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Amaro v. Wilmington Trust, N.A.

United States District Court, S.D. Texas, Brownsville Division

January 4, 2018

CARLOS ENRIQUEZ AMARO, et al, Plaintiffs,
v.
WILMINGTON TRUST, N.A. SUCCESSOR TRUSTEE TO CITIBANK, N.A., et al. Defendants.

          MEMORANDUM OPINION AND ORDER

          Andrew S. Hanen, United States District Court Judge.

         Before 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.

         I. Background

         This 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].

         On or 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. 2007-00066205. Id.

         Citibank, 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].

         Select 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].

         Mr. 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].

         Defendant 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].

         Plaintiffs then filed the present lawsuit in the 138th District Court of Cameron County, alleging a slander of title claim and a wrongful foreclosure claim[1] 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).

         II. Legal Standard

         Summary 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).

         The 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.

         III. ...


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