Miller v. Freddie Home Loan Mortgage Corporation

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 19 Report and Recommendations,, 16 Motion to Dismiss,, filed by PNC Bank National Association, Freddie Home Loan Mortgage Corporation. Defendants Motion for Summary Judgment [Doc. #16] is GRANTED and Plaintiffs case is DISMISSED with prejudice. Signed by Judge Ron Clark on 11/22/13. (cm, )

**NOT FOR PRINTED PUBLICATION**
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
ANGELA MILLER,
Plaintiff,
V.
FEDERAL HOME LOAN MORTGAGE
CORPORATION and PNC BANK,
NATIONAL ASSOCIATION

Defendants.

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CASE NO. 4:12cv746
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 September 6, 2013, the report of the Magistrate Judge was entered containing
proposed findings of fact and recommendations that Defendants’ Motion to Dismiss Pursuant to
Rule 12(c), or in the Alternative, Motion for Summary Judgment [Doc. #16] be granted [Doc.
#19]. On September 23, 2013, Plaintiff filed “Objection to Report of the Magistrate” [Doc. #22].
On October 4, 2013, Defendants filed a response [Doc. #23].
Plaintiff first objects to the Magistrate Judge’s conclusion that the declaration of Plaintiff
should be stricken because it omitted “under penalty of perjury.” Plaintiff suggests that the
content of the declaration is clear and that the defect is one of form and not substance. Plaintiff
cites the court to Powell v. Profile Design LLC, 838 F. Supp. 2d 535, 540 (S.D. Tex. 2012), to

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support her position. However, her reliance upon this case is misplaced. In Powell, the court
found that the declaration was in substantial compliance with 28 U.S.C. § 1746 because the
declaration contained similar language as what section 1746 requires. In this case, Plaintiff’s
declaration does not comply with section 1746, and the Magistrate Judge was correct. The defect
was pointed out, and Plaintiff failed to ask for leave to amend to correct the declaration.
Moreover, the Magistrate Judge correctly determined that even if the declaration were
considered, the result would not change. Plaintiff’s objection is overruled.
Plaintiff next objects to the Magistrate Judge’s finding that the oral modifications are
within the statute of frauds. Plaintiff argues that the Magistrate Judge reads the partial
performance exception to the statute of frauds too narrowly. Plaintiff further argues that she has
demonstrated that there was a significant hardship imposed upon her. Plaintiff asserts that the
bank changed its mind in refusing to comply with its previous agreement. Plaintiff cites the court
to Miller v. Nacol, 224 S.W.2d 734, 737 (Tex. Civ. App.–Fort Worth 1949, no writ).
The reliance upon Miller is also misplaced. In this case, Plaintiff did nothing more than
make payments that she was already obligated to pay under the Note and Deed of Trust. The
payments being made do not implicate the partial performance exception to the statute of frauds.
Furthermore, Plaintiff fails to address many of the reasons given by the Magistrate Judge for
rejection of these arguments. The court agrees that the loan documents did not permit oral
modification of the agreements, there is no evidence to support an oral modification, and even if
there was an oral modification, Plaintiff missed the August 1, 2012 payment date, and there is no
evidence of virtual fraud. Plaintiff’s objection is overruled.
Plaintiff next objects that the failure of consideration is an affirmative defense that was

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not asserted by Defendant PNC Bank in its answer. Plaintiff is correct that Defendants failed to
plead “lack of consideration” as an affirmative defense. However, Plaintiff fails to explain why
she did not raise this issue before the Magistrate Judge. Defendants raised the issue in their
reply, and Plaintiff never contested the issue in a sur-reply. Although the court does not approve
of raising a new issue in a reply, Plaintiff cannot now complain about the issue. Even if the court
were willing to examine this late challenge, Plaintiff has failed to argue how she was unfairly
surprised and prejudiced by this argument being asserted. See Pasco ex rel. Pasco v. Knoblauch,
566 F.3d 572, 577-78 (5th Cir. 2009). Plaintiff also fails to assert how the alleged oral
modification was supported by any new consideration. Plaintiff’s objection is overruled.
Having received the report of the United States Magistrate Judge, and considering the
objections thereto filed by Plaintiff [Doc. #22], 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. #16]
is GRANTED and Plaintiff’s case is DISMISSED with prejudice.
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So ORDERED and SIGNED this 22 day of November, 2013.
So ORDERED and SIGNED this 22 day of November, 2013.

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Ron Clark, United States District Judge

___________________________________
Ron Clark, United States District Judge

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