Boudreaux v. Flagstar Bank

Filing 27

ORDER & REASONS: granting 21 Defendant Flagstar Bank, FSB's Motion for Summary Judgment. Signed by Judge Carl Barbier on 4/14/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

BOUDREAUX

CIVIL ACTION

VERSUS

NO: 14-1443

FLAGSTAR BANK

SECTION: “J” (3)
ORDER & REASONS

Before
(Flagstar)’s

the

Court

Motion

is

for

Defendant

Summary

Flagstar

Judgment

Bank,

(Rec.

Doc.

FSB
21),

Plaintiff Martha Boudreaux’s opposition thereto (Rec. Doc. 24),
and

Flagstar’s

reply.

(Rec.

Doc.

26)

Having

considered

the

motions and memoranda, the record, and the applicable law, the
Court finds that Defendant’s motion should be GRANTED for the
reasons set forth more fully below.
FACTS AND PROCEDURAL BACKGROUND
This litigation arises from Plaintiff’s unsuccessful loan
modification

negotiations

promissory

note

Defendant’s

subsequent

(Rec.

1)

Doc.

"engaged

in

and

mortgage
foreclosure

Specifically,
a

scheme

with

to

Defendant,
on

who

holds

the

Plaintiff’s

home,

and

action

Plaintiff
defraud,

against

alleges
harass,

Plaintiff. 1

that
and

Defendant
intimidate

Plaintiff in an attempt to steal her home" when it negotiated
the loan modification with Plaintiff, induced her to fall behind

1

The Court acknowledges that Defendant has not foreclosed on Plaintiff’s
home, and Plaintiff continues to live there. (Rec. Doc. 21-2, p. 4 n.13)

on her mortgage, and then sought to foreclose on her home. Id.
at 3.
Plaintiff commenced this action when she filed a Petition
for Damages in the 29th Judicial District Court for the Parish
of St. Charles on April 30, 2014. Id. at 1. Plaintiff asserts
three causes of action in the petition. First, Plaintiff states
that Defendant engaged in fraud when it induced Plaintiff to
enter

into

payments

a

on

loan
the

modification

mortgage

agreement

contract

and

without

to

ever

stop

making

intending

to

provide Plaintiff with a loan modification. Id. at 5. Defendant
then

sought

to

foreclose

on

the

home

based

upon

Plaintiff's

failure to make payments. Id. Second, Plaintiff alleges that
Defendant breached its contract with Plaintiff by (1) refusing
to accept mortgage payments that Plaintiff made on the home and
(2) failing to account for all the payments that Plaintiff made
on the loan. Id. at 6. Third, Plaintiff asserts that Defendant
breached its implied contract with Plaintiff when it set up two
trial payments with Plaintiff but then accelerated payments owed
under

the

loan

and

Plaintiff

contends

damages,

attorney's

anguish.

Id.

federal

court

at
on

foreclosed
that

these

fees,

5-7.

costs,

20,

the

actions

Defendant

June

on

removed

2014,

diversity jurisdiction. (Rec. Doc. 1)

2

and

property.
caused

her

mental
the

asserting

and

state

Id.
to

at

7.

suffer

emotional
action

bankruptcy

to
and

On Defendant’s motion, the Court dismissed with prejudice
all

of

Plaintiff’s

claims

deriving

from

the

failed

loan

modification on October 29, 2014. (Rec. Doc. 10) The Court held
that the Louisiana Credit Agreement Statute prohibited Plaintiff
from

asserting

modification

claims

agreement

in

relation

because

the

to

the

modification

alleged

loan

had

been

not

reduced to writing. Id.; see LA. REV. STAT. § 6:1122. The Court
did

not

dismiss

Plaintiff’s

claim

for

breach

of

contract

relating to her original mortgage agreement, but cautioned that
“Plaintiff will have to show that Defendant’s behavior actually
breached

the

assurances

original

made

contract

during

the

loan

without

reference

modification

to

efforts

any
or

discussions.” Id. at 9.
On March 24, 2015, Defendant filed the instant Motion for
Summary Judgment. (Rec. Doc. 21) Defendant seeks judgment as a
matter of law on Plaintiff’s remaining breach of contract claim.
Plaintiff opposed the motion on April 1, 2015. 2 (Rec. Doc. 24)
Defendant replied on April 7, 2015. (Rec. Doc. 26)
PARTIES’ ARGUMENTS
Defendant argues that the Court should grant its motion for
summary judgment, because Plaintiff cannot prove her breach of
contract

claim.

