Sivertson v. Citibank, N.A

          Nowak, Judge.

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE.

         Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On April 22, 2019, the report of the Magistrate Judge (Dkt. #112) was entered containing proposed findings of fact and recommendations that Defendant Citibank, N.A., as Trustee, in Trust for Registered Holders of WAMU Asset-Backed Certificates WAMU Series Number 2007-HE2's Motion for Final Summary Judgment on its Counterclaim (Dkt. #76) and Objections to and Motion to Strike Plaintiff's Proffered Evidence in Support of His Response to Trustee's Motion for Summary Judgment (Dkt. #99) each be granted. Having received the report of the Magistrate Judge, having considered Plaintiff Paul R. Sivertson's Objection (Dkt. #114), Defendant's Response (Dkt. #115), and having conducted a de novo review, the Court is of the opinion that the Magistrate Judge's report should be adopted.

         RELEVANT BACKGROUND

         The underlying facts of this case have been set forth previously; as such, the Court sets forth only those facts pertinent to Plaintiff's objections.

         Plaintiff purchased the real property located at 4008 Saharah Court, Carrollton, Texas 75010 (the “Property”) in April 2004. Plaintiff obtained a home equity loan in the amount of $1, 000, 000.00 on December 21, 2006 (the “Loan”), which paid off the amount owed on a prior loan on the Property (Dkt. #76 at p. 5). The Loan was secured by a “Texas Home Equity Security Instrument” (the “Security Instrument”), executed in favor of lender Washington Mutual Bank^[1](Dkt. #76-2 at pp. 15-29). Under the Security Instrument, Plaintiff was required to execute a sworn Texas Home Equity Affidavit and Agreement, attesting to the fair market value of the Property (“Home Equity Affidavit”). In the Home Equity Affidavit, Plaintiff swore that “[t]he extension of Credit is of a principal amount that. . . does not exceed eighty percent (80%) of the fair market value” (Dkt. #76 at p. 6). A Texas Home Equity Fair Market Value Acknowledgment (“FMV Acknowledgment”), executed by Plaintiff, stated that the Loan “does not exceed eighty percent (80%) of the fair market value, ” and specifically identified $1, 355, 000.00 as the then fair market value of the Property. Since October 2008, Plaintiff has been in default on the Loan, and prior litigation has been filed regarding the Property.

         On January 19, 2018, Plaintiff filed the instant suit against Defendant in the state court, Cause No. 18-0574-16 (Dkt. #3), and on March 12, 2018, this matter was removed to the Eastern District of Texas (Dkt. #1).^[2] On January 2, 2019, Defendant filed its counterclaim, seeking to foreclose its lien, and asserting claims for: (1) declaratory judgment; (2) judicial foreclosure; (3) contractual subrogation; (4) equitable subrogation; (5) foreclosure of equitably or contractually subrogated lien; (6) writ of possession; and (7) attorney's fees and costs (Dkt. #66).

         On February 11, 2019, Defendant filed a Motion for Summary Judgment (Dkt. #76). Plaintiff thereafter filed his Response (Dkt. #84). On March 26, 2019, Defendant filed a Reply (Dkt. #98) and also filed its “Objections and Motion to Strike Plaintiff's Proffered Evidence in Support of His Response to Trustee's Motion for Summary Judgment” (Dkt. # 99). On April 2, 2019, Plaintiff filed his Sur-Reply (Dkt. #102), and on April 10, 2019, filed a response to the Motion to Strike (Dkt. #105). On April 17, 2019, Defendant filed a reply in support of its Motion to Strike (Dkt. #108) and a Notice of Supplemental Authority (Dkt. #109).

         On April 22, 2019, the Magistrate Judge entered a Report and Recommendation, recommending that the Court grant Defendant's the Motion to Strike and Motion for Summary Judgment, and dismiss the entirety of Plaintiff's claims (Dkt. #112). Specifically, in regard to the Motion to Strike, the Court struck from consideration of the Motion for Summary Judgment: (1) Plaintiff's Affidavit because it was contradictory pursuant to the sham affidavit doctrine, parol evidence rule, and Art. 16, § 50(h) of the Texas Constitution, and further failed to meet Federal Rule of Evidence 701's requirements; and (2) John Scarborough's Affidavit because the opinions contained therein were speculative and lacked foundation (Dkt. #112 at pp. 6-20). Concerning the Motion for Summary Judgment, the Court found that: (1) the Loan was executed pursuant to the requirements of the Texas Constitution and is valid; (2) Defendant has proffered sufficient summary judgment evidence and established that there are no genuine issues of material fact regarding its counterclaim seeking foreclosure; (3) that reasonable fees and costs, including escrow advances, incurred in this suit are recoverable under the Loan; and (4) because Defendant is entitled to a judgment of foreclosure, the Court should also grant Defendant's request for a judgment of writ of possession.

         On May 7, 2019, Plaintiff filed his Objections to the Report (Dkt. #114), and on May 21, 2019, Defendant filed its Response to Plaintiff's Objections (Dkt. #115).

         OBJECTIONS TO REPORT AND RECOMMENDATION

         A party who files timely written objections to a magistrate judge's report and recommendation is entitled to a de novo review of those findings or recommendations to which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(2)-(3).

         As an initial matter, Plaintiff failed to file his Objections on time. Plaintiff has previously failed to timely object to another of the Magistrate Judge's recommendations, and has been cautioned that his failure to respond in a timely manner allows the Court to disregard his arguments (Dkts. #89; #92). Again, the Court notes that it is not bound to consider his arguments. Madenwald v. JPMorgan Chase Bank, N.A., 4:13-CV-136, 2014 WL 12576776, at *1 (E.D. Tex. July 18, 2014); Chao v. Dars of Texas, 4:15CV169, 2015 WL 6522818, at *1 (E.D. Tex. Oct. 27, 2015); Penley v. Sandoval, CIV.A. 4:04CV24, 2005 WL 3970822, at *2 (E.D. Tex. Mar. 8, 2005), aff'd sub nom. Penley v. Collin County, Tex., 446 F.3d 572 (5th Cir. 2006); 28 U.S.C. § 636(b)(1); and Fed.R.Civ.P. 72(b)). For this reason alone, each of Plaintiff's Objections are overruled; moreover, even considering the objections as timely filed, the Court finds Plaintiff's arguments without merit, as discussed further infra.

         Plaintiff's Objections focus primarily on the Report's findings concerning the Motion to Strike. Plaintiff raises seven objections to the Report's findings, arguing: (1) the sham affidavit doctrine cannot limit Plaintiff's right to testify about the value of the Property; (2) the parol evidence was improperly applied to this matter; (3) section 50 of Article XVI of the Texas Constitution, as applied in the Report, limits Plaintiff's right to testify about the value of the Property, and instead, the Court “must present the valuation question to a jury like a Texas court”; (4) Plaintiff should be permitted to give opinion testimony regarding the value of the Property under Rule 701; (5) “John Scarborough may give opinion testimony regarding the value of the [Property] because he meets all the requirements of Rule 702 of the Federal Rules of Evidence”; (6) the Report improperly finds that Defendant's lien is valid; and (7) the Report improperly finds Defendant should be permitted to foreclose on the Property.^[3] Defendant rejoins that the Objections are the same tired arguments Plaintiff repeatedly has made (Dkt. #115 at p. 2).

         Plaintiff's ...