Brewer et al v. PNC Mortgage, a Division of PNC Bank, N.A., Successor to National City Bank et al
Filing
25
MEMORANDUM OPINION AND ORDER granting 15 Motion for Summary Judgment filed by Deutsche Bank Trust Company Americas as Trustee RALI 2002-QS19, PNC Mortgage: The court ORDERS that defendants' motion for summary judgment be, and is hereby, granted; that plaintiffs take nothing on their claims against PNC and Deutsche Bank; and that such claims be, and are hereby, dismissed with prejudice. (Ordered by Judge John McBryde on 10/1/2015) (trs)
t:.s. DiSTHICT conn
NORTiiER\ OISTRICTOF TE\AS
FILED
IN THE UNITED STATES DISTRI T C01T .
NORTHERN DISTRICT OF TE s
OCT
FORT WORTH DIVISION
CLARENCE W. BREWER, ET AL. ,
- I 2015
I
CLERK, U.S. DISTRICT COLRT
§
§
Plaintiffs,
§
~----~-------Deput~·
§
vs.
PNC MORTGAGE, A DIVISION OF
PNC BANK, N.A., SUCCESSOR TO
NATIONAL CITY BANK, ET AL.,
§
§
§
NO. 4:15-CV-004-A
§
§
§
Defendants.
§
MEMORANDUM OPINION
and
ORDER
Now before the court is the motion for summary judgment
filed in the above-captioned action by defendants, PNC Mortgage,
a Division of PNC Bank, N.A., Successor to National City Bank
("PNC"), and Deutsche Bank Trust Company Americas as Trustee RALI
2002-QS19 ("Deutsche Bank"). Plaintiffs, Clarence Brewer
("Clarence") and Barbara Brewer ("Barbara"), filed a response.
Having considered all September 30, 2015of the parties' filings,
the entire summary judgment record, and the applicable legal
authorities, the court concludes that the motion should be
granted.
I.
Background
Plaintiffs initiated this action on December 2, 2014, by
filing an original petition and application for temporary
restraining order in the 48th Judicial District Court of Tarrant
County, Texas. 1 On January 5, 2015, defendants removed the action
on the basis of diversity jurisdiction. 2 The dispute centers
around a note and deed of trust executed by Clarence affecting
property located at 10908 Blythe Court in Fort Worth, Texas,
(the "Property") . 3
76026
Over the course of approximately nine years, Clarence
defaulted on mortgage payments on the Property at different
times. Defendants responded by sending various notices of
default, notices of acceleration, and notices of substitute
trustee sale to Clarence. 4 It is undisputed that plaintiffs have
1
Doc. I at PageiD 8, I 0, & 34. The "Doc. _" references are to the referenced document on the
docket of this case No 4: I5-cv-004-A. The "PageiD" numbers are references to pages numbers assigned
Document 1 by the Clerk's office, used by the court because Document 1 was not paginated by
defendants. These page numbers are found in the top right comer of Document I.
2
Doc. I at PageiD 2-3.
3
Doc. 17 at App. 4 & 8.
4
Doc. I7 at App. 4, 8, 29, 32, 37, 55, 73, 8I, 93, & IOO. Defendants sent notices of default on
January 6, 2006, August 6, 20 I 0, and October I8, 20 I4. Doc. I7 at App. 26, 29, & 93. Defendants sent
notices of acceleration and notices of substitute trustee sale on September 6, 20 I2, October I2, 2012,
June 6, 20I4, and November IO, 20I4. Doc. I7 at App. 37, 55, 81, & 100.
2
not made payments on the mortgage in more than five years. 5 On
November 20, 2014, defendants sent the most recent notice of
acceleration and notice of substitute trustee sale scheduled for
December 2, 2014. 6 After this action was filed, the state court
issued a temporary restraining order preventing the sale. 7
A.
