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Criswell v. Deutsche Bank National Trust Co.

United States District Court, E.D. Texas, Sherman Division

November 30, 2017

HAROLD W. CRISWELL AND MARY EVELYN CRISWELL, Plaintiff,
v.
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

         Now 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 SLS.

         I. BACKGROUND

         Plaintiffs 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 “Loan.”

         In March 2014, Defendant Bank of America, N.A. (“BANA”), [1] 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 ¶ 16.

         On 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.

         Plaintiffs' 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.

         II. LEGAL STANDARD

         Summary 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).

         The 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 Cir. 1996).

         In 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.

         III. EVIDENCE PRESENTED

         The Deutsche Defendants have submitted the following evidence in support of their Motion:

         1) Exhibit A: Declaration of Cynthia Wallace, Second Assistant Vice President of Default Administration for SLS, with attachments:

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 ...

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