United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE, UNITED STATES DISTRICT JUDGE
Tina Alexander ("Alexander" or
"Plaintiff"), pro se, brings this action on remand
from the Fifth Circuit Court of Appeals against defendant
Wells Fargo Bank, N.A., formerly known as Wachovia Mortgage,
FSB, formerly known as World Savings Bank, FSB ("Wells
Fargo" or "Defendant"). Pending before
the court are Plaintiff's Motion for Summary Judgment
("Plaintiff's MSJ") (Docket Entry No. 36) and
Defendant's Motion for Summary Judgment and Brief in
Support ("Defendant's MSJ") (Docket Entry No.
39). For the reasons stated below, Plaintiff's MSJ will
be denied, Defendant's MSJ will be granted, and this
action will be dismissed with prejudice.
Undisputed Facts and Procedural Background
September 15, 1998, Alexander executed a promissory note in
the amount of $296, 000.00 made payable to
Defendant. She also executed a Deed of Trust to
secure its repayment (together, the "Loan"),
granting Defendant a security interest in her home located at
12318 Mossycup, Houston, Texas 77024 (the
"Property").Plaintiff and World Savings executed an
Acknowledgment of Value ("Acknowledgment") on
September 15, 1998, in connection with the
Loan. Referring to the Property it states
"World and Borrower each acknowledge that, as of the
date of the extension of the loan, the fair market value of
the homestead is $375, 000.00." Plaintiff signed the
Acknowledgment, and her signature is notarized.
14, 2002, Alexander was unable to locate the Acknowledgment
or appraisal of the Property in her personal
files.Alexander sent Defendant a letter the next
day requesting a copy of the Fair Market Value Acknowledgment
from their files, but Defendant never
responded. Alexander fell into default and Wells
Fargo initiated foreclosure. Alexander sued Wells Fargo in
the 165th Judicial District Court of Harris County,
Texas. The case was transferred to the 127th
Judicial District Court of Harris County, Texas, and
Defendant subsequently removed the action to this
court. Alexander asserted claims for Texas
constitutional violations, breach of contract, negligent
misrepresentation, and violation of the duty of good faith
and fair dealing, seeking injunctive and declaratory
relief. Wells Fargo moved to dismiss all of
Plaintiff's claims for failure to state a claim under
Rule 12(b)(6) arguing that the claims are time-barred and/or
otherwise fail. The court granted the motion, dismissing
the action. Alexander filed a motion for a new trial
or to amend the judgment, which the court
denied. Alexander appealed two of her claims to
the Fifth Circuit: (1) for a permanent injunction
preventing the fore-closure sale, and (2) for forfeiture as
provided under Article XVI, Section 50(a)(6)(Q)(xi) of the
Texas Constitution. The Fifth Circuit affirmed the dismissal
of the forfeiture claim, but held that the quiet title claim
for an injunction was sufficiently pled, reversed the
dismissal of that claim, and remanded the action to this
this case was on appeal, Defendant's counsel delivered a
copy of the Acknowledgment to Plaintiff's former
counsel.Plaintiff's former counsel confirmed
that he emailed the Acknowledgment to Plaintiff "just
after" it was provided to him. Defendant sent another
copy of the Acknowledgment to Plaintiff on October 23,
2017. Both parties have filed motions for
summary-judgment for this claim. Defendant filed a
Response in Opposition to Plaintiff's Motion for Summary
Judgment on November 10, 2017 (Docket Entry No. 40).
Plaintiff has not filed a response.
Standard of Review
judgment is warranted if the movant establishes that there is
no genuine dispute as to any material fact and that it is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
An examination of substantive law determines which facts are
material. Anderson v. Liberty Lobby, Inc., 106 S.Ct.
2505, 2510 (1986). Material facts are those facts that
"might affect the outcome of the suit under the
governing law." Id. A genuine issue as to a
material fact exists if the evidence is such that a
reasonable trier of fact could resolve the dispute in the
nonmoving party's favor. Id. at 2511.
as here, both parties have moved for summary judgment both
"motions must be considered separately, as each movant
bears the burden of establishing that no genuine issue of
material fact exists and that it is entitled to judgment as a
matter of law." Shaw Constructors v. ICF Kaiser
Engineers, Inc., 395 F.3d 533, 538-39 (5th Cir. 2004).
