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Holman v. U.S. Bank, N.A.

United States District Court, N.D. Texas, Dallas Division

March 1, 2018

GAYA K. HOLMAN, Plaintiff,
v.
U.S. BANK, N.A., and NATIONSTAR MORTGAGE, L.L.C., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          REBECCA RUTHERFORD UNITED STATE MAGISTRATE JUDGE

         This case has been referred to the United States Magistrate Judge for pretrial management. Before the Court are (1) a Motion for Summary Judgment, filed by Defendants U.S. Bank, N.A. (“U.S. Bank”) and Nationstar Mortgage, L.L.C. (“Nationstar”); and (2) a Motion for Summary Judgment, filed by Plaintiff Gaya K. Holman. For the reasons stated, the District Court should DENY Plaintiff's Motion for Summary Judgment [ECF No. 24], and GRANT Defendants' Motion for Summary Judgment [ECF No. 27].

         BACKGROUND

         This civil action arises out of foreclosure proceedings initiated against certain real property located in Dallas County, Texas (the “Property”).

         Plaintiff, proceeding pro se, [1] filed her Original Petition against U.S. Bank, Nationstar, First Franklin Financial Corp. (“Franklin”), and Bank of America, N.A. (“BOA”), in the 68th Judicial District Court, in Dallas County, Texas, on November 17, 2014. Original Pet. [ECF No. 1-4 at 8-11]. In her Original Petition, Plaintiff alleged that she is the owner of the Property and that U.S. Bank was seeking to foreclose on the Property pursuant to an Application for an Expedited Order under Rule 736 on a Home Equity Loan. Original Pet. [ECF No. 1-4 at 10]. Plaintiff challenged the attempted foreclosure on the sole ground that such action was barred by the statute of limitations. Original Pet. [ECF No. 1-4 at 10].

         On November 26, 2014, Plaintiff filed an Amended Petition asserting several additional causes of action, including breach of contract, promissory estoppel, and negligent misrepresentation/gross negligence. Am. Pet. [ECF No. 1-4 at 22-34]. On July 18, 2016, Plaintiff filed a Second Amended Petition adding claims for equitable estoppel - fraudulent concealment, fraud, wrongful foreclosure, violations of the federal Fair Debt Collection Practices Act (“FDCPA”) and the Texas Deceptive Trade Practices Act (“DTPA”), and quiet title. 2d Am. Pet. [ECF No. 1-4 at 122- 140]. Defendants timely removed the case to federal court based on federal question jurisdiction, because the Second Amended Petition alleges a cause of action under the FDCPA. Notice of Removal 5 [ECF No. 1]; 2d Am. Pet. [ECF No. 1-4 at 135-37]. Defendants further asserted that the District Court has supplemental jurisdiction over Plaintiff's state law claims, because the state law claims are related to the federal claim so that they are “part of the same case or controversy under Article III of the United States Constitution.” Notice of Removal 5 [ECF No. 1] (citing 28 U.S.C. § 1367).

         On March 28, 2017, Plaintiff, Franklin, and BOA filed a Joint Stipulation of Voluntary Dismissal with Prejudice as to Plaintiff's claims against Franklin and BOA. Joint Stipulation [ECF No. 21]. Therefore, only Plaintiff's claims against U.S. Bank and Nationstar remain before this Court. Plaintiff, on the one hand, and U.S. Bank and Nationstar, on the other, have filed cross-motions for summary judgment as to all of the claims and cause of action asserted in this civil action. The parties have fully briefed the summary judgment motions, and the motions are ripe for determination.

         STANDARD OF REVIEW

         Summary judgment is proper when “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). A party seeking summary judgment bears the initial burden of showing the absence of a genuine issue for trial. See Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995). The movant's burden can be satisfied by demonstrating that there is an absence of evidence which supports the nonmoving party's case for which that party would have the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant meets its initial burden, the non-movant must show that summary judgment is not proper. See Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their respective burdens “by tendering depositions, affidavits, and other competent evidence[.]” See Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). The party opposing the summary judgment motion must identify specific evidence in the record and state the precise manner in which that evidence supports the party's claim. Esquivel v. McCarthy, 2016 WL 6093327, at *2 (N.D. Tex. Oct. 18, 2016) (citing Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1988)). “[T]he court is under no duty to sift through the record to find evidence that supports a nonmovant's opposition to a motion for summary judgment.” Id. (citing Ragas, 136 F.3d at 458; Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992)). All evidence must be viewed in the light most favorable to the party opposing the summary judgment motion. See Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993).

