Biggers et al v. BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing, LP

Filing 26

MEMORANDUM OPINION AND ORDER granting 18 Motion for Summary Judgment filed by BAC Home Loans Servicing, LP. (Ordered by Chief Judge Sidney A Fitzwater on 5/18/2011) (Chief Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CLINTON D. BIGGERS, et al.,

§
§
Plaintiffs, §
§ Civil Action No. 3:10-CV-1182-D
VS.
§
§
BAC HOME LOANS SERVICING, LP
§
f/k/a COUNTRYWIDE HOME LOANS
§
SERVICING, LP,
§
§
Defendant. §
MEMORANDUM OPINION
AND ORDER
In this removed action by plaintiffs Clinton D. Biggers and
Freda Hobson Biggers (the “Biggerses”) against defendant BAC Home
Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing, LP
(“BAC”)

arising

from

attempts

to

foreclose

on

plaintiffs’

residential property, BAC moves for summary judgment.

For the

reasons that follow, the court grants the motion and dismisses this
case by judgment filed today.
I
The Biggerses sue BAC on claims for breach of contract,
wrongful foreclosure, and negligent misrepresentation, and for
violations of the Texas Debt Collection Practices Act (“TDCPA”),
Tex.

Fin.

Code

Ann.

§§

392.001-.404

(West

2006),

and

Texas

Deceptive Trade Practices-Consumer Protection Act (“DTPA”), Tex.
Bus. & Com. Code Ann. §§ 17.41-17.63 (West 2011).

After BAC filed

the instant summary judgment motion on February 1, 2011, the court
granted in part BAC’s earlier-filed motion to dismiss under Fed. R.

Civ. P. 12(b)(6).

See Biggers v. BAC Home Loans Servicing, LP, ___

F.Supp.2d ___, 2011 WL 588059, at *8 (N.D. Tex. Feb. 10, 2011)
(Fitzwater,

C.J.)

(“Biggers

I”).

The

court

dismissed

the

Biggerses’ breach of contract, wrongful foreclosure, negligent
misrepresentation, and DTPA claims for failure to state a claim
upon which relief may be granted.

Id.1

The court granted the

Biggerses leave to replead the DTPA claim, however, because the
court had dismissed this claim on grounds raised sua sponte.

Id.

The Biggerses filed a second amended complaint on March 3, 2011.
Only their TDCPA claim and DTPA claims remain.

Although BAC filed

its summary judgment motion on February 1, 2011, the Biggerses have
not responded to the motion within the time prescribed by N.D. Tex.
Civ. R. 7.1(e), and the motion is now ripe for disposition.2
II
Because BAC is moving for summary judgment on claims as to
which the Biggerses will bear the burden of proof at trial, it can
obtain summary judgment by pointing the court to the absence of
evidence on any essential element of the Biggerses’ claims.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

See

Once it does

so, the Biggerses must go beyond their pleadings and designate

1

The court also dismissed the Biggerses’ request for exemplary
damages, which the Biggerses styled as a separate cause of action
in their first amended complaint.
2

BAC supplemented its summary judgment motion on March 21,
2011.
Even basing the response deadline on the March 21, 2011
filing, the Biggerses’ summary judgment response is overdue.
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specific facts demonstrating that there is a genuine issue for
trial.

See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc) (per curiam).

An issue is genuine

if the evidence is such that a reasonable jury could return a
verdict for the Biggerses.
477 U.S. 242, 248 (1986).

See Anderson v. Liberty Lobby, Inc.,
The Biggerses’ failure to produce proof

as to any essential element renders all other facts immaterial.
Trugreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D.
Tex. 2007) (Fitzwater, J.).

Summary judgment for BAC is mandatory

if the Biggerses fail to meet this burden.

Little, 37 F.3d at

1076.
Because the Biggerses have not responded to BAC’s motion, the
court considers BAC’s factual assertions to be undisputed.

See

Fed. R. Civ. P. 56(e)(2) (“If a party . . . fails to properly
address another party’s assertion of fact as required by Rule
56(c), the court may . . . consider the fact undisputed for
purposes of the motion[.]”); see also Tutton v. Garland Indep. Sch.
Dist., 733 F. Supp. 1113, 1117 (N.D. Tex. 1990) (Fitzwater, J.)
(“Although [plaintiffs’] failure to respond does not permit entry
of a ‘default’ summary judgment, the court is permitted to accept
the movant’s evidence as undisputed.” (citing Eversley v. MBank
Dallas, 843 F.2d 172, 174 (5th Cir. 1988))).
Furthermore, the court disregards BAC’s arguments concerning
any claims other than the TDCPA and DTPA claims because the other

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causes of action have already been dismissed.

