Hollenshead v. National Residential Assets Corp. et al

Filing 10

MEMORANDUM OPINION AND ORDER re 9 MOTION for Summary Judgment filed by Bank of America, N.A.. Defendants Motion for Interlocutory Summary Judgment (Dkt. #9) is hereby DENIED. Signed by Judge Amos L. Mazzant, III on 12/9/15. (cm, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

THOMAS C. HOLLENSHEAD

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V.
NATIONAL RESIDENTIAL
ASSETS CORP,
BANK OF AMERICA, N.A.,
and SOCA FUNDING, L.L.C.

CASE NO. 4:14-CV-766
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Bank of America, N.A.’s Motion for Interlocutory
Summary Judgment (Dkt. #9). The Court, having considered the relevant pleadings, finds that
Defendant’s motion should be denied.
On September 22, 2015, Defendant Bank of America, N.A. (“BANA”) filed a Motion for
Summary Judgment (Dkt. #9). No response was filed by Plaintiff.
LEGAL STANDARD
The purpose of summary judgment is to isolate and dispose of factually unsupported claims
or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary judgment is proper
if the pleadings, the discovery and disclosure materials on file, and any affidavits “[show] that there
is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(a). A dispute about a material fact is genuine “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The trial court must resolve all reasonable doubts in favor of the
party opposing the motion for summary judgment. Casey Enters., Inc. v. Am. Hardware Mut. Ins.
Co., 655 F.2d 598, 602 (5th Cir. 1981) (citations omitted). The substantive law identifies which

facts are material. Anderson, 477 U.S. at 248.
The party moving for summary judgment has the burden to show that there is no genuine
issue of material fact and that it is entitled to judgment as a matter of law. Id. at 247. If the movant
bears the burden of proof on a claim or defense on which it is moving for summary judgment, it must
come forward with evidence that establishes “beyond peradventure all of the essential elements of
the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Where the
nonmovant bears the burden of proof, the movant may discharge its burden by showing that there
is an absence of evidence to support the nonmovant’s case. Celotex, 477 U.S. at 325; Byers v. Dallas
Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its burden, the
nonmovant must “respond to the motion for summary judgment by setting forth particular facts
indicating there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at
248-49). The nonmovant must adduce affirmative evidence. Anderson, 477 U.S. at 257. No “mere
denial of material facts nor…unsworn allegations [nor] arguments and assertions in briefs or legal
memoranda” will suffice to carry this burden. Moayedi v. Compaq Computer Corp., 98 F. App’x
335, 338 (5th Cir. 2004). Rather, the Court requires “significant probative evidence” from the
nonmovant in order to dismiss a request for summary judgment supported appropriately by the
movant. United States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001). The Court must consider
all of the evidence, but must refrain from making any credibility determinations or weighing the
evidence. See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
DISCUSSION AND ANALYSIS
Plaintiff asserts three causes of action and also seeks recovery of his attorneys’ fees, expenses
and court costs. Plaintiff first asserts that BANA violated the Real Estate Settlement Procedures Act
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by failing to respond to his qualified written requests. Plaintiff next asserts that BANA violated the
Fair Debt Collection Practices Act (“FDCPA”) by failing to cease collection activities when he
notified BANA that he disputed the debt. Plaintiff also asserts that BANA violated the FDCPA by
failing to inform him that it had transferred the servicing of his mortgage loan to another lender.
Finally, Plaintiff alleges he never received notice the loan was transferred to another company or that
BANA would be servicing that loan for the new company. Plaintiff alleges BANA has not provided
any documentation showing that it has the authority to act for the new owner of the mortgage or that
BANA has any authority to conduct a foreclosure sale. Plaintiff seeks a declaratory judgment that
BANA has no authority to foreclose his mortgage and enjoining BANA from proceeding with
foreclosure in this case.
After reviewing the summary judgment evidence and BANA’s scant briefing, the Court finds
that there are issues of fact remaining. Summary judgment should be denied. The case should
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proceed to trial.
CONCLUSION
It is therefore ORDERED that Defendant’s Motion for Interlocutory Summary Judgment
(Dkt. #9) is hereby DENIED.
SIGNED this 9th day of December, 2015.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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