Ostberg v. US Bank NA et al

Filing 18

MEMORANDUM OPINION AND ORDER granting 15 MOTION for Summary Judgment filed by Ocwen Loan Servicing LLC, Power Default Services Inc, Substitute Trustees, US Bank NA. (Ordered by Judge Sidney A Fitzwater on 7/7/2016) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JAMES OSTBERG,
Plaintiff,
VS.
U.S. BANK N.A., AS TRUSTEE FOR
THE REGISTERED HOLDERS OF THE
STRUCTURED ASSET SECURITIES
CORPORATION, STRUCTURED ASSET
INVESTMENT LOAN TRUST,
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2003-BC8,
et al.,
Defendants.

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§ Civil Action No. 3:15-CV-0826-D
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MEMORANDUM OPINION
AND ORDER
In this rental property mortgage case brought by plaintiff James Ostberg (“Ostberg”),
defendants move for summary judgment. For the reasons that follow, the court grants the motion
and dismisses this action with prejudice by judgment filed today.1
I
Ostberg sues defendants to recover on claims for violation of the Texas Debt Collection Act,
breach of contract, and declaratory judgment. His lawsuit arises out of a loan that he obtained to
purchase rental property located in Garland, Dallas County, Texas. Defendants move for summary,
pointing, inter alia, to the absence of evidence to support each claim. See Ds. Br. 6-7.

1

Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written opinion”
adopted by the Judicial Conference of the United States, this is a “written opinion[] issued by the
court” because it “sets forth a reasoned explanation for [the] court’s decision.” It has been written,
however, primarily for the parties, to decide issues presented in this case, and not for publication in
an official reporter, and should be understood accordingly.

Defendants filed their motion for summary judgment on May 25, 2016. Ostberg did not
respond to the motion by the June 15, 2016 deadline2—indeed, he has not responded at all—and the
motion is ripe for determination.
II
Because defendants will not have the burden of proof at trial on any of Ostberg’s claims, they
need only point the court to the absence of evidence of any essential element of the claim in
question. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once they do so, Ostberg must
go beyond his pleadings and designate 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
Ostberg. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Ostberg’s failure to
produce proof as to any essential element of the claim 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 is mandatory if Ostberg fails to meet this burden. Little, 37 F.3d at 1076.
As noted, Ostberg has not responded to defendants’ motion. Although his failure to respond
does not permit the court to enter a “default” summary judgment in defendants’ favor, see, e.g.,
Tutton v. Garland Independent School District, 733 F. Supp. 1113, 1117 (N.D. Tex. 1990)
(Fitzwater, J.), “[a] summary judgment nonmovant who does not respond to the motion is relegated
to [his] unsworn pleadings, which do not constitute summary judgment evidence,” Bookman v.
Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.) (citing Solo Serve Corp. v.

2

See N.D. Tex. Civ. R. 7.1(e) (“A response and brief to an opposed motion must be filed
within 21 days from the date the motion is filed.”).
-2-

Westowne Associates, 929 F.2d 160, 165 (5th Cir. 1991)). Moreover,
[i]f a party fails . . . to properly address another party’s assertion of
fact as required by Rule 56(c), the court may . . . (2) consider the fact
undisputed for purposes of the motion [and] (3) grant summary
judgment if the motion and supporting materials—including the facts
considered undisputed—show that the movant is entitled to it[.]
Fed. R. Civ. P. 56(e)(2), (3).
Defendants have pointed the court, inter alia, to the absence of evidence to support
Ostberg’s claims. See, e.g., Ds. Br. 6-7. Because Ostberg has failed to respond to defendants’
motion, he is “relegated to [his] unsworn pleadings, which do not constitute summary judgment
evidence.” Bookman, 945 F. Supp. at 1002. Ostberg has therefore failed to raise a genuine issue
of material fact regarding his claims, and defendants are entitled to summary judgment.3
Accordingly, defendants’ motion for summary judgment is granted, and this action is
dismissed with prejudice by judgment filed today.
SO ORDERED.
July 7, 2016.
_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

3

Alternatively, with respect to Ostberg’s declaratory judgment action, the court in its
discretion would decline to adjudicate a declaratory judgment claim that is essentially duplicative
of another claim in the case.
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