United States District Court, S.D. Texas, Galveston Division
VICKI SALMERON N/K/A VICKI CAUM, Plaintiff.
DEUTSCHE BANK TRUST COMPANY AMERICAS, Defendant.
MEMORANDUM AND RECOMMENDATION
M. EDISON UNITED STATES MAGISTRATE JUDGE.
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.
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
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.
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.
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.
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.
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).
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).
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).
ELEMENT 1 - TRUTH OR FALSITY OF DEUTSCHE ...