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Familglia Fatta, LLC v. Ocwen Loan Servicing, LLC

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

August 19, 2019

OCWEN LOAN SERVICING, LLC, et al., Defendants.




         Pending before the Court is the defendants', Ocwen Loan Servicing, LLC (“Ocwen”) and Deutsche Bank National Trust Company, as Trustee for EquiFirst Loan Securitization Trust 2007-1, Mortgage Pass-Through Certificates, Series 2007-1 (“Deutsche Bank') (collectively, the “defendants”), motion for summary judgment. (Dkt. No. 12). The plaintiff, Familglia Fatta, LLC (the “plaintiff”), has failed to file a response to the defendants' motion for summary judgment and the time for doing so has long elapsed. Accordingly, pursuant to S.D. Tex. L.R. 7.4, the plaintiff's “[f]ailure to respond to a motion will be taken as a representation of no opposition.” S.D. Tex. L.R. 7.4. After having carefully considered the motion, the pleadings, the record and the applicable law, the Court determines that the defendants' motion for summary judgment should be GRANTED.


         On February 28, 2007, Yudiria Fajardo executed a promissory note (the “Note”) in the amount of $102, 400.00 in favor of EquiFirst Corporation (“EquiFirst”), in addition to a Deed of Trust granting a first lien security interest in the real property located at 3915 Brightwood Drive, Houston, Texas 77068 (the “Property”). The Deed of Trust expressly authorizes Mortgage Electronic Registration Systems, Inc. (“MERS”) to act as the beneficiary, as nominee for EquiFirst, its successors and assigns. The Deed of Trust also states that MERS has the right to exercise any and all rights of interests granted by the borrower and authorizes it “to foreclose and sell the Property; and to take any action required of [the] Lender.” (Dkt. No. 12, Ex. A-2.)

         On or about July 20, 2011, MERS assigned its beneficial interest in the Deed of Trust to Deutsche Bank pursuant to a Transfer of Lien executed on July 20, 2011 and filed in the real property records of Harris County, Texas on September 1, 2011. Deutsche Bank is the current owner and holder of the Note, with Ocwen designated as its servicer.

         On March 11, 2013, the 55th Judicial District Court of Harris County, Texas (the “state court”) entered a Final Default Judgment in favor of OCV Community Association, Inc., the original borrower's homeowner's association, granting it the right to foreclose on the Property. (Dkt. No. 12, Ex. B). On October 31, 2013, the state court issued an Execution and Order of Sale directing the constable to sell the Property at public auction. (Dkt. No. 12, Ex. C). On January 7, 2014, the Property was sold at a constable's sale to Nicobar, Inc. Nicobar subsequently conveyed its interest in the Property to the plaintiff.

         On August 14, 2017, the defendants issued a Notice of Acceleration of Loan Maturity to the original borrower, Yudiria Fajardo, via certified mail. The notice informed the borrower that the Property would be set for foreclosure sale on Tuesday, September 5, 2017 at 1:00 p.m. at the Harris County Courthouse. (Dkt. No. 12, Ex. A-4).

         On March 5, 2018, the plaintiff initiated the instant action in the 61st Judicial District Court of Harris County, Texas seeking to challenge the defendants' foreclosure of the Property and requesting a temporary restraining order and injunction enjoining them from interfering with his possession of the Property. On March 5, 2018, the state court granted the plaintiff a temporary restraining order enjoining the defendants' foreclosure efforts.

         The defendants, thereafter, removed the case to this Court on the basis of diversity jurisdiction. They now move for a summary judgment on the plaintiff's claims.


         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 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

         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)). 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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