United States District Court, W.D. Texas, Austin Division
HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR WELLS FARGO HOME EQUITY ASSET-BACKED SECURITIES 2006-3 TRUST, HOME EQUITY ASSET-BACKED CERTIFICATES, SERIES 2006-3; Plaintiff,
CRISTYN D. ERICKSON, WAYNE A. ERICKSON, Defendants.
SPARKS SENIOR UNITED STATES DISTRICT JUDGE
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Plaintiff HSBC Bank USA,
National Association, as Trustee For Wells Fargo Home Equity
Asset-Backed Securities 2006-3 Trust, Home Equity
Asset-Backed Certificates, Series 2006-3 (HSBC)'s Motion
for Summary Judgment [#17], Defendants Cristyn D. Erickson
and Wayne A. Erickson Response [#18] in opposition, and
HSBC's Reply [#19] thereto. Having considered the case
file and the applicable law, the Court enters the following
opinion and orders.
case relates to a home equity loan the Ericksons took out on
their real property located at 7000 Settlers Trail, Dripping
Springs, Texas 78620 on October 11, 2006. Compl. [#1] at 2-3.
The Ericksons borrowed $850, 000 from Wells Fargo Bank, N.A.
(Wells Fargo), pledging the property as security for payment
of the loan. See Compl. [#1-2] Ex. 2 (Note); CompL
[#1-3] Ex. 3 (Security Instrument). HSBC was assigned the
Note by a corrective assignment effective November 5, 2008
and recorded in the Hays County real property records under
Instrument No. ASSG2008016980779. See Compl. [#1-4]
Ex. 4 (Assignment).
Ericksons eventually defaulted. Wells Fargo, acting as
mortgage servicer, sent a Notice of Default and Intent to
Accelerate to the Ericksons on July 18, 2012. See
Compl. [#1-5] Ex. 5 (Notice of Default and Intent to
Accelerate). A Notice of Acceleration followed on August 21,
2012. Compl. [#1] at 4. Acting through counsel, Wells Fargo
initiated foreclosure proceedings on October 22, 2012. The
Ericksons contested the foreclosure proceeding and filed a
lawsuit on March 4, 2013. See Erickson v. Wells Fargo
Bank, N.A. et al, 1:13-CV-00236-SS. This Court granted
Wells Fargo's motion for summary judgment and dismissed
the Ericksons' earlier lawsuit on January 23, 2014.
16, 2016, HSBC notified the Ericksons that it had rescinded
the prior acceleration of the Loan. See Compl.
[#1-6] Ex. 6 (Rescission Notice). Shortly thereafter, on
September 26, 2016, HSBC re-accelerated the Loan by filing an
application for expedited order authorizing foreclosure under
Rule 736 of the Texas Rules of Civil Procedure. See
Compl. [#1-8] Ex. 8 (Foreclosure Application).
filed this lawsuit on May 8, 2017 seeking a judgment
authorizing foreclose of the Ericksons' property.
HSBC's complaint includes claims for breach of contract
and foreclosure of the lien. See Compl. [#1] at
¶¶ 16-33. The Ericksons assert a counterclaim for
trespass to try title and also request a declaratory judgment
that HSBC's lien is invalid. See Answer and
Countcl. [#9] at 5. HSBC has moved for summary judgment on
its foreclosure claim and the Ericksons' counterclaims.
See Mot. Summ. J. [#17]. The motion is now ripe for
Legal Standard-Summary Judgment
judgment shall be rendered when the pleadings, the discovery
and disclosure materials on file, and any affidavits show
that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504
F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material
fact is "genuine" if the evidence is such that a
reasonable jury could return a verdict in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). When ruling on a motion for
summary judgment, the court is required to view all
inferences drawn from the factual record in the light most
favorable to the nonmoving party. Matsushita Elec. Indus.
Co. v. Zenith Radio, 475 U.S. 574, 587 (1986);
Washburn, 504 F.3d at 508. Further, a court
"may not make credibility determinations or weigh the
evidence" in ruling on a motion for summary judgment.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000); Anderson, 477 U.S. at 254-55.
the moving party has made an initial showing that there is no
evidence to support the nonmoving party's case, the party
opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue.
Matsushita, 475 U.S. at 586. Mere conclusory
allegations are not competent summary judgment evidence, and
thus are insufficient to defeat a motion for summary
judgment. Turner v. Baylor Richardson Med. Ctr., 476
F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not
competent summary judgment evidence. Id. The party
opposing summary judgment is required to identify specific
evidence in the record and to articulate the precise manner
in which that evidence supports his claim. Adams v.
Travelers Indem. Co. of Conn., 465 F.3d 156,
164 (5th Cir. 2006). Rule 56 does not impose a duty on the
court to "sift through the record in search of
evidence" to support the nonmovant's opposition to
the motion for summary judgment. Id.
disputes over facts that might affect the outcome of the suit
under the governing laws will properly preclude the entry of
summary judgment." Anderson, 477 U.S. at 248.
Disputed fact issues that are "irrelevant and
unnecessary" will not be considered by a court in ruling
on a summary judgment motion. Id. If the nonmoving
party fails to make a showing sufficient to establish the
existence of an element essential to its case and on which it
will bear the burden of proof at trial, summary judgment must
be granted. Celotex, 477 U.S. at 322-23.
indicated above, HSBC has moved for summary judgment on its
foreclosure claim and the Ericksons' counterclaims. ...