United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER UNITED STATES DISTRICT JUDGE.
action seeking declaratory relief, defendants Select
Portfolio Servicing, Inc. (“SPS”) and Deutsche
Bank National Trust Company, as Trustee, in trust for
registered Holders of Long Beach Mortgage Loan Trust
2005-WL2, Asset-Backed Certificates, Series 2005-WL2
(“Deutsche Bank”) move for summary judgment on
all claims. Plaintiff Steven Crear, Sr. (“Crear”)
cross-moves for summary judgment. For the reasons that
follow, the court grants SPS's and Deutsche Bank's
motion, denies Crear's cross-motion, and dismisses this
action with prejudice by judgment filed today.
Crear obtained a home equity loan in the amount of $114,
He executed a promissory note (“Note”) and
secured the indebtedness by executing a deed of trust that
encumbered the property, which was located in Dallas (the
“Property”), for the benefit of the Long Beach
Mortgage Company. Under the terms of the Note and deed of
trust (collectively, the “Loan”), if Crear did
not pay the full amount of each monthly payment when due, the
lender had the right to accelerate the loan without notice or
demand. If Crear did not cure the default before the date
stated in the acceleration notice, the lender could invoke
the power of sale.
Loan requires monthly payments until May 1, 2035, but Crear
has made no payments since December 1, 2007. On February 9,
2009 Washington Mutual Bank, F.A. (“Washington
Mutual”), the Loan servicer, sent Crear a Notice of
Acceleration. Washington Mutual then sent a Fair Debt
Collection Practice (“FDCPA”) Notification on
December 4, 2009 (the “2009 FDCPA Notice”),
listing the amount required to cure the default under the
Loan as $28, 855.67, and the total amount required to pay off
the debt as $145, 300.86. It sent another FDCPA Notification
on July 16, 2010 (the “2010 FDCPA Notice”),
listing the amount required to cure the default under the
Loan as $38, 512.98 and the total amount required to pay off
the debt as $152, 781.35.
November 5, 2012, after JPMorgan Chase Bank, N.A.
(“Chase”) began servicing the Loan, Chase sent to
Crear via certified mail at the Property address four notices
of acceleration and intent to foreclose, listing the total
amount past due as $80, 623.23. The notices informed Crear
that he was in default because he had failed to pay the
required monthly payments commencing with the payment due
December 1, 2007. It also stated that, if Crear did not make
the payments listed in the notices within 35 days of the date
of the notice, Chase would accelerate the maturity of the
loan and commence foreclosure proceedings. Chase sent four
additional copies of the acceleration notice and intent to
foreclose via First-Class mail to the Property address.
servicing of the Loan was transferred from Chase to SPS on
May 1, 2013. SPS sent Crear two Demand Letter-Notice of
Default statements-one on July 2, 2013 and one on June 16,
November 23, 2016 defendants notified Crear that a
foreclosure sale was scheduled for January 3, 2017. On
December 12, 2016 Crear filed suit in state court, seeking a
declaratory judgment that defendants' right to foreclose
on the Property was barred by the statute of limitations, and
requesting injunctive relief enjoining the foreclosure sale.
defendants removed the case to this court, defendants moved
for summary judgment on Crear's claims. The court granted
the motion and entered summary judgment in defendants'
favor after Crear failed to respond to the motion. Without
opposition from defendants, Crear moved to vacate the summary
judgment, and the court granted the motion. The court now
addresses anew defendants' summary judgment motion and
Crear's cross-motion. Both motions are opposed.
move for summary judgment on claims for which Crear will have
the burden of proof at trial. Because Crear will have the
burden of proof, defendants' burden at the summary
judgment stage is to point the court to the absence of
evidence of any essential element of Crear's claim.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once they do so, Crear must go beyond his pleadings
and designate specific facts demonstrating that there is a
genuine issue for trial. See Id. at 324; Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(en banc) (per curiam). An issue is genuine if the evidence
is such that a reasonable jury could return a verdict in
Crear's favor. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Crear's failure to
produce proof as to any essential element of a claim renders
all other facts immaterial. TruGreen Landcare, L.L.C. v.
Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007)
(Fitzwater, J.). Summary judgment is mandatory where Crear
fails to meet this burden. Little, 37 F.3d at 1077.
Crear will have the burden of proof at trial on his
declaratory judgment claim, to be entitled to summary
judgment on this claim, he “must establish
‘beyond peradventure all of the essential elements of
the claim[.]'” Bank One, Tex. N.A. v.
Prudential Co. Of Am., 878 F.Supp. 943, 962 (N.D. Tex.
1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn
Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). This means
that Crear must demonstrate that there are no genuine and
material fact disputes and that he is entitled to summary
judgment as a matter of law. See Martin v. Alamo Cmy.
Coll. Dist., 353 F.3d 409, 412 (5th Cir. 2003).
“The court has noted that the ‘beyond
peradventure' standard is ‘heavy.'”
Carolina Cas. Ins. Co. v. Sowell, 603 F.Supp.2d 914,
923-24 (N.D. Tex. 2009) (Fitzwater, C.J.) (quoting
Cont'l Cas. Co. v. St. Paul Fire & Marin Ins.
Co., 2007 WL 2403656, at *10 (N.D. Tex. Aug. 23, 2007)
addressing defendants' motion for summary judgment, the
court will consider Crear's objections to defendants'
summary judgment evidence that are pertinent to the ...