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Butler v. Colonial Savings, F.A.

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

August 15, 2019

FRANK BUTLER, et al, Plaintiffs,


          Kenneth M. Hoyt, United States District Judge


         Pending before the Court is the defendant's, Colonial Savings, F.A. (the “defendant”), motion for summary judgment (Dkt. No. 10). Frank and Lashanda Butler (the “plaintiffs”) did not respond and time for doing so has expired.[1] After considering the motion, the record and applicable law, the Court determines that the defendant's motion for summary judgment should be GRANTED.


         On May 14, 2012, the plaintiffs took out a $417, 000 mortgage loan from PrimeLending, a Plains Capital Company, to purchase a home in Fort Bend County, Texas. The plaintiffs signed a promissory note requiring them to repay PrimeLending, and a deed of trust granting PrimeLending a security interest in the property. The original beneficiary of the instrument was Mortgage Electronic Registration System, Inc. (“MERS”). Subsequently, MERS assigned the Security Instrument to the defendant as reflected on the deed of trust.

         The loan agreement established that the plaintiffs were required to pay the principal and interest on the loan when due. However, the plaintiffs began to default on their monthly payments. As a result, on April 16, 2016, the parties entered into a loan modification agreement extending the life of the loan. On December 5, 2016, the defendant sent a second notice of default letter informing the plaintiffs that a $7, 800 payment they had made was not sufficient to cure the total default of $24, 590.65. On March 28, 2017, the plaintiffs submitted a payment of $27, 768.24 in order to cure the default balance. Due to this payment, both parties entered into a temporary repayment plan that allowed the plaintiffs to pay $7, 514.10 from May 1, 2017 to October 1, 2017.

         Subsequently, the plaintiff began to default on the loan payments again. On August 3, 2017, the defendant notified the plaintiffs that they were not eligible for any further loss mitigation assistance. The plaintiffs again applied for additional loss mitigation in 2018, and again were denied loss mitigation assistance. On March 16, 2018, the defendant notified the plaintiffs that they were in default and that a $47, 147.01 payment was due in 30 days. The plaintiff failed to cure the delinquency and as a result, the defendants sent the plaintiffs a notice of acceleration of loan maturity. On June 8, 2018, the defendant sent the plaintiffs a notice of foreclosure indicating a foreclosure sale scheduled for July 3, 2018.

         The plaintiffs filed their original complaint in state court. On July 2, 2018, the court granted their request for a 14-day restraining order against the defendant, staying any foreclosure proceedings until the case could be heard. On July 18, 2018, the defendant filed a notice of removal to this Court. During discovery the plaintiffs failed to respond to the defendant's request for admissions. The defendant moved for summary judgment. The plaintiffs did not respond.


         Summary Judgment

         Rule 56 of the Federal Rules of Civil Procedure authorizes summary judgment against a party who fails to make a sufficient showing of the existence of an element essential to the party's case and on which that party bears the burden at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). The movant bears the initial burden of “informing the district court of the basis for its motion” and identifying those portions of the record “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323; see also Martinez v. Schlumber, Ltd., 338 F.3d 407, 411 (5th Cir. 2003). Summary judgment is appropriate where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).

         If the movant meets its burden, the burden then shifts to the nonmovant to “go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996) (citing Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995); Little, 37 F.3d at 1075). “To meet this burden, the nonmovant must ‘identify specific evidence in the record and articulate the ‘precise manner' in which that evidence support[s] [its] claim[s].'” Stults, 76 F.3d at 656 (citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994)). It may not satisfy its burden “with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Little, 37 F.3d at 1075 (internal quotation marks and citations omitted). Instead, it “must set forth specific facts showing the existence of a ‘genuine' issue concerning every essential component of its case.” Am. Eagle Airlines, Inc. v. Air Line Pilots Ass'n, Intern., 343 F.3d 401, 405 (5th Cir. 2003) (citing Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).

         “A fact is material only if its resolution would affect the outcome of the action, . . . and an issue is genuine only ‘if the evidence is sufficient for a reasonable jury to return a verdict for the [nonmovant].'” Wiley v. State Farm Fire and Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009) (internal citations omitted). When determining whether a genuine issue of material fact has been established, a reviewing court is required to construe “all facts and inferences . . . in the light most favorable to the [nonmovant].” Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005) (citing Armstrong v. Am. Home Shield Corp., 333 F.3d 566, 568 (5th Cir. 2003)). Likewise, all “factual controversies [are to be resolved] in favor of the [nonmovant], but only where there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts.” Boudreaux, 402 F.3d at 540 (citing Little, 37 F.3d at 1075 (emphasis omitted)). Nonetheless, a reviewing court is not permitted to “weigh the evidence or evaluate the credibility of witnesses.” Boudreaux, 402 F.3d at 540 (quoting Morris, 144 F.3d at 380). Thus, “[t]he appropriate inquiry [on summary judgment] is ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'” Septimus v. Univ. of Hous., 399 F.3d 601, 609 (5th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 - 52 (1986)).

         IV. ANALYSIS ...

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