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Salmeron v. Deutsche Bank Trust Company Americas

United States District Court, S.D. Texas, Galveston Division

September 18, 2019

VICKI SALMERON N/K/A VICKI CAUM, Plaintiff.
v.
DEUTSCHE BANK TRUST COMPANY AMERICAS, Defendant.

          MEMORANDUM AND RECOMMENDATION

          ANDREW M. EDISON UNITED STATES MAGISTRATE JUDGE.

         Before me is Defendant's Motion for Summary Judgment and Brief in Support ("Motion for Summary Judgment"). See Dkt. 13. Having considered the motion, responsive briefing, and applicable law, I RECOMMEND that the Motion for Summary Judgment be GRANTED.

         BACKGROUND

         On October 14, 1999, Plaintiff Vicki Salmeron n/k/a Vicki Caum ("Salmeron") obtained a home equity loan in the amount of $104, 800.00 ("Loan"). The Loan was ultimately assigned to Deutsche Bank Trust Company Americas ("Deutsche Bank"). According to Deutsche Bank, Salmeron failed to remit the installment payment due for July 1, 2016, and all the installments that became due after that date. Although not important for the purpose of resolving the pending Motion for Summary Judgment, Salmeron contends that she cured her default once she became aware that her payments were overdue.

         On November 18, 2016, Deutsche Bank sent, via first-class and certified mail to Salmeron's home address, a notice of default in the amount of $10, 374.70, informing Salmeron that Deutsche Bank intended to accelerate the Loan if payment was not received within 30 days. Deutsche Bank claims that when it did not receive any payments, it sent Salmeron, via first-class and certified mail to her home address, notice of acceleration of the Loan's maturity date.

         On February 24, 2017, Deutsche Bank initiated foreclosure proceedings by filing an Application for an Expedited Order Under Rule 736 on a Home Equity Loan ("Application") in the 412th Judicial District Court, Brazoria County, Texas ("Foreclosure Action"). The Brazoria County District Clerk sent the citations and Application to Salmeron's home address via first-class and certified mail. Deutsche Bank then filed the citations sent to Salmeron's address with the state court and represented to the state court that Salmeron had been properly served with the Application.

         When Salmeron did not file a response to Deutsche Bank's Application, Deutsche Bank filed a Motion for Default Order, requesting that the state court sign a foreclosure order. The District Clerk subsequently entered a Default Order. After receiving notice of the scheduled foreclosure sale, Salmeron initiated this lawsuit to avoid foreclosure.

         Salmeron's lawsuit alleges one cause of action against Deutsche Bank: a common law fraud claim. The sole basis of Salmeron's fraud claim is that Deutsche Bank allegedly made material misrepresentations to the state court in the Foreclosure Action. Specifically, Salmeron alleges that Deutsche Bank represented to the state court that Salmeron was served with the Application when no service was made.

         STANDARD OF REVIEW

         Summary judgment is appropriate when "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). A genuine dispute of material fact does not exist unless "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Burell v. Prudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir. 2016) (citation omitted). "The moving party . . . bears the initial responsibility of informing the district court of the basis for its motion." Brandon v. Sage Corp., 808 F.3d 266, 269-70 (5th Cir. 2015) (internal quotation marks and citation omitted). If the burden of production at trial "ultimately rests on the nonmovant, the movant must merely demonstrate an absence of evidentiary support in the record for the nonmovant's case." Lyles v. Medtronic Sofamor Danek, USA, Inc., 871 F.3d 305, 310-11 (5th Cir. 2017). Once a party "meets the initial burden of demonstrating that there exists no genuine issue of material fact for trial, the burden shifts to the non-movant to produce evidence of the existence of such an issue for trial." Brandon, 808 F.3d at 270 (internal quotation marks and citation omitted). The party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts. [It] must go beyond the pleadings and come forward with specific facts indicating a genuine issue for trial to avoid summary judgment." Id. (internal quotation marks and citations omitted). "In deciding whether a fact issue exists, courts must view the facts and draw reasonable inferences in the light most favorable to the nonmoving party." Rayborn v. Bossier Par. Sch. Bd, 881 F.3d 409, 414 (5th Cir. 2018) (internal quotation marks and citation omitted).

         DISCUSSION

         The elements of fraud in Texas are: (1) a misrepresentation was made; (2) the misrepresentation was material; (3) when the misrepresentation was made, the defendant knew it was false or made it recklessly as a positive assertion without any knowledge of its truth; (4) the defendant made the representation with intent that plaintiff rely upon it; (5) plaintiff actually and justifiably relied on the representation; and (6) the representation caused plaintiff damages. See Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001); Trenholm v. Ratcliff 646 S.W.2d 927, 930 (Tex. 1983). Salmeron must produce sufficient evidence "to establish a genuine issue of fact on every essential element of the claim of fraud." Watson v. First Commonwealth Life Ins. Co., 686 F.Supp. 153, 155 (S.D.Miss. 1988).

         Deutsche Bank contends that Salmeron has not met her burden to raise a genuine issue of material fact concerning element 1 (Deutsche Bank's representation to the state court was false); element 5 (Salmeron actually and justifiably relied on Deutsche Bank's representation); and element 6 (the representation caused Salmeron damages).[1]

         A. ELEMENT 1 - TRUTH OR FALSITY OF DEUTSCHE ...


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