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Thompson v. Fay Servicing, LLC

United States District Court, N.D. Texas, Dallas Division

November 14, 2019




         Before 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.


         This 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.

         Plaintiffs 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).

         Plaintiffs 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.

         In 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.

         Preliminary Matters

         Because 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.

         When a 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.

         Defendant is entitled to summary judgment on Plaintiffs' breach of contract, quiet title, and unjust enrichment claims.

         Legal Standard

         Summary 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 ...

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