United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller Senior United State District Judge
before the court is a motion for summary judgment filed by
defendant Wells Fargo Bank, N.A. (“Wells Fargo”).
Dkt. 14. Plaintiff Ronnie Stoerner has not responded to the
motion, and it will therefore be treated as unopposed.
See S.D. Tex. L.R. 7.4. Having reviewed the motion,
the evidentiary record, and the applicable law, the court is
of the opinion that the motion for summary judgment should be
seeks to prevent the foreclosure sale of his property, which
was originally scheduled for September 4, 2018. Dkt. 1, Ex.
D-1. On or around April 20, 2006, Stoerner executed a note in
favor of First Houston Mortgage, Ltd. Dkt. 14, Ex. A-1. The
note, encumbering Stoerner's real property located at
10811 Creektree Drive, Houston, Texas 77070, was in the
amount of $170, 327.00. Id. In connection with this
note, Stoerner also executed a deed of trust securing
repayment of the note. Dkt. 14, Ex. A-2. The note and the
deed of trust (collectively, the “Loan”) were
subsequently assigned to Wells Fargo. Dkt.14, Ex. C, D. Wells
Fargo is the current holder of the note and the servicer of
the Loan. Dkt. 14, Ex. A ¶ 4.
the terms of the Loan, failure to make monthly payments due
on the first of every month constitutes a default and is
grounds for acceleration of the amount owed and foreclosure.
Dkt. 14, Ex. A-2 ¶¶ 9, 18. Stoerner failed to
submit the monthly payment due on February 1, 2018, and Wells
Fargo sent a notice to cure the default dated March 20, 2018,
by certified mail to the property address. Dkt. 14, Ex. A-4.
This notice advised Stoerner that payments had not been made
and he needed to pay a certain amount by April 24, 2018, or
risk acceleration of the Loan and foreclosure. Id.
Stoerner failed to cure the default, and Wells Fargo sent a
notice of acceleration with an enclosed notice of foreclosure
sale dated June 29, 2018, by certified mail to the property
address. Dkt. 14, Ex. B-1. This notice stated that the
foreclosure sale would occur on September 4, 2018.
Id. Stoerner alleges that he did not receive the
notice of default or the notice of foreclosure sale. Dkt. 1,
Ex. D-1 ¶¶ 14-15.
filed this suit alleging improper acceleration of the Loan,
no notice of foreclosure sale, suit to remove cloud and quiet
title, permanent injunction, declaratory judgment (as to
standing), declaratory judgment (as to procedural defects),
and breach of contract in the 113th Judicial District in
Harris County, Texas. Dkt. 1, Ex. D-1 ¶¶ 17-33.
Stoerner obtained a temporary restraining order on August 31,
2018, to prevent the foreclosure sale. Dkt. 1, Ex. D-2. Wells
Fargo timely removed the action to federal court based on
diversity jurisdiction (Dkt. 1, Ex. A), and now moves for
summary judgment on all of Stoerner's claims. Dkt. 14.
Stoerner has not responded, and the motion will therefore be
treated as unopposed. See S.D. Tex. L.R. 7.4.
shall grant summary judgment when a “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). “[A] fact is genuinely in dispute
only if a reasonable jury could return a verdict for the
non-moving party.” Fordoche, Inc. v. Texaco,
Inc., 463 F.3d 388, 392 (5th Cir. 2006). The moving
party bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If
the party meets its burden, the burden shifts to the
non-moving party to set forth specific facts showing a
genuine issue for trial. Fed.R.Civ.P. 56(e). The court must
view the evidence in the light most favorable to the
non-movant and draw all justifiable inferences in favor of
the non-movant. Envtl. Conservation Org. v. City of
Dall., 529 F.3d 519, 524 (5th Cir. 2008). Given that
this court sits in diversity jurisdiction over this action,
it is undisputed that the substantive law of Texas applies.
See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58
S.Ct. 817 (1938).
Fargo asks the court to dispose of Stoerner's claims as a
matter of law because Stoerner: (1) was properly provided
notice of default in order for Wells Fargo to accelerate the
Loan; (2) was properly provided notice of foreclosure; (3)
defaulted on his mortgage payments and therefore does not
hold a superior title to the property; (4) failed to show
that he tendered performance or that Wells Fargo breached the
deed of trust; and (5) failed to state a cause of action that
entitles him to declaratory judgment, permanent injunction,
or attorneys' fees. Dkt. 14 at 4-10.
Improper Acceleration of the Loan
alleges that no notice of default was given to him and thus
proper acceleration of the Loan did not take place under
Texas law. Dkt. 1, Ex. D-1 ¶¶ 17-18. Stoerner
asserts that because he was not given a notice of default, he
was not notified of Wells Fargo's intent to accelerate
the Loan and foreclose, and therefore Wells Fargo improperly
accelerated his Loan and cannot seek foreclosure.
law requires that where the holder of a promissory note has
the option to accelerate maturity of the note upon the
maker's default, equity demands notice be given of the
intent to exercise the option. Ogden v. Gibraltar Sav.
Ass'n, 640 S.W.2d 232, 233 (Tex. 1982). “In
the case of a mortgage secured by a deed of trust, such
notice must afford an opportunity to cure the default and
bring home to the mortgagor that failure to cure will result
in acceleration of the note and foreclosure under the power
of sale.” Id.
Fargo presents evidence that it provided notice of
Stoerner's default to Stoerner on March 20, 2018. Dkt.
14, Ex. A-4. This notice stated that payments had not been
made, that to cure the default Stoerner must pay $3, 092.31
by April 24, 2018, and that failure to do so by that date
would result in acceleration of the Loan. Id. On
June 29, 2018, Wells Fargo sent a notice of acceleration to