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The Bank of New York Mellon Trust Co. v. Holcomb

United States District Court, N.D. Texas, Fort Worth Division

July 23, 2019

THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION F/K/A THE BANK OF NEW YORK TRUST COMPANY, N.A., AS TRUSTEE FOR RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC. MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES SERIES 2006-RP4, Plaintiff,
v.
SHERRY LYNN HOLCOMB, Defendant.

          MEMORANDUM OPINION AND ORDER

          JOHN McBRYDE UNITED STATES DISTRICT JUDGE.

         Came on for consideration the motion of plaintiff, The Bank of New York Mellon Trust Company, National Association f/k/a The Bank of New York Trust Company, N.A., as Trustee for Residential Asset Mortgage Products, Inc., Mortgage Asset-Backed Pass-Through Certificates Series 2006-RP4, for default judgment against defendant, Sherry Lynn Holcomb. The court, having considered the motion, the record, and the applicable authorities, finds that the motion should be granted.

         I.

         Background

         Plaintiff initiated this action by filing its original complaint on May 28, 2019. Doc.[1] 1. Plaintiff alleged:

         Defendant executed a Texas Home Equity Mote (the "Note") promising to pay to the lender[2] $120, 000 plus interest in monthly installments. Id. at 2, ¶ 5; doc. 23 at 2. The Note provided that defendant would be in default if she failed to pay the full amount of each monthly payment on its due date. Doc. 23 at 3. Defendant also executed a Texas Home Equity Security Instrument (the "Security Instrument") securing to the lender the repayment of the debt evidenced by the Note and the performance of defendant's obligations under the Note and Security Instrument. Id. at 11. The Security Instrument defined the lender as any holder of the Note who is entitled to receive payments under the Note. Doc. 23 at 10. Plaintiff is the current legal owner and holder of the Note. Doc. 1 at 3, ¶ 7, By signing the Security Instrument, defendant conveyed to a trustee the following property at 3916 Williams Road, Benbrook, Texas:

LOT 7, BLOCK 5, WESTVALE ADDITION, FIRST FILING, AN ADDITION TO THE CITY OF BENBROOK, DALLAS COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN VOLUME 388-9, PAGE 3, OF THE PLAT RECORDS OF TARRANT COUNTY, TEXAS. LOT 7, BLK 5, WESTVALE ADDITION

(the "Property"). Doc. 1 at 3, ¶ 6; doc. 23 at 11. The Security Instrument requires defendant to pay when due the principal of and interest on the debt evidenced by the Note and any late charges due under the Note. Id. at ¶ 8; doc. 23 at 11. The Security Instrument further provides, in essence, that if defendant is in default and fails to cure the default after being given appropriate notice, the lender may require immediate payment of her debt and sell the Property. Doc. 23 at 20. The Security Instrument also entitles the lender to recover court costs and attorney's fees incurred in pursuing those remedies. Id. Defendant failed to make payments on the Note and failed to comply with any and all of the Security Instrument's covenants and conditions. Doc. 1 at 3, ¶ 10. Plaintiff's mortgage servicer, Ocwen Loan Servicing, LLC ("Ocwen"), sent to defendant a Notice of Default dated February 4, 2019, stating that certain mortgage payments were past due and giving her until March 13, 2019, to remit them. Doc. 23 at 28-29. After plaintiff failed to do so, Ocwen's counsel sent to defendant a Notice of Acceleration of Loan Maturity dated May 17, 2019, demanding payment of all unpaid principal and accrued interest on the Note. Id. at 34.

         In its complaint, plaintiff brought causes of action for declaratory judgment and foreclosure. Doc. 1 at 4-5. In the complaint's prayer for relief, plaintiff requested a judgment declaring that:

(1) Borrower is in default on her obligations on the [Note and Security Instrument] and that (2) Plaintiff is the owner and holder of the Note, beneficiary of the Security Instrument and mortgagee, as defined under Texas Property Code section 51.0001; and (3) Plaintiff is authorized to enforce the power of sale in the Security Instrument through foreclosure of the Property pursuant to Texas Property Code section 51.002, the Note and Security Instrument, or alternatively, judicial foreclosure, and awarding attorney's fees [and] costs ....

Id. at 5-6. Plaintiff requested attorney's fees as a further obligation on the Note and not as a money judgment against defendant. Id. at 5, ¶ 19.

         On July 10, 2019, plaintiff requested the clerk enter default against defendant. Doc. 16. On July 16, 2019, the clerk, on the court's order and having concluded that defendant failed to plead or otherwise defend as required by the Federal Rules of Civil Procedure, entered default against defendant. Docs. 21 & 22 .

         II.

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