Mitchell v. Bank of New York Mellon Trust Company, N.A. et al

Filing 42

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 37 Report and Recommendations, 33 Motion for Summary Judgment, filed by GMAC Mortgage, LLC, Bank of New York Mellon Trust Company, N.A. Defendants Motion for Summary Judgment [Doc. #33] is DENIED. Signed by Judge Ron Clark on 1/24/13. (cm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
LAURIE FOSTER MITCHELL

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Plaintiff,
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V.
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THE BANK OF NEW YORK MELLON
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TRUST COMPANY, NATIONAL
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ASSOCIATION F/K/A THE BANK OF
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NEW YORK TRUST COMPANY, N.A. AS §
SUCCESSOR TO JPMORGAN CHASE
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BANK, N.A., AS TRUSTEE, GMAC
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MORTGAGE, LLC, SERVICER-IN-FACT
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FOR THE BANK OF NEW YORK
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MELLON TRUST COMPANY, NATIONAL §
ASSOCIATION F/K/A THE BANK OF
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NEW YORK TRUST COMPANY, N.A.
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AS SUCCESSOR TO JPMORGAN
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CHASE BANK, N.A., AS TRUSTEE
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Defendants.
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CASE NO. 4:11-CV-716
Judge Clark/Judge Mazzant

ORDER ADOPTING REPORT AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action, this
matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C.
§ 636. On November 30, 2012, the report of the Magistrate Judge was entered containing proposed
findings of fact and recommendations that defendants’ Motion for Summary Judgment [Doc. #33]
be denied [Doc. #37]. On December 13, 2012, defendants filed objections to the report [Doc. #38].
On December 27, 2012, plaintiff filed a response to the objections [Doc. #40].
Defendants first object that the Magistrate Judge erred because the report did not address the

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undisputed fact that defendant GMAC Mortgage, LLC (“GMACM”) is the loan servicer for the loan.
Plaintiff responds that no error occurred because defendants did not argue in their motion that it is
undisputed that GMACM is the servicer for the Deed of Trust covering plaintiff’s homestead.
Defendants’ motion is not a model of clarity. Although defendants do discuss briefly that GMACM
is the servicer of the loan, it is not clear that defendants were asking for summary judgment on that
ground as compared to the assignment of the loan to defendant The Bank of New York Mellon Trust
Company, N.A. f/k/a The Bank of New York Trust Company, N.A., as Successor to JPMorgan
Chase Bank, N.A., as Trustee (“BONYM”). The court cannot say that the Magistrate Judge erred
in failing to address an argument that was not clearly made in defendants’ motion. Moreover, even
if the argument had been made properly, the court does not see that it is undisputed that
GMACM is the servicer. Defendants failed to offer sufficient summary judgment evidence for the
court to determine as a matter a law that GMACM is the servicer of the loan.
Defendants next object that the report should be rejected because the exhibits to the Montoya
Declaration are public records and therefore admissible regardless of any perceived deficiencies with
the Montoya Declaration itself. The Magistrate Judge found the Montoya Declaration deficient and
struck it. Defendants assert that the documents attached are public records. Plaintiff correctly points
out that this argument was not made before the Magistrate Judge. In addition, although the
documents may be public records, defendants failed to offer them in an admissible form. The
Magistrate Judge found that the other exhibits were not in admissible form and would not be
considered. The court finds no error.
Defendants next objects to the Magistrate Judge’s striking of the Montoya Declaration. The
Magistrate Judge found that “[a]lthough a senior analyst can prove up records in a mortgage case,

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the Montoya Declaration fails to reach that threshold. The court has previously overruled objections
to an affidavit in a mortgage case, but in that case the affidavit provided more information than was
provided in this case,” citing to 4:10cv590 (E.D. Tex. May 7, 2012) (Dkt. #41). The court agrees
with the Magistrate Judge that the Montoya Declaration fails to meet the necessary threshold, and
was therefore properly stricken.
Now realizing their mistake, defendants attempt to correct the evidentiary mistake by
attaching to the objections a new Montoya Declaration. The court rejects defendants’ late attempt.
The court finds that defendants had the opportunity to present a proper motion for summary
judgment and failed in that effort. This case can proceed to trial.
Having received the report of the United States Magistrate Judge, and considering the
objections thereto filed by defendants, this court is of the opinion that the findings and conclusions
of the Magistrate Judge are correct and adopts the Magistrate Judge’s report as the findings and
conclusions of the Court.
It is, therefore, ORDERED that defendants’ Motion for Summary Judgment [Doc. #33] is
DENIED.
So ORDERED and SIGNED this 24 day of January, 2013.

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Ron Clark, United States District Judge

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