Kowalski et al v. Wells Fargo Bank, N.A.

Filing 54

ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE for 50 Report and Recommendations, GRANTING 37 Motion for Summary Judgment, filed by Wells Fargo Bank, N.A. Plaintiff's case is DISMISSED WITH PREJUDICE. Signed by Judge Ron Clark on 1/30/2013. (baf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
ERIC KOWALSKI and
ANTOINETTE KOWALSKI,
Plaintiffs,
V.
WELLS FARGO BANK, N.A.,
Defendants.

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CASE NO. 4:12cv142
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 December 17, 2012, the report of the Magistrate Judge was entered containing proposed
findings of fact and recommendations that defendant’s Motion for Summary Judgment [Doc. #37]
be granted. On December 31, 2012, plaintiffs filed objections [Doc. #51]. On January 14, 2013,
defendant filed a response to plaintiffs’ objections [Doc. #52] .
Plaintiffs object to the United States Magistrate Judge’s report and recommendations,
asserting that there is a genuine fact issue as to whether defendant accepted plaintiffs’ tax deferral.
Plaintiffs’ objections merely reassert the same arguments made before the Magistrate Judge. The
summary judgment evidence demonstrates that defendant acknowledged the tax exemption but
rejected plaintiffs’ tax deferral because the deferral created a superior lien and jeopardized
defendant’s interests in the property. The Magistrate Judge examined each document that plaintiffs
assert creates a fact issue. The Magistrate Judge correctly considered and rejected each piece of

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evidence. The documents offered by plaintiffs fail to create a fact issue. Thus, there is no basis for
this objection.
Plaintiffs next object that there is a genuine fact issue as to whether defendant misapplied
payments. This objection is based solely on whether there is a fact issue on the issue of deferred
taxes. Because defendant did not accept plaintiffs’ tax deferral, plaintiffs’ contention that defendant
misapplied plaintiffs’ payments also fails. The Magistrate Judge correctly found that there was no
evidence that any funds were misapplied by defendant.
Having received the report of the United States Magistrate Judge, and considering the
objections thereto filed by plaintiffs [Doc. #51], as well as defendant’s response [Doc. #52], 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 defendant’s Motion for Summary Judgment [Doc. #37] is
GRANTED, and plaintiffs’ case is DISMISSED with prejudice.

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So ORDERED and SIGNED on January ____, 2013.

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Ron Clark
United States District Judge

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