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Lopez v. Wells Fargo Bank, N.A.

United States District Court, S.D. Texas, Laredo Division

January 14, 2020

DANIEL LOPEZ, JR., et al, Plaintiffs,
v.
WELLS FARGO BANK, N.A., Defendant.

          MEMORANDUM AND ORDER

          MARINA GARCIA MARMOLEJO UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant's Motion for Summary Judgment (Dkt. No. 19). Having carefully considered the parties' submissions, the record evidence, and the applicable law, Defendant's motion is GRANTED.

         I. Background

         Plaintiffs Daniel and Elizabeth Lopez obtained a mortgage loan in 2006 for $213, 592 (Dkt. No. 19-3). Under the terms of the loan, Plaintiffs had to make monthly payments until the loan was repaid (id. at 2). To secure the loan, Plaintiffs executed a deed of trust for their property at 3308 Begay Court in Laredo (Dkt. No. 19-4). The original lender, Option One Mortgage Corporation, assigned the deed of trust to Defendant Wells Fargo Bank on August 4, 2017 (Dkt. No. 19-5).

         Meanwhile, in early 2017, Plaintiffs stopped making payments on the loan (Dkt. No. 19-9 at 4). They were sent a "Notice of Default," giving them 35 days to pay the past-due amount and advising them that otherwise their property could be foreclosed on (Dkt. No. 19-6 at 4-5). When Plaintiffs did not resume making payments, they were sent additional notices that outlined alternatives to foreclosure (Dkt. Nos. 19-7, 19-8). Yet Plaintiffs did not pay their arrears or resume making payments (Dkt. No. 19-9 at 5).

         Then in early 2018, Defendant sent Plaintiffs a notice that their property would be sold at a foreclosure sale (Dkt. Nos. 1-3 at 2, 19-1 at 2). In response, Plaintiffs filed this lawsuit in state court, which temporarily stayed the sale (Dkt. No. 1-3). In their petition, Plaintiffs assert claims for wrongful foreclosure, quiet title, trespass to try title, breach of contract, and fraud (id.). Defendant removed to federal court on the basis of diversity jurisdiction (Dkt. No. 1) and now moves for summary judgment (Dkt. No. 19). Plaintiffs have not filed a response.

         II. Legal Standard

         Summary judgment is appropriate when the movant shows 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. ClV. P. 56(a). A fact is material that "might affect the outcome of the suit under governing law," and a fact issue is genuine when "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Renwick v. PNKLake Charles, L.L.C., 901 F.3d 605, 611 (5th Cir. 2018).

         More specifically, the moving party "always bears the initial responsibility of informing the district court of the basis for its motion" and identifying evidence in the record that "demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1968). When the movant satisfies this burden, the non-moving party cannot "rest[ ] on the mere allegations of [their] pleadings." Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010). Rather, they must "identify specific evidence in the record, and articulate the 'precise manner' in which that evidence supports their claim." Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (cleaned up). "A party cannot defeat summary judgment with 'conclusory allegations,' 'unsubstantiated assertions,' or 'only a scintilla of evidence.'" Lamb v. Ashford Place Apartments L.L.C., 914 F.3d 940, 946 (5th Cir. 2019).

         When, as here, the nonmovant fails to respond to a summary judgment motion, the Court may "accept[ ] the [movant's] statement of facts as uncontroverted." Flores v. United States, 719 Fed.Appx. 312, 316 (5th Cir. 2018) (citing Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006)). In other words, "default summary judgments" are not appropriate, but the Court may "accept the movant's evidence as undisputed if the nonmovant fails to file a response." Gen. Elec. Capital Corp. u. Daniel Sandoval Trucking, Inc., No. 5:10-CV-024-C, 2011 WL 1322948, at *3 (N.D. Tex. Apr. 1, 2011).

         III. Analysis

         As a threshold matter, Defendant's summary judgment motion primarily argues that Plaintiffs have failed to state a claim as a matter of law (Dkt. No. 19-1). "[W]hile failure to state a claim usually warrants dismissal under Rule 12(b)(6), it may also serve as a basis for summary judgment." Martin v. Lennox Int'l Inc., 342 Fed.Appx. 15, 17 (5th Cir. 2009) (quoting Whalen v. Carter, 954 F.2d 1087, 1098 (5th Cir. 1992)). In such a case, the failure to state a claim is generally the "'functional equivalent' of the failure to raise a genuine issue of material fact." Gilbert v. Outback Steakhouse of Fla., Inc., 295 Fed.Appx. 710, 713 (5th Cir. 2008). The Court evaluates a summary judgment motion challenging the sufficiency of a pleading "much the same as a 12(b)(6) motion to dismiss." Id. "[B]oth standards reduce to the same question, specifically, if, accepting all alleged facts as true, the plaintiffs' complaint nevertheless failed to state a claim." Taplin v. Wells Fargo Bank, N.A., No. 3:17-CV-3404-M-BN, 2018 WL 6933153, at *6 (N.D. Tex. Nov. 28, 2018), adopted by, 2019 WL 112103 (N.D. Tex. Jan. 4, 2019).

         A. Wrongful Foreclosure

         Plaintiffs assert that Defendant's anticipated foreclosure sale is wrongful because "proper notice and right to cure was not given as required by Section 51.002 of the Texas Property Code" (Dkt. No. 1-3 at 4). Under Texas law, however, an "attempted foreclosure will not support a wrongful foreclosure claim." Cyrilien v. Wells Fargo Bank, N.A., No. CIV.A. H-10-5018, 2012 WL 2133551, at *2 n. 1 (S.D. Tex. June 11, 2012) (emphasis added). The property in question must have been sold already at a foreclosure sale. Suarez v. U.S. Bank Tr. Nat'l Ass'n as Tr. of CVILCF Mortg. Loan Tr. I, No. SA-18-CV-00849-OLG, 2019 WL 1048854, at *7 (W.D. Tex. Mar. 4, 2019), adopted by, 2019 WL 2565268 (W.D. Tex. Apr. 12, 2019). It is undisputed that no foreclosure sale has occurred in this case, and therefore Plaintiffs' claim fails as a matter of ...


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