Plaintiffs' First Amended Complaint
The gist of plaintiffs' first amended complaint is that
defendants acted without authority when they sent notices related
to default, acceleration, and substitute trustee sale to
Clarence, and initiated foreclosure sale proceedings on the
Property. 8 Plaintiffs allege that the assignment of the note and
deed of trust to Deutsche Bank, referred to by the parties as the
Second Assignment ("Second Assignment"), and the appointment of
C. Summers, Terry Ross, Felicia Clark, and Janna Clark as
substitute trustee, referred to by the parties as the Second
Appointment ("Second Appointment"), are invalid. 9 Plaintiffs
c Doc. 1 at PageiD 10 & 34. Doc. 16 at 6; Doc. 17 at 151 & 158 .. It is unclear why Clarence has
been in default for such a long time and the Property has not yet been foreclosed upon.
6
Doc. 17 at App. 99.
7
Doc. 1 at PageiD 10 & 34. The district judge noted in the temporary restraining order that the
order did not prohibit foreclosure in February 2015, yet defendants have not moved forward with
foreclosure. Doc. 1 at PageiD 37.
8
9
Doc. 6.
Doc. 6 at 5, 7-8, 11-12 & 13-15.
3
assert that because those documents are invalid, defendants were
not mortgagee and/or mortgage servicer of the loan, thus,
defendants and the substitute trustee did not have capacity to
issue various notices related to foreclosure.
10
Plaintiffs claim violations of Chapter 392 of the Texas
Finance Code known as the Texas Debt Collection Act
("TDCA"),
violations of the Texas Property Code, wrongful foreclosure, and
breach of contract. 11 Plaintiffs also claim they are entitled to
exemplary damages and injunctive relief. 12
B.
The Summary Judgment Motion
In summary form, the arguments of defendants in their motion
for summary judgment are as follows:
Defendants argue that they are entitled to summary judgment
as to all of plaintiff' claims, stating: 13
(1) Barbara, spouse of Clarence, has no standing in this
action. 14
(2) Clarence's position that PNC lacks authority to
10
Doc. 6 at 5, 7-8, 11-12 & 13-15. Plaintiffs also appear to be alleging that there is no other
means by which PNC and Deutsche Bank quality as mortgagee or mortgage servicer of the loan, thus,
there is no grounds for defendants to initiate foreclosure proceedings.
11
Doc. 6.
12
Doc. 6 at 15-16.
13
Doc. 16 at 1.
14
Doc. 16 at 10-11.
4
foreclose on the Property is inconsistent with the position taken
in his bankruptcy proceeding, thus,
judicial estoppel applies. 15
(3) Defendants have full authority to foreclose on the
Property, Deutsche Bank as mortgagee and PNC as mortgage
servicer. 16
(4) Plaintiffs lack standing to challenge the Second
Assignment and Second Appointment, and there is no requirement
that a power of attorney be filed in the public records for an
assignment of mortgage or appointment of substitute trustee to be
valid. 17
(5) Plaintiffs have failed to allege actual damages
resulting from defendants' actions. 18
(6) Plaintiffs' breach of contract claim fails because
plaintiffs cannot challenge the validity of the Second Assignment
and Second Appointment, and a defaulting party to a contract
cannot maintain a suit for breach of that contract. 19
(7) Plaintiffs' TDCA claims fail because they cannot
challenge the validity of the Second Assignment and Second
15
Doc. 16 at 9-10.
16
Doc. 16 at 11-12.
7
Doc. 16 at 13-14.
"
:B
Doc. 16 at 2.
19
Doc. 16 at 14-15.
5
Appointment, and defendants made no threat to take an action
prohibited by law or fraudulent or misleading representation
because they were entitled to foreclose upon the Property. 20
(8) The wrongful foreclosure claim fails because no
foreclosure has occurred. 21
(9) Plaintiffs' Texas Property Code claims fail because
plaintiffs fail to state how defendant breached the Property Code
and where notices should have been sent. 22
(10) Because none of plaintiffs' claims or causes of action
have merit, they are not entitled to injunctive relief. 23
IV.
