United States District Court, S.D. Texas, Houston Division
KELLY ANN PATTON, AS SUCCESSOR AGENT AND ATTORNEY-IN-FACT FOR PATRICIA ANN PATTON, Plaintiff,
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendants.
MEMORANDUM & OPINION GRANTING THE DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
Rosenthal, Chief United States District Judge
Ann Patton and Christi Lee Patton sued on behalf of their
mother, Patricia Ann Patton, to prevent JP Morgan Chase from
foreclosing on Patricia Patton's house. The defendants
moved for summary judgment, (Docket Entry No. 34), and the
plaintiffs did not respond. The motion for summary judgment
is granted and final judgment is entered by separate order,
for the reasons analyzed below.
material facts are undisputed. In October 2001, Richard and
Patricia Patton bought property in Houston, Texas. Richard
Patton applied for and obtained a Veterans Affairs mortgage
loan from Home Trust Company. The Pattons made monthly
payments on the mortgage until May 2004, when Richard Patton
died. Shortly after the will was probated, Patricia Patton
became the sole owner of the property. In 2005, Chase became
the holder and servicer of the mortgage loan on the property.
Patton contacted Chase to discuss modifying the loan because
of her limited income. Chase declined to modify her loan
terms or her monthly payments. When she fell behind in the
payments, Chase accelerated the loan in December 2004 and
posted the property for foreclosure sale in January 2005.
Patricia Patton has made no payments on the mortgage since
January 2005. She has lived on the property throughout that
Patton filed for Chapter 7 bankruptcy protection and received
a discharge in April 2005. Her mortgage loan was unaffected.
Chase issued a “default and acceleration warning
notice” in September 2008, giving her the option to pay
the past due amount or face acceleration of the loan. In
April 2011, Chase sent a written notice rescinding an earlier
acceleration. In August 2011, Chase issued another default
and acceleration warning notice, giving Patricia Patton the
same option to pay the past due amount or face acceleration
of the loan. She did not make any payments. Chase posted the
property for foreclosure sale in November 2012. Patricia
Patton filed for Chapter 13 bankruptcy protection, which was
confirmed in February 2013.
December 2015, Patricia Patton was suffering from dementia.
In March 2016, her daughter, Kelly Patton became involved to
try to prevent the foreclosure. Between October and December
2016, Kelly Patton contacted Chase to seek a loan
modification on her mother's behalf. Kelly Patton alleges
that in December 2016, a Chase representative told her in a
phone call that her mother qualified for a loan modification.
Shortly after that, Chase sent a letter to Kelly and Patricia
Patton that Patricia Patton might qualify for a loan
assumption and modification program. They sent in the
required documents to apply. In February 2017, Chase denied
the application because it “service[d] the mortgage on
behalf of an investor or group of investors that hasn't
approved a loan assumption and modification under this
program.” (Docket Entry No. 27-11 at 2). Kelly Patton
contacted the Veterans Affairs Administration and learned
that Patricia Patton would have to cure the loan default
before the assumption or modification request could be
considered. They did not cure the default or make any
payment. In May 2017, Chase advised the Pattons that the
property would be posted for foreclosure sale on July 4,
2017. Kelly Patton requested a loan modification or other
assistance from Chase in June 2017, without making any
payment. Chase did not reply.
plaintiffs sued in Texas state court. Chase timely removed on
the basis of diversity of citizenship. (Docket Entry No. 1).
The court granted Chase's motion to dismiss in November
2017, but granted the plaintiffs leave to amend to add a
claim for declaratory judgment. (Docket Entry No. 25). The
Pattons amended their complaint, and Chase moved for summary
judgment. (Docket Entry Nos. 27, 34). The plaintiffs filed
two motions for extensions of time to respond to the motion
based on settlement negotiations. (Docket Entry Nos. 36, 38).
The last extension ended on March 21, 2018. In a status
report, the parties explain that they are continuing to
discuss settlement, but that the “Plaintiffs are not
compelled to spend the time and expense to respond” to
the motion for summary judgment. (Docket Entry No. 40). They
have not done so, and have not reported a settlement.
only issue is whether Chase's prior loan accelerations,
which were not followed by foreclosure within four years, bar
its ability to foreclose now.
The Legal Standard
judgment is appropriate only if ‘there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.'” Vann v. City of
Southaven, Miss., 884 F.3d 307, 309 (5th Cir. 2018)
(citations omitted); see also 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.'” Burrell v.
Prudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir.
2016) (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.'” Brandon v.
Sage Corp., 808 F.3d 266, 269-70 (5th Cir. 2015)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
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 .
. . that there is an issue of material fact warranting
trial.'” Kim v. Hospira, Inc., 709 Fed.
App'x 287, 288 (5th Cir. 2018) (quoting Nola Spice
Designs, L.L.C. v. Haydel Enters., Inc., 783
F.3d 527, 536 (5th Cir. 2015)). While 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. Austin v. Kroger
Tex., L.P., 864 F.3d 326, 335 (5th Cir. 2017) (quoting
Little v. Liquid Air Corp., 37 F.3d 1069, 1076 n.16
(5th Cir. 1994)). A fact is material if “its resolution
could affect the outcome of the actions.” Aly v.
City of Lake Jackson, 605 Fed. App'x 260, 262 (5th
Cir. 2015) (citing Burrell v. Dr. Pepper/Seven UP
Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007)).
“If the moving party fails to meet [its] initial
burden, the motion [for summary judgment] must be denied,
regardless of the nonmovant's response.”
Pioneer Exploration, LLC v. Steadfast Ins. Co., 767
F.3d 503 (5th Cir. 2014).
the moving party has met its Rule 56(c) burden, the nonmoving
party cannot survive a summary judgment motion by resting on
the mere allegations of its pleadings.” Bailey v.
E. Baton Rouge Par. Prison, 663 Fed. App'x 328, 331
(5th Cir. 2016) (quoting Duffie v. United States,
600 F.3d 362, 371 (5th Cir. 2010)). The nonmovant must
identify specific evidence in the record and articulate how
that evidence supports that party's claim. Willis v.
Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014).
“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.'” Jurach v. Safety
Vision, LLC, 642 Fed. App'x 313, 317 (5th Cir. 2016)
(quoting Boudreaux v. Swift Transp. Co., 402 F.3d
536, 540 (5th Cir. 2005)). In deciding a summary judgment
motion, the court draws all reasonable inferences in the
light most favorable to the nonmoving party. Darden v.
City of Fort Worth, 866 F.3d 698, 702 (5th Cir. 2017).