         ANALYSIS

         The summary judgment evidence establishes that Plaintiff executed a Texas Home Equity Security Instrument (the “Security Instrument”) on January 11, 2007, granting a security interest in the Property to secure the payment of a debt evidenced by a Texas Home Equity Note (the “Note”) in favor of Franklin. Defs.' App'x 9, 81 [ECF No. 29]; see also Pl.'s App'x, Ex. 1, 2 [ECF No. 35]. Plaintiff failed to make the required payments pursuant to the terms of the Note. See Defs.' App'x. 117 [ECF No. 29]. On September 10, 2008, Plaintiff entered a repayment plan; and, thereafter, on November 20, 2008, Plaintiff entered a Modification Agreement. See Defs.' App'x. 118. However, Plaintiff defaulted under the Modification Agreement, by failing to making required payments. See Defs.' App'x. 118. On March 6, 2009, the lender notified Plaintiff that her loan was in default and that she must cure the past due amounts by April 5, 2009 or the lender “will accelerate” on her loan. Pl.'s App'x, Ex. 3 [ECF No. 35]. After Plaintiff failed to cure the default, the lender accelerated the loan on April 27, 2009: “the maturity date of the Note was accelerated effective 4/27/2009.” Pl.'s App'x, Ex. 4 [ECF No. 35].

         In June 2009, Plaintiff entered a second repayment plan (“Repayment Plan”) to avoid foreclosure of the Property. Defs.' App'x. 119 [ECF No. 29]; see also Pl.'s App'x, Ex. 3 [ECF No. 35]. The terms of the Repayment Plan required Plaintiff to make twenty monthly payments between June 25, 2009 and January 15, 2011. See Id. The Repayment Plan provided that there would be no grace period during the Repayment Plan, that if payments were not remitted in accordance with the Repayment Plan, “[the] agreement w[ould] be immediately null and void without any further notice or demand on [FFLS's] part, ” and that “[a]ny foreclosure action [the lender] may have previously initiated w[ould] resume.” Defs.' App'x. 23-24 [ECF No. 29]. It is undisputed that Plaintiff failed to remit any payments due under the Repayment Plan for August 2009, September 2009, December 2009, and January 2010, and that she remitted less than the full payment amount for payments due in July 2010, August 2010, and September 2010. Defs.' App'x. 122-25 [ECF No. 29]. It is further undisputed that Plaintiff failed to make any payments under the Repayment Plan after September 2010.

         The summary judgment evidence also shows that on November 10, 2010, BAC, Plaintiff's loan servicer at the time, sent Plaintiff a Notice of Default warning her that the Loan “is in serious default” and that “[i]f the default is not cured . . . [then] the [Loan] will be accelerated . . . . [which] may result in the foreclosure and sale of [the] [P]roperty.” Defs.' App'x. 44 [ECF No. 29]. On or about July 1, 2011, Plaintiff's loan servicing was transferred to BOA. Defs.' App'x. 58 [ECF No. 29]. BOA sent Plaintiff a Notice of Default and Intent to Accelerate on October 11, 2011. Defs.' App'x. 63 [ECF No. 29]. An Application for an Expedited Order Under Rule 736 on a Home Equity Loan was subsequently filed in Dallas County District Court. Defs.' App'x. 147 [ECF No. 29].

         Plaintiff contends that, pursuant to the express terms of the Repayment Plan, the Repayment Plan was “null and void, ” and Defendants' foreclosure attempts resumed as if the Repayment Plan never existed. Further, Plaintiff contends that the lender's 2009 notice of default and acceleration remained intact and was never abandoned. Plaintiff therefore moves for summary on the ground that Defendants are barred by the applicable four-year statute of limitations from foreclosing on the Property.

         Defendants seek summary judgment as to all of Plaintiff's claims and causes of action, on various grounds. The motions have been fully briefed and are ripe for determination. However, Plaintiff failed to respond to any of Defendants' summary ...


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