Lombardi v. Bank of America NA et al
Filing
152
ORDER ACCEPTING 142 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: Based on the foregoing analysis, the Court finds that the Magistrate Judge's FCR in this case should be and is hereby ACCEPTED, Defendants 9; Second Motion for Summary Judgment (ECF No. 123 ) is GRANTED, and the Plaintiff's remaining claim for violation of § 51.002(d) and her requested declaration that Defendants have "unclean hands" are DISMISSED with prejudice. (Ordered by Judge Reed C O'Connor on 11/23/2015) (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JEAN LOMBARDI,
Plaintiff,
v.
BANK OF AMERICA et al.,
Defendants.
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Civil Action No. 3:13-cv-1464-O
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge issued Findings, Conclusions and Recommendation
(“FCR”) (ECF No. 142) in this case. The Magistrate Judge recommended that Defendants’ Second
Motion for Summary Judgment should be granted and Plaintiff’s remaining claim and requested
declaration should be dismissed with prejudice. FCR, ECF No. 142. Plaintiff filed objections. See
Pl.’s Obj. FCR, ECF No. 146. Defendants filed a response. Resp., ECF No. 151. The Court has
conducted a de novo review of those portions of the proposed findings and recommendation to which
an objection was made. Having reviewed the Motion, the applicable law, and the record before the
Court, the Court finds the Report and Recommendation in this case is hereby ACCEPTED.
I.
BACKGROUND & LEGAL STANDARD
Defendants filed their Second Motion for Summary Judgment as to Lombardi’s claim for an
alleged violation of § 51.002(d) and her request for a declaratory judgment on a theory of “unclean
hands.”
Defs.’ 2d Mot. Summ. J., ECF No. 123.
The Magistrate Judge issued an FCR
recommending that Defendants’ Second Motion for Summary judgment be granted. The Court
reviews de novo the portions of the FCR to which Lombardi has objected. See 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b). Lombardi has not objected to the Magistrate’s factual and
procedural recitation and the Court adopts it here. FCR 2–5, ECF No. 142. Lombardi objects to the
FCR on the following grounds: (1) that Plaintiff’s Tex. Prop. Code § 51.002(d) (“§ 51.002(d)”)
argument is not a new claim or theory of liability; and (2) second, that § 51.002(d) is rendered
illusory if an exact amount needed to cure a default is not provided. Pl.’s Obj. FCR 2–5, ECF No.
146.
II.
ANALYSIS
A.
Section 51.002(d)’s Requirements
The Magistrate Judge found that § 51.002(d) contains no requirement that a notice provided
under that section state the amount of money needed to cure the default. See Tex. Prop.
Code § 51.002(d); Rhodes v. Wells Fargo Bank, N.A., No. 3:10-cv-2347, 2012 WL 5363424, at *19
(N.D. Tex. Oct. 31, 2012) (Lindsay, J.) (finding § 51.002(d) contains no requirement that a notice
of default state the amount of money needed to cure the default). Lombardi objects that § 51.002(d)
is rendered illusory if an exact amount needed to cure a default is not provided. Pl.’s Obj. FCR 5,
ECF No. 146. Lombardi argues that the purpose of § 51.002(d) is to “protect the debtor,” citing
Texas Supreme Court authority. See Jasper Fed. Sav. & Loan Ass’n v. Rehhell, 730S.W.2d 672,
674–75 (Tex. 1987).
Defendants offer several cases rejecting this argument. See, e.g., Rhodes, 2012 WL 5363424,
*19 (“Section 51.002 contains no such requirement and Plaintiffs have not pointed the court to any
authority that Texas courts have construed section 51.002 to include such a requirement.”); Rabe v.
Wells Fargo Bank, N.A., No. 4:11-cv-787, 2013 WL 5458068, at *7 (E.D. Tex. Sept. 30, 2013)
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(holding that summary judgment was appropriate because “[t]here is no applicable statute or
regulation that requires a notice of acceleration to state the amount necessary to cure the default.”);
Buchanan v. Compass Bank, No. 02-14-34-cv, 2015 WL 222143, at *3 (Tex. App.—Fort Worth Jan.
15, 2015, pet. denied) (affirming summary judgment against borrower and noting there is “no
language in the statute that requires notices to include the exact amount owed.”).
Section 15.002(d) reads:
Notwithstanding any agreement to the contrary, the mortgage servicer of the
debt shall serve a debtor in default under a deed of trust or other contract lien on real
property used as the debtor’s residence with written notice by certified mail stating
that the debtor is in default under the deed of trust or other contract lien and giving
the debtor at least 20 days to cure the default before notice of sale can be given under
Subsection (b). The entire calendar day on which the notice required by this
subsection is given, regardless of the time of day at which the notice is given, is
included in computing the 20-day notice period required by this subsection, and the
entire calendar day on which notice of sale is given under Subsection (b) is excluded
in computing the 20-day notice period.
Tex. Prop. Code § 51.002(d). By the plain language of the statute, a lender is not required to provide
the debtor with an exact amount owed; the lender is required to give “written notice by certified mail
stating that the debtor is in default.” This Court agrees with the cited authorities that § 51.002(d)
contains no requirement that a lender’s notice state the exact amount owed. Therefore, the
Magistrate Judge properly found that Plaintiff failed to meet her burden to show a genuine issue of
material fact as to her claim for violation of § 51.002(d) and this objection is OVERRULED.
B.
New Theory of Liability
In the FCR, the Magistrate Judge accepted Defendants’ argument that Plaintiff’s allegation
regarding BOA’s failure to provide the specific amount to cure her default is a new allegation raised
for the first time in her response. FCR 10, ECF No. 142. Lombardi objects to this finding based on
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Plaintiff’s First Amended Complaint, which states that “Plaintiff never received a Notice of Default
and Right to Cure as required by Tex. Prop. Code § 51.002(d).” Pl.’s Obj. FCR 3, ECF No. 146.
Plaintiff additionally argues that Defendants had actual notice of Plaintiff’s contentions. Id. at 4–5.
However, although the Magistrate Judge found that the Court was not required to consider this newly
alleged theory of liability, the Court did consider the claim on its merits. See FCR 10–11. Because
this Court agrees with the Magistrate Judge on the merits of Lombardi’s § 51.002(d) claim, this
objection is OVERRULED as moot.
III.
CONCLUSION
Based on the foregoing analysis, the Court finds that the Magistrate Judge’s FCR in this case
should be and is hereby ACCEPTED, Defendants’ Second Motion for Summary Judgment (ECF
No. 123) is GRANTED, and the Plaintiff’s remaining claim for violation of § 51.002(d) and her
requested declaration that Defendants have “unclean hands” are DISMISSED with prejudice.
SO ORDERED on this 23rd day of November, 2015.
_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE
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