Carrisalez v. Bank of America, N.A.
Filing
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ORDER granting 25 Motion for Summary Judgment.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(amireles, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
YOLANDA CARRISALEZ,
Plaintiff,
VS.
BANK OF AMERICA, N.A.,
Defendant.
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§ CIVIL ACTION NO. C-12-87
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ORDER ON MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant’s Motion for Summary Judgment (D.E. 25), along
with Plaintiff’s Response (D.E. 27).
For the reasons set out below, the Motion is
GRANTED.
FACTS
Over the course of nine years, Plaintiff Yolanda Carrisalez (Carrisalez) purchased
four parcels of real estate in Portland, Texas: 222 Llano; 124 Janin Circle; 103 Maple;
and 107 Holly. She financed each through Countrywide Homes and the notes and deeds
of trust are now in the hands of Defendant Bank of America, N.A. as Successor by
Merger to BAC Home Loans Servicing, L.P. (Bank). It is undisputed that Carrisalez
became delinquent on her mortgage payments on all four properties.
On November 1, 2010, with respect to the 107 Holly property, the Bank mailed a
Notice of Default and Intent to Accelerate to Carrisalez by U.S. Certified Mail, return
receipt requested. D.E. 25-1. The notice was sent to Carrisalez at the 222 Llano Drive
address. D.E. 25-1, pp. 35-36. Carrisalez signed for that notice on November 5, 2010.
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D.E. 25-1, p. 38. When Carrisalez failed to cure her default, the Bank retained a law firm
to proceed with foreclosure. D.E. 25-1.
On December 19, 2011, the law firm sent to Carrisalez their Notice of
Acceleration and Substitute Trustee’s Sale by U.S. Certified Mail addressed to the 222
Llano address as well as the 107 Holly address. D.E. 25-2, pp. 5-6, 11-12. The notice
addressed to the 107 Holly address was returned, unclaimed, to the law firm on
December 24, 2011. D.E. 25-2, p. 19. Carrisalez asserts that she did not receive any
notice of foreclosure sale for the 107 Holly property at any address. D.E. 27-1, p. 3.
Thereafter, on January 31, 2011, Carrisalez filed for relief under Chapter 13 of the
United States Bankruptcy Code. D.E. 27-1, p. 3. According to the Bankruptcy Plan,
Carrisalez made payments on her other three properties, but did not make payments on
the 107 Holly property. D.E. 27-1, p. 3. Carrisalez failed to comply with her Bankruptcy
Plan and her Bankruptcy Case was dismissed on or about December 21, 2011. D.E. 11,
p. 2; 27, p. 7. The Bank’s law firm proceeded with foreclosure of the 107 Holly property,
which took place on February 7, 2012. D.E. 25-2.
While notices of default have been sent on the other three properties owned by
Carrisalez,1 no foreclosure has yet taken place. Carrisalez claims that the 222 Llano
property is her homestead and that her daughters live in the homes at 124 Janin Circle
and 103 Maple Drive addresses, all of which she claims have substantial equity in them.
D.E. 27-1. For those reasons, she has sought injunctive relief to prevent foreclosure.
1
D.E. 25-1, pp. 41-53.
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DISCUSSION
According to the Bank, the foreclosure of the lien on the 107 Holly property was
appropriate pursuant to the law and all necessary notices to the borrower were given to
Carrisalez. Furthermore, as a party in default under the Note, Carrisalez should not be
heard to complain of any breach of contract by the Bank. Thus any breach of contract
claim with regard to that foreclosure should be summarily denied. The Bank seeks
summary judgment on all other claims because: (1) there has been no foreclosure of the
three remaining properties and there is no cause of action for “attempted foreclosure;” (2)
the cause of action for fraud is defeated by the economic loss doctrine; and (3) Carrisalez
is not entitled to equitable relief in the form of an injunction to prevent future
foreclosures.
Carrisalez responds with the allegation that she did not, in fact, receive proper
notice of the foreclosure sale of 107 Holly. That foreclosure was thus procedurally
improper and she retains her right to complain of the Bank’s failure to comply with
contractual requirements despite her own default.
She also seeks to enjoin any
foreclosure of the remaining properties, complaining that she has not been given proper
notice of default, that she owns significant equity in the homes that the threat of
foreclosure is putting at risk, and that the homes are needed to house herself and her
children. She concedes the cause of action for fraud.
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A. Carrisalez Has the Right to Complain of the
Bank’s Alleged Breaches.
The Bank seeks to preempt Carrisalez’s claims for breach of contract on the
premise that she, herself, is in breach and thus cannot complain of any alleged breach by
the Bank. In other words, upon default, Carrisalez somehow lost the right to complain of
the terms of the contract that are triggered by default: the bank’s duty to provide proper
notice of default, notice of intent to accelerate, notice of acceleration, and notice of
trustee’s sