United States District Court, W.D. Texas, Austin Division
SPARKS SENIOR UNITED STATES DISTRICT JUDGE
REMEMBERED on this day the Court reviewed the file in the
above-styled case, and specifically Plaintiff Dan Sergio De
La Cruz's Motion for Final Summary Judgment [#46],
Plaintiffs Supplemental Authority [#47], Defendant The Bank
of New York Mellon as Trustee of the Certificateholders
CWABS, Inc., Asset-Backed Certificates Series 2005-9
(BONY)'s Response [#48] in opposition, Plaintiffs Reply
[#49] in support, BONY's Supplemental Response [#50] in
opposition, Plaintiffs Sur-Reply [#51] in support, and
BONY's Amended Response [#52] in opposition. Having
reviewed the documents, the governing law, and the file as a
whole, the Court now enters the following opinion and orders.
a residential foreclosure case. Plaintiff purchased the home
at 12713 Bright Sky Overlook, Austin, Texas 78732 (the
Property), as evidenced by the warranty deed recorded with
the County Clerk of Travis County, Texas. See PL
Mot. Summ. J. [#46-1] Ex. A (Warranty Deed). In July 2005,
Plaintiff received a home equity loan in the amount of $325,
400.00 from Loan America, Inc. to refinance a previous loan
on the Property. See Resp. [#48-1] Ex. A-l (Note).
The Note was secured by the Property. Id. Ex. A-2
(Security Instrument). The Note was assigned to BONY on
August 17, 2006. Id. Ex. A-3 (Assignment).
defaulted on his loan in early 2006. See PI. Mot.
Summ. J. [#46] at 4. A notice of default and intent to
accelerate was mailed to Cruz on June 1, 2006. See
Resp. [#48-2] Ex. B-1 (2006 Default and Intent to Accelerate
Notice). BONY sent a notice of acceleration on August 25,
2006. See Resp. [#48-2] Ex. B-2 (2006 Acceleration
Notice). Less than a month later, BONY filed an application
for expedited foreclosure under Texas Rule of Civil Procedure
736. See PL Mot. Summ. J. [#46-4] Ex. D (2006
Foreclosure Application). The state court granted BONY's
application on February 21, 2007, permitting a non-judicial
foreclosure sale. See Resp. [#48-2] Ex. B-3 (First
the First Foreclosure Order issued, on October 27, 2006, BONY
offered Plaintiff a repayment plan to bring his loan up to
date. See PL Mot. Summ. J. [#46-18] Ex. R (2006
Repayment Plan Agreement). The 2006 Repayment Plan Agreement
explicitly states "[i]f we previously notified you that
your Loan is (or will be) accelerated and/or due in full, it
remains accelerated and/or due in full." Id. It
is unclear Plaintiff agreed to the Repayment Plan Agreement.
See Id. (unsigned). BONY accepted loan payments from
Plaintiff in November 2006 and April 2007. See Resp.
[#48-2] Ex. A-4 (Payment History); Resp. [#48] at 12.
more missed payments, BONY sent another notice of
acceleration on July 11, 2007, and soon thereafter filed
another application for expedited foreclosure on August 1,
2007. See Resp. [#48-2] Ex. B-5 (2007 Acceleration
Notice); PL Mot. Summ. J. [#46-7] Ex. G (2007 Foreclosure
Application). The state court granted BONY's application
on January 10, 2008, permitting a non-judicial foreclosure
sale. See PI. Mot. Summ. J. [#46-8] Ex. H (Second
Foreclosure Order). BONY did not proceed with the foreclosure
mailed Plaintiff a payoff demand statement on May 6, 2008,
reflecting the total amount to release the lien on the
Property. See PI. Mot. Summ. J. [#46-17] Ex. Q (2008
Payoff Demand). In addition, BONY sent a reinstatement quote
on December 17, 2010, indicating Plaintiff could bring his
loan current by paying past due payments and fees.
See Resp. [#48-2] Ex. B-7 (2010 Reinstatement
January 14, 2011, BONY sent Plaintiff another notice of
default and intent to accelerate. See Resp. [#48-2]
Ex. B-8 (2011 Default and Intent to Accelerate Notice). BONY
followed up with a notice of acceleration on February 15,
2011. See Resp. [#48-2] Ex. B-9 (2011 Acceleration
Notice). BONY did not proceed with foreclosure before mailing
another reinstatement quote to Plaintiff on March 23, 2012.
See Resp. [#48-2] Ex. B-10 (2012 Reinstatement
filed yet another application for expedited foreclosure on
February 24, 2016. See Resp. [#48-2] Ex. B-ll (2016
Foreclosure Application). The state court granted BONY's
application on November 29, 2016, permitting a non-judicial
foreclosure sale. See Resp. [#48-2] Ex. B-12 (Third
February 1, 2017, Plaintiff filed this lawsuit in the 419
Judicial District Court of Travis County, Texas. See
Notice Removal [#1] at 1. BONY removed the case to this Court
based on diversity jurisdiction. Id. at 3-6.
Plaintiff seeks to quiet title on the Property and also
requests a declaratory judgment that the statute of
limitations expired on BONY's power to foreclose.
See Third Am. Compl. [#43] at ¶¶ 29-39.
BONY filed a counterclaim for judicial foreclosure of the
Property on March 28, 2017. See Counterclaim [#17]
at ¶¶ 10-14.
now moves for summary judgment on its affirmative claim as
well as BONY's counterclaim and affirmative defenses.
See PI. Mot. Summ. J. [#47]. The motion is fully
briefed and ripe for consideration.
Summary Judgment-Legal Standard
Summary judgment shall be rendered when the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine dispute as to any
material fact and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 323-25 (1986);
Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir.
2007). A dispute regarding a material fact is
"genuine" if the evidence is such that a reasonable
jury could return a verdict in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). When ruling on a motion for summary
judgment, the court is required to view all inferences drawn
from the factual record in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986); Washburn, 504
F.3d at 508. Further, a court "may not make credibility
determinations or weigh the evidence" in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000);
Anderson, 477 U.S. at 254-55.
the moving party has made an initial showing that there is no
evidence to support the nonmoving party's case, the party
opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue.
Matsushita, 475 U.S. at 586. Mere conclusory
allegations are not competent summary judgment evidence, and
thus are insufficient to defeat a motion for summary
judgment. Turner v. Baylor Richardson Med. Ctr., 476
F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not
competent summary judgment evidence. Id. The party
opposing summary judgment is required to identify specific
evidence in the record and to articulate the precise manner
in which that evidence supports his claim. Adams v.
Travelers Indent. Co. of Conn., 465 F.3d 156, 164 (5th
Cir. 2006). Rule 56 does not impose a duty on the court to
"sift through the record in search of evidence" to
support the nonmovant's opposition to the motion for
summary judgment. Id.
disputes over facts that might affect the outcome of the suit
under the governing laws will properly preclude the entry of
summary judgment." Anderson, 477 U.S.
at 248. Disputed fact issues that are "irrelevant and
unnecessary" will not be considered by a court in ruling
on a summary judgment motion. Id. If the nonmoving
party fails to make a showing sufficient to establish the
existence of an element essential to its case and on which ...