United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
REBECCA UTHERFORD, UNITED STATES MAGISTRATE JUDGE.
the Court is a Motion for Summary Judgment (ECF No. 31),
filed by Defendants, Fay Servicing, LLC (“Fay”)
and PROF-2013-S3 Legal Title Trust IV, by U.S. Bank National
Association, as Legal Title Trustee (“U.S. Bank”)
(collectively, “Defendants”), asking the Court to
dismiss the claims against them filed by Plaintiffs Lyndon
and Paula Thompson (“Plaintiffs”). For the
following reasons, the Court GRANTS Defendants' Motion
for Summary Judgment.
lawsuit arises from Fay's foreclosure sale of
Plaintiffs' property located at 215 Crane Drive, Grand
Prairie, Texas 75052 (the “Property”) to U.S.
Bank. Compl. 2, ¶ 7 (ECF No. 1). On November 1, 2004,
Plaintiffs refinanced their home loan and executed an
Adjustable Rate Note (the “Note”) for $109,
220.00 payable to World Savings Bank, FSB (“WSB”)
at a 4.977% yearly interest rate. Def.'s Ex. A-1 at 2
(ECF No. 32-2). The Note was secured by a deed of trust (the
“DOT”). Def.'s Ex. A-2 at 3 (ECF No. 32-3).
Fay serviced the loan for Plaintiffs. See Def.'s
Ex. A-4 at 5 (ECF No. 32-5). U.S. Bank became the owner of
the rights under the DOT pursuant to an assignment on
November 28, 2016. Def.'s Ex. A-3 at 2 (ECF No. 32-4).
The DOT's terms require Plaintiffs to pay the Note's
principal and interest, as well as any fees and charges, when
due. Def.'s Ex. A-2 at 5. The Note also provides that if
Plaintiffs fail to make payments as they become due or fail
to comply with any condition of the DOT, the lender may sell
the Property to enforce the DOT. Def.'s Ex. A-1 at 6.
filed for Chapter 13 bankruptcy on May 31, 2010. Pl.'s
Ex. 5 at 1 (ECF No. 41); Compl. 3, ¶ 10. In June 2016,
Wells Fargo (WSB's successor) offered Plaintiffs a Home
Affordable Modification Trial Period Plan (“Trial
HAMP”), under which Plaintiffs would make monthly
payments of $1, 205.57 while the bank calculated a permanent
modified monthly payment (“Permanent HAMP”).
Def.'s Ex. A-5 at 4-6 (ECF No. 32-6). The bankruptcy
court approved Plaintiffs' request to incur additional
debt to modify their mortgage loan. Compl. 3, ¶ 11;
Def.'s Br. Support Mot. Summ. J. 6 n.10
(“Def.'s MSJ Br.”) (ECF No. 32). Later, on
May 12, 2017, Fay notified Plaintiffs that they were approved
for a Permanent HAMP. Def.'s Ex. A-6 at 2 (ECF No. 32-7).
The proposed Permanent HAMP provided that Plaintiffs would
pay $1, 176.19 monthly with a maturity date of October 1,
2056 at a principal balance of $176, 512.71. Def.'s Ex.
A-7 at 3 (ECF. No. 32-8). This proposed Permanent HAMP
“shocked” Plaintiffs, and they refused it. Compl.
4, ¶ 16. Plaintiffs maintain that they opted to
“remain on” the Trial HAMP. Id.
Defendants contend, however, that Plaintiffs made no more
than three payments under the Trial HAMP. Def.'s MSJ Br.
6. This, the Defendants maintain, made Plaintiffs delinquent
in their responsibilities on the Note. Id. As a
result, on November 7, 2017, Fay notified Plaintiffs of their
delinquency and demanded $66, 694.24 in order to cure the
default. Def.'s Ex. A-4 at 4 (ECF No. 32-5). Plaintiffs
apparently did nothing, so on December 21, 2017, Defendants
sent Plaintiffs a notice of acceleration of the Note
informing Plaintiffs of a trustee sale of the Property on
February 6, 2018. Def.'s Ex. B-1 at 3-6 (ECF No. 32-11).
U.S. Bank bought the Property at the sale. Def.'s Ex. B-2
(ECF No. 32-12).
brought the instant suit on February 13, 2018. By their
complaint, Plaintiffs allege eight causes of action: (1)
violation of the Fair Debt Collection Practices Act
(“FDCPA”); (2) violation of duty to furnish
accurate credit information under the Fair Credit Reporting
Act (“FCRA”); (3) violation of the Texas Debt
Collection Act (“TDCA”); (4) violation of the
Texas Deceptive Trade Practices Act (“DTPA”); (5)
unjust enrichment; (6) breach of contract; (7) quiet title;
and (8) negligent servicing. Compl. 6-11, ¶¶ 24-59.
