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Reyes v. U.S. Bank N.A.

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

December 31, 2019

SANDRA Y. REYES, Plaintiff,
v.
U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE FOR THE RMAC TRUST, SERIES 2016-CTT AND RUSHMORE LOAN MANAGEMENT SERVICE, INC., Defendants.

          MEMORANDUM OPINION AND ORDER

          MARK T. PITTMAN UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendants U.S. Bank National Association, not in its individual capacity but Solely as Trustee for the RMAC Trust, Series 2016-ctt's (“U.S. Bank”) and Rushmore Loan Management Service, Inc.'s (“Rushmore”) Second Motion for Summary Judgment (ECF No. 38). Having considered the motion, related briefing, and applicable law, the Court finds that Defendants' Second Motion for Summary Judgement should be and is hereby GRANTED. Plaintiff Sandra Y. Reyes's claims are hereby DISMISSED with prejudice.

         BACKGROUND

         In connection with the purchase of 2224 Bonnie Brae Avenue, Fort Worth, Texas 76111 (“Property”), on or about November 16, 2005, Carlos Flores (“Flores”) executed a Note (“Note”) in the principal amount of $86, 000, originally payable to Bank of America, N.A. (“BANA”). See Def.'s App. Supp. Mot. Summ. J., Ex. A, A-1 at 8. The Note contains an Allonge with a specific endorsement to U.S. Bank. Id. Concurrently with the execution of the Note, Flores and Sandra Y. Reyes (“Plaintiff”) executed a deed of trust (“Deed of Trust” or “Security Agreement”), granting BANA, its successors and assigns, a security interest in the Property. See Id. Ex. A, A-2 14. Defendants' summary judgment appendix includes an Assignment of Deed of Trust (“Assignment”) from BANA in favor of U.S. Bank, recorded in the Real Property Records for Tarrant County, Texas, as Instrument Number D217218960. See Id. Ex. A, A-3 at 35.

         Under the terms of the Loan Agreement, Flores was required to pay when due the principal and interest on the debt evidenced by the Note, as well as any applicable charges and fees due under the Note. See Id. Ex. A-1 at 8, A-2 at 14. The Loan Agreement further provided that should Flores fail to make payments on the Note as they became due and payable or should he fail to comply with any or all of the covenants and conditions of the Security Instrument, the lender may then enforce the Security Instrument by selling the Property via foreclosure pursuant to applicable law and in accordance with the provisions set out in the Loan Agreement. Id.

         Flores defaulted on the Loan Agreement. See Id. Ex. A, A-4 at 37. The payments scheduled for March 1, 2017, and all subsequent monthly payments are currently due and owing. Id. Rushmore sent Flores and Plaintiff a certified letter to the Property. The letter was dated August 18, 2017, and entitled, “Notice of Intent to Accelerate, ” (“Notice of Default”). See Id. Ex. A, A-5 at 44. This letter advised Flores and Plaintiff that the Loan was in default due to Flores's failure to make the required payments. Id. The Notice of Default also advised that if a payment of $4, 424.25 was not remitted by September 22, 2017, Rushmore intended to accelerate the loan balance and initiate foreclosure proceedings. Id. Then in a notice of acceleration dated October 31, 2017, Rushmore acting as mortgage servicer for U.S. Bank notified Plaintiff that the loan had been accelerated. See Id. Ex. A, A-6 at 63.

         Plaintiff was then provided with a notice of foreclosure sale scheduled for August 7, 2018. See Id. Ex. A at 5, A-7 at 63. However, on August 6, 2018, Plaintiff filed for bankruptcy in the United States Bankruptcy Court for the Northern District of Texas. See Id. Ex. A at 5, A-8 at 1, 65. As a result of Plaintiff's bankruptcy filing, the foreclosure sale was not conducted. See Id. Ex A at 5. The bankruptcy case was dismissed less than a month later on August 27, 2018, due to Plaintiff's failure to file required documents. See Id. Ex. A, A-9 at 67.

         On September 5, 2018, Defendants through their foreclosing attorneys, Mackie Wolf Zientz & Mann, P.C., sent a second Notice of Acceleration of Loan Maturity to Plaintiff and Flores via certified mail to the Property. See Id. Ex. A, A-10 at 70. According to Defendants' records, there is currently a balance of $80, 522.26 due and owing on the Loan. See Id. Ex. A at 6, A-11 at 75.

         Plaintiff filed the underlying lawsuit against Defendants on October 1, 2018, in the 141st Judicial District Court for Tarrant County, Texas. See Cause No. 141-303363-18. Defendants removed the case to this Court on October 9, 2018. See ECF No. 1. In March 2019, Defendants filed a motion for summary judgment (ECF No. 10), which the Court denied because Defendants had failed to include exhibits or attachments to their appendix. See ECF No. 29. Defendants then filed an unopposed motion for leave to file a second motion for summary judgment, which the Court granted. See ECF No. 37. Accordingly, on September 30, 2019, Defendants filed their second motion for summary judgment. ECF No. 38.

         On October 21, 2019, Plaintiff filed a motion to extend her time to respond to the second motion for summary judgment, which the Court granted. See ECF No. 42. And on November 4, 2019, Plaintiff filed a second motion to extend her time to respond, which the Court also granted. See ECF No. 44. Thus, Plaintiff's new deadline to respond to Defendants' second motion for summary judgment was November 12, 2019. See Id. However, as of the date of this order, Plaintiff has still not filed a response, and Defendants' second motion for summary judgment is now ripe for review.

         LEGAL STANDARD

         The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits “[show] that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The trial court must resolve all reasonable doubts in favor of the party opposing the motion for summary judgment. Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981) (citations omitted). The substantive law identifies which facts are material. Anderson, 477 U.S. at 248.

         The party moving for summary judgment has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. at 247. If the movant bears the burden of proof on a claim or defense on which it is moving for summary judgment, it must come forward with evidence that establishes “beyond peradventure all of the essential elements of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Where the nonmovant bears the burden of proof, the movant may discharge its burden by showing that there is an absence of evidence to support the nonmovant's case. Celotex, 477 U.S. at 325; Byers v. Dall. Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its burden, the nonmovant must “respond to the motion for summary judgment by setting forth particular facts indicating there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at 248- 49). The nonmovant must adduce affirmative evidence. Anderson, 477 U.S. at 257. No “mere denial of material facts nor . . . unsworn allegations [nor] arguments and assertions in briefs or legal memoranda” will suffice to carry this burden. Moayedi v. Compaq Comput. Corp., 98 Fed.Appx. 335, 338 (5th Cir. 2004). Rather, the Court requires “significant probative evidence” from the ...


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