United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE
the Court in this civil action is Defendant's Motion for
Summary Judgment (ECF No. 11). For the following reasons, the
District Court should GRANT the Motion and DISMISS Plaintiffs
claims with prejudice.
action arises out of Defendant PennyMac Loan Services,
LLC's (PennyMac) attempted foreclosure of Plaintiff
Stephanie Flores's real property located in Grand
Prairie, Texas (the "Property").Flores obtained a
mortgage loan (the "Loan") from Acopia, LLC on
September 27, 2013. Pl.'s Original Pet. 3 (ECF No. 1-5);
Def.'s App. 10-12 (ECF No. 13). In connection with the
Loan, Flores executed a Note (the "Note") in favor
of Acopia, LLC and a Deed of Trust (the "Deed of
Trust") securing repayment of the Note with the
Property. Pl.'s Original Pet. 3; Def.'s App. 106-19.
PennyMac began servicing the Loan on November 1, 2013.
Def.'s App. 14-19. Then, on November 4, 2013, PennyMac
notified Flores that the Loan had been sold to PennyMac on
October 9, 2013, and that PennyMac also serviced the Loan.
Id. 20. On January 4, 2016, Mortgage Electronic
Registration Systems, Inc. (MERS), as nominee for Acopia,
LLC, assigned the Deed of Trust to PennyMac. Pl.'s
Original Pet. 2-3; Def.'s App. 121-28.
made periodic payments on the Loan from 2013 to 2017.
Def.'s App. 6-7. Flores failed to submit her monthly
payment due July 1, 2017, which PennyMac contends remains
due. Id. 22-60; Def.'s Br. Support 10 (ECF No.
12). On June 22, 2017, PennyMac sent Flores a notice of
default specifying the amount to cure the default and further
cautioning that to avoid acceleration Flores must pay the
amount by July 27, 2017. Def.'s App. 68-82. Flores was
unable to cure her default by July 27, 2017, id.
5-8, 22-60, so PennyMac accelerated the Note and provided
Flores notice of acceleration on January 31, 2018.
PennyMac initiated foreclosure proceedings against the
Property, Flores filed an Original Petition and Application
for Temporary Restraining Order in County Court at Law No. 3
of Dallas County, Texas, alleging PennyMac lacks the capacity
to foreclose on the Property. Pl.'s Original Pet. Flores
also alleges PennyMac failed to adequately service her
mortgage loan and failed to offer her a loan modification.
Id. Based on these allegations, Flores brings causes
of action against PennyMac for violations of the Texas Debt
Collection Act (TDCA), violations of the Texas Property Code,
and breach of contract. Plaintiff also seeks a declaratory
judgment to void any substitute trustee's deed affecting
the Property and an injunction to prevent foreclosure, as
well as damages and attorney's fees. The state court
issued a temporary restraining order (TRO) preventing the
foreclosure sale. TRO at 2-5 (ECF No. 1-9).
PennyMac filed an answer (ECF No. 1-10) in state court and
then removed the case to this Court on the basis of diversity
jurisdiction. Removal Notice (ECF No. 1). PennyMac filed the
pending Motion for Summary Judgment on February 19, 2019, in
which it argues it is legally entitled to foreclose on the
Property because it is the holder of the Note secured by the
Deed of Trust encumbering the Property and because it is both
the "mortgagee" and the "mortgage
servicer" as defined in the Texas Property Code.
Def.'s Br. Support. PennyMac further argues that
Flores's claims for violations of the TDCA and the Texas
Property Code and for breach of contract fail as a matter of
law. Id. Flores filed a response (ECF No. 16), and
PennyMac filed a reply (ECF No. 18). The Motion is fully
briefed and ripe for adjudication.
judgment is appropriate when the pleadings and evidence on
file show that no genuine issue exists as to any material
fact and that the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c). "[T]he substantive
law will identify which facts are material."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A genuine issue of material fact exists "if the
evidence is such that a reasonable jury could return a
verdict for the non-moving party." Id. The
movant makes a showing that there is no genuine issue of
material fact by informing the court of the basis of its
motion and by identifying the portions of the record which
reveal there are no genuine material fact issues. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
pleadings, discovery and disclosure materials on file, and
affidavits, if any, must demonstrate that no genuine issue of
material fact exists. Fed.R.Civ.P. 56(c).
the movant makes this showing, the non-movant must then
direct the court's attention to evidence in the record
sufficient to establish that there is a genuine issue of
material fact for trial. Celotex, 477 U.S. at 324.
To carry this burden, the non-movant "must do more than
simply show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
(citations omitted). Instead, the non-movant must show that
the evidence is sufficient to support a resolution of the
factual issue in his favor. Anderson, 477 U.S. at
249 (citation omitted).
all of the evidence must be viewed in a light most favorable
to the non-movant, id. at 255 (citing Adickes v.
S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)),
neither conclusory allegations nor unsubstantiated assertions
satisfy the non-movant's summary-judgment burden.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (per curiam) (en banc) (citations omitted);
Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.
1992). Summary judgment in favor of the movant is proper if,
after adequate time for discovery, the motion's opponent
fails to establish the existence of an element essential to
his case on which he will bear the burden of proof at trial.
Celotex, 477 U.S. at 322-23.
have no obligation under Fed.R.Civ.P. 56 "to sift
through the record in search of evidence to support a
party's opposition to summary judgment." Adams
v. Travelers Indem. Co., 465 F.3d 156, 164 (5th Cir.
2006) (quoting Ragas v. Term. Gas Pipeline Co., 136
F.3d 455, 458 (5th Cir. 1998)). Instead, a party opposing
summary judgment must "identify specific evidence in the
record" that supports challenged claims and
"articulate the precise manner in which that evidence
supports [a challenged] claim." Ragas, 136 F.3d
at 458 (citing Forsyth v. Barr, 19 F.3d 1527, 1537
(5th Cir. 1994)).