United States District Court, S.D. Texas, Galveston Division
JAMES R. AUSTIN, et al., Plaintiffs,
SPECIALIZED LOAN SERVICING LLC, et al., Defendants.
MEMORANDUM OPINION AND ORDER
C. HANKS, JR. UNITED STATES DISTRICT JUDGE.
James Austin and Debra Garcia-Austin ("the
Austins"), initially sued the defendants in Texas state
court when the defendants attempted to foreclose on an
allegedly invalid home equity note. In that action, the
Austins alleged that the home equity note was invalid because
the defendants violated 18 provisions of the Texas
Constitution while making and servicing the loan. The case
was removed to this Court, and the Austins now allege only a
single violation of the Texas Constitution (Dkt. 12).
defendants moved for summary judgment. The Court has already
granted the defendants' motion (Dkt. 21) and now provides
its reasons below.
April of 2007, the Austins took out a home equity loan and
executed a home equity note and a deed of trust (Dkt. 1-3).
The Austins defaulted on the loan, and as a result the
defendants accelerated the note and scheduled a foreclosure
sale of the Austins' home for February 6, 2018 (Dkt.
1-3). In order to prevent the foreclosure, the Austins filed
this lawsuit in Texas state court on February 2, 2018 (Dkt.
1-3). In their state-court petition, the Austins alleged that
the defendants, while making and servicing the loan, had
committed 18 different violations of the homestead-protection
provisions contained in Article XVI, Section 50(a)(6) of the
Texas Constitution (Dkt. 1-3 at pp. 5-6). Those alleged
constitutional violations formed the basis for the
Austins' causes of action for breach of contract, the
quiet title remedy, declaratory relief, and injunctive relief
(Dkt. 1-3 at pp. 6-10).
defendants removed the case to this Court, invoking this
Court's diversity jurisdiction (Dkt. 1 at pp. 3-5).
See 28 U.S.C. § 1332. After removing the case,
the defendants filed a pre-motion conference letter under
Section 6 of this Court's procedures in which they argued
that summary judgment was appropriate because the
Austins' breach of contract claim was time-barred and the
Austins had no evidence of any violation of the Texas
Constitution (Dkt. 9). After the subsequent pre-motion
conference, the Austins abandoned 17 of their allegations of
constitutional violations, leaving a single alleged
constitutional violation-specifically, an alleged failure by
the defendants to provide certain documents at closing as
required by Article XVI, Section 50(a)(6)(Q)(v) of the Texas
Constitution-as the only foundation for the Austins'
claims for breach of contract, the quiet title remedy,
declaratory relief, and injunctive relief (Dkt. 12).
defendants moved for summary judgment, reiterating their
prior assertions that the Austins' breach of contract
claim was time-barred and that the Austins had no evidence of
any violation of the Texas Constitution (Dkt. 13). The
Austins responded (Dkt. 15), and the defendants filed a reply
brief (Dkt. 16). The Court granted the defendants' motion
from the bench and now gives its reasons.
Rule of Civil Procedure 56 mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
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 will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding a motion for summary judgment, the Court must
determine whether 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. Id. at
summary judgment, the initial burden falls on the movant to
identify areas essential to the non-movant's claim in
which there is an absence of a genuine issue of material
fact. Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347,
349 (5th Cir. 2005). The movant, however, need not negate the
elements of the non-movant's case. See Boudreaux v.
Swift Tramp. Co., 402 F.3d 536, 540 (5th Cir. 2005). The
movant may meet its burden by pointing out the absence of
evidence supporting the non-movant's case. Duffy v.
Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir.
movant meets its initial burden, the non-mo vant must go
beyond the pleadings and designate specific facts showing
that there is a genuine issue of material fact for trial.
Littlefield v. Forney Indep. Sch. Dist., 268 F.3d
275, 282 (5th Cir. 2001). "An issue is material if its
resolution could affect the outcome of the action. A dispute
as to a material fact is genuine if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party." DIRECT TV Inc. v. Robson, 420 F.3d 532,
536 (5th Cir. 2006) (citations omitted).
deciding whether a genuine and material fact issue has been
created, the facts and inferences to be drawn from those
facts must be reviewed in the light most favorable to the
non-movant. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003).
However, factual controversies are resolved in favor of the
non-movant "only when both parties have submitted
evidence of contradictory facts." Alexander v.
Eeds, 392 F.3d 138, 142 (5th Cir. 2004) (citation and
quotation marks omitted). The non-movant's burden is not
met by mere reliance on the allegations or denials in the
non-movant's pleadings. See Diamond Offshore Co. v. A
&B Builders, Inc., 302 F.3d 531, 545 n.13 (5th Cir.
2002). Likewise, "conclusory allegations" or
"unsubstantiated assertions" do not meet the
non-movant's burden. Delta & Pine Land Co. v.
Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th
Cir. 2008). Instead, the non-movant must present specific
facts which show the existence of a genuine issue concerning
every essential component of its case. Am. Eagle
Airlines, Inc. v. Air Line Pilots Ass'n, Int'l,
343 F.3d 401, 405 (5th Cir. 2003). In the absence of any
proof, the Court will not assume that the non-movant could or
would prove the necessary facts. Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
cannot preclude summary judgment unless they contain
competent and otherwise admissible evidence. See Love v.
Nat'l Medical Enterprises, 230 F.3d 765, 776 (5th
Cir. 2000); Hunter-Reed v. City of Houston, 244
F.Supp.2d 733, 745 (S.D. Tex. 2003). A party's
self-serving and unsupported statement in an affidavit will
not defeat summary judgment where the evidence in the record
is to the contrary. Smith v. Southwestern Bell Tel.
Co., 456 Fed.Appx. 489, 492 (5th Cir. 2012) ("[W]e
have repeatedly held that self-serving statements, without
more, will not defeat a motion for summary judgment,
particularly one supported by plentiful contrary
evidence."); United States v. Lawrence, 276
F.3d 193, 197 (5th Cir. 2001); In re Hinsley, 201
F.3d 638, 643 (5th Cir. 2000); see also Scott v.
Harris, 550 U.S. 372, 380 (2007) ("When opposing
parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary
Rule 56 does not impose upon the Court a duty to sift through
the record in search of evidence to support a party's
opposition to summary judgment; evidence not referred to in
the response to the motion for summary judgment is not
properly before the Court, even if it exists in the ...