United States District Court, S.D. Texas, Brownsville Division
MEMORANDUM OPINION AND ORDER
S. Hanen, United States District Court Judge.
the Court is Defendant Wilmington Trust, NA, successor
trustee to Citibank, N.A., as Trustee on behalf of the
holders of the Structured Asset Mortgage Investments II Inc.,
Bear Stearns ALT-A Trust II, Mortgage Pass-Through
Certificates Series 2007-3 ("Trustee" or
"Defendant")'s "Motion for Summary
Judgment and Motion for Judgment on the Pleadings" [Doc.
No. 9]. For the foregoing reasons, the Court GRANTS
Defendant's motion for summary judgment.
case involves an overdue non-recourse home equity loan
provided to Plaintiff Carlos E. Amaro ("Mr. Amaro"
or "Borrower"). On or about April 4, 2007, Amaro
executed a $432, 000.00 Texas Home Equity Adjustable Rate
Note (the "Note") in favor of Bear Stearns
Residential Mortgage Corporation ("Bear Stearns")
and its assigns. [Doc. No. 9, Ex. 2]. That same day, Mr.
Amaro and his wife, Plaintiff Odelia M. De Amaro
(collectively, "Plaintiffs") executed a Texas Home
Equity Security Instrument (the "Deed of Trust")
establishing a first lien on real property identified by its
physical address of 5 Mesquite Branch, Brownsville, Texas
78521 and as more particularly described in the Deed of Trust
(the "Property"). See [Doc. No. 9, Ex. 3].
The Deed of Trust was recorded as Document No. 2007-00018654
in the real property records of Cameron County, Texas. On the
same date Plaintiffs signed a Texas Home Equity Affidavit and
Agreement. See [Doc. No. 9, Ex. 4].
about November 13, 2007, Mortgage Electronic Registration
Systems, Inc., as Nominee for Bear Stearns, assigned the Note
and Deed of Trust to Citibank, N.A. as Trustee. See
[Doc. No. 9, Ex. 5]. The assignment was recorded in the real
property records of Cameron County, Texas as Document No.
N.A. as Trustee assigned the Note and Deed of Trust to
Defendant on May 28, 2010. See [Doc. No. 9, Exs. 6,
7]. The assignment was recorded in the real property records
of Cameron County, Texas as Document No. 2010-00034725.
See [Doc. No. 9, Ex. 6].
Portfolio Servicing, Inc. is the current mortgage servicer
for the subject loan, and Trustee is the current mortgagee
and record assignee of the subject deed of trust and the
holder of the Note. See [Doc. No. 9, Exs. 1-8].
Amaro is in default on his contractual obligations under the
subject loan and is currently past due for the December 1,
2010 payment and all subsequent payments. See [Doc.
No. 9, Ex. 1]. On October 1, 2013, Trustee through its
mortgage servicer sent a Notice of Default to Mr. Amaro via
registered mail. See [Doc. No. 9, Ex. 9]. On April
2, 2014, Trustee through its foreclosure counsel sent a
Notice of Acceleration via certified mail to Mr. Amaro, by
which the payment obligations under the subject loan were
accelerated. See [Doc. No. 9, Ex. 10].
obtained a judgment authorizing it to conduct a non-judicial
foreclosure sale on the Property, filed the judgment in the
real property records of Cameron County, Texas, and attempted
to foreclose based on the judgment. See [Doc. No. 9,
Ex. 16]; [Doc. No. 1, Ex. 4].
then filed the present lawsuit in the 138th District Court of
Cameron County, alleging a slander of title claim and a
wrongful foreclosure claim against Defendant. [Doc. No. 1, Ex. 4].
That court entered a temporary restraining order enjoining
Defendant from foreclosing on the Property. See
[Doc. No. 1, Ex. 5]. Defendant then removed this case to
federal court and filed this motion for summary judgment, to
which Plaintiffs did not respond. In light of Plaintiffs'
nonresponse, the Court need only consider whether Defendant
has made a prima facie showing that it is entitled to relief.
See Eversly v. Mbank, 843 F.2d 172, 174 (5th Cir.
1988) (finding a district court's grant of summary
judgment proper where nonmovant made no opposition to the
motion and movant established a prima facie showing of its
entitlement to relief).
judgment is warranted "if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). Once a movant submits a properly supported motion, the
burden shifts to the nonmovant to show that the court should
not grant the motion. Celotex Corp. v. Catrett, 477
U.S. 317, 321-25 (1986).
nonmovant then must provide specific facts showing that there
is a genuine dispute. Id. at 324; Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). A dispute about a material fact is genuine if
"the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
court must draw all reasonable inferences in the light most
favorable to the nonmoving party in deciding a summary
judgment motion. Id. at 255. The key question on
summary judgment is whether a hypothetical, reasonable
factfinder could find in favor of the nonmoving party.
Id. at 248.