Applicable Summary Judgment Principles
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
FED. R. Crv.
P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986).
The movant bears the initial burden of pointing out to
the court that there is no genuine dispute as to any material
20
Doc. 16 at 16-17.
n Doc. 16 at 17.
22
Doc. 16 at 15 (citing Doc. 17 at App. 37, 52, 55, 70, 81, 91, 100 & 110 ).
23
Doc. 16 at 17.
fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).
The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim,
"since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."
Id. at 323.
Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.
Id. at 324; see also
asserting that a fact
the assertion by
the record
FED.
R. CIV. P. 56© ("A party
is genuinely disputed must support
citing to particular parts of materials in
.").
If the evidence identified could not lead
a rational trier of fact to find in favor of the nonmoving party
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.
475
u.s.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
574, 587, 597 (1986).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law.
Celotex, 477 U.S. at 323.
If the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.
7
Matsushita,
475 U.S. at 597; see also Boeing Co. v. Shipman, 411 F.2d 365,
374-75 {5th Cir. 1969)
{en bane)
{explaining the standard to be
applied in determining whether the court should enter judgment on
motions for directed verdict or for judgment notwithstanding the
verdict) .
v.
Analysis
A.
Barbara's Standing
Defendants argue that Barbara has no standing in this action
because she is not listed as a party to the note or deed of
trust, and the Property was purchased by Clarence prior to
marriage, and thus, is separate property. 24 Plaintiffs contend
that Barbara has standing by virtue of a homestead right. 25
However, it is undisputed that Clarence indicated he was single
in the loan application and Barbara did not sign and is not
listed as a party to the note or deed of trust. 26 Plaintiffs have
not provided any summary judgment evidence that Barbara has
acquired a homestead right or any other interest in the Property
that would give her standing to pursue any of the claims she
asserted in this action.
24
Doc. 16 at 10-11.
25
Doc. 23 at 9.
26
Doc. 17 at App. 4, 8, & 10.
8
B.
Judicial Estoppel
Defendants argue that plaintiffs are estopped from asserting
any claim that PNC lacks capacity to foreclose on the Property
because PNC was listed as a secured creditor in a bankruptcy
proceeding filed by Clarence. 27 Furthermore, Clarence joined in
an Agreed Order of Stay acknowledging delinquent payments on the
mortgage. 28 The Agreed Order of Stay was lifted when Clarence
failed to comply with its obligations. 29
Plaintiffs claim judicial estoppel is inappropriate because
Clarence "could be deemed to have acted inadvertently in that he
filed his bankruptcy documents on the basis of representations
made to him .
as to mortgagee and mortgage servicer identity
that he could not have possessed at the time of bankruptcy. " 30
That claim is without legal or evidentiary support. In Richardson
v. CitiMortgage, Inc., the court would not allow a debtor to deny
the right of a creditor to enforce a note and deed of trust in a
mortgage foreclosure case when the debtors listed the creditor in
a bankruptcy proceeding. No. 6:10CV119, 2010 WL 4818556, at * 4-5
(E.D. Tex. Nov. 22, 2010). The court explained that because
27
Doc. 17 at App. 137.
28
Doc. 17 at App. 152.
29
Doc. 17 at App. 158.
30
Doc. 22 at 8.
9
debtors were required to disclose all potential claims in a
bankruptcy proceeding, the debtor was judicially estopped from
bringing the action later. Id. at * 5i see also Bradley v. PNC
Bank, N.A., No. 4:14CV37, 2014 WL 4829317, at* 2 (E.D. Tex.
Sept. 26, 2014)
(agreeing that debtor's "bankruptcy filings
identifying Defendant as a creditor may judicially estop him from
any challenge as to [d]efendant•s authority" in a mortgage
foreclosure case, but, dismissing the case on other grounds).
