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HSBC Bank USA, National Association v. Erickson

United States District Court, W.D. Texas, Austin Division

February 28, 2018

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,
v.
CRISTYN D. ERICKSON, WAYNE A. ERICKSON, Defendants.

          ORDER

          SAM SPARKS SENIOR UNITED STATES DISTRICT JUDGE

         BE IT 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.

         Background

         This 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).

         The 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.

         On June 16, 2016, HSBC notified the Ericksons that it had rescinded the prior acceleration of the Loan.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).

         HSBC 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 consideration.

         Analysis

         I. Legal Standard-Summary Judgment

         Summary 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.

         Once 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.

         "Only 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.

         II. Application

         As indicated above, HSBC has moved for summary judgment on its foreclosure claim and the Ericksons' counterclaims. ...


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