The movant must inform the court of the basis for summary
judgment and identify relevant excerpts from pleadings,
depositions, answers to interrogatories, admissions, or
affidavits that demonstrate there are no genuine fact issues.
Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553
(1986); see also Wallace v. Texas Tech Univ., 80
F.3d 1042, 1046-47 (5th Cir. 1996) . If a defendant moves for
summary judgment on the basis of an affirmative defense,
"it must establish beyond dispute all of the
defense's essential elements." Bank of Louisiana
v. Aetna U.S. Healthcare Inc., 468 F.3d 237, 241 (5th
Cir. 2006). A defendant may also meet its initial burden by
pointing out that the plaintiff has failed to make a showing
adequate to establish the existence of an issue of material
fact as to an essential element of plaintiff's case.
Celotex Corp., 106 S.Ct. at 2552. If the movant
satisfies its initial burden, the burden shifts to the
nonmoving party to show by affidavits, depositions, answers
to interrogatories, admissions on file, or other evidence
that summary judgment is not warranted because genuine fact
issues exist. Celotex Corp., 106 S.Ct. at 2552.
reviewing the evidence "the court must draw all
reasonable inferences in favor of the nonmoving party, and it
may not make credibility determinations or weigh the
evidence." Reeves v. Sanderson Plumbing Products,
Inc., 120 S.Ct. 2097, 2110 (2000). But conclusory
claims, unsubstantiated assertions, or insufficient evidence
will not satisfy the nonmovant's burden.
Wallace, 80 F.3d at 1047. If the nonmovant fails to
present specific evidence showing there is a genuine issue
for trial, summary judgment is appropriate. Topalian v.
Ehrman, 954 F.2d 1125, 1132 (5th Cir. 1992) .
liberally, Plaintiff's complaint stated a claim for quiet
title based on Wells Fargo's failure to timely supplement
a missing Acknowledgment of Fair Market Value in violation of
Texas Constitution Section 50(a) (6) (Q) (ix) . Alexander
v. Wells Fargo Bank, N.A., 867 F.3d 593, 600 (5th Cir.
2017) . Plaintiff argues in her Motion for Summary Judgment
that because Defendant allegedly did not provide a written
Acknowledgment and failed to cure the alleged deficiency, she
is entitled to summary judgment on her quiet title claim
seeking to preclude foreclosure. A suit to remove cloud or
to quiet title exists “'to enable the holder of the
feeblest equity to remove from his way to legal title any
unlawful hindrance having the appearance of better
right.'" Essex Crane Rental Corp. v.
Carter, 371 S.W.3d 366, 388 (Tex. App. - Houston [1st
Dist.] 2012, pet. denied); Hahn v. Love, 321 S.W.3d
517, 531 (Tex. App. - Houston [1st Dist.] 2009, pet. denied)
. The plaintiff has the burden of proof to establish her
superior equity and right to relief. Id. To do so
"the plaintiff must show (1) an interest in a specific
property, (2) title to the property is affected by a claim by
the defendant, and (3) the claim, although facially valid, is
invalid or unenforceable." Vernon v. Perrien,
390 S.W.3d 47, 61-62 (Tex. App. - El Paso 2012, no pet.)
(citation omitted). The plaintiff must recover on the
strength of her own title, not on the weakness of a
defendant's title. Hurd v. BAC Home Loans
Servicing, LP, 880 F.Supp.2d 747, 767 (N.D. Tex. 2012);
Ventura v. Wells Fargo Bank, N.A., No.
4:17-CV-075-A, 2017 WL 1194370, at *2 (N.D. Tex. March 30,
2017); Martin v. Amerman, 133 S.W.3d 262, 265 (Tex.
2004); Heil v. Wirth, 343 S.W.2d 226, 226 (1961).
50(c) of the Texas Constitution states that:
[n]o mortgage, trust deed, or other lien on the homestead
shall ever be valid unless it secures a debt described by
this section, whether such mortgage, trust deed, or other
lien, shall have been created by the owner alone, or together