United States District Court, N.D. Texas, Dallas Division
HARRIS TOLIVER JUDGE
before the Court is Defendant's Motion for Summary
Judgment. Doc. 15. For the reasons that follow, the
motion is GRANTED.
November 2018, Plaintiffs filed their complaint in this
action, seeking to avoid the foreclosure sale of their home
(the “Property”) by Defendant. Doc. 1-2 at
3-4. They aver that when they purchased the Property,
they took out two loans from the same lender: one for 80
percent of the purchase price (the “Primary
Mortgage”) and one for 20 percent of the purchase price
(the “Junior Mortgage”). Doc. 1-2 at
3-4. In 2005, Plaintiffs entered into a loan
modification agreement (“the LMA”), which they
allegedly believed consolidated the Junior and Primary
Mortgages. Doc. 1-2 at 4. From 2005 to 2013,
Plaintiffs received no communication regarding the Junior
Mortgage. Doc. 1-2 at 4.
2013, Defendant, the lienholder of the Junior Mortgage, began
sending Plaintiffs mortgage statements and ultimately
attempted to foreclose on the Property due to their default.
Doc. 1-2 at 4-5. Plaintiffs then initiated this
civil action for (1) breach of contract; (2) violation of the
Real Estate Settlement Procedures Act; (3) violation of the
Truth in Lending Act; (4) “estoppel”; and (5)
declaratory and injunctive relief. Doc. 1-2 at 5-9.
Defendant removed the case to this Court based on federal
question jurisdiction and, in due course, filed the instant
summary judgment motion. Doc. 1 at 2-3; Doc.
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). 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., 402 F.3d 536, 540 (5th Cir. 2005).
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 showing the existence of a genuine dispute
of material fact. Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 586 (1986). Nevertheless,
a party's conclusory and self-serving statements are
insufficient to defeat summary judgment. Koerner v. CMR
Const. & Roofing, LLC, 910 F.3d 221, 227 (5th Cir.
2018) (holding that “[s]elf-serving allegations are not
the type of significant probative evidence required to defeat
summary judgment, ” and “a vague or conclusory
affidavit [without more] is insufficient to create a genuine
issue of material fact in the face of conflicting probative
evidence.”) (citation omitted) (alterations in
FACTUAL SUPPORT FOR SUMMARY JUDGMENT MOTION
has submitted documents in support of its motion which
demonstrate the following undisputed facts; (1) Plaintiffs
acquired title to the Property in December 2001 by virtue of
an “80/20” mortgage lien, both liens with the
same lender; (2) both Plaintiffs are parties to the Primary
Mortgage in the original amount of $101, 600.00, Doc.
16-1 at 2-3 (Warranty Deed with Vendor's Lien); (3)
only Charles Constance (“Mr. Constance”) executed
the note for the Junior Mortgage (the “Note”) in
the amount of $25, 400.00, Doc. 16-2 at 2-3 (Note);
(4) both Plaintiffs, however, signed a Purchase Money Deed of
Trust (“DOT”) to secure repayment of the Note and
were designated as “Borrowers” on the signature
page of the document, Doc. 16-3 at 2-7; and (5)
between 2012 and 2017, Mr. Constance filed for Chapter 13
bankruptcy three times, see Doc. 15, Exs.
2013, Defendant became the holder of the Note and beneficiary
of the DOT through a chain of assignments. Doc. 16-4 at
2-7 (Assignments). Since May 2016, the Note has been in
default due to the lack of timely payments. Doc. 16 at
2 (Decl. of Defendant's Representative). In November
2017, Defendant notified Plaintiffs of the default and
ultimately accelerated the amount due when they failed to
remit the cure amount of $54, 547.97. Doc. 16 at 2;
Doc. 16-5 at 2 (Notice of Default); Doc. 16-6 at
3 (Notice of Acceleration).
support of their response to Defendant's motion,
Plaintiffs have submitted the LMA. Doc. 17-2 at
39-41. In their sworn declarations, they attest that
they reasonably believed the Junior Mortgage “no longer
existed” after the loan was modified because they
received no communication about it from 2005 until Defendant
contacted them in 2013. Doc. 17-2 at 5 (Decl. of
Marion Constance (“Ms. Constance”)); Doc.
17-2 at 10 (Decl. of Charles Constance). Plaintiffs also
aver that until Defendant raised the issue in this case, they
were not aware that Mr. Constance's bankruptcy counsel
had ever indicated during those proceedings that the Junior
Mortgage was still valid. Doc. 17-2 at 5 (Decl. of
Marion Constance); Doc. 17-2 at 10-11 (Decl. of
ARGUMENT AND ANALYSIS 
gist of Plaintiffs' claims is that Defendant cannot
foreclose because they did not know the Junior Mortgage was
still in effect since they received no communication about it
from 2005 until 2013. Doc. 1-2 at 4, 6-8. Defendant
asserts that Plaintiffs' claims are barred by the
judicial admissions Mr. Constance made during his ...