United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
Lindsay United States District Judge.
the court is Defendants' Motion for Summary Judgment
(Doc. 13), filed April 15, 2019. After considering the
motion, response, briefs, competent summary judgment
evidence, record, and applicable law, the court
grants Defendant's Motion for Summary
Judgment (Doc. 13); denies as moot
Defendants' Objections and Motion to Exclude
Plaintiff's Evidence in Opposition to Motion for Summary
Judgment (Doc. 22-1); and dismisses with
prejudice all claims asserted by Plaintiff against
Defendants in this action.
Factual and Procedural Background
Newton (“Plaintiff” or “Newton”)
originally brought this action against Defendants U.S. Bank
National Association, as Trustee, and Ocwen Loan Servicing,
LLC (collectively, “Defendants”) in state court
on April 2, 2018, asserting claims for breach of contract,
fraud, negligent misrepresentation, violations of the Texas
Debt Collection Practices Act (“TDCPA”), breach
of the duty of cooperation, and promissory estoppel.
Plaintiffs claims all pertain to Defendants' conduct in
connection with the foreclosure of her property and her
request for a loan modification. The case was removed to
federal court on April 16, 2018, based on diversity
jurisdiction. Defendants moved for summary judgment on all
claims asserted by Plaintiff on April 15, 2019.
Summary Judgment Standard
judgment shall be granted when the record shows that there is
no genuine dispute as to any material fact and that the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline
Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute
regarding a material fact is “genuine” if the
evidence is such that a reasonable jury could return a
verdict in favor of the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When
ruling on a motion for summary judgment, the court is
required to view all facts and inferences in the light most
favorable to the nonmoving party and resolve all disputed
facts in favor of the nonmoving party. Boudreaux v. Swift
Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005).
Further, a court “may not make credibility
determinations or weigh the evidence” in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000);
Anderson, 477 U.S. at 254-55.
the moving party has made an initial showing that there is no
evidence to support the nonmoving party's case, the party
opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine dispute of
material fact. Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 586 (1986). On the other hand,
“if the movant bears the burden of proof on an issue,
either because he is the plaintiff or as a defendant he is
asserting an affirmative defense, he must establish beyond
peradventure all of the essential elements of the
claim or defense to warrant judgment in his favor.”
Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th
Cir. 1986) (emphasis in original). “[When] the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no ‘genuine
[dispute] for trial.'” Matsushita, 475
U.S. at 587. (citation omitted). Mere conclusory
allegations are not competent summary judgment evidence, and
thus are insufficient to defeat a motion for summary
judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th
Cir. 1996). Unsubstantiated assertions, improbable
inferences, and unsupported speculation are not competent
summary judgment evidence. See Forsyth v. Barr, 19
F.3d 1527, 1533 (5th Cir. 1994).
party opposing summary judgment is required to identify
specific evidence in the record and to articulate the precise
manner in which that evidence supports his or her claim.
Ragas, 136 F.3d at 458. Rule 56 does not impose a
duty on the court to “sift through the record in search
of evidence” to support the nonmovant's opposition
to the motion for summary judgment. Id.; see
also Skotak v. Tenneco Resins, Inc., 953 F.2d 909,
915-16 & n.7 (5th Cir. 1992). “Only disputes over
facts that might affect the outcome of the suit under the
governing laws will properly preclude the entry of summary
judgment.” Anderson, 477 U.S. at 248. Disputed
fact issues that are “irrelevant and unnecessary”
will not be considered by a court in ruling on a summary
judgment motion. Id. If the nonmoving party fails to
make a showing sufficient to establish the existence of an
element essential to its case and on which it will bear the
burden of proof at trial, summary judgment must be granted.
Celotex, 477 U.S. at 322-23.
contend that they are entitled to summary judgment on all of
Plaintiff's claims. Defendants assert that, because
Plaintiff failed to respond to their Requests for Admissions,
she is deemed to have admitted all of the matters included in
the requests. Alternatively, Defendants contend that
Newton's claims fail for other reasons.
response, Plaintiff contends that Defendants breached the
Deed of Trust by failing to provide her with notification of
the intent to accelerate the amount due before foreclosing on
her home. She further asserts that Defendants made
misrepresentations in connection with her mortgage assistance
in the form of a loan modification agreement and forbearance
agreement. For support, Plaintiff relies on her affidavit,
but she does not address Defendants' contention that she
is deemed to have admitted all Requests for Admissions that
she failed to deny. She also does not address Defendants'
contentions regarding her claims and requests for relief
based on theories of promissory estoppel and breach of the
duty of cooperation.
Federal Rule of Civil Procedure 36, if a party does not
respond to a request for admission within 30 days, the matter
is deemed admitted. Fed.R.Civ.P. 36(a)(3); Hulsey v.
Texas, 929 F.2d 168, 171 (5th Cir. 1991) (“Under
[Rule 36], a matter in a request for admissions is admitted
unless the party to whom the request is directed answers or
objects to the matter within 30 days.”). Further,
“[a] matter admitted under [Rule 36] is conclusively
established unless the court, on motion, permits the
admission to be withdrawn or amended.” Fed.R.Civ.P.
36(b). “[I]f the requests for admissions concern an
essential issue, the failure to respond to requests for
admission can lead to a grant of summary judgment against the
non-responding party.” Murrell v. Casterline,
307 Fed.Appx. 778, 780 (5th Cir. 2008) (per curiam) (quoting
Dukes v. S.C. Ins. Co., 770 F.2d 545, 548-49 (5th
when a plaintiff fails to defend a claim in response to a
motion to dismiss or summary judgment motion, the claim is
deemed abandoned. See Black v. Panola Sch. Dist.,
461 F.3d 584, 588 n.1 (5th Cir. 2006) (concluding that the
plaintiff abandoned her retaliatory abandonment claim when
she failed to defend the claim in response to a motion to
dismiss); Hargrave v. Fibreboard Corp., 710 F.2d
1154, 1164 (5th Cir. 1983) (explaining that a plaintiff,
“in his opposition to a motion for summary judgment
cannot abandon an issue and then . . . by drawing on the
pleadings resurrect the abandoned issue”).
Here, Defendants submitted evidence establishing that Newton
did not respond to their Requests for Admission.
Defendants' Requests for Admission sought Plaintiff to
admit that they did not breach any term of the Note, Deed of
Trust, or second loan modification; that Defendants had a
contractual right to foreclose on her property as a result of
her default on her mortgage; and that Defendants did not make
any misrepresentations on which Plaintiff relied to her
detriment. Having failed to deny Defendants' Requests for
Admissions, the foregoing facts are deemed admitted, and they
are conclusively established, as no motion to withdraw the
matters deemed admitted has been filed by Newton, and the
court has not permitted any admitted matter to be withdrawn.
As such, Plaintiff cannot establish a genuine dispute of
material fact as needed for her breach of contract, fraud,
negligent misrepresentation, and TDCPA claims.[*]
Further, as Plaintiff failed to respond to Defendants'
arguments regarding her claims and requests for relief based
on theories of promissory estoppel and breach of the duty of
cooperation, the court determines that she has abandoned
these claims. As no genuine dispute of material fact exists
regarding any of Plaintiff's claims, Defendants are
entitled to judgment as a matter of law on all claims
asserted by Plaintiff. Having determined that ...