United States District Court, N.D. Texas, Dallas Division
DAVID H. TRIEGER and JANET M. TRIEGER, Plaintiffs,
OCWEN LOAN SERVICING, LLC and U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE OF NRZ PASS-THROUGH TRUST IX, Defendants.
MEMORANDUM OPINION AND ORDER
LINDSAY UNITED STATES DISTRICT JUDGE.
the court is Defendant U.S. Bank National Association, as
Trustee of NRZ Pass-Through Trust IX's (“U.S.
Bank”) Motion for Final Summary Judgment (the
“Motion”) (Doc. 24), filed June 28, 2019. After
careful consideration of the Motion,  summary judgment evidence,
and applicable law, the court grants U.S.
Bank's Motion for Final Summary Judgment.
David H. Trieger and Janet M. Trieger
(“Plaintiffs”) originally filed this action
against Defendants Ocwen Loan Servicing, LLC
(“Ocwen”) and U.S. Bank (collectively,
“Defendants”) on December 28, 2018, in the 134th
Judicial District Court of Dallas County, Texas, asserting
the following claims: (1) breach of contract; (2) fraud; (3)
violations of the Real Estate Settlement Procedures Act
(“RESPA”); and (4) violations of the Texas Debt
Collection Act (“TDCA”). These claims arise from
U.S. Bank's attempt to foreclose on the real property
located at 9648 Fallbrook Drive, Dallas, Texas, 75243 (the
“Property”), which is legally described as
BEING LOT 8, BLOCK 8/8150 OF TOWN CREEK ADDITION, FIRST
SECTION, AN ADDITION TO THE CITY OF DALLAS, DALLAS COUNTY,
TEXAS, ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME
72120, PAGE 808, MAP RECORDS, DALLAS COUNTY, TEXAS.
Pls.' Verified Pet. ¶ 10.
September 8, 2004, Plaintiffs executed a Texas Home Equity
Note (the “Note”) from Homecomings Financial
Network, Inc. (“Homecomings”) in the amount of
$80, 000. To secure payment of the Note, Plaintiffs executed
a Texas Home Equity Security Instrument (“Security
Instrument”). The Note required Plaintiffs to make
monthly payments of $499.10 beginning November 1, 2004, until
the Note was paid in full. The original beneficiary of the
Security Instrument was Mortgage Electronic Registration
Systems (“MERS”). MERS later conveyed the Note
and Security Instrument (collectively, the “Loan
Agreement”) to Deutsche Bank Trust Company as Trustee
for RALI 2004-QS15 (“Deutsche Bank”), which is
reflected in an Assignment of Deed of Trust, executed on
November 13, 2012, and filed and recorded on November 16,
2012, in the Dallas County Clerk's Office. Def.'s
defaulted on payments due under the Loan Agreement when they
stopped making payments on or about August 16, 2016. The Note
provides that in the event of default and failure to cure
within the proscribed 30-day period following notice of
default, the Note holder may demand immediate payment of the
unpaid balance due. On September 5, 2017, Deutsche Bank
provided written notice of Plaintiffs' default and of its
intent to accelerate all amounts due under the Note to
Plaintiffs by certified and regular U.S. mail through their
attorney. Def.'s App. 5, 119, 128. On
November 16, 2017, after Plaintiffs failed to cure following
the notice of default, Deutsche Bank, through its attorneys,
provided a Notice of Acceleration via regular and certified
mail to the Plaintiffs' last known address of 9648
Fallbrook Drive, Dallas, Texas, and to Plaintiffs'
attorney of record. Id. at 5, 138, 141, 144, 147.
Plaintiffs assert that they never received any of the
aforementioned notices. Pls.' Verified Pet. ¶¶
27, 30, 33.
Bank later assigned the Loan Agreement to U.S. Bank, as
Trustee of the NRZ Pass-Through Trust IX, which is reflected
in an Assignment of Deed of Trust executed on May 21, 2018,
and filed and recorded on June 6, 2018, in the Dallas County
Clerk's Office. Def.'s App. 44-45. On June 27, 2018,
U.S. Bank filed an Application for an Expedited Order Under
Rule 736 on a Home Equity Loan, relying on the notices sent
by Deutsche Bank in September 2017. Id. at 176-79.
