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Trieger v. Ocwen Loan Servicing, LLC

United States District Court, N.D. Texas, Dallas Division

October 22, 2019




         Before 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, [1] summary judgment evidence, and applicable law, the court grants U.S. Bank's Motion for Final Summary Judgment.

         I. Background

         Plaintiffs 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 follows:


Pls.' Verified Pet. ¶ 10.

         On 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 App. 41-42.

         Plaintiffs 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.[2] 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.

         Deutsche 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. at 249-50.

         On 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.[3]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.

         II. Motion for Summary Judgment Standard - No. Response Filed

         Summary 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.

         Once 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).

         The 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 ...

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