United States District Court, E.D. Texas, Sherman Division
PAUL R. SIVERTSON
v.
CITIBANK, N.A., AS TRUSTEE, IN TRUST FOR REGISTERED HOLDERS OF WAMU ASSET-BACKED CERTIFICATES WAMU SERIES No. 2007-HE2 TRUST
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
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