United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE.
L. HORAN UNITED STATES MAGISTRATE JUDGE.
Ocwen Loan Servicing LLC (“Ocwen”) and Wells
Fargo Bank, National Association (“Wells Fargo”),
as Trustee for Park Place Securities, Inc., Asset-Backed
Pass-Through Certificates, Series 2005-WLLI (together,
“Defendants”) filed a Motion for Summary Judgment
[Dkt. No. 16] (the “MSJ”). Chief Judge Barbara M.
G. Lynn referred the MSJ to the undersigned United States
magistrate judge for recommendation, see Dkt. No.
31, and the undersigned issued a Findings, Conclusions, and
Recommendation dated November 16, 2017, see Dkt. No.
undersigned previously recommended that the Court grant the
MSJ on Plaintiff Teresa Ann Johnson's claims under the
Real Estate Settlement Procedures Act (“RESPA”)
and under the Texas Debt Collection Act (“TDCA”),
Texas Finance Code §§ 392.304(a)(8) and
392.304(a)(19). See Id. at 35. As to Ms.
Johnson's remaining TDCA claim under Texas Finance Code
§ 392.301(a)(8), the undersigned concluded that
Defendants had not met their initial burden in moving for
summary judgment and recommended that the court deny summary
judgment on Ms. Johnson's Section 392.301(a)(8) claim.
See Id. at 29.
parties filed objections to the Findings, Conclusions, and
Recommendation, see Dkt. Nos. 37, 38, and, after
conducting an independent review, the Court entered its Order
Accepting in Part and Rejecting in Part Findings,
Conclusions, and Recommendation of the United States
Magistrate Judge, see Dkt. No. 41.
Court agreed that the MSJ should be granted as to Ms.
Johnson's RESPA claims and as to her TDCA claims under
Sections 392.304(a)(8) and (19). See Id. And those
claims have been dismissed. See Dkt. No. 42. But the
Court concluded that Defendants had satisfied their initial
burden in moving for summary judgment on Ms. Johnson's
TDCA claim under Section 392.301(a)(8) based on
Defendants' argument as to Ms. Johnson's lack of
actual damages, and the Court re-referred to the undersigned
Defendants' MSJ on Ms. Johnson's Section
392.301(a)(8) claim. See Dkt. No. 41.
undersigned now concludes that Defendants' Motion for
Summary Judgment [Dkt. No. 16] on Ms. Johnson's TDCA
claim under Texas Finance Code § 392.301(a)(8) should be
moved for summary judgment on all of Ms. Johnson's claims
against them under RESPA and the TDCA. Because the Court has
entered judgment dismissing Ms. Johnson's RESPA and TDCA
claims under Sections 392.304(a)(8) and (19), the undersigned
now considers whether Defendants are entitled to summary
judgment on Ms. Johnson's remaining TDCA claim under
determine the undisputed facts in this case, the undersigned
has considered the evidence submitted by the parties to the
extent that it is proper for consideration on this motion, as
discussed below. These documents establish the following
undisputed facts, which the undersigned identified in the
Findings, Conclusions, and Recommendation dated November 16,
2017, but recounts here.
Johnson owns a home located at 9611 Private Road 3826,
Quinlan, Texas 75474 (the “Property”).
December 9, 2004, Ms. Johnson obtained a $160, 000 loan (the
“Loan”) by signing a Texas Home Equity Adjustable
Rate Note (the “Note”) and by, together with her
husband, Robert Lukowicz, signing a Texas Home Equity
Security Interest (First Lien) (“Security
Interest”), which granted her lender a lien on the
became the servicer of the Loan on November 1, 2011.
February 2014, Ms. Johnson was seven months behind on her
payments on the Loan.
December 2014, Ms. Johnson's husband, Mr. Lukowicz, lost
his job. Ms. Johnson was still seven months behind on her
Johnson made loan payments in January 2015 through July 2015
but did not bring her loan payments up to date, and she
remained seven months behind.
2015, Ms. Johnson requested, and Ocwen provided, a loan
correspondence dated July 24, 2015, Ocwen notified Ms.
Johnson of her default. The letter indicated that failure to
bring her account current could result in Ocwen's
election to foreclose on the Property and that, on
acceleration of the Loan, Ms. Johnson's total obligation
would immediately become due.
Johnson attempted to make a loan payment for August 2015, but
Ocwen did not accept ...