Texas Home Equity Security
Instrument, dated September 27, 2004;
c. Exhibit A.3: Copy of the letter sent to Plaintiff Harold
Criswell, dated April 15, 2014;
d. Exhibit A.4: Copy of the letter sent to Plaintiff Harold
Criswell, dated May 1, 2014.
e. Exhibit A.5: Copy of the letter sent to Plaintiff Harold
Criswell, dated September 11, 2014;
f. Exhibit A.6: Copy of the letter sent to Plaintiff Harold
Criswell, dated December 4, 2014;
g. Exhibit A.7: Copy of the letter sent to Plaintiff Harold
Criswell, dated ...