Plaintiffs' unsupported assertion that Clarence might have
"acted inadvertently" in naming PNC as a secured creditor based
on a representation that PNC was the mortgage servicer does not
preclude the application of judicial estoppel. As the court
discusses below, PNC was and continues to be mortgage servicer.
Thus, Clarence is judicially estopped from claiming that PNC
lacks authority to foreclose on the Property.
C.
Fraudulent Lien Related Instruments Claim
Many of plaintiffs' claims are grounded in the allegation
that the Second Assignment and Second Appointment are invalid,
thus, defendants and the substitute trustee lacked authority to
send Clarence various notices regarding the Property. 31 The basis
of alleged invalidity of the Second Assignment is that there is
"no power of attorney of record in Tarrant County, Texas with
sufficient specificity to support the Second Assignment; nor was
any such power found authorizing acts by Alysha Alcorn. " 32
Plaintiffs allege the Second Appointment is invalid for the same
reasons and because the Second Appointment relied on the invalid
Second Assignment. 33 This is at least in part the basis for
plaintiffs' claims of Texas Finance Code violations, Texas
Property Code violations, breach of contract, exemplary damages,
and request for injunctive relief. 34
Defendants argue that plaintiffs do not have standing to
challenge the validity of the Second Assignment and Second
Appointment. The Fifth Circuit has held that Texas law is settled
that "an obligor cannot defend against an assignee's efforts to
enforce the obligation on a ground that merely renders the
assignment voidable at the election of the assignor,
[and] Texas
courts follow the majority rule that the obligor may defend
[only]
'on any ground which renders the assignment void.'"
Reinagel v. Deutsche Bank Nat'l Trust Co., 735 F.3d 220, 225 {5th
Cir. 2013). In fact,
in Reinagel, also a mortgage foreclosure
case, the Fifth Circuit held that claims that an assignment was
32
Doc. 6 at 5.
33
Doc. 6 at 7-8.
34
Doc. 6 at 7-8 & 11-15.
11
executed without authority merely rendered the assignment
voidable with respect to the parties to the assignment, not void,
and that plaintiffs lacked standing to challenge an assignment on
that basis. Id. at 226.
In addition, to the extent that plaintiffs suggest that the
Second Assignment and Second Appointment are invalid because
there is no power of attorney or other recorded act authorizing
the documents, this argument fails. The court addressed
substantially the same argument in Gillespie v. BAC Home Loans
Servicing, LP, a case where the plaintiffs were represented by
the same attorney representing plaintiffs here. No.
4:11-CV-388-A, 2013 WL 646383
(N.D. Tex. Feb. 21, 2013). In
Gillespie the court rejected plaintiffs' argument holding:
The plain language of the Property Code does not
indicate the existence of any requirement that the
appointment of a substitute trustee be recorded to be
valid, and courts interpreting the provisions have not
found such a requirement.
See Partain v. Wells Fargo
Bank, N.A., No. 4:11-CV-386-Y (N.D. Tex. Jan. 23,
2013); Bittinger v. Wells Fargo Bank, N.A., 744 F.
Supp. 2d 619, 625 (S.D. Tex. 2010); Brovles v. Chase
Home Fin., No. 3:10-CV-2256-G, 2011 WL 1428904, at *2
(N.D. Tex. Apr.13, 2011). Thus, BAC was not required
to record a power of attorney for the assignment of the
note or the appointment, and any claim based on the
argument that recording was required must fail.
Id. at *6.
The same result is required here.
12
D.
Defendants' Authority to Foreclose
Plaintiffs also contend that PNC and/or Deutsche Bank lacked
authority to send notices or foreclose on the Property. Under
Texas law, a mortgagee or mortgage servicer may administer
foreclosure proceedings. Martins v. BAC Home Loans Servicing,
L.P., 722 F.3d 249, 255 (5th Cir. 2013). The mortgagee is "the
grantee, beneficiary, owner, or holder of a security instrument,"
"a book entry system," or "if the security interest has been
assigned of record, the last person to whom the security interest
has been assigned of record." TEx. PROP. CoDE§ 51.0001(4) (emphasis
added). The mortgage servicer is the "last person to whom a
mortgagor has been instructed
. to send payments for the debt
" TEX. PROP. CODE § 51.0001 (3) .
