Crear v. Select Portfolio Servicing, Inc. et al

Filing 20

MEMORANDUM OPINION AND ORDER granting 17 Motion for Summary Judgment filed by Select Portfolio Servicing Inc, Deutsche Bank Trust Company, National Association. (Ordered by Judge Sidney A Fitzwater on 2/6/2018) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
STEVEN CREAR, SR.,

§
§
Plaintiff,
§
§ Civil Action No. 3:17-CV-0159-D
VS.
§
§
SELECT PORTFOLIO SERVICING, INC. §
& DEUTSCHE BANK TRUST
§
COMPANY, NATIONAL ASSOCIATION §
(AKA DEUTSCHE BANK NATIONAL
§
TRUST COMPANY), AS TRUSTEE,
§
IN TRUST FOR REGISTERED HOLDERS §
OF LONG BEACH MORTGAGE LOAN
§
TRUST 2005- WL2, ASSET-BACKED
§
CERTIFICATES, SERIES 2005-WL2,
§
§
Defendants.
§
MEMORANDUM OPINION
AND ORDER
In this removed action, plaintiff Steven Crear, Sr. (“Crear”) seeks a declaratory judgment and
to enjoin the foreclosure of his residence. Crear alleges that such foreclosure is barred under Tex.
Civ. Prac. & Rem. Code Ann. § 16.035 because it was not sought within the applicable four-year
limitations period. Defendants filed a motion for summary judgment on December 15, 2017, but
Crear has not responded to the motion.1 For the reasons that follow, the court grants the motion and
dismisses this action with prejudice by judgment filed today.2

1

Crear’s response was due January 5, 2018. 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

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however, primarily for the parties, to decide issues presented in this case, and not for publication in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.

Regardless whether the court assumes that Crear or defendants will have the burden of proof
at trial, the court holds that defendants have established without genuine dispute that they timely
abandoned the 2009 acceleration.
If 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). Because defendants have established that they abandoned the 2009
acceleration, they were not required to foreclose within four years of the 2009 acceleration.
Defendants have also demonstrated that Crear’s request for declaratory relief should be
denied because he has no viable underlying cause of action.
Accordingly, defendants are entitled to summary judgment dismissing this action with
prejudice.
*

*

*

Defendants’ December 15, 2017 motion for summary judgment is granted, and this action
is dismissed with prejudice by judgment filed today.
SO ORDERED.
February 6, 2018.
_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

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