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Ther & Co., LLC v. U.S. Bank, N.A.

United States District Court, S.D. Texas, Houston Division

October 31, 2019

Ther & Company, LLC, Plaintiff,
v.
U.S. Bank, N.A. and Ocwen Loan Servicing, LLC, Defendants.

          MEMORANDUM OPINION AND ORDER

          Gray H. Miller Senior United States District Judge.

         Pending before the court are plaintiff Ther & Company, LLC's (“Ther & Co.”) motion for partial summary judgment (Dkt. 18), defendants U.S. Bank, N.A. (“U.S. Bank”) and Ocwen Loan Servicing, LLC's (“Ocwen”) response (Dkt. 22), and plaintiff's reply (Dkt. 23). Also pending are defendants' motion for summary judgment (Dkt. 20), plaintiff's response (Dkt. 25), and defendants' reply (Dkt. 28). Having considered the motions, responses, replies, evidentiary record, and applicable law, the court finds that plaintiff's partial motion for summary judgment (Dkt. 18) should be DENIED, and defendants' motion for summary judgment (Dkt. 20) should be GRANTED IN PART and DENIED IN PART.

         I. Background

         This removed action concerns U.S. Bank and Ocwen's attempted foreclosure of 7659 Smiling Wood Lane, Houston, Texas 77086 (“the Property”). Dkt. 1-5 at 2-3. The relevant, undisputed timeline of events concerning the property is as follows:

July 31, 2006: Jose and Maria Ramirez (“the Borrowers”) obtained a home equity loan (“the Loan”) from New Century Mortgage Corporation (“New Century”) in the original principal amount of $82, 400.00. Dkt. 18-1. The Loan was secured by a Texas Home Equity Security Instrument (“the Lien”), recorded in the Harris County Property Records as document 2006010298. Dkt. 18-2. The Lien contains an optional acceleration clause. See Id. § 21.
October 7, 2010: Deutsche Bank National Trust Company, as Trustee for Ameriquest Mortgage Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2004-R7 erroneously filed a Rule 736 action (Cause No. 2010-66265) seeking an Order for Foreclosure for the property located at 10813 Seneca Street, Houston, Texas 77016. Dkt. 20-5.
December 30, 2010: The former mortgage servicer for the Loan sent the Borrowers a Notice of Default and Intent to Accelerate. Dkt. 18-3.
February 5, 2014: The Lien is transferred to U.S. Bank and recorded in the Harris County Property Records as document 20140074971. Dkt. 18-8.
May 12, 2014: Pursuant to a Home Equity Foreclosure Order, issued from the Court of Harris County on January 14, 2011 under Cause No. 2010-66265, a Notice of Foreclosure Sale of the Property (“Notice of Sale”) was filed with the Harris County Clerk (Dkt. 18-4), even though Cause No. 2010-66265 did not concern the Property. See Dkt. 20-5.
June 3, 2014: U.S. Bank purportedly purchases the Property at the Foreclosure Sale (“the Sale”). Dkt. 18-5. However, the Sale was conducted pursuant to Cause No. 2010-66265 (Dkt. 20-5), which did not concern the Property.
June 6, 2014: The Foreclosure Sale Deed is recorded in the Harris County Property Records as document 20140243733. Id.
August 7, 2015: The Sale is voided because “the Substitute Trustee did not have the authority to conduct the sale since the mortgagee has not obtained an Order Allowing Foreclosure pursuant to Rule 736 of the Texas Rules of Civil Procedure.” Dkt. 18-6. An Affidavit Concerning Void June 3, 2014 Foreclosure Sale Deed was recorded in the Harris County Property Records as document 20150301596. Id.
March 2, 2017: Ocwen sends a Notice of Default to the Borrowers. Dkt. 20-8 at 49-61.
April 21, 2017: Ocwen and U.S. Bank's Foreclosure Counsel sends a Notice of Acceleration to ...

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