Ganter v. Independent Bank
Filing
68
MEMORANDUM OPINION AND ORDER OF UNITED STATES MAGISTRATE JUDGE. Because the Court finds no fact issue as to Defendants counterclaim, Defendants requestfor summary judgment (see Dkt. 21) is DENIED, Defendant shall take nothing by its counterclaim, and Plaintiffs Motion for Release of the Surety Bond (Dkt. 27) is GRANTED as set forth below and the July 1, 2013 bond posted by Christopher Ganter in Cause Number 006-1498-2013, shall be released payable to Plaintiff upon entry of final judgment in this case. Signed by Magistrate Judge Don D. Bush on 11/21/14. (cm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
CHRISTOPHER GANTER
Plaintiff
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vs.
INDEPENDENT BANK
Defendant.
Case No. 4:13cv510
MEMORANDUM OPINION AND ORDER OF
UNITED STATES MAGISTRATE JUDGE
Now before the Court are Plaintiff’s Motion for Partial Summary Judgment (Dkt. 21),
Plaintiff’s Motion for Release of Surety Bond (Dkt. 27), and Defendant’s Motion for Summary
Judgment (Dkt. 34). The Court makes its findings below.
Plaintiff Christopher Ganter has asserted a breach of contract claim in this action, arguing
that Defendant breached a November 2012 Settlement Agreement by charging off and reporting on
Plaintiff’s credit loans in violation of the agreement and by collecting $21,104.71 from the sale of
property at 1828 Wonderlight Lane, Dallas, Texas on a loan that Defendant forgave. Plaintiff also
claims that Defendant’s actions violate the Fair Credit Reporting Act. Defendant asserts a
counterclaim, arguing that Plaintiff wrongfully obtained an injunction in state court prior to removal.
The Court has already dismissed Plaintiff’s Fair Credit Reporting Act claims, leaving only
the breach of contract claim and the wrongful injunction counterclaim for resolution.
The parties have filed motions seeking to dispose of the remaining claims. Plaintiff argues
that he is entitled to summary judgment on his claim for breach of contract because Defendant
materially breached the Settlement Agreement by failing, and subsequently refusing, to release the
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lien. See Dkt. 21. Defendant argues that Plaintiff does not have a valid claim for breach of contract
because Plaintiff cannot present evidence that he paid the taxes on the Property; Plaintiff did not
make his monthly payments according to the terms of the Homestead Loan, as modified in the
Settlement Agreement; there is no evidence that the Settlement Agreement prohibited the Bank’s
reporting of the charged off debts; and there is no credible evidence that the Bank collected for a loan
that the Bank forgave under the Settlement Agreement.
As to its counterclaim of wrongful injunction, Defendant argues that Plaintiff wrongfully
obtained a restraining order in County Court at Law No. 6, Collin County, Texas, preventing
Defendant’s posted July 2, 2013, foreclosure sale. Defendant argues that the County Court at Law
did not have jurisdiction over Plaintiff’s claims.
Plaintiff’s Motion for Release of Surety Bond (Dkt. 27) seeks the return of Surety Bond in
the sum of Twenty Thousand Dollars ($20,000.00) posted in Collin County in conjunction with the
temporary restraining order. The Court finds that this motion is inextricably intertwined with
Defendant’s Motion for Summary Judgment on Defendant’s claim for wrongful injunction and thus
they will be addressed jointly.
Both parties seek summary judgment on their claim for attorney’s fees.
MOTION FOR SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when, viewing the evidence and all justifiable inferences
in the light most favorable to the non-moving party, there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Hunt v. Cromartie,
526 U.S. 541, 549, 119 S. Ct. 1545, 143 L. Ed.2d 731 (1999). The appropriate inquiry is “whether
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the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52, 106 S. Ct. 2505, 91 L. Ed.2d 202 (1986).
The party moving for summary judgment has the initial burden to prove there are no genuine
issues of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th
Cir. 2001). In sustaining this burden, the movant must identify those portions of pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2553, 91 L. Ed.2d 265 (1986). The moving party,
however, “need not negate the elements of the nonmovant’s case.” Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (en banc). The movant’s burden is only to point out the absence of
evidence supporting the nonmoving party’s case. Stults v. Conoco, Inc., 76 F.3d 651, 655 (5th Cir.
1996).
In response, the nonmovant “may not rest upon mere allegations contained in the pleadings,
but must set forth and support by summary judgment evidence specific facts showing the existence
of a genuine issue for trial.” Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.
