United States District Court, N.D. Texas, Dallas Division
MEMORANDUM AND OPINION ORDER
J. BOYLE UNITED STATES DISTRICT JUDGE
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
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. 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.
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
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.”
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).
U.S. BANK'S OBJECTION TO BERRY'S 2015
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.
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
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.