Here, the evidence shows that Deutsche Bank is the last
person to whom the deed of trust has been assigned of record. 35
Plaintiffs appear to contend that the defendants' affidavit is
insufficient to support the proposition that Deutsche Bank owns
or holds the note. 36 However, in addition to the affidavit,
defendants have provided a copy of the assignment to Deutsche
Bank and evidence that the assignment was recorded. 37 Plaintiffs
35
Doc. 17 at App. 32.
36
Doc. 23 at 1-2.
point to no evidence indicating that the security interest was
last assigned of record to someone else. The record shows that
Deutsche Bank is mortgagee by virtue of being the last person to
whom the security interest was assigned of record.
Not only is Clarence judicially estopped from asserting that
PNC lacks authority to foreclose on the property, the court notes
that PNC is the last entity to which Clarence was instructed to
send payments on the mortgage. 38 Thus, PNC is mortgage servicer
of the Property.
Both Deutsche Bank and PNC have authority to foreclose on
the Property. See TEX. PROP. CODE§§ 51.0001 and 51.0025i
Martins,
722 F.3d at 255.
E.
Texas Property Code Claims
Plaintiffs' Texas Property Code claims are at least in part
based on plaintiffs' contention that the Second Assignment and
Second Appointment are invalid, thus, the substitute trustee had
no authority to send various notices to Clarence. 39 The court has
already determined that plaintiffs lack capacity to challenge the
Second Assignment and Second Appointment. Summary judgment is
appropriate for all alleged Texas Property Code violations
38
Doc. 17 at App. 29. It is undisputed that PNC merged with National City Mortgage Co., the
entity named as lender on the note and deed oftrust. Thus, either PNC or its sucessor in interest have
been acting as mortgage servicer since inception of the loan. Doc. 17 at App. 1.
39
Doc. 6 at 11-12.
14
resting on that ground. Plaintiffs also claim that three notices
of sale violate§ 51.002(b) . 40 Within other sections of the
complaint, plaintiffs allege violations of§§ 51.002(d) and
51.0025. 41
1.
§ 51.002 (b) Claim
Under§ 51.002(b) notice must be given at least twenty-one
days before the date of a non-judicial foreclosure sale by (1)
posting notice at the courthouse (2) filing in the office of the
county clerk and "(3) serving written notice of the sale by
certified mail on each debtor who, according to the records of
the mortgage servicer of the debt, is obligated to pay the debt."
TEX. PROP. CoDE§ 52.002(b). Plaintiffs claim that defendants did
not mail the July 1, 2014, September 2, 2014, and December 2,
2014 notices to plaintiffs' "[p]roperty address or other last
known address, as required by Texas Property Code§ 51.002(b) .
• "
42
However, plaintiffs adduce no summary judgment evidence to
support their argument.
Under Texas Property Code§ 51.002(e) service of notice is
complete when notice is sent via certified mail. TEX. PROP. CoDE§
51.002(e). "The affidavit of a person knowledgeable of the facts
40
Doc. 6 at 11.
41
Doc. 6 at 7-8 & 13.
42
Doc. 6 at 11.
15
to the effect that service was completed is prima facie evidence
of service." TEx. PROP. CoDE § 51.002 (e) . There is no requirement
that plaintiffs receive actual notice. See Martins, 722 F.3d at
256.
No notice of sale for September 2, 2014 appears in the
record of this action and plaintiffs have provided no evidence of
such notice. Defendants mailed the July 1, 2014 and December 2,
2014 notices of sale via certified mail to Clarence's address in
Burleson, Texas, the address of the Property, and to Clarence's
attorney from the bankruptcy proceeding. 43
It is unclear, and
plaintiffs provide no explanation, as to where plaintiffs claim
defendants should have mailed the notices or how defendants
otherwise violated§ Sl.002(b). Thus, summary judgment is
appropriate as to this claim.
