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Horton v. Select Porfolio Servicing, Inc.

United States District Court, N.D. Texas, Fort Worth Division

May 8, 2018

LISA N. HORTON, Plaintiff,
v.
SELECT PORTFOLIO SERVICING, INC., Defendant.

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

          HAL R. RAY, JR. UNITED STATES MAGISTRATE JUDGE

         Before the Court is Defendant's Motion for Summary Judgment (ECF No. 11) with Brief (ECF No. 12) and Appendix in Support (ECF No. 13), filed February 9, 2018. As of the date of this Recommendation, Plaintiff Lisa Horton has not filed a response to Defendant's Motion. After considering the pleadings and applicable law, the undersigned RECOMMENDS that United States District Judge Reed O'Connor GRANT Defendant's Motion for Summary Judgment and DISMISS Plaintiff's claims with prejudice.

         BACKGROUND

         On March 2, 2017, Plaintiff Lisa Horton (“Plaintiff”) filed her Original Petition in the 67th Judicial District Court of Tarrant County, Texas. ECF Nos. 1 at 1; 1-4. On March 31, 2017, Select Portfolio Servicing, Inc. (“Defendant”) timely removed the suit to this Court. ECF No. 1. Plaintiff's claims are based on allegedly improper notices regarding her home equity loan and an attempted foreclosure sale of the property located at 1505 Hudnall Farm Rd., Keller, Texas 76248 (the “Property”). ECF No. 1-4 at 3.

         Defendant filed the instant Motion for Summary Judgment, seeking dismissal of Plaintiff's claims. ECF Nos. 11-12. The Motion is confined to the following arguments: (1) Plaintiff's claims under 12 C.F.R. § 1024.41 is barred by res judicata and fails as a matter of law because the loss mitigation application at issue in this case was not Plaintiff's first complete application, and (2) Plaintiff provides no evidence of damages. ECF No. 11. Plaintiff did not file a response to Defendant's Motion.

         LEGAL STANDARD

         Summary judgment is appropriate when, viewing the evidence and all justifiable inferences in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Hunt v. Cromartie, 526 U.S. 541, 549 (1999). The appropriate inquiry for the Court to make is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

         The party moving for summary judgment has the initial burden to prove there are no genuine issues of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). In sustaining this burden, the movant must identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In response, the nonmovant “may not rest upon mere allegations contained in the pleadings, but must set forth and support by summary judgment evidence specific facts showing the existence of a genuine issue for trial.” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Anderson, 477 U.S. at 255-57).

         When the nonmovant files no response to a summary judgment motion, the Court nevertheless cannot grant a default judgment, even if the failure to respond violates a local rule. Hibernia Nat. Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985). The district court may only grant the motion if the movant has established the absence of a genuine material fact. Id. The court may, however, accept the movant's evidence and factual assertions as undisputed. Fed. R. Civ. Pro. 56(e)(2); Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988) (affirming summary judgment as the defendant's “submittals made a prima facie showing of its entitlement to judgment”). “A summary judgment nonmovant who does not respond to the motion is relegated to [his] unsworn pleadings, which do not constitute summary judgment evidence.” Bookman v. Shubzda, 945 F.Supp. 999, 1002 (N.D. Tex. 1996).

         ANALYSIS

         As Horton did not file a response to the Motion for Summary Judgment, the undersigned takes as undisputed the facts and evidence that the Defendants submitted in support of its Motion. The undisputed facts are as follows. On October 20, 2006, Plaintiff signed a Promissory Note payable to W.R. Starkey, in the amount of $246, 400.00, which was secured by a Deed of Trust (collectively the “Loan”). ECF No. 12 at 6. The Loan was subsequently assigned and transferred to Defendant. Id. Plaintiff states that she submitted a complete submitted a complete loan modification package to Defendant. Id. Plaintiff contends that since submitting the application, she received no notice or communication in connection with her request for mortgage assistance. See Id. Plaintiff failed to make her January 1, 2008 mortgage payment. ECF No. 1-4 at 3-4. According to Defendant, Plaintiff filed for bankruptcy in 2007, 2009, 2010, 2011, and 2014. ECF No. 12 at 6.

         In 2015, Plaintiff submitted a complete application for loan medication. See ECF No. 13 at 30. On March 3, 2016, Defendant offered Plaintiff a Streamline Home Affordable Trial Modification Plan. Id. at 60. Plaintiff, however, allowed the offer to expire and continued to default on her mortgage payments. Id. at 71. On January 22, 2016, a notice of default was sent to Plaintiff, providing thirty days to cure. Id. at 75. On July 11, 2016, Defendant accelerated the Loan and notified Plaintiff, again, that she was in default. Id. at 84. Plaintiff then filed a lawsuit against Defendant on October 28, 2016, which was dismissed with prejudice. Id. at 230. On February 13, 2017, Defendant posted the Property for foreclosure sale on March 7, 2017. Id. at 90. Plaintiff then filed the instant Complaint on March 2, 2017. ECF No. 1-4.

         Defendant argues that Plaintiff's claims are barred by res judicata because the Court entered a final judgment dismissing Plaintiff's identical claims with prejudice. ECF No. 12 at 3. Res judicata applies where (1) the parties to both actions are identical (or at least in privity); (2) the judgment in the first action is rendered by a court of competent jurisdiction; (3) the first action concluded with a final judgment on the merits; and (4) the same claim or cause of action is involved in both suits. Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005). Further, res judicata “precludes the relitigation of claims which have been fully adjudicated or arise from the same subject matter, and that could have been litigated in the prior action.” Palmer v. Fed. Home Loan Mortg. Corp., No. 4:13-CV-430-A, 2013 WL 2367794, at *2 (N.D. Tex. May 30, 2013) (citing Nilsen v. City of Moss Point, 701 F.2d 556, 561 (5th Cir.1983)).

         Here, Plaintiff previously filed the same action against Defendant on October 28, 2016, which Defendant removed to the United States District Court for the Northern District of Texas, Fort Worth Division. Horton v. Select Portfolio Serv. Inc., No. 4:16-cv-01044-A (N.D. Tex. Nov. 10, 2016). Defendant argues that Plaintiff's claims are barred by res judicata because this is Plaintiff's second time prosecuting the same claims challenging the foreclosure of the Property involving the identical parties. On January 3, 2017, Judge McBryde of this district entered a final judgment dismissing Plaintiff's claims with prejudice. Horton v. Select Portfolio Serv. Inc., No. 4:16-cv-01044-A (N.D. Tex. Nov. 10, 2016). Plaintiff filed her second action in state court involving the attempted foreclosure of the Property at issue in the instant action, which was removed to this Court on March 31, 2017. ECF No. 1. Upon review of the two complaints, the undersigned finds that they are virtually identical. Compare Horton v. Select Portfolio Serv. Inc., No. 4:17-cv-00275-O-BP (N.D. Tex. Mar. 31, 2017), with Horton v. Select Portfolio Serv. Inc., No. 4:16-cv-01044-A (N.D. Tex. Nov. 10, 2016). Because all the elements of claim preclusion are satisfied, Plaintiff's claims against Defendant are barred and should ...


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