The court also

disregards the portions of the Biggerses’ second amended complaint
to the extent that they allege grounds in support of the TDCPA
claim

that

have

already

been

rejected

in

Biggers

I

(i.e.,

allegations of wrongdoing based on Tex. Prop. Code Ann. § 51.002(b)
(West Supp. 2010)).
III
Under the TDCPA, “[i]n debt collection, a debt collector may
not use threats, coercion, or attempts to coerce that employ any of
the following practices: . . . threatening to take an action
prohibited by law.”
2006).

Tex. Fin. Code Ann. § 392.301(a)(8) (West

The Biggerses allege that BAC took actions prohibited by

law by failing to give them a valid notice of default and an
opportunity to cure at least 20 days before issuing a notice of
sale, in violation of Tex. Prop. Code § 51.002(d) (West Supp.
2010), and by threatening to foreclose via substitute trustees when
it had no legal authority to do so.

The Biggerses also assert that

BAC violated the DTPA under Tex. Fin. Code Ann. § 392.404(a) (West
2006) (permitting violation of TDCPA to be treated as actionable
deceptive trade practice under DTPA).

Because the Biggerses have

not responded to BAC’s motion, they have failed to adduce evidence
that would enable a reasonable jury to find in their favor on their
TDCPA or DTPA claim.
The Texas Property Code only requires that the “mortgage

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servicer of the debt shall serve a debtor in default under a deed
of trust . . . with written notice by certified mail stating that
the debtor is in default under the deed of trust . . . and giving
the debtor at least 20 days to cure the default before notice of
sale . . . .”

Tex. Prop. Code § 51.002(d) (West Supp. 2010)

(emphasis added). BAC has produced evidence that such a notice was
provided by certified mail in a December 8, 2008 letter and an
October 6, 2009 letter clearly identifying BAC (or Countrywide, as
it was formerly known3) as the mortgage servicer and providing at
least 20 days to cure the default.

The Biggerses have failed to

produce evidence that would enable a reasonable jury to find that
there were any representations in these notices of default that BAC
owned the loans or to suggest that BAC was not authorized to
service the loans on behalf of the noteholder. They have therefore
failed to raise a genuine issue of material fact as to whether BAC
provided the notice of default required under Tex. Prop. Code
§ 51.002(d) as servicer of the Biggers loan.
BAC has also pointed to the absence of any evidence supporting
the Biggerses’ assertions that BAC is not the mortgagee of their
loan.

BAC has submitted evidence of a corporation assignment of

deed of trust/mortgage, executed on May 18, 2010, assigning all
beneficial interests of the deed of trust to BAC.

3

While this

The Biggerses acknowledge in their second amended complaint
that BAC was formerly known as Countrywide Home Loans Servicing LP.
Am. Compl. 1.
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memorialization proves that BAC had a beneficial interest in the
deed no later than May 18, 2010, it is not evidence that BAC lacked
the interest at an earlier point.

As noted in Tex. Prop. Code

§ 51.0001(4)(A) (West Supp. 2010), a mortgagee does not solely
refer to the last person to whom the security interest has been
assigned of record; it may also refer to “the grantee, beneficiary,
owner, or holder of a security instrument.”

That BAC was formally

assigned the beneficial interest in the May 18, 2010 document is
not evidence that BAC was not the legal beneficiary or holder of
the deed of trust at the time it appointed substitute trustees on
April 12, 2010.

BAC has pointed to an absence of evidence

indicating that it had no legal right to appoint substitute
trustees and to take actions to foreclose on the Biggerses’
property, and the Biggerses have failed to produce evidence that
would enable a reasonable jury to find in their favor.

BAC is

therefore entitled to summary judgment dismissing this ground of
the Biggerses’ TDCPA claim.
IV
Because the Biggerses’ DTPA claim is derivative of their TDCPA
claim, BAC is entitled to summary judgment dismissing the DTPA
cause of action as well.

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*

*

*

BAC’s February 1, 2011 motion for summary judgment is granted,
and this action is dismissed with prejudice by judgment filed
today.
SO ORDERED.
May 18, 2011.

_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE

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