United States District Court, W.D. Texas, San Antonio Division
Honorable Fred Biery United States District Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES
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
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
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).
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].
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. ¶¶ 3-5, & Ex. B-1).
Plaintiff failed to respond to those Requests for Admissions
and the deadline to respond has expired. (Danaher Decl.
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.
Summary Judgment Record
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:
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 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.”
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. ¶¶ 3-5 [#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
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 ...