Love v. Wells Fargo Bank, N.A.
ORDER AND OPINION re 33 MOTION for Summary Judgment AND BRIEF IN SUPPORT filed by Wells Fargo Bank, N.A.. The Court finds the motion (Dkt. 33) is GRANTED, and Plaintiffs claims are DISMISSED with prejudice. Signed by Magistrate Judge Kimberly C Priest Johnson on 9/22/17. (cm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MICHAEL E LOVE,
WELLS FARGO BANK, N.A.,
CIVIL ACTION NO. 4:16-CV-00904-KPJ
ORDER AND OPINION
Pending before the Court is Defendant Wells Fargo Bank, N.A.’s Motion for Summary
Judgment (Dkt. 33). For the following reasons, the Court finds the motion (Dkt. 33) is
Plaintiff Michael E. Love filed the present action to preclude the foreclosure of the real
property located at 536 Weeping Willow, Murphy, Texas 75094 (the “Property”). See Dkt. 6 at 1.
Plaintiff executed a negotiable instrument (the “Note”) secured by a deed of trust (the “Deed of
Trust”) for the Property. See id. Defendant asserts it is the owner and holder of the Note and
beneficiary of the Deed of Trust by assignment of the mortgage. See Dkt. 33 at 1. Plaintiff alleges
that Defendant must furnish reasonable proof that it is the transferee of the Note prior to proceeding
with the collection of the unpaid debt through enforcement of its right to foreclose. See Dkt. 6.
On August 30, 2017, Defendant filed the Motion for Summary Judgment (Dkt. 33). After
the Court warned Plaintiff for failing to file a timely response, Plaintiff filed a Response on
September 21, 2017 (Dkt. 35). Plaintiff notifies the Court in the Response that he does not oppose
Defendant’s motion. See Dkt. 35 at 2.
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper “if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial. See FED. R. CIV. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
The mere existence of some alleged factual dispute between the parties will not defeat
summary judgment; the requirement is that there be no genuine issue of material fact. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A fact is “material” if a dispute over it might
affect the outcome of a suit under governing law; factual disputes that are “irrelevant or
unnecessary” do not affect the summary judgment determination. See id. at 248. An issue is
“genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party. See id.
Plaintiff vaguely asserts “debt collection violations” under “the Texas and Federal debt
collection statutes,” a claim for declaratory relief, and a claim for a temporary restraining order.
See Dkt. 6 at 4. Defendant argues that it can demonstrate there is no genuine issue of material fact
as to whether: (1) Defendant is the beneficiary of the Deed of Trust, providing the authority to
foreclose on the Property; and (2) Defendant has violated any Texas or Federal debt collection
statutes. See Dkt. 33 at 2.
Plaintiff’s allegations implicate the “show-me-the-note” theory, which has been repeatedly
rejected by the Fifth Circuit; thus, such allegations cannot form the basis of any claim in this
lawsuit as a matter of law. See Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 253-56
(5th Cir. 2013). Additionally, Plaintiff has produced no evidence to support his Texas and Federal
debt collection claims. Finally, the Court finds the motion should be granted because Plaintiff does
not oppose defendant’s motion for summary judgment or dismissal with prejudice. See Dkt. 35 at
2. Thus, there is no genuine issue of material fact as to any of Plaintiff’s claims, and the case should
be dismissed with prejudice.
For the foregoing reasons, the Court finds the motion (Dkt. 33) is GRANTED, and
Plaintiff’s claims are DISMISSED with prejudice.
It is SO ORDERED.
SIGNED this 22nd day of September, 2017.
KIMBERLY C. PRIEST JOHNSON
UNITED STATES MAGISTRATE JUDGE
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