Defendants move for summary judgment as to all claims and ask
the Court to dismiss all Plaintiffs' causes of action.
response to Defendants' Motion for Summary Judgment,
Plaintiffs filed a document they styled as a “Motion to
Compel, Motion to Strike Evidence, Motion for Continuance and
Response to Defendant's Motion for Summary
Judgment.” Pl.'s Mot. & Resp. (ECF No. 35). By
this filing, Plaintiffs sought an order compelling Defendants
to produce certain documents that Plaintiffs allege were
requested but not produced in discovery, continuing the
motion for summary judgment pending production of these
documents, and striking two of Defendants' exhibits that
were allegedly also not provided during discovery. Pl.'s
Br. Support Mot. & Resp. 1 (ECF No. 36) (“Pl.'s
Resp.”). Defendants apparently then supplied the
documents Plaintiffs requested, mooting Plaintiffs'
motions to compel, to strike, and to continue. Def.'s
Reply Pl.'s Mot. & Resp. 2 (ECF No. 46); Pl.'s.
Mot. Continue 1-2 (ECF No. 47) (“Defendants have
supplemented their discovery response as a result of
Plaintiffs['] filing and provided the supplemental
discovery . . . ”). Plaintiffs later again moved for a
continuance to amend the pleadings and to file a supplemental
response to Defendant's Motion for Summary Judgment.
Pl.'s Mot. Continue 2. The Court denied Plaintiffs'
request to amend their complaint. Order of March 28, 2019
(ECF No. 50). However, the Court granted Plaintiffs leave to
file a supplemental response. Id. Plaintiffs filed a
supplemental response (Pl.'s Suppl. Resp. (ECF No. 51)),
and Defendants replied (Def.'s Reply Pl.'s Suppl.
Resp. (ECF No. 53)). Accordingly, the motion is fully briefed
and ripe for determination.
Plaintiffs have abandoned their contract, quiet title, and
unjust enrichment claims, the Court pretermits discussion of
those claims and concludes Defendants are entitled to summary
judgment with respect to them. And, even if Plaintiffs had
not abandoned those claims, they have failed to raise a
genuine issue of material fact with respect to them.
plaintiff “fails to defend a claim in response to a . .
. summary judgment motion, the claim is deemed
abandoned.” Arias v. Wells Fargo Bank, N.A.,
2019 WL 2770160, at *3 (N.D. Tex. July 2, 2019) (citing
Black v. Panola Sch. Dist., 461 F.3d 584, 588 n.1.
(5th Cir. 2006); Hargrave v. Fibreboard Corp., 710
F.2d 1154, 1164 (5th Cir. 1983)). Although Plaintiffs
complaint alleges causes of action for breach of contract, to
quiet title, and unjust enrichment, Plaintiffs abandon these
claims on summary judgment. Defendants moved for summary
judgment on all claims, and Plaintiffs did not respond with
respect to their contract, quiet title, or unjust enrichment
claims. Indeed, the terms “quiet title” and
“unjust enrichment” do not appear at all in
either Plaintiffs' original response or supplemental
response. Likewise, the word “contract” is
completely absent from Plaintiffs' supplemental response,
and it only appears in Plaintiffs' original response
twice-in discussion of Plaintiffs' negligence claim.
Plaintiffs had two opportunities to respond to
Defendants' Motion for Summary Judgment. Plaintiffs'
failure to argue its contract, quiet title, and unjust
enrichment claims in either response to Defendants'
Motion for Summary Judgment is an abandonment of those
claims. Defendants are entitled to summary judgment on those
claims due to Plaintiffs' abandonment. But even if
Plaintiffs had not abandoned these three claims, the Court
finds that they have still failed to raise a genuine dispute
of fact with respect to them. They have not provided summary
judgment evidence that contradicts Defendants' summary
judgment evidence on these claims.
is entitled to summary judgment on Plaintiffs' breach of
contract, quiet title, and unjust enrichment claims.
judgment is proper when “there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(a). A party
seeking summary judgment bears the initial burden of showing
the absence of a genuine issue for trial. Duffy v.
Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir.
1995) (citations omitted). The movant's burden can be
satisfied by demonstrating that there is an absence of
evidence to support the nonmoving party's case, which the
nonmovant bears the burden of proving at trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
movant meets its initial burden, the nonmovant must show that
summary judgment is not proper. Duckett v. City of Cedar
Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may
satisfy their respective burdens “by tendering
depositions, affidavits, and other competent evidence.”
Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.
1992) (citing Int'l Shortstop, Inc. v.
Rally's, 939 F.2d 1257, 1263 (5th Cir. 1991);
Fed.R.Civ.P. 56(e)). The party opposing the summary judgment
motion must identify specific evidence in the record and
state the precise manner in which that evidence supports the
party's claim. Esquivel v. McCarthy, 2016 WL
6093327, at *2 (N.D. Tex. Oct. 18, 2016) (citing Ragas v.
Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.
1988)). “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 ...