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US Bank Trust NA v. Berry

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

May 21, 2018

US BANK TRUST NA, Plaintiff and Counter Defendant,
v.
ROBERT M. BERRY, Defendant and Counterclaimant.

          MEMORANDUM AND OPINION ORDER

          JANE J. BOYLE UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiff/Counter Defendant U.S. Bank Trust NA's (US Bank) motion for summary judgment. Doc. 94. For the following reasons, the Court GRANTS the motion.

         I. BACKGROUND[1]

         This is a foreclosure case. On May 29, 2007, Defendant/Counterclaimant Robert Berry purchased his home by executing a note for $340, 000 with an accompanying security instrument. Doc. 95, Pl.'s Br., 2.[2] At closing, Berry executed an equity affidavit and agreement (2007 affidavit) attesting to the propriety of the loan. Id. In November 2009, Berry defaulted. Id. Berry received a notice of default asking him to cure, but he did not do so. Id. The maturity of the debt was accelerated; Berry received notice of that too. Id. at 3-4. So now Berry owes the balance of the loan. Id. at 4.

         Suit was filed in September 2014. Doc. 1. Since then, this case has been litigated before this Court, Ocwen Loan Servicing v. Berry, No. 3:14-CV-3340-P, 2016 WL 8943162 (N.D. Tex. Jan. 29, 2016), and the Fifth Circuit, Ocwen Loan Servicing, L.L.C. v. Berry, 852 F.3d 469 (5th Cir. 2017), which reversed this Court's decision based on the Texas Supreme Court's intervening decision in Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542 (Tex. 2016). This case's lengthy procedural history has whittled down the parties' claims; U.S. Bank asserts in its complaint that it is entitled to judicial foreclosure. Doc. 108, Pl.'s Second Am. Compl., ¶¶ 14-23. And Berry claims his loan is invalid because it does not comply with Tex. Const. art. XVI, § 50. Doc. 26, First Am. Answer, 3-4. U.S. Bank moved for summary judgment on its claim and on Berry's counterclaim. Its motion is now ripe for resolution.

         II. LEGAL STANDARD

         Courts must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute “is ‘genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the non-moving party.” Burrell v. Dr. Pepper/Seven Up Bottling Grp., 482 F.3d 408, 411 (5th Cir. 2007). And a fact “is ‘material' if its resolution could affect the outcome of the action.” Id.

         The summary-judgment movant bears the burden of proving that no genuine issue of material fact exists. Latimer v. Smithkline & French Labs., 919 F.2d 301, 303 (5th Cir. 1990). So the movant must identify “those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). Once the movant has produced evidence on an element or claim or alleged the non-movant has no evidence, the non-movant must “identify specific evidence in the record” and “articulate the precise manner in which that evidence supports [its] claim” to show that a fact issue exists. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). And although the Court views evidence in the light most favorable to the non-movant when determining whether a genuine issue exists, Munoz v. Orr, 200 F.3d 291, 302 (5th Cir. 2000), mere “metaphysical doubt as to material facts, ” “conclusory allegations, ” “unsubstantiated assertions, ” or a mere “scintilla of evidence” will not save a non-movant from summary judgment, Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (per curiam) (internal citations and quotation marks omitted).

         III. U.S. BANK'S OBJECTION TO BERRY'S 2015 AFFIDAVIT

         US Bank asks the Court in its reply to strike Berry's 2015 affidavit in his summary-judgment appendix under the sham-affidavit rule because the 2015 affidavit contradicts his 2007 affidavit. Doc. 103, Pl.'s Reply, 1-2.

         The sham-affidavit rule “prevents a party from defeating a motion for summary judgment ‘using an affidavit that impeaches, without explanation, sworn testimony.'” Robinson v. Nexion Health At Terrell, Inc., 671 Fed.Appx. 344 (5th Cir. 2016) (per curiam) (quoting S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996)). Sham affidavits are not admissible. Keller v. Coastal Bend Coll., 629 Fed.Appx. 596, 601 n.4 (5th Cir. 2015). The 2007 affidavit is not entirely inconsistent with the 2015 affidavit, so the Court will not strike the 2015 affidavit in its entirety. But the Court will strike the conflicting portions of the 2015 affidavit as discussed below.

         IV. ANALYSIS

         US Bank asserts it is entitled to judicial foreclosure because Berry defaulted. Doc. 95, Pl.'s Br., 14-17. U.S. Bank also seeks summary judgment on Berry's counterclaim under Tex. Const. art. XVI, § 50. Id. at 6-13. Berry claims in his response that U.S. Bank cannot obtain a judicial-foreclosure order because his loan does not comply with Tex. Const. art. XVI, § 50. Doc. 101, Def.'s Resp., 7-12. U.S. Bank's request for judicial foreclosure turns on whether Berry's loan complies with § 50. Wood, 505 S.W.3d at 546-550. Therefore, the Court will first address Berry's § 50 claim and then decide whether U.S. Bank is entitled to judicial foreclosure.

         A.Berry's ...


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