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Ebrahimi v. Caliber Home Loans, Inc.

Court of Appeals of Texas, Fifth District, Dallas

April 15, 2019

FARROKH EBRAHIMI, Appellant
v.
CALIBER HOME LOANS, INC, AND U.S. BANK TRUST, NATIONAL ASSOCIATION, AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST, Appellees

          On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-07628

          Before Justices Myers, Molberg, and Osborne

          MEMORANDUM OPINION

          LANA MYERS JUSTICE.

         Appellant Farrokh Ebrahimi appeals from a summary judgment granted in favor of appellees Caliber Home Loans, Inc., and U.S. Bank Trust, National Association, as trustee for LSF9 Master Participation Trust. In three issues, appellant argues her claims are not barred by res judicata, and that she provided sufficient evidence to support her claims for violation of the Texas Debt Collection Act and the Texas Deceptive Trade Practices and Consumer Protection Act. We affirm.

         Background and Procedural History

         On September 18, 2003, appellant Farrokh Ebrahimi executed a note for $268, 000 that was payable to America's Wholesale Lender. Along with the note, appellant executed a deed of trust (collectively referred to as the "loan") granting a security interest in a property located at 1903 Ridge Creek Drive, Richardson, Texas 75082 (the "property") to secure the note. The deed of trust identified Mortgage Electronic Registration Systems, Inc. ("MERS") as the beneficiary under the security instrument, and America's Wholesale Lender was the lender. The deed of trust specified there would be a period of not less than thirty days from the date the notice of default was given for the borrower to cure the default. MERS subsequently assigned the deed of trust to Bank of America, N.A., the successor by merger to BAC Home Loans Servicing LP, f/k/a Countrywide Home Loans Servicing LP ("Bank of America").

         Appellant defaulted on the loan by failing to make the installment payments. A notice of default dated May 4, 2012, was sent to appellant at the 1903 Ridge Creek Drive address via certified mail. It advised that the "[t]he loan is in serious default because the required payments have not been made," and stated that $15, 237.82 was due within thirty days to cure the default. In a letter to appellant dated May 5, 2016, appellee Caliber Home Loans, Inc. ("Caliber") advised that on April 26, 2016, the servicing of the mortgage loan had been transferred from Bank of America to Caliber. Thereafter, on May 19, 2016, Bank of America assigned and transferred the loan to appellee U.S. Bank Trust, N.A., as trustee for the LSF9 Master Participation Trust ("U.S. Bank").

         Appellant failed to cure her default under the loan and it was referred to foreclosure. A June 6, 2016 notice of acceleration and a notice of a substitute trustee's sale were sent to appellant via certified mail at the Ridge Creek Drive address. The notice of acceleration stated that Caliber was acting as the mortgage servicer for U.S. Bank, the mortgagee of the note, and that the mortgagee had accelerated the maturity date of the debt because of appellant's failure to pay the past-due balance on the debt. The accompanying notice of substitute trustee sale advised that the property would be posted for sale on July 5, 2016. In response to a letter from appellant's former attorney, Caliber sent a letter to appellant dated June 28, 2016, that enclosed a copy of the note, the deed of trust, and the assignment of the deed of trust. The letter reads in part as follows:

Caliber Home Loans, Inc., hereafter known as Caliber, servicer of the above-referenced loan, provides this response to the letter received by Caliber on June 2 7, 2016, wherein [the] Kricken Law Firm requested validation of the debt owed.
* * * *
Loan Background and Status

         Our records reflect the following key events related to the loan:

• September 18, 2003: The loan originated with a principal balance of $268, 000.00 with America's Wholesale Lender.
• The previous servicer of the loan was Bank of America, N.A.
• Caliber began servicing the loan on April 26, 2016.
• The loan is due for May 1, 2012 and subsequent payments.
• The last payment was received on December 11, 2015.
• Due to the delinquency of the loan, the property was referred to foreclosure on January 16, 2015.
• A foreclosure sale has been scheduled for July 5, 2016.

         Validation ...


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