1998) (citing Anderson, 477 U.S. at 255-57, 106 S. Ct. at 2513-14). Once the moving party makes
a properly supported motion for summary judgment, the nonmoving party must look beyond the
pleadings and designate specific facts in the record to show that there is a genuine issue for trial.
Stults, 76 F.3d at 655. The citations to evidence must be specific, as the district court is not required
to “scour the record” to determine whether the evidence raises a genuine issue of material fact. E.D.
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TEX. LOCAL R. CV-56(d). Neither “conclusory allegations” nor “unsubstantiated assertions” will
satisfy the nonmovant’s burden. Stults, 76 F.3d at 655.
ANALYSIS
Breach of Contract
The Court first turns to Plaintiff’s claims that Defendant materially breached their Settlement
Agreement by collecting $21,104.71 from the sale of property and refusing to release the lien. In
order to establish a breach of contract claim, Plaintiff must show: (1) the existence of a valid
contract; (2) performance or tender of performance by Plaintiff; (3) breach by Defendant; and (4)
damages resulting from the breach. Cadillac Bar West End Real Estate v. Landry’s Restaurants,
Inc., 399 S.W.3d 703, 705 (Tex. App. – Dallas 2013, pet. denied) (citing Petras v. Criswell, 248
S.W.3d 471, 477 (Tex. App. – Dallas 2008, no pet.)).
The Court notes that the Settlement Agreement contains the following provisions pertinent
to the facts here:
•
“Ganter represents that all taxes on the Property for calendar year 2011 and earlier
have been paid, and that no liens exists on the Property that are superior to, or that
by the passage of time may become superior to, the liens of UCB.” Dkt. 21-2 at
§4.05.
•
“Ganter shall pay UCB a cash payment of $13,500.00 as follows....” Dkt. 21-2 at
§5.02
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“Ganter shall pay all taxes due on the Property before January 31, 2013.” Dkt. 212 at §5.04.
•
“Upon receipt of payment from Ganter as required in Section 5.02 above, UCB
will release its lien on 1828 Wonderlight (Loan #1828), UCB will forgive all of
Ganter’s outstanding guarantees and loan obligations that are not expressly
extended under this Agreement, and will withdraw the foreclosure scheduled for
November 2, 2012.” Dkt. 21-2 at §5.06.
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The Settlement Agreement was executed on November 5, 2012. See Dkts. 22-1. The assignment
of the tax lien to the bank was made as of November 14, 2012. Dkt. 28-1. Thus, there is no fact
issue that Defendant assumed the tax lien on the Property after the execution of the Settlement
Agreement forgiving all “outstanding guarantees and loan obligations” that were not expressly
extended under the agreement.
The Court further finds that the language of the Settlement Agreement is not ambiguous as
to the obligations it released and that any tax liens assumed after the date of the parties’ settlement
were not contemplated to be “outstanding guarantees.” Indeed, on the date the agreement was
executed, Plaintiff represented that no liens then existed on the Property that were superior to, or that
by the passage of time would become superior to then existing liens of the bank and that all other
taxes on the Property would be paid. Dkt. 21-2 at §§ 4.05, 5.04.1 Defendant did not agree to
release the property tax lien in the November 5, 2014 agreement because it had not been assigned
the lien at that time.
Because there is no fact issue that Defendant assumed the property tax lien after the
Settlement Agreement releasing all other liens was executed, Plaintiff cannot demonstrate a fact
issue as to his claim that Defendant’s failure to release the property tax lien was a breach of the
Settlement Agreement. Ganter’s affidavit states that he paid $10,000 before November 5, 2012 and
that he executed a release of the $3,500.00 temporary restraining order bond. See Dkt. 21-2 at 2.
He does not specify when the payment under Section 5.02 was complete. In any event, it appears
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The Court notes that Property Tax Solution’s liens as to the property were recorded in
the public records as early as 2009. See Dkt. 28-4.
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that there was a significant delay in the execution of the release of lien, with the bank claiming it was
Plaintiff’s responsibility to send the form to it. The matter of the preparation and submission of the
release of lien is not addressed in the Settlement Agreement and therefore cannot form a basis for
breach. Ultimately, however, the bank declined to sign the release of lien sent by Plaintiff until the
tax lien notes acquired from Property Tax Solutions were paid off. See Dkt. 24-7.
