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Stoerner v. Wells Fargo Bank, N.A.

United States District Court, S.D. Texas, Houston Division

August 5, 2019

Ronnie Stoerner, Plaintiff,
v.
Wells Fargo Bank, N.A., Defendant.

          MEMORANDUM OPINION AND ORDER

          Gray H. Miller Senior United State District Judge

         Pending 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 GRANTED.

         I. Background

         Stoerner 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.

         Under 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.

         Stoerner 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.

         II. Legal Standard

         A court 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).

         III. Analysis

         Wells 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.

         A. Improper Acceleration of the Loan

         Stoerner 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. Id.

         Texas 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.

         Wells 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 Stoerner. ...


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