United States District Court, N.D. Texas, Fort Worth Division
SANDRA Y. REYES, Plaintiff,
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
T. PITTMAN UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...