(Rec.

Doc.

21-1)

2

To

make

out

a

breach

of

The deadline for Plaintiff’s opposition was March 31, 2015. Because
Defendant has not contested the untimely filing of the opposition, however,
the Court will consider it in its analysis of Defendant’s motion.

3

contract

claim

under

Louisiana

Plaintiff

must

prove

(1)

the

law,

Defendant

existence

of

a

asserts

that

contract,

(2)

breach, and (3) damages. Id. at 6 (citing LA. CIV. CODE art.
1994). Defendant first stresses that Plaintiff lacks any proof
that it breached the note and mortgage. Id. at 6-8. Although
Plaintiff argues that Defendant failed to properly account for
all of her payments on the loan, Plaintiff could not actually
identify

any

such

unaccounted-for

payments

during

her

deposition. Id. at 6-7. Moreover, Plaintiff has shown neither
how

this

alleged

error

would

breach

the

agreements

nor

any

resulting damages. Id. at 7. Additionally, Defendant did not
breach

the

agreement

by

refusing

to

accept

payments

that

Plaintiff admits were not made in accordance with the terms of
the

original

mortgage

or

note.

Id.

To

find

otherwise

would

effectively allow Plaintiff to persist with the dismissed claims
based

on

the

alleged

loan

modification.

Id.

at

7-8.

Next,

Defendant argues that, even if Plaintiff could prove breach, she
would not be entitled to any of the nonpecuniary damages she
seeks, such as an adjustment of her loan balance or damages for
“personal stress.” Id. at 8-9.
Plaintiff argues that a dispute of material fact precludes
summary

judgment

on

her

remaining

breach

of

contract

claim.

(Rec. Doc. 24) Plaintiff insists that Defendant breached the
original mortgage or note by failing to properly account for all

4

payments on the loan. Id. at 2. Plaintiff protests Defendant’s
failure to produce any “evidence that its accounting is proper.”
Id. Further, Plaintiff asserts that the documents Defendant has
produced

show

Plaintiff’s

that

Defendant

payments.

Id.

has

not

First,

properly

Plaintiff

accounted

for

includes

two

documents reflecting two different principal amounts due. Id.;
(Rec.

Docs.

Statement

24-1,

that

24-2).

In

Defendant

the

sent

Annual
to

Tax

and

Interest

Plaintiff,

Defendant

represented that the principal amount due at the close of 2012
was $155,758.13. (Rec. Doc. 24-1) In the proof of claim that
Defendant filed in Plaintiff’s husband’s bankruptcy proceeding
on

May

16,

2013,

however,

Defendant

represented

that

the

principal amount due was $172,788.40. (Rec. Doc. 24-2; Rec. Doc.
24-5, pp. 1-2) Second, Plaintiff includes a document showing
that Defendant applied $5,288.90 to Plaintiff’s escrow account
in

April

2013,

which

contradicts

Defendant’s

aforementioned

proof of claim in which Defendant asserted that Plaintiff made
no payments on the loan from February 1, 2012, through April
2013. (Rec. Doc. 24, pp. 2-3; Rec. Doc. 24-3, p. 2) Plaintiff
argues

that

these

inconsistencies

constitute

breach

of

the

Plaintiff

has

original note and mortgage agreement.
In

reply,

Defendant

generally

argues

that

failed to identify any genuine factual dispute. (Rec. Doc. 26)
First, Defendant indicates that Plaintiff failed to oppose its

5

argument that (1) it did not breach the contract by refusing to
accept mortgage payments as Plaintiff alleges, and (2) Plaintiff
is not entitled to nonpecuniary damages. Id. at 1. Accordingly,
Defendant argues that the Court should grant its motion as to
these issues “outright.” Id. Next, Defendant refutes Plaintiff’s
contention

that

a

genuine

issue

of

material

fact

precludes

summary judgment on her breach of contract claim arising from a
failure
although

to

account.

