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Robinson v. Deutsche Bank National Trust Co.

United States District Court, N.D. Texas, Dallas Division

August 30, 2019




         In this removed action arising from an attempted foreclosure, defendants Deutsche Bank National Trust Company, as Trustee, in Trust for the Registered Holders of Long Beach Mortgage Loan Trust 2005-WL1, Asset-Backed Certificates, Series 2005-WL1 (“Deutsche Bank”) and Select Portfolio Servicing, Inc. (“SPS”) move for summary judgment. For the reasons that follow, the court grants the motion and dismisses this action.


         In March 2005 plaintiff Karen Armelin Robinson (“Robinson”) and her husband Tyho Robinson obtained a home equity loan (“Loan”) in the amount of $108, 000 on residential property located in Cedar Hill, Texas (the “Property”).[1] Robinson signed a promissory note (“Note”) and secured the indebtedness by executing a deed of trust (“Deed of Trust”) that encumbered the Property for the benefit of Long Beach Mortgage Company (“Long Beach”). Deutsche Bank contends that the Loan was later sold or assigned to it, that it currently holds the Note, and that SPS services the Loan. After Robinson defaulted on the Loan, defendants' foreclosure counsel sent Robinson a notice of acceleration and notice of substitute trustee sale, with a sale date of September 4, 2018.

         On August 31, 2018 Robinson filed the instant lawsuit in Texas county court. Her original petition and application for temporary restraining order alleges that the Dallas County land records do not reflect any assignment of her mortgage from Long Beach to Deutsche Bank; that the Note does not bear an indorsement or allonge; that the appointment of substitute trustee was signed by the Document Control Officer of SPS, with SPS acting as attorney-in-fact for Deutsche Bank and purporting to appoint various persons as substitute trustees; and that the notice of substitute trustee's sale is unsigned by any putative trustee and threatens a sale of the Property. Robinson asserts that neither Deutsche Bank nor SPS has the clear capacity as “mortgagee” under Tex. Prop. Code Ann. § 51.0001 (West 2014) to appoint substitute trustees or to effect a foreclosure sale of the Property; that defendants violated the Texas Debt Collection Practices Act (“TDCPA”), Tex. Fin. Code Ann. §§ 392.001-404 (West 2016); that defendants failed to comply with Tex. Prop. Code Ann. § 51.002; and, in the alternative, that defendants breached the contractual terms of the Deed of Trust. Robinson seeks injunctive and declaratory relief, compensatory and exemplary damages, and attorney's fees and costs.

         Defendants removed the case to this court based on diversity of citizenship and now move for summary judgment on all claims asserted against them. Robinson opposes the motion.


         When a party moves for summary judgment on claims on which the opposing party will bear the burden of proof at trial, the moving party can meet its summary judgment obligation by pointing the court to the absence of admissible evidence to support the nonmovant's claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party does so, the nonmovant must go beyond her pleadings and designate specific facts showing there is a genuine issue for trial. See Id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is genuine if the evidence is such that a reasonable jury could return a verdict in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant's failure to produce proof as to any essential element of a claim renders all other facts immaterial. See TruGreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.). Summary judgment is mandatory if the nonmovant fails to meet this burden. Little, 37 F.3d at 1076.


         The court turns first to Robinson's claim that defendants violated Tex. Prop. Code Ann. § 51.002(d) and (b) and breached the contractual terms of the Deed of Trust.


         Defendants have produced evidence in the form of Robinson's loan records indicating that she has failed to perform her contractual obligation to remain current on her mortgage payments. Robinson has failed to identify evidence to the contrary. She therefore lacks evidence that would enable a reasonable trier of fact to find in her favor on an essential element of her breach of contract claim. See Metcalf v. Deutsche Bank Nat'l Tr. Co., 2012 WL 2399369, at *10 (N.D. Tex. June 26, 2012) (Fitzwater, C.J.) (citing Obuekwe v. Bank of Am., N.A., 2012 WL 1388017, at *5 (N.D. Tex. Apr. 19, 2012) (Means, J.)) (holding that plaintiff “[could not] state a claim for breach of the deed of trust because [plaintiff] admit[ted] that she defaulted on the loan, ” and therefore could not demonstrate that she performed her duties under the contract); Owens v. Bank of Am., NA, 2012 WL 912721, at *4 (S.D. Tex. Mar. 16, 2012) (dismissing breach of contract claim because “plaintiffs have undisputedly not performed their contractual obligations because they have not stayed current on their mortgage payments”)). This alone is a sufficient basis on which to grant summary judgment on the claim. See, e.g., Lewis v. Bank of Am., N.A., 343 F.3d 540, 544-45 (5th Cir. 2003) (requiring proof of all four elements of breach of contract claim).


         To the extent Robinson intends to plead a claim for a violation of Tex. Prop. Code Ann. § 51.002(b) and (d), this claim fails as a matter of law because “[§] 51.002 . . . does not provide a private right of action.” Walker v. Willow Bend Mortg. Co., 2019 WL 1569683, at *6 (N.D. Tex. Apr. 11, 2019) (Fitzwater, J.) (quoting Solis v. U.S. Bank, N.A., 2017 WL 4479957, at *2 (S.D. Tex. June 23, 2017)); see also Rucker v. Bank of Am., N.A., 806 F.3d 828, 830 n.2 (5th Cir. 2015) (“Although the Texas Supreme Court has not decided this issue, the federal district courts that have addressed it seem to conclude that Section 51.002(d) does not intend an independent private cause of action.”). The court therefore grants defendants' motion for summary judgment on this claim.[2]


         The court now turns to Robinson's capacity- and notice-related TDCPA claims.


         Robinson alleges that, due to defects in the chain of assignments, Deutsche Bank lacks authority to foreclose, and therefore Deutsche Bank and/or SPS acted wrongfully in sending the notice of acceleration and notice of substitute trustee's sale. Robinson also asserts that defendants lacked capacity to send her the pre-foreclosure notices required by Tex. Prop. Code Ann. § 51.002 because of these same defects in the chain of title. Finally, Robinson avers that defendants did not actually send her the required notices. Robinson maintains that all of these actions and omissions violated Tex. Fin. Code Ann. § 392.301(a)(8). To prevail on this claim at ...

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