United States District Court, N.D. Texas, Dallas Division
GAYA K. HOLMAN, Plaintiff,
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
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].
civil action arises out of foreclosure proceedings initiated
against certain real property located in Dallas County, Texas
proceeding pro se,  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].
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).
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
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).
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].
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.
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.
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.
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