United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER SENIOR JUDGE
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.
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”). 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.
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.
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.
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
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.
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).
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
court now turns to Robinson's capacity- and
notice-related TDCPA claims.
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 ...