United States District Court, S.D. Texas, Laredo Division
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, Plaintiff,
OSCAR N LIGHTNER; aka DR. OSCAR LIGHTNER, etal, Defendants.
MEMORANDUM AND ORDER
Garcia Marmolejo United States District Judge
brought this judicial-foreclosure action because Defendants
Oscar and Leslie Lightner have failed to make mortgage
payments for nearly a decade. Pending now is Plaintiffs
Motion for Summary Judgment (Dkt. No. 45), asking the Court
to allow it to foreclose on its lien against the
Lightners' property. Defendants Oscar Lightner,
International Bancshares Corporation, and Commerce Bank each
oppose Plaintiffs Motion, but the only defense they proffer
is that Plaintiffs claim is time-barred. (Dkt. Nos. 49 at
4-6; 55 at 3-5). Because that defense is meritless and the
summary-judgment record demonstrates that Plaintiff is
otherwise entitled to foreclose on its lien, Plaintiffs
Motion for Summary Judgment is GRANTED.
2001, Defendants Oscar and Leslie Lightner executed a Texas
Home Equity Fixed/Adjustable Rate Note (the "Note")
and an Equity Security Instrument (the "Security
Agreement"), which required that they make monthly
payments on the loan beginning in December 2001 and
continuing until November 2031. (Dkt. No. 45-1 at 9-28). The
Security Agreement granted its beneficiary a security
interest in the Lightners' real property should the
borrowers default on their Note payments. (Id. at
11-12, 15). Plaintiff U.S. Bank National Association, as the
successor trustee for Long Beach Mortgage Loan Trust 2002-1,
is the current holder of the Note and assignee of the
Security Agreement. (Id. at 30).
creditor-debtor relationship hit turbulence in August 2008
when the Lightners began missing payments on the Note.
(See Dkt. Nos. 49 at 16; 50 at 3; 55 at 2).
Plaintiff responded by accelerating the maturity of the
Lightners' debt and seeking foreclosure on its lien in
state court. (Dkt. No. 49 at 14-17). That action was later
dismissed. (Dkt. No. 55 at 2). In March 2009, the Lightners
again missed a Note payment; they have failed to make
payments ever since. (Dkt. No. 45-1 at 5).
2012, the then-loan servicer mailed the Lightners a notice of
default and acceleration, which made clear that the servicer
would accept less than the full amount of the accelerated
debt to bring the Lightners' loan current. (Id.
at 33-34, 76, 89). That same correspondence warned the
Lightners that the maturity of their loan would be
accelerated if they failed to cure their default.
(Id. at 34).
early 2014, Plaintiff sent the Lightners a notice of default
and intent to accelerate the maturity of their debt.
(Id. at 59-72). A notice of acceleration followed in
November 2014. (Id. at 74-87). In May 2017,
Plaintiff brought this judicial-foreclosure action to
vindicate its interest in the Lightners' property under
the Security Agreement. (Dkt. No. 1). It has now moved for
summary judgment, asking that it be allowed to proceed with
foreclosure on its lien. (Dkt. No. 45).
judgment is appropriate if the moving party has shown 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. ClV. P. 56(a). "A fact is 'material' if
its resolution in favor of one party might affect the outcome
of the lawsuit under governing law." Sossamon v.
Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir.
2009) (quoting Hamilton v. Segue Software Inc., 232
F.3d 473, 477 (5th Cir. 2000) (per curiam)). A dispute is
genuine "if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). All evidence is viewed in the light most favorable to
the nonmovant. Miller v. Metrocare Servs., 809 F.3d
827, 832 (5th Cir. 2016) (citing Juino v. Livingston Par.
Fire Dist. No. 5, 717 F.3d 431, 433 (5th Cir. 2013)).
initial burden is on the movant to point to portions of the
record that he believes demonstrate the absence of a genuine
dispute about a material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The burden then
shifts to the nonmovant to come forward with "specific
facts showing that there is a genuine issue for trial."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (emphasis omitted) (quoting FED. R.
ClV. P. 56(e)).
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). When
the movant would not bear the burden of proof at trial on a
particular claim, he meets his initial burden on summary
judgment if he identifies an element of the claim for which
the nonmovant has produced no evidence. Skotak v. Tenneco
Resins, Inc., 953 F.2d 909, 913 (5th Cir. 1992) (quoting
Latimer v. Smithkline & French Labs., 919 F.2d
301, 303 (5th Cir. 1990)).
Texas, a lender that wishes to foreclose on property under a
security instrument must show that "(1) a debt exists;
(2) the debt is secured by a lien created under Art. 16,
§ 50(a)(6) of the Texas Constitution; (3) [the debtor
is] in default under the note and security instrument; and
(4) [the debtor] received notice of default and
acceleration." Bowman v. CitiMortgage, Inc.,
768 Fed.Appx. 220, 223 (5th Cir. 2019) (quoting Huston v.
U.S. Bank Nat. Ass'n, 988 F.Supp.2d 732, 740 (S.D.
Tex. 2013)) (citing Tex. Prop. Code Ann. § 51.002).
summary-judgment evidence shows-and Defendants' responses
do not contest-that the Lightners owe a debt under the Note,
which is secured by a lien created under Art. 16, §
50(a)(6) of the Texas Constitution. (Dkt. No. 45-1 at 4-5,
9-13, 15-21, 89). Moreover, the Lightners have been in
default since 2009, and Plaintiff served them with notice of
default and ...