United States District Court, S.D. Texas, Laredo Division
MEMORANDUM AND ORDER
GARCIA MARMOLEJO UNITED STATES DISTRICT JUDGE
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.
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).
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).
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.
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).
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).
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,
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).
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