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Crear v. Select Portfolio Servicing, Inc.

United States District Court, N.D. Texas, Dallas Division

May 16, 2018

STEVEN CREAR, SR., Plaintiff,
v.
SELECT PORTFOLIO SERVICING, INC. & DEUTSCHE BANK TRUST COMPANY, NATIONAL ASSOCIATION AKA 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, Defendants.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER UNITED STATES DISTRICT JUDGE.

         In this 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.

         I

         In 2005 Crear obtained a home equity loan in the amount of $114, 400.[1] 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.

         The 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.

         On November 5, 2012, after JPMorgan Chase Bank, N.A. (“Chase”)[2] 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.

         The 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, 2016.

         On 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.

         After 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.

         II

         Defendants 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.

         Because 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) (Fitzwater, J.)).

         III

         Before addressing defendants' motion for summary judgment, the court will consider Crear's objections to defendants' summary judgment evidence that are pertinent to the ...


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