2.
§ 51.002(d) Claim
Plaintiffs claim that defendants failed to comply with §
51.002(d) because they mailed Clarence a notice of default on May
21, 2014, asserting he had thirty days to cure the default and
then gave him a notice of sale for July 1, 2014. 44 No May 21,
2014 notice of default appears in the record of this action and
plaintiffs have provided no evidence to support this claim.
43
Doc. 17 at App. 81, 86, 91, 100, 105 & 110.
3.
§ 51.0025 Claim
Plaintiffs' breach of contract claim alleges a violation of
§ 51.0025. 45 The ground for this claim is that on June 6, 2014
the substitute trustee sent a notice of acceleration and notice
of sale for July 1, 2014, that listed PNC as the mortgage
servicer and mortgagee. 46 Deutsche Bank is the mortgagee. 47
However, Clarence is judicially estopped from asserting that PNC
lacked authority to foreclose on the Property. In addition, PNC,
as mortgage servicer, clearly had the authority to foreclose on
the Property. Martins, 722 F.3d at 255.
Furthermore, plaintiffs have wholly failed to establish that
they have suffered any damages as a result of this notice.
F.
TDCA Claims
Plaintiffs claim that defendants violated the TDCA through
violations of Texas Property Code§§ 51.002(b), 51.002(d), and
51.0025. 48 The court has concluded that plaintiffs did not raise
~genuine
issue of material fact as to violations of§§
51.002(b), 51.002(d), or 51.0025 of the Texas Property Code, so
no violation of the TDCA can rest on these claims.
45
Doc. 6 at 8.
46
Doc. 6 at 8; Doc. 17 at App. 93.
47
Doc. 17 at App. 32.
48
Doc. 23 at 3.
17
Plaintiffs allege separate violations of TDCA
§§
392.301(a) (8), 393.304(a) {8), and 393.304(a) (19) . 49 The majority
of these claims rely on the argument that notices were given
without capacity because the Second Assignment and Second
Appointment are invalid. 50 TDCA claims cannot rest on this ground
for the reasons already discussed. As to the remaining
allegations, plaintiffs have wholly failed to come forward with
any evidence to show that they sustained actual damages for a
potential TDCA violation. See Bassknight v. Deutsche Bank Nat'l
Tr. Co., 611 F. A'ppx 222, 223-24
(5th Cir. 2015)
51
(citing
Richardson v. SV Almeda I Ltd. P'ship, No. 01-11-01004-CV, 2013
WL 4680392, at * 9 (Tex. App.-Houston [1st Dist.] Aug. 29, 2013,
no pet.)
(mem. op. not designated for publication)). In fact, it
is undisputed that plaintiffs continue to hold the Property
despite not making mortgage payments for more than 5 years and
that the Property has never been foreclosed upon. 52
G.
Wrongful Foreclosure
In Texas, to prevail on a claim of wrongful foreclosure
49
Doc. 6 at 6-Il.
50
Doc. 6 at 6-ll.
51
The court recognizes that this Fifth Circuit case was not designated for publication, but finds
the holding noteworthy as to this point.
52
Doc. I at PageiD I 0 & 34; Doc. I6 at 6; Doc. I7 at App. I5I & I 58.
