United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. Hanks Jr. United States District Judge.
Alonzo Crittendon filed this lawsuit in the 122nd
Judicial District Court of Galveston County, Texas, in an
attempt to prevent Defendant, the Bank of New York Mellon,
from foreclosing on the property located at 3816 Armand
Drive, Dickinson, Texas, 77539.
Bank removed the lawsuit to this Court. At the time of
removal, the live pleading in the suit was Crittendon's
“First Amended Petition, Application for Injunctive
Relief, and Request for Disclosures.” Dkt. 1-12. In
that pleading, Crittendon alleged that he and his wife
purchased the property on November 30, 2005, and the Note and
Deed of Trust for the mortgage were subsequently transferred
to the Bank. Crittendon alleged that he was assured that,
even though he had fallen behind on mortgage payments, the
Bank would not foreclose on the property. He contends that
the Bank broke that promise and initiated foreclosure
proceedings, ultimately selling the property at a foreclosure
sale. Crittendon asserts claims for breach of contract,
common law fraud, and promissory estoppel.
Bank now seeks summary judgment in its favor. Dkt. 26. First,
the Bank contends that Crittendon's breach of contract
claims are based upon an alleged oral promise and are
therefore barred by the statute of frauds. The Bank also
argues that Crittendon's “breach of contract claim
also fails because Plaintiff failed to specify the provision
breached.” Next, the Bank contends that summary
judgment should be entered on Crittendon's fraud claim
because that claim is barred by the economic loss rule;
because there is no evidence that an actionable
representation was made or that Crittendon justifiably relied
on such a representation to his detriment; and because
“Crittendon failed to plead with specificity.”
Next, the Bank seeks summary judgment on Crittendon's
promissory estoppel claim. And, to the extent that Crittendon
asserts a wrongful foreclosure claim, the Bank also seeks
summary judgment on that claim. Finally, the Bank seeks
summary judgment on Crittendon's claims for injunctive or
undisputed summary judgment evidence shows that Crittendon
executed an Adjustable Rate Note in the amount of $144, 000
and a Deed of Trust to secure repayment of the Note, his loan
was transferred to the Bank, Crittendon failed to make
payments as required, and he was in default. Although
Crittendon attempted to negotiate a loan modification, there
is no evidence to show that he was successful in securing
such a modification. Ultimately, the property was sold at a
foreclosure sale for $165, 380.75.
reviewing the motion, the summary judgment record, the
pleadings, and the applicable authorities, the Court hereby
GRANTS the motion for summary judgment
because there is no genuine dispute of material fact on any
of Crittendon's claims against the Bank.
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).
“A genuine dispute of material fact exists when the
‘evidence is such that a reasonable jury could return a
verdict for the nonmoving party.'” Nola Spice
Designs, LLC v. Haydel Enters., Inc., 783 F.3d 527, 536
(5th Cir. 2015) (quoting Anderson v. Liberty Lobby,
477 U.S. 242, 248 (1986)). “The moving party
‘bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.'”
Id. (quoting EEOC v. LHC Grp., Inc., 773
F.3d 688, 694 (5th Cir. 2014)); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
the non-movant bears the burden of proof at trial, the movant
may merely point to the absence of evidence and thereby shift
to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material
fact warranting trial.” Id. (quotation marks
omitted); see also Celotex, 477 U.S. at 325.
Although the party moving for summary judgment must
demonstrate the absence of a genuine issue of material fact,
it does not need to negate the elements of the
nonmovant's case. Boudreaux v. Swift Transp.
Co., 402 F.3d 536, 540 (5th Cir. 2005). “A fact is
‘material' if its resolution in favor of one party
might affect the outcome of the lawsuit under governing
law.” Sossamon v. Lone Star State of Texas,
560 F.3d 316, 326 (5th Cir. 2009) (quotation omitted).
“If the moving party fails to meet [its] initial
burden, the motion [for summary judgment] must be denied,
regardless of the nonmovant's response.” United
States v. $92, 203.00 in U.S. Currency, 537 F.3d 504,
507 (5th Cir. 2008) (quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
“Once the moving party [meets its initial burden], the
non-moving party must ‘go beyond the pleadings and by
her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific
facts showing that there is a genuine issue for
trial.'” Nola Spice, 783 F.3d at 536
(quoting EEOC, 773 F.3d at 694). The nonmovant must
identify specific evidence in the record and articulate how
that evidence supports that party's claim. Baranowski
v. Hart, 486 F.3d 112, 119 (5th Cir. 2007). “This
burden will not be satisfied by ‘some metaphysical
doubt as to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of
evidence.'” Boudreaux, 402 F.3d at 540
(quoting Little, 37 F.3d at 1075). In deciding a
summary judgment motion, the court draws all reasonable
inferences in the light most favorable to the nonmoving
party. Connors v. Graves, 538 F.3d 373, 376 (5th
Cir. 2008); see also Nola Spice, 783 F.3d at 536.
Breach of Contract
Bank is entitled to summary judgment on Crittendon's
breach of contract claim. Under Texas law, the elements of a
breach of contract claim are: “(1) the existence of a
valid contract; (2) performance or tendered performance by
the plaintiff; (3) breach of the contract by the defendant;
and (4) damages to the plaintiff resulting from that
breach.” Crose v. Humana Ins. Co., 823 F.3d
344, 347-48 (5th Cir. 2016). However, Texas law is also clear
that, “[a] loan agreement in which the amount involved
exceeds $50, 000 in value is not enforceable unless the
agreement is in writing and signed by the party to be bound
or by that party's authorized representative.” Tex.
Bus. & Com. Code § 26.02(b); see also Tex.
Bus. & Com. Code § 26.01(b)(6) (“an agreement
which is not to be performed within one year from the date of
making the agreement” must be in writing to be
enforceable). The Texas statute of frauds specifically
defines a “loan agreement” to include promissory
notes and deeds of trust. Id. § 26.02(a)(2).
breach of contract claim is based on an alleged oral
agreement, made after he entered into written the Note and
became delinquent under its terms, that the Bank would
forebear foreclosure while he pursued a loan modification. As
numerous courts have held, “[b]ecause such an oral
agreement would have altered the terms of the parties'
written loan agreement, which exceeded $50, 000 in value,
such an oral agreement is unenforceable under Texas'
Statute of Frauds.” See, e.g., Terna v. Wells Fargo
Bank, Civil Action No. 4:16-CV-03461, 2017 WL 6513990,
at *3 (S.D. Tex. Nov. 20, 2017), report and recommendation
adopted Dec. 18, 2017; Matthews v. JPMorgan Chase Bank,
N.A., Civil Action No. H-14-2266, 2015 WL 892954, at *2
(S.D. Tex., Mar. 1, 2015) (citing Tex. Bus. & Com. Code
§ 26.02(b) and finding that an alleged oral promise not
to foreclose on a mortgage loan was barred by the statue of
frauds because the loan agreement was for more than $50,
000.00); see also Milton v. U.S. Bank Nat.
Ass'n, 508 Fed. App'x. 326, 328 (5th Cir. 2013)
(collecting cases). Accordingly, summary judgment for the
Bank will be entered this claim.