The Court does find that there is a fact issue regarding the amount retained by Defendant for
the property tax lien. According to the summary judgment record, the approximately $21,000 in tax
liens attached to the 1828 Wonderlight Property was a pro rata amount determined by Independent
Bank after purchasing a bundle of deficient property taxes. See Dkt. 34-9 at PageID #1088-1093.
Although Defendant offers an exhibit in support of its calculation, see Dkt. 34-11, the Court declines
to find that, as a matter of law, Defendant was entitled to exact amount withheld. There is also
evidence in the summary judgment record that it was Defendant’s parent company that purchased
the tax lien, not Defendant, see Dkts. 28 & 29, further creating a fact issue as to whether the amount
withheld constituted a breach of the parties’ agreement.
Because the Court finds that there are outstanding fact issues regarding the sale of the
Wonderlight property and Defendant’s retention of certain funds, Plaintiff’s Motion for Partial
Summary Judgment (Dkt. 21) and Defendant’s Motion for Summary Judgment (Dkt. 34) are
DENIED as to the breach of contract claim, and the breach of contract claim shall proceed to trial.
Plaintiff’s contract claim shall be limited as indicated herein.2 Because the breach of contract claim
2
As to any claim of breach based on Defendant’s reporting on Plaintiff’s credit loans that
were expressly forgiven, there has been no evidence proffered in the summary judgment record
that would create a fact issue as to this allegation.
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remains at this time, summary judgment as to the parties’ claims for attorney’s fees is also denied.3
Wrongful Injunction Counterclaim
The Court next turns to Defendant’s counterclaim for wrongful injunction. Defendant has
asserted a counterclaim, arguing that Plaintiff wrongfully obtained a temporary restraining order in
the County Court at Law, where the County Court at Law lacked jurisdiction over the matters in
dispute. “To prevail upon this cause of action, the claimant must prove that the temporary
restraining order or temporary injunction was issued or perpetuated when it should not have been,
and that it was later dissolved.” DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 685 -686 (Tex.
1990). As to any perpetuation of the injunctive relief, the Court notes that the injunction was issued
on Monday July 1, 2013, and Plaintiff nonsuited the case (apparently after the County Court at Law
questioned its jurisdiction) on Monday, July 8, 2013. Dkts. 34-12-34-3. The Court also questions
whether the issuance of a temporary restraining order by a court without jurisdiction can be said to
be a wrongful action by the movant as a court’s jurisdiction is always a matter for a court’s own
determination. Nonetheless, even if the County Court at Law’s lack of statutory jurisdiction over
an injunction that restrained Defendant for approximately five business days were enough to show
the issuance of a restraining order “when it should not have been,” Defendant has failed to create a
fact issue as to its damages.
Texas law is clear that in such a claim, “the claimant must prove that the issuance of the
injunction caused him damages.” Matagorda County Hosp. Dist. v. City of Palacios, 47 S.W.3d 96,
3
As noted by the Court at the November 18, 2014 telephone conference, however, given
the current posture of the contract claim, an award of attorney’s fees may not be appropriate as to
either party.
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105 (Tex. App.–Corpus Christi,2001). See also Goodin v. Jolliff, 257 S.W.3d 341, 353 (Tex.
App.–Fort Worth 2008) (“we conclude and hold that the trial court erred by releasing the security
amount to Marsha in the absence of any pleading or proof that she was damaged by the issuance of
the temporary injunction.”). Although Defendant claims it was prevented from pursuing a July 2,
2014 foreclosure sale, Defendant has not cited to any summary judgment evidence — or even made
any specific allegations — as to any damages caused by the postponement of the foreclosure sale in
its summary judgment motion. See Dkt. 34 at 16-17.
Because the Court finds no fact issue as to Defendant’s counterclaim, Defendant’s request
for summary judgment (see Dkt. 21) is DENIED, Defendant shall take nothing by its counterclaim,
.
and Plaintiff’s Motion for Release of the Surety Bond (Dkt. 27) is GRANTED as set forth below
and the July 1, 2013 bond posted by Christopher Ganter in Cause Number 006-1498-2013, shall be
released payable to Plaintiff upon entry of final judgment in this case.4
SO ORDERED.
SIGNED this 21st day of November, 2014.
.
____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE
4
On August 7, 2013, in Cause No. 006–1498-2013, the County Court at Law consolidated
Plaintiff’s Motion to Return Bond (in his nonsuited action) with Cause No. 006-1585-2013,
where Defendant asserted claims seeking recovery for wrongful injunction. See Dkt. 27-2. The
consolidated action was removed to this Court; therefore, it appears this Court is left to
determine the release of the bond
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