United States District Court, W.D. Texas, Austin Division
MARIO A. MATA and LILY C. MATA Plaintiffs,
WELLS FARGO BANK, N.A. as Trustee for SABR Trust 2004-OPI, Mortgate Pass-Through Certificates, Series 2004-OPI, Defendant.
SPARKS SENIOR UNITED STATES DISTRICT JUDGE
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Defendant Wells Fargo
Bank, N.A., as Trustee for SABR Trust 2004-OPI, Mortgage
Pass-Through Certificates, Series 2004-OPI (Wells
Fargo)'s Motion to Dismiss [#3]. Plaintiffs Mario A. Mata
and Lily C. Mata (the Matas) filed no response. Having
reviewed the document, the governing law, and the file as a
whole, the Court now enters the following opinion and order
GRANTING the motion.
a wrongful foreclosure lawsuit relating to real property
located at 2804 Hubbard Circle, Austin Texas (the Property).
recited by this Court in prior lawsuit, on December 3, 2003,
Mr. Mata executed a home equity note in the principal amount
of $380, 000. Removal Notice [#1-1] Ex. A (Pet.) ¶ 8;
see also Wells Fargo Bank v. Mata, A-14-CA-00909-SS,
2016 WL 7616627, at *1 (W.D. Tex. Oct. 12, 2016). The Note
was secured by a Deed of Trust (Security Instrument) on the
Property (collectively, Loan Agreement). Pet. ¶ 9. Wells
Fargo is the current holder of the Note and Security
Instrument. Id. Mr. Mata defaulted in 2009.
October 1, 2014, Wells Fargo filed a foreclosure proceeding
in this Court, which found Wells Fargo entitled to summary
judgment (Lawsuit I). See Pet. ¶ 10; see
also Wells Fargo Bank, 2016 WL 7616627. In particular,
this Court held:
[Wells Fargo] properly notified [the Matas] of their default
and its intent to accelerate. Since then, [the Matas] have
failed to cure their default and have offered no valid
defense to this judicial foreclosure action. Instead, they
have lived rent free for almost eight years. Based on the
foregoing, the Court finds [Wells Fargo] is entitled to
judicial foreclosure and sale of the Property as a matter of
Wells Fargo Bank, 2016 WL 7616627, at *5. This Court
entered a judgment that Wells Fargo was permitted to
foreclose on the Property. The Matas appealed.
Fifth Circuit affirmed this Court's summary judgment
decision on a single issue-Wells Fargo's right to
foreclosure was not barred by statute of limitations-but
noted this Court's finding "Wells Fargo did in fact
have the right to foreclose and that none of the Matas'
objections are valid" "was carefully
reasoned-----" Wells Fargo Bank, Nat'l Ass
'nfor SABR Tr. 2004-OPI, Mortgage Pass-Through
Certificates, Series 2004-OPI v. Mata, 694 Fed.Appx.
336, 337 (5th Cir. 2017).
September 7, 2017, Select Portfolio Servicing, Inc., acting
as the servicer of the Matas' loan, notified Mr. Mata
that the Property would be scheduled for a November 7, 2017
sale. Pet. ¶ 12. On October 4, 2017, Wells Fargo,
through its foreclosure counsel, noticed the Property for a
foreclosure sale to take place on November 7, 2017, and
provided a Notice of Posting and Sale to each of the Matas.
See Pet. Ex. D, E (Notices).
morning of November 7, 2017, the Matas filed a lawsuit in
state court to enjoin the foreclosure sale (Lawsuit II).
See Mata v. Wells Fargo Bank, No. 1:17-cv-1094-SS
(W.D. Tex. Dec. 17, 2017). The foreclosure sale proceeded as
scheduled. Mot. Dismiss [#3-2] Ex. B (Foreclosure Sale Deed).
The Matas nonsuited Lawsuit II almost simultaneously with
Wells Fargo's removal of the suit to this Court.
See Mot. Dismiss, Mata, No.
1:17-cv-1094-SS. This Court therefore dismissed Lawsuit II.
See Order of Dec. 14, 2017, Mata, No.
April 20, 2018, the Matas filed the present lawsuit in state
court, alleging Ms. Mata did not receive a notice of default
and an opportunity to cure that default prior to receiving
notice of a foreclosure sale set for November 7, 2017
(Lawsuit III). Pet ¶¶ 7, 10, 12. The Matas seek (1)
a temporary restraining order enjoining Wells Fargo from
selling, taking possession of, or disturbing the Matas'
possession of the Property during this suit, (2) invalidation
of the Substitute Trustee's Sale of the Property, and (3)
a ruling "the defectiveness that occurred in the alleged
foreclosure [was] so serious that the alleged foreclosure of
Plaintiffs' home was null and void." Id.
¶ 18. On April 27, 2018, Wells Fargo removed the case to
Fargo now moves to dismiss the Matas' claims, arguing the
Matas fail to state a claim for relief. The Matas did not