United States District Court, W.D. Texas, San Antonio Division
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY DEAN WITTER CAPITAL I INC. TRUST 2002-AM3 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-AM3, Plaintiff,
CHERYL EMERSON, JOHN ALLEN, AND THE UNKNOWN HEIRS AT LAW OF IDA K. ALLEN, DECEASED, Defendants.
ORDER ON MOTION FOR FINAL SUMMARY JUDGMENT
RODRIGUEZ UNITED STATES DISTRICT JUDGE
date, the Court considered Plaintiff's Motion for Summary
Judgment (docket no. 38) as to Defendant Cheryl Emerson.
Emerson did not respond. Even though unopposed, the Court
will analyze the motion and the applicable law to determine
whether summary judgment is warranted. After careful
consideration, the Court GRANTS Plaintiff's motion.
case, Plaintiff Deutsche Bank National Trust Company, as
trustee for Morgan Stanley Dean Witter Capital I Inc. Trust
2002-AM3 Mortgage Pass-Through Certificates, Series 2002-AM3,
seeks an order allowing foreclosure. On or about May 31,
2002, Ida K. Allen (“Borrower”) executed a
promissory note in the principal amount of $51, 200.00,
repayment of which is secured by a security instrument.
Docket no. 1 at 4. This instrument grants a security interest
in the real property at 7819 Quirt Drive, San Antonio, Texas
78227. Id. Borrower died on or around
September 29, 2014. Id. at 2. Plaintiff pled, on
information and belief, that Borrower died intestate, so
Plaintiff named as defendants Borrower's believed heirs:
John Allen, Cheryl Emerson, and The Unknown Heirs at Law of
Ida K. Allen.
alleges that it is the current owner and holder of the Note
and beneficiary of the security instrument pursuant to a
blank indorsement of the Note and that it is a mortgagee of
the loan agreement. Docket no. 29 at 6. Plaintiff alleges
that Borrower and Defendants defaulted under the terms of the
Note by failing to make monthly payments, which are due for
the May 1, 2017 payment and all subsequent payments.
Id. at 7. Plaintiff sent a notice of default and
intent to accelerate on July 7, 2017, and after the default
remained uncured, sent a notice of acceleration on November
2, 2017. Id.
March 2, 2018, Plaintiff filed its Original Complaint,
seeking declaratory relief that it is the owner and holder of
the Note and beneficiary of the Security Instrument and may
foreclose on the property at issue. Docket no. 1. Plaintiff
named Cheryl Emerson and John Allen as Defendants, upon
information and belief that they are heirs of Ida K. Allen,
deceased, who was the sole obligor under the loan agreement
at issue. Plaintiff also named the Unknown Heirs at Law of
Ida K. Allen, to the extent that they exist and have an
interest in the property, as Defendants.
August 16, 2018, Defendant Cheryl Emerson filed a Suggestion
of Bankruptcy, stating that Emerson is a debtor in a pending
Chapter 13 Bankruptcy in the Western District of Texas that
was filed on August 16, 2018. Docket no. 23. Thus, Emerson
stated that this proceeding is stayed pursuant to 11 U.S.C.
§§ 362, 1301. Id. The Court required the
parties to brief the issue of whether the stay should apply
to the remaining co-defendants pending resolution of
Emerson's bankruptcy case. Docket no. 24. Plaintiff
argued that the stay should not apply to the co-defendants,
docket no. 25, and Defendants did not reply.
the issue was mooted as to co-defendants the Unknown Heirs at
Law of Ida K. Allen. In a status report filed November 13,
the parties stated that the will of Ida K. Allen, admitted to
probate on October 29, narrows the heirship of the estate to
Emerson and John Allen. Docket no. 26. Thus, the Court
granted voluntary dismissal of the Unknown Heirs at Law of
Ida K. Allen on November 14. Docket no. 28. The Court then
ordered that the case proceed as to John Allen despite the
application of the automatic bankruptcy stay to Emerson.
Docket no. 30.
January 22, 2019, the Court granted summary judgment against
Allen. Docket no. 32. The case was administratively closed
while the bankruptcy stay was in place as to Emerson. On
March 14, the case was reopened. Docket no. 35. On June 14,
Plaintiff filed the motion for summary judgment now before
the Court. Docket no. 38. Emerson, the sole remaining
defendant, has not responded and the response deadline has
passed. Plaintiff seeks an order allowing it to foreclose on
the property on the basis that no triable fact issue exists
as to any element of judicial foreclosure under Texas law.
Standard of Review
Court shall 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). To establish that there is no genuine
issue as to any material fact, the movant must either submit
evidence that negates the existence of some material element
of the non-moving party's claim or defense, or, if the
crucial issue is one for which the non-moving party will bear
the burden of proof at trial, merely point out that the
evidence in the record is insufficient to support an
essential element of the non-movant's claim or defense.
Lavespere v. Niagra Machine & Tool Works, Inc.,
910 F.2d 167, 178 (5th Cir. 1990). Once the movant carries
its initial burden, the burden shifts to the non-movant to
show that summary judgment is inappropriate. See Fields
v. City of S. Hous., 922 F.2d 1183, 1187 (5th Cir.
order for a court to conclude that there are no genuine
issues of material fact, the court must be satisfied that no
reasonable trier of fact could have found for the non-movant,
or, in other words, that the evidence favoring the non-movant
is insufficient to enable a reasonable jury to return a
verdict for the non-movant. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 n.4 (1986). In making
this determination, the court should review all the evidence
in the record, giving credence to the evidence favoring the
non-movant as well as the “evidence supporting the
moving party that is uncontradicted and unimpeached, at least
to the extent that evidence comes from disinterested
witnesses.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 151 (2000). The Court “may not
make credibility determinations or weigh the evidence”
in ruling on a motion for summary judgment, id. at
150, and must review all facts in the light most favorable to
the non-moving party, First Colony Life Ins. Co. v.
Sanford, 555 F.3d 177, 181 (5th Cir. 2009).