United States District Court, W.D. Texas, San Antonio Division
ELIZABETH M. BISHOP, Plaintiff,
SETERUS, INC., Defendant.
ORDER ON MOTION FOR SUMMARY JUDGMENT
RODRIGUEZ UNITED STATES DISTRICT JUDGE
date, the Court considered Defendant's Motion for Summary
Judgment (docket no. 16). Although Plaintiff did not respond,
the Court will evaluate the motion and applicable law. After
careful consideration, Defendant's motion is GRANTED.
September 21, 2013, Plaintiff Elizabeth Bishop executed
concurrently a Note for $271, 895.00, payable to Citibank,
N.A., and a Deed of Trust securing the repayment of the Note
with the property at 603 Sand Ash Trail, San Antonio, Texas
loan was transferred to CitiMortgage, Inc. in 2015 and to
Fannie Mae in 2016. Plaintiff has not tendered all payments
due on the Note. The loan is past due for the July 1, 2017,
payment and all subsequent payments. On July 19, 2017,
Defendant, as servicer, sent a notice of default to
Plaintiff, advising that she needed to pay $4, 467.19 to cure
the default or Defendant would accelerate the balance of the
loan. Plaintiff did not cure the default. On August 15,
Defendant sent a second notice, and Plaintiff still did not
25, 2018, Defendant sent Plaintiff a loan modification
application, which stated “This Letter will not
delay foreclosure proceedings. We cannot guarantee
that you will receive a particular type of assistance”
Docket no. 16-1 at 84 (emphasis in original). It also stated,
“Even though we have referred your loan to our
foreclosure department, we still want to help you
avoid foreclosure.” Id. (emphasis in
original). Further, it states that “[w]ithin 30 days of
receipt of a complete Borrower Response Package, we will let
you know what foreclosure alternatives, if any, are available
to you and will inform you of your next steps to accept our
offer.” Id. at 86. On July 18, Defendant sent
a notice of acceleration to Plaintiff. On December 17,
Defendant advised Plaintiff that her loan modification
application was incomplete.
August 3, 2018, Plaintiff filed her Original Petition in the
407th Judicial District Court of Bexar County, Texas.
Plaintiff brought claims for wrongful foreclosure, breach of
contract, and promissory estoppel. On August 15, Defendant
removed to this Court. On August 31, Defendant filed a Motion
to Dismiss, which the Court granted in part, disposing of
Plaintiff's wrongful foreclosure claim. On June 13,
Defendant filed the Motion for Summary Judgment now before
the Court. Docket no. 16. Although Plaintiff's response
deadline has passed, Plaintiff did not file a response.
is entitled to summary judgment only if it demonstrates that
there is no genuine dispute of material fact and the movant
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(a). In order to demonstrate that there is no genuine issue
of material fact, a movant either has to negate the existence
of a material element of the non-movant's claim or
defense or point out that the evidence in the record is
insufficient when the non-movant bears the burden of proof
for that element at trial. Lavespere v. Niagra Machine
& Tool Works, Inc., 910 F.2d 167, 178 (5th Cir.
1990). To satisfy its initial responsibility, a movant
without the burden of proof at trial need only point out that
there is an absence of evidence to support the
non-movant's claim to shift the burden to the non-movant
to show that summary judgment is not proper. See Fields
v. City of S. Hous., 922 F.2d 1183, 1187 (5th Cir.
is a genuine issue of material fact when the evidence allows
a reasonable jury to return a verdict for the non-movant.
Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347,
350 (5th Cir. 2014) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). In order to conclude
that no genuine issue of material fact exists, the court must
be satisfied that no reasonable trier of fact could have
found for the non-movant. See Anderson, 477 U.S. at
250 n.4. A court on summary judgment must review the summary
judgment record taken as a whole, but the court is not
permitted to make “credibility determinations or weigh
the evidence.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150-51 (2000). The court must review
“all facts and inferences in the light most favorable
to the nonmoving party.” Dillon v. Rogers, 596
F.3d 260, 266 (5th Cir. 2010).
remaining claims are for breach of contract and promissory
estoppel. Plaintiff seeks declaratory and injunctive relief.