On November 30, 2018, the state court entered a Home Equity
Foreclosure Order, but the enforcement was delayed when
Plaintiffs filed this suit on December 28, 2018. Id.
January 11, 2019, Defendants removed this action to federal
court based on diversity jurisdiction. On that same day, U.S.
Bank filed its counterclaim against Plaintiffs, seeking to
foreclose on the Property. On February 1, 2019, Ocwen filed a
motion to dismiss pursuant to Rule 12(b)(6) for failure to
state a claim upon which relief can be granted. On February
28, 2019, U.S. Bank filed a motion to dismiss on the same
basis. On April 10, 2019, U.S. Bank provided Plaintiffs a
Notice of Default and Intent to Accelerate via certified and
regular mail sent to their last known address, 9648 Fallbrook
Drive, and to their new attorney of record. Def.'s App.
6, 151, 153, 155, 157. On June 13, 2019, after Plaintiffs
failed to cure the default, U.S. Bank provided Plaintiffs
McKinney Avenue, Suite 311, Dallas, Texas, 75202. Andrew
Nichols is included as the addressee, so it is possible that
this was an attorney or agent of Plaintiffs at the time. The
evidence, however, does not allow the court to reasonably
infer that this was the appropriate address to which the
notices should have been mailed, as section 51.002(e) of the
Texas Property Code requires that notices be sent to the
debtor's last known address. Nonetheless, notices sent by
Deutsche Bank and any possible deficiencies have no bearing
on the court's resolution of U.S. Bank's
counterclaim. and their attorney, via certified and regular
mail, a Notice of Acceleration. Id. at 6, 163-70. As
Plaintiffs did not file a response to this Motion, it is
unclear whether they received these notices.On June 28, 2019,
U.S. Bank filed this Motion related to its counterclaim. As
of July 19, 2019, the unpaid amount on the Note is $93,
012.99, which includes, but is not limited to, a principal
balance of $64, 505.88, interest in the amount of $11,
963.67, and late fees in the amount of $11, 378.13.
Id. at 172.
Motion for Summary Judgment Standard - No. Response
judgment shall be granted when the record shows that there is
no genuine dispute as to any material fact and that the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline
Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute
regarding a material fact is “genuine” if the
evidence is such that a reasonable jury could return a
verdict in favor of the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When
ruling on a motion for summary judgment, the court is
required to view all facts and inferences in the light most
favorable to the nonmoving party and resolve all disputed
facts in favor of the nonmoving party. Boudreaux v. Swift
Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005).
Further, a court “may not make credibility
determinations or weigh the evidence” in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000);
Anderson, 477 U.S. at 254-55.
the moving party has made an initial showing that there is no
evidence to support the nonmoving party's case, the party
opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine dispute of
material fact. Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 586 (1986). On the other hand,
“if the movant bears the burden of proof on an issue,
either because he is the plaintiff or as a defendant[, ] he
is asserting an affirmative defense, he must establish beyond
peradventure all of the essential elements of the
claim or defense to warrant judgment in his favor.”
Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th
Cir. 1986) (emphasis in original). “[When] the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no ‘genuine
[dispute] for trial.'” Id. (citation
omitted). Mere conclusory allegations are not competent
summary judgment evidence, and thus are insufficient to
defeat a motion for summary judgment. Eason v.
Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).
Unsubstantiated assertions, improbable inferences, and
unsupported speculation are not competent summary judgment
evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533
(5th Cir. 1994).
party opposing summary judgment is required to identify
specific evidence in the record and to articulate the precise
manner in which that evidence supports his or her claim.
Ragas, 136 F.3d at 458. Rule 56 does not impose a
duty on the court to “sift through the record in search
of evidence” to support the nonmovant's opposition
to the motion for summary judgment. Id.; see
also Skotak v. Tenneco Resins, Inc., 953 F.2d 909,
915-16 & n.7 (5th Cir. 1992). “Only disputes over
facts that might affect the outcome of the suit under the
governing laws will properly preclude the entry of summary
judgment.” Anderson, 477 U.S. at 248. Disputed
fact issues that are “irrelevant and unnecessary”
will not be considered by a court in ruling on a summary
judgment motion. Id. If the nonmoving party ...