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Elizabeth M. Bishop v. Seterus, Inc.

United States District Court, W.D. Texas, San Antonio Division

July 1, 2019

SETERUS, INC., Defendant.



         On this 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.


         On 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 78256.

         The 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 cure.

         On June 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.

         On 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.


         I. Legal Standard

         A party 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. 1991).

         There 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).

         II. Application

         Plaintiff's remaining claims are for breach of contract and promissory estoppel. Plaintiff seeks declaratory and injunctive relief.

         a. ...

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