Plaintiff

Id.

seems

at
to

2-3.
argue

Defendant
that

stresses

Defendant

that,

failed

to

account for a $5,288.90 payment in April 2013, Plaintiff has not
actually claimed that she made that payment. Id. at 2. Plaintiff
merely asks the Court to deduce as much from the fact that
$5,288.90 was deposited into the escrow account. Id. Defendant
argues that such a conclusory allegation, unsupported by actual
evidence that Plaintiff made the payment, is insufficient to
raise a genuine issue of fact. Id. at 3.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED.
R. CIV. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994). When assessing whether a dispute as to any

6

material fact exists, the Court considers “all of the evidence
in

the

record

but

refrains

from

making

credibility

determinations or weighing the evidence.” Delta & Pine Land Co.
v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir.
2008).

All

reasonable

inferences

are

drawn

in

favor

of

the

nonmoving party, but a party cannot defeat summary judgment with
conclusory allegations or unsubstantiated assertions. Little, 37
F.3d

at

1075.

A

court

ultimately

must

be

satisfied

that

“a

reasonable jury could not return a verdict for the nonmoving
party.” Delta, 530 F.3d at 399.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
Cir.

1991)

(citation

omitted).

The

nonmoving

party

can

then

defeat the motion by either countering with sufficient evidence
of its own, or “showing that the moving party’s evidence is so
sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party.” Id. at 1265.
If

the

dispositive

issue

is

one

on

which

the

nonmoving

party will bear the burden of proof at trial, the moving party
may satisfy its burden by merely pointing out that the evidence
in

the

record

is

insufficient

7

with

respect

to

an

essential

element of the nonmoving party’s claim. See Celotex, 477 U.S. at
325. The burden then shifts to the nonmoving party, who must, by
submitting
showing

or

that

referring
a

genuine

to

evidence,

issue

set

exists.

out

See

specific

id.

at

facts

324.

The

nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial. See,
e.g., id. at 325; Little, 37 F.3d at 1075.
DISCUSSION
Plaintiff, the nonmovant, has the burden in this case of
proving

each

element

of

her

breach

of

contract

claim.

See

Waguespack v. Flateau, 101 So. 725, 726 (La. 1924). Clearly,
this burden requires Plaintiff to show that Defendant actually
breached an agreement. See id. Defendant has indicated that the
evidence in the record is insufficient as to this issue. (Rec.
Docs. 21-1, 26) The Court agrees, and the Court further finds
that Plaintiff has failed to raise a genuine issue of fact in
response.

Plaintiff

regarding

rejected

did

not

oppose

arguments

and

payments

Defendant’s
nonpecuniary

damages.

Additionally, Plaintiff presented no more than legal conclusions
or a “scintilla” of evidence in response to Defendant’s failure
to

account

assertions

argument.
that

First,

the

inconsistencies

Court

between

rejects
the

Plaintiff’s

Annual

Tax

and

Interest Statement that Defendant sent to Plaintiff at the close
of

2012

and

the

proof

of

claim

8

that

Defendant

filed

in

Plaintiff’s

husband’s

bankruptcy

proceeding

on

May

16,

2013,

somehow raises an issue of fact here. See (Rec. Doc. 24, p. 2).
It

is

clear

that

the

former

document

reflects

only

the

outstanding principal balance, whereas the latter reflects the
principal

balance

and

interest,

the

escrow

advance

balance,

fees, late charges, etc. See (Rec. Doc. 24-2, p. 7). Second, the
April 2013 $5,288.90 escrow payment does not show or otherwise
raise an issue of fact with regard to a failure to account. See
(Rec. Doc. 24, pp. 2-3; Rec. Doc. 24-3, p. 2). Plaintiff has not
actually shown that she made the payment and, therefore, that
Defendant’s

omission

of

the

payment

from

its

proof

of

claim

evinces a failure to account. Instead, Plaintiff makes legal
conclusions and presents only a “scintilla” of evidence—the fact
of

the

$5,288.90

escrow

payment—which

is

insufficient

to

overcome Defendant’s motion. See Little, 37 F.3d at 1075.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary
Judgment (Rec. Doc. 21) is GRANTED.
New Orleans, Louisiana this 14th day of April, 2015.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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