Swisher et al v. Bank of America, N.A. et al
Filing
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MEMORANDUM OPINION AND ORDER on Motion for Summary Judgment. It is ORDERED that the 11 Motion for Summary Judgment is GRANTED. The complaint is DISMISSED with prejudice and judgment shall be entered for Defendants on their counterclaims. Any motion not previously ruled on is DENIED. Signed by Magistrate Judge Judith K. Guthrie on 3/4/2012. (leh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
JASON SWISHER, et al.
§
v.
§
BANK OF AMERICA, N.A., et al.
§
CIVIL ACTION NO. 6:11cv359
MEMORANDUM OPINION AND ORDER
ON MOTION FOR SUMMARY JUDGMENT
The above-styled lawsuit was filed by Jason and Anete Swisher, proceeding pro se, in the
392nd Judicial District Court of Henderson County, Texas, on May 31, 2011. The case was removed
and filed in this Court on July 12, 2011. On February 13, 2012, the case was transferred to the
undersigned with the consent of the parties in accordance with 28 U.S.C. § 636. Defendants Bank
of America and MERS filed a Motion for Summary (document #11). For the reasons assigned
below, the undersigned finds that the motion should be granted.
Background
Plaintiffs filed a petition in Henderson County titled, “Quiet Title action,” naming Bank of
America, N.A., Mortgage Electronic Registrations Systems, Inc. (“MERS”), Universal Savings
Bank, F.A., and Thomas E. Black, Jr. as defendants. In their petition, Plaintiffs submit that there are
problems with the mortgage lien on their homestead. Plaintiffs complain that Defendants have failed
to provide “the original wet ink signature promissory note,” and proof that Defendants are the Note
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Holder in Due Course with standing to act as a party of interest in the Promissory Note. Plaintiffs
seek to be “released” from the lien. Defendants Bank of America and MERS filed a Counterclaim
seeking a declaratory judgment that Bank of America’s lien position remains valid and enforceable.
Defendants Bank of America and MERS filed a motion for summary judgment on January
27, 2012. Defendants assert that Bank of America has an undisputed first lien position securing the
property made the subject of a standard residential mortgage obtained by Plaintiffs in 2006. Further,
Defendants argue that Bank of America is the holder of the mortgage and deed of trust and Plaintiffs
do not have standing or a right to void Bank of America’s mortgage and deed of trust based upon
their theory that they have not been provided an “original wet ink signature promissory note.”
Defendants submit that 18 U.S.C. § 2071 does not apply and/or does not provide a private right of
action. Defendants seek a declaratory judgment that Bank of America has a first lien interest on the
property and that the documents filed by Plaintiffs are void or fraudulent.
In this case, Plaintiffs obtained a loan for $119,500.00 on July 24, 2006 for the purchase of
property located at 519 Neches Drive in Chandler, Texas. The loan is secured by the property. A
deed of trust is recorded in Henderson County, Texas. Plaintiffs have paid their mortgage payments
as required. In October 2010, however, Plaintiffs began filing a series of documents seeking to void
any lien on their property. On October 22, 2010, Plaintiffs filed a Quitclaim Deed in the real
property records of Henderson County. Bank of America then received a letter from Plaintiffs titled,
“Notice of Right to Cancel.” In this letter, Plaintiffs assert that they have discovered “Disclosure
Violations” and they seek to cancel any lien and/or security interest on their home. Plaintiffs filed
their “Notice of Right to Cancel” in the real property records of Henderson County on October 25,
2010. Plaintiffs additionally filed a “Notice of Removal” in the real property records of Henderson
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County on the same date, essentially seeking to revoke any authority provided to Bank of America,
Universal Savings Bank, MERS and Thomas Black, Jr. in the deed of trust. On December 10, 2010,
Plaintiffs filed another Quitclaim Deed.
On February 8, 2012, the parties appeared in this case for a Scheduling Conference. At the
Scheduling Conference, Plaintiffs stated that they no longer wished to proceed with their claims.
They further stated that they would not oppose the motion for summary judgment that had already
been filed by Defendants.
Summary Judgment Standard
Rule 56(a) of the FED . R. CIV . P. provides that the Court may only grant a motion for
summary judgment when there is no genuine issue of material fact and the moving party is entitled
to summary judgment as a matter of law. The party seeking summary judgment always bears the
initial responsibility of informing the district court of the basis for its motion and identifying 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 (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). 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 showing
that there is a genuine issue for trial. Id. Neither “conclusory allegations” nor “unsubstantiated
assertions” will satisfy the nonmovant’s burden. Id.
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Summary judgment is inappropriate if the evidence before the court, viewed as a whole,
could lead to different factual findings and conclusions. Honore v. Douglas, 833 F.2d 565 (5th Cir.
1987). The district court must look to the full record, including the pleadings, affidavits, and
depositions. Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). Under this standard, fact
questions are considered with deference to the nonmovant. Reid v. State Farm Mutual Automobile
Insurance Co., 784 F.2d 577, 578 (5th Cir.1986). The evidence of the nonmovant is to be believed
and all inferences are to be drawn in his favor. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106
S.Ct. 2505, 2513 (1986). The Court resolves factual controversies for purposes of summary
judgment in favor of the nonmoving party, but only when there is an actual controversy, that is, when
both parties have submitted evidence of contradictory facts. Little v. Liquid Air Corp., 37 F.3d at
1075. The Court does not, however, in the absence of any proof, assume that the nonmoving party
could or would prove the necessary facts. Wallace v. Texas Tech University, 80 F.3d 1042, 1048 (5th
Cir. 1996) (citing Little v. Liquid Air Corp, 37 F.3d at 1075).
An issue is "genuine" if the evidence supporting its resolution in favor of the party opposing
summary judgment, together with any inference in such party's favor that the evidence allows, would
be sufficient to support a verdict in favor of the party. St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th
Cir. 1987). A "material fact" is one that might affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510.
Discussion and Analysis
In this case, Plaintiffs did not respond to the motion for summary judgment. Pursuant to
Local Rule CV-7(d), the Court assumes that Plaintiffs do not oppose the motion. Plaintiffs have not
shown a legal requirement for Defendants to produce an original note. Defendants’ competent
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summary judgment evidence shows that Plaintiffs executed a deed of trust on July 24, 2006 showing
Universal Savings Bank, F.A. as the “lender” and MERS as nominee for the lender. The note and
deed of trust were transferred and assigned to Bank of America, as permitted by the loan documents
executed by Plaintiffs. Bank of America is the holder of the mortgage note and the deed of trust with
a first lien securing the property at issue. Plaintiffs claims are without merit and the documents filed
by Plaintiffs in the real property records should be declared void.
Having carefully considered the evidence, the Court finds there are no genuine issues of
material fact and Defendants are entitled to judgment as a matter of law. It is accordingly
ORDERED that the Motion for Summary Judgment (document #11) is GRANTED. The
complaint is DISMISSED with prejudice and judgment shall be entered for Defendants on their
counterclaims. Any motion not previously ruled on is DENIED.
So ORDERED and SIGNED this 4
day of March, 2012.
____________________________
JUDITH K. GUTHRIE
UNITED STATES MAGISTRATE JUDGE
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