United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
T. Pittman UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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
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).
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
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.
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