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Perry v. Pennymac Loan Services, LLC

United States District Court, N.D. Texas, Fort Worth Division

August 28, 2019

RODNEY R. PERRY, Plaintiff,



         Plaintiff 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 GRANTED

         I. BACKGROUND

         The 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.

         At some 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 time.

         On July 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.


         The 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 (1986).

         When 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.

         III. ANALYSIS

         Perry 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.

         A. RESPA Claim

         PennyMac 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.

         1. PennyMac's ...

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