United States District Court, N.D. Texas, Fort Worth Division
LISA N. HORTON, Plaintiff,
SELECT PORTFOLIO SERVICING, INC., Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RAY, JR. UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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).
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
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).
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.
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.
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)).
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 ...