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Suarez v. U.S. Bank, NA

United States District Court, W.D. Texas, San Antonio Division

November 5, 2019

U.S. BANK, NA, AS TRUSTEE, Defendant.



         To the Honorable United States District Judge Fred Biery:

         This Report and Recommendation concerns the Motion for Summary Judgment [#20] filed by Defendant/Counter-Plaintiff U.S Bank Trust National Association, as Trustee of CVI LCF Mortgage Loan Trust I (“Defendant”) on its counterclaim for foreclosure.

         All pretrial matters in this case have been referred to the undersigned for disposition pursuant to Western District of Texas Local Rule CV-72 and Appendix C [#3]. The undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). In light of Plaintiff's lack of opposition and for the reasons set forth below, the undersigned recommends the motion be GRANTED.

         I. Procedural Background

         The procedural history of this case begins on May 31, 2019 in the 37th Judicial District Court of Bexar County, where Plaintiff filed his Original Petition. (Orig. Pet. [#1-1]). Defendant removed the case to this Court on June 7, 2019 based on both federal question and diversity jurisdiction [#1]. Plaintiff sues U.S. Bank, NA, as Trustee, regarding the scheduled foreclosure of property located at 1252 Clower Street, San Antonio, TX 78201 (“the Property”). This is the second lawsuit Plaintiff has filed in an attempt to stop foreclosure of the Property. The first lawsuit was dismissed on April 12, 2019, when the Court granted Defendant's uncontested motion to dismiss pursuant to Rule 12(b)(6). See Suarez v. U.S. Bank, 5:18-cv-849-OLG (W.D. Tex. Apr. 12, 2019).

         In the instant action, Defendant filed its Motion to Dismiss pursuant to rule 12(b)(6) on June 24, 2019 [#7]. The undersigned issued a Report and Recommendation that Defendant's Motion to Dismiss be granted in part as to Plaintiff's claims of negligence and for violations of the Texas Property Code and denied in part as to Plaintiff's claim for breach of contract [#10]. The undersigned also ordered Plaintiff to show cause as to why the Court should not also dismiss Plaintiff's breach of contract claim [#10]. Plaintiff did not respond, and thus the District Court adopted the undersigned's recommendation and, noting Plaintiff's failure to respond to the Show Cause Order, dismissed all of Plaintiff's claims [#13].

         On June 26, 2019, Defendant also filed a counterclaim against Plaintiff for foreclosure [#8]. Defendant served Plaintiff with Requests for Admissions on August 14, 2019. (Danaher Decl.[1] ¶¶ 3-5, & Ex. B-1). Plaintiff failed to respond to those Requests for Admissions and the deadline to respond has expired. (Danaher Decl. ¶ 4).

         Defendant now moves for summary judgment on the only remaining claim in this case- Defendant's counterclaim for foreclosure. Defendant's motion for summary judgment was filed on September 20, 2019 and served electronically on Plaintiff through his counsel. According to this Court's Local Rules, Plaintiff's response to Defendant's motion was therefore due on or before October 4, 2019. See Loc. R. CV-7(e) (responses to dispositive motions due within 14 days of motion's filing). To date, Plaintiff has not filed a response to the motion. Pursuant to Local Rule CV-7(e), if there is no response filed within the time period prescribed by the rules, the Court may grant the motion as unopposed. However, because it is a dispositive motion, the undersigned will nevertheless evaluate its merits. By its motion, Defendant seeks summary judgment on its counterclaim for foreclosure arguing that the undisputed summary judgment record conclusively establishes that Plaintiff defaulted on his obligations under the terms of the loan agreement.

         II. Summary Judgment Record

         The summary judgment record submitted by Defendant in support of its motion for summary judgment is undisputed, as there is no response to Defendant's motion. This record establishes the following facts:

         On or about August 28, 2002, Plaintiff executed an Adjustable Rate Note (“Note”) in the amount of $54, 600.00 payable to Ameriquest Mortgage Company (“Ameriquest”). (Trinkley Decl ¶ 4 & Ex. A-1 [#20-1], at 9-13). To secure payment of the Note, Plaintiff executed a Deed of Trust[2] creating a lien on the Property. (Trinkley Decl ¶ 5 & Ex. A-1 [#20-1], at 15-39). The Note and Deed of Trust are collectively referred to herein as “the Loan.”

         Defendant is the current owner and holder of the Note and beneficiary of the Deed of Trust. (Trinkley Decl. ¶ 9 [#20-1] at 5, Ex. A-1 [#20-1] at 9-13, & Ex A-2 [#20-1] at 15-39; Danaher Decl.[3] ¶¶ 3-5 [#20-1] at 113-14 & Ex. B-1 [#20-1] at 120). Plaintiff is in default on the Note because he has not tendered all when due. (Trinkley Decl. ¶ 10 [#20-1] at 5, Ex. A-4 [#20-1] at 45-47, & Ex. A-1 [#20-1] at 15-39; Dannaher Decl. ¶¶ 3-5 [#20-1] at 113-14 & Ex. B-1 [#20-1] at 120). The loan is currently due for the October 1, 2017 payment and all subsequent payments. (Trinkley Decl. ¶ 10 [#20-1] at 5, Ex. A-11 [#20-1] at 106-107, & Ex. A-12 [#20-1] at 109-111).

         On or about April 9, 2018, Shellpoint Mortgage Servicing (“Shellpoint”), acting as mortgage loan service for Defendant, sent a Notice of Default and Intent to Accelerate via certified mail to Plaintiff at his last known address and to the Property address informing him that the loan was in default and that he needed to tender $6, 545.43 within 45 days to become current on the loan, or his failure to timely cure the ...

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