May v. JPMorgan Chase Bank NA

Filing 40

ORDER ADOPTING REPORT AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE for 28 Motion for Summary Judgment. Signed by Judge Ron Clark on 7/2/2014. (pad, )

**NOT FOR PRINTED PUBLICATION**
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
JOSE FRANCISCO MAY,
Plaintiff,
V.
JPMORGAN CHASE BANK, N.A.
Defendant.

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CASE NO. 4:13cv201
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 May 14, 2014, the report of the Magistrate Judge was entered containing
proposed findings of fact and recommendations that Defendant’s Motion for Summary Judgment
[Doc. #28] be granted [Doc. #36]. On May 29, 2014, Plaintiff filed his objections [Doc. #38].
On June 2, 2014, Defendant filed a response [Doc. #39].
In this mortgage foreclosure case, the Magistrate Judge found that the facts were
undisputed. The Magistrate Judge found that Plaintiff: defaulted on the loan; was notified of the
default; did not cure the default; was notified that the debt was accelerated; and that the property
would be sold at foreclosure. The Magistrate Judge further found that Plaintiff: admitted the
notices satisfied the requirements of the Deed of Trust and Texas Property Code; admitted there
was no written agreement to postpone the November 6, 2012 foreclosure sale; attempted to send
an incomplete request for mortgage assistance to Defendant, but sent it to an unknown telephone

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number not designated as the facsimile number of Defendant; and was informed on November 5,
2012, that the property would be sold on November 6, 2012. The Magistrate Judge further found
that the property was sold at foreclosure on November 6, 2012. Plaintiff did not object to any of
these findings.
Plaintiff filed objections, but the court agrees with Defendant that Plaintiff merely
rehashes the arguments he previously asserted and Plaintiff does not identify any specific legal
or factual conclusion that is inaccurate or deserving of objection.
Plaintiff first objects to the report regarding the breach of contract claim and claim for
violation of the Texas Property Code. Specifically, Plaintiff asserts that he pleaded sufficient
facts to show that Defendant failed to provide proper notice to Plaintiff and that Defendant’s
actions constituted a waiver of its rights to accelerate and foreclose, and that the report
erroneously recommends that Plaintiff’s claims be dismissed. This objection has no merit since
it is based upon whether a claim was pleaded, and does not address the correct summary
judgment standard.
Plaintiff further asserts that he showed ample evidence that he was not provided with,
and Defendant does not assert that Plaintiff was sent, a reinstatement figure or given the
opportunity to reinstate before the sale of his property at foreclosure. Plaintiff further asserts
that the notice of default was allegedly sent on December 5, 2011, nearly one year before the
foreclosure of Plaintiff’s property commenced, making the notice stale.
Plaintiff made these same exact arguments to the Magistrate Judge and the Magistrate
Judge rejected them. The Magistrate Judge was correct. Plaintiff’s arguments are completely
unsupported by the facts and are contrary to Texas law and Fifth Circuit precedent. Plaintiff has
failed to raise a material fact issue. There is no evidence of waiver, and the proper notices were
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sent.
Plaintiff next objects to the dismissal of his claims under the Texas Debt Collection
Practices Act (“TDCA”). Plaintiff asserts that the Magistrate Judge did not address all of his
claims under the TDCA. A review of the report demonstrates that the Magistrate Judge
addressed each claim made by Plaintiff under the TDCA. The Magistrate Judge specifically
addressed and rejected Plaintiff’s claims under sections 392.301(a)(8), 392.304(a)(8), and
392.304(a)(19). Plaintiff’s objection fails to point out what allegation was omitted by the
Magistrate Judge. The court agrees with the Magistrate Judge that the undisputed summary
judgment evidence unequivocally established Defendant was entitled to summary judgment on
Plaintiff’s TDCA claims.
Plaintiff next objects to the dismissal of the quiet title claim, asserting that the report “is
premised on the fact that Plaintiff’s breach of contract claim should be dismissed.” Plaintiff
argues that since the contract claim should not be dismissed, this claim should also not be
dismissed. Since the contract claim was properly dismissed, the Magistrate Judge did not err.
Defendant also correctly points out that the Magistrate Judge did not recommend dismissal of
this claim merely premised on the failure of Plaintiff’s breach of contract claim, but also
premised on Plaintiff’s complete failure to establish his superiority of title. The Magistrate
Judge correctly determined that Plaintiff failed to offer summary judgment evidence of his
superior title. There is no evidence that there was any problem with the foreclosure sale.
Finally, Plaintiff objects to the denial of his requests for declaratory relief and for an
accounting, because his other claims should not be dismissed. Since the Magistrate Judge
correctly recommended dismissal of all of Plaintiff’s claims, there is no basis for declaratory
relief or an accounting.
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Having received the report of the United States Magistrate Judge, and considering the
objections thereto filed by Plaintiff [Doc. #38] and Defendant’s response [Doc. #39], 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. #28]
is GRANTED and Plaintiff’s case is DISMISSED with prejudice.
So ORDERED and SIGNED this 2 day of July, 2014.

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Ron Clark, United States District Judge

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