United States District Court, N.D. Texas, Fort Worth Division
RODNEY R. PERRY, Plaintiff,
PENNYMAC LOAN SERVICES LLC, Defendant.
MEMORANDUM OPINION AND ORDER
T. PITTMAN UNITED STATES DISTRICT JUDGE.
Rodney Perry originally brought this case state court,
alleging that Defendant PennyMac Loan Services LLC failed to
perform on a mortgage loan modification agreement. Defendant
removed the matter. Before the Court are Defendant's
Motion for Summary Judgment (ECF No. 14), filed April 25,
2019; Plaintiff's Response (ECF No. 22), filed May 20,
2019; and Defendant's Reply (ECF No. 24), filed June 7,
2019. Having considered the motion, related briefing, and
applicable law, the Court finds that Defendant's Motion
for Summary Judgment (ECF No. 14) should be and is hereby
following undisputed facts are taken largely from
Plaintiff's Original Petition and Defendant's
Appendix in Support of its Motion for Summary Judgment.
See Def.'s Not. Removal Ex. C-2 (Or. Pet.), ECF
No. 1-5; see also Def.'s App. Supp. Mot. Summ.
J., ECF No. 15. Plaintiff Rodney R. Perry
(“Perry”) owns and resides in real property
located at 352 Wishbone Lane, Fort Worth, Texas 76052. On or
about June 30, 2014, Perry executed a Note secured by a Deed
of Trust (collectively, the “Loan”) covering the
property, for the benefit of Universal American Mortgage
Company, LLC. The Loan was subsequently sold, assigned, or
transferred. Defendant PennyMac Loan Services, LLC
(“PennyMac”) is now the mortgage servicer of the
original $137, 410.00 loan, as well as the beneficiary of the
Deed of Trust by assignment.
point after the transfer, Perry requested loss mitigation
assistance from PennyMac. PennyMac agreed to consider Perry
for a loan modification. So, Perry submitted an official loss
mitigation application to PennyMac in February 2018. PennyMac
then approved Perry for a loan modification trial period
plan. Perry completed all payments under that plan and
requested a permanent loan modification. PennyMac approved
Perry for a modification and offered him a permanent Loan
Modification Agreement (the “Agreement”) on May
21, 2018. To accept the Agreement, Perry was required to sign
and return it to PennyMac on or before June 12, 2018. The
Agreement stipulated that if Perry failed to accept on time,
his silence would be interpreted as a denial of
PennyMac's offer. Perry failed to return the Agreement on
19, 2018, PennyMac sent Perry a denial letter explaining that
the modification could not be finalized because Perry failed
to accept their offer. On July 28, 2018, Perry returned a
partially executed copy of the Agreement to PennyMac.
PennyMac refused-and still refuses-to honor the signed
Agreement because Perry sent it late. Now, Perry's loan
is due for past payments and PennyMac has threatened to
foreclose on the property. On August 30, 2018, Perry filed
this lawsuit in the 96th Judicial District Court of Tarrant
County, Texas, and obtained a temporary restraining order
preventing foreclosure. On September 12, 2018, PennyMac
removed the action to this Court.
Court may grant summary judgment where the pleadings and
evidence 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). “[T]he
substantive law will identify which facts are
material.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A genuine dispute as to any
material fact exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. The movant must inform the court
of the basis of its motion and demonstrate from the record
that no genuine dispute as to any material fact exists.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
reviewing the evidence on a motion for summary judgment,
courts must resolve all reasonable doubts and draw all
reasonable inferences in the light most favorable to the
non-movant. See Walker v. Sears, Roebuck & Co.,
853 F.2d 355, 358 (5th Cir. 1988). The court cannot make a
credibility determination in light of conflicting evidence or
competing inferences. Anderson, 477 U.S. at 255. If
there appears to be some support for disputed allegations,
such that “reasonable minds could differ as to the
import of the evidence, ” the court must deny the
motion. Id. at 250.
asserted two claims in the original petition. See
Not. Removal. Ex. C-2. (Original Petition), ECF No. 1-5.
First, that PennyMac violated the Real Estate Settlement
Procedures Act's (“RESPA”) written notice
requirement when it denied the permanent loan modification.
Id. at 4. And second, that PennyMac breached the
trial payment plan because it (1) accepted all of Perry's
payments under the plan but (2) did not permanently modify
Perry's loan at the end of the trial period. Id.
at 5. PennyMac moves for summary judgment on both of
Perry's claims. See Def.'s Mot. Summ. J.,
ECF No. 13. The Court examines each claim in turn.
argues it is entitled to summary judgment on Perry's
RESPA claim because PennyMac did, in fact, provide Perry
RESPA-compliant written notice after reviewing his loss
mitigation application. Def.'s Br. Supp. Mot. Summ. J. 4,
ECF No. 16. Perry responds by arguing “the evidence
establishes the Plaintiff never received any of the required
notices.” Pl.'s Resp. 3, ECF No. 22. PennyMac
replies by (1) reiterating that it mailed the required
notices to Perry and (2) arguing that Perry cannot show he
incurred damages, which are required to bring a RESPA claim.
Def.'s Reply 2-5, ECF No. 24.