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Gooden v. Wells Fargo Bank, N.A.

United States District Court, N.D. Texas, Fort Worth Division

December 13, 2019

JERRI GOODEN, Plaintiff,
v.
WELLS FARGO BANK, N.A., Defendant.

          MEMORANDUM OPINION AND ORDER

          Mark T. Pittman UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Wells Fargo Bank, N.A.'s Motion for Summary Judgment (ECF No. 14), Plaintiff Jerri Gooden's Response (ECF No. 22), and Wells Fargo's Reply (ECF No. 29). Having considered the Motion, the Court finds that it should be and is hereby GRANTED. Accordingly, Gooden's claims against Wells Fargo are hereby DISMISSED with prejudice.

         BACKGROUND

         Gooden resides at 8811 Royal Harbor Ct., Fort Worth, Texas 76179 (the “Property”). Pl.'s Am. Compl. at 2, ECF No. 6. On August 25, 2011, Gooden obtained a loan for the Property, evidenced by her execution of a promissory note in the principal amount of $913, 600 made payable to Wells Fargo Bank, N.A. as well as a deed of trust (the “Deed of Trust”), granting a security interest in the Property to secure repayment of the promissory note. Def.'s Br. Supp. MSJ at 3, ECF No. 15; Def.'s App. Supp. MSJ at 1-2, 5-10, 25-45, ECF No. 16. The promissory note requires Gooden to make monthly payments on the first day of each month in the amount of $4, 427.76 until the balance is paid in full. See Id. at 3. The note provides that Gooden will be in default if she does not pay the full amount of each payment on the date the payment is due. Id. The note also permits the acceleration of the maturity date of the note if Gooden defaults, which makes the remaining unpaid balance immediately due and payable in full. Id.

         In 2015, Gooden missed two months of payments while waiting for an unrelated bankruptcy matter to be resolved. Id. She contacted Wells Fargo who suggested she apply for a loan modification to determine what her available options were regarding restructuring her loan and making up the missed payments. Id. Over the next 11 months, Gooden and Wells Fargo worked toward a solution which culminated in a November 30, 2018 letter from Wells Fargo giving Gooden the option to participate in a “short sale.” See Def.'s App. Supp. MSJ Ex. A.2, ECF No. 16. Gooden submitted an Appeal Request Form (Def.'s App. Supp. MSJ Ex. A.3, ECF No. 16) on December 12, 2018, which was promptly denied by Wells Fargo in a letter (Def.'s App. Supp. MSJ Ex. A.4, ECF No. 16) dated December 14, 2018.

         Gooden states that a “fully complete loan modification application” was submitted to Wells Fargo no later than January 25, 2019. Pl.'s Am. Compl. at 6, ECF No. 6. Wells Fargo provided a copy of the January 30, 2019 letter in which they notified Gooden that she was not eligible to be reviewed for assistance at that time. Def.'s App. Supp. MSJ Ex. A.5, ECF No. 16. Wells Fargo has noticed the Property for foreclosure sale to take place on March 5, 2019. Pl.'s Am. Compl. at 4, ECF No. 6.

         Plaintiff filed suit against Wells Fargo on March 4, 2019 and obtained an ex parte temporary restraining order enjoining Wells Fargo from proceeding with the March 5, 2019 foreclosure sale. See Not. of Rem. Ex. C, ECF No. 1-4. Wells Fargo removed the suit to this Court on March 25, 2019. See Not. of Rem., ECF No. 1. Gooden amended her complaint on April 25, 2019 (ECF No. 6), and Wells Fargo now seeks summary judgment in this Motion. Having been fully briefed, the Motion for Summary Judgment is ripe for the Court's consideration.

         LEGAL STANDARD

         Summary judgment is proper when the pleadings and evidence on file show “that 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). “[T]he substantive law will identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986). A genuine dispute as to any material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The movant makes a showing that there is no genuine dispute as to any material fact by informing the court of the basis of its motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986).

         When reviewing the evidence on a motion for summary judgment, the court must decide all reasonable doubts and inferences in the light most favorable to the non-movant. See Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir. 1988). The court cannot make a credibility determination in light of conflicting evidence or competing inferences. Anderson, 477 U.S. at 255, 106 S.Ct. at 2505. As long as there appears to be some support for the disputed allegations such that “reasonable minds could differ as to the import of the evidence, ” the motion for summary judgment must be denied. Id. at 250, 106 S.Ct. at 2505.

         ANALYSIS

         The Court acknowledges that Gooden dismissed her own claims for breach of contract and declaratory judgment in her Response and thus the Court will not address those claims. See Pl.'s Resp. MSJ at 12, ECF No. 25. Accordingly, Gooden's claims for breach of contract and declaratory judgment are hereby DISMISSED.

         A. Gooden's Affidavit

         Gooden attached an affidavit to her Response as summary judgment evidence. See Pl.'s Resp. MSJ at 15-16, ECF No. 25. Wells Fargo objected to paragraphs two through eight of Gooden's affidavit due to lack of personal knowledge and use of conclusory statements. See generally Def.'s Reply MSJ, ECF No. 29. Wells Fargo also objected to Gooden's affidavit due to improper filing. Id. Under the Federal Rules of Civil Procedure, an affidavit or declaration must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters ...


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