18
plaintiff must to show "(I) a defect in the foreclosure sale
proceedings;
(ii) a grossly inadequate selling price; and (iii) a
causal connection between the defect and the grossly inadequate
selling price."
marks omitted)
Miller, 726 F.3d at 726 (internal quotation
(quoting Sauceda v. GMAC Mortg. Corp., 268 S.W.3d
135, 139 (Tex. App.-Corpus Christi 2008, no pet.)). A wrongful
foreclosure claim necessarily entails loss of possession of the
property. See James v. Wells Fargo Bank, N.A., 533 F. App'x 444,
446-47 (5th Cir. 2013)
(quoting Motten v. Chase Home Finance, 831
F. Supp. 2d 988, 1007-08 (S.D. Tex. 2011)
(" [B]ecause recovery is
premised upon one's lack of possession of real property,
individuals never losing possession of the property cannot
recover on a theory of wrongful foreclosure.") (citations
omitted)). Here, it is undisputed that the Property has not been
foreclosed upon despite plaintiffs' failure to make mortgage
payments for more than five years. 53 Thus, the requisite loss of
possession for a wrongful foreclosure claim is not present.
H.
Breach of Contract
To sustain a breach of contract action under Texas law
requires plaintiff to show:
contract;
53
(1) the existence of a valid
(2) plaintiff performed or tendered performance under
Doc. 1 at PageiD 10 & 34; Doc. 16 at 6; Doc. 17 at App. 151 & 158.
19
the contract;
(3) breach by defendant; and,
v. TestAmerica, Inc., 564 F.3d 386, 418
(quotations omitted)
450
(4) damages.
Mullins
(5th Cir. 2009)
(quoting Aguiar v. Segal, 167 S.W.3d 443,
(Tex. App.-Houston [14th Dist.] 2005, pet. denied)).
Plaintiffs' breach of contract claims rely on sections of the
contract that require parties to comply with applicable law and
sections regarding remedies for default and acceleration in the
deed of trust. Plaintiffs have failed to raise an issue of
material fact as to any of their claims that defendants violated
applicable law.
The remedies provision requires defendants to give Clarence
thirty days' notice of default and twenty-one days' notice prior
to sale of the property if the balance of the mortgage is
accelerated. 54 The record contains three notices of default, such
that plaintiff has been on notice of default for years. 55 In
addition, no notice of acceleration and sale provided less than
twenty-one days' notice of the sale. 56 Plaintiffs have failed to
establish a material fact as to breach of the deed of trust.
Furthermore, plaintiffs have wholly failed to adduce any summary
54
Doc. 17 at App. 19 ~ 22.
55
Doc. 17 at App. 29, 26, & 93. Plaintiffs refer to the notice of rescission in relation to this claim
but such notice of rescission merely purports to rescind all notices of acceleration, not notices of default.
Doc. 17 at App. 73. Thus, Clarence remained on notice of default despite the notice of rescission.
56
Doc. 17 at App. 37, 55, 81, & 100.
20
judgment evidence as to damages based on any alleged breach of
contract.
I.
Exemplary Damages
Because the court has granted summary judgment as to all of
plaintiffs' claims, there is nothing on which to base plaintiffs'
claim for exemplary or other damages.
J.
Injunctive Relief
Because the court has granted summary judgment on all of
plaintiffs' claims, there is nothing on which to base their claim
for injunctive relief.
K.
Plaintiffs' Request for a Continuance
Plaintiffs generally allege that this motion is premature
and additional discovery might yield support to "claims that are
not directly addressed by the current summary judgment
evidence. " 57 Rule 56 (d) of the Federal Rules of Civil Procedure
permits the court to defer a motion or allow time for discovery
when a nonmovant asserts facts are unavailable to support the
nonmovant's claims. However, the rule clearly states this is
permissible only if,
"a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts
essential to justify its opposition . . . . " FED. R. CIV. P.
57
Doc. 22 at 2.
21
56(d). Plaintiffs have provided no affidavit or declaration
setting forth the specified reasons they cannot present facts
essential to their opposition as required by Rule 56(d). Thus,
the court finds that relief under Rule 56(d) is not appropriate
here.
Order
Therefore, for the reasons given above,
The court ORDERS that defendants' motion for summary
judgment be, and is hereby, granted; that plaintiffs take nothing
on their claims against PNC and Deutsche Bank; and that such
claims be, and are hereby, dismissed with prejudice.
SIGNED October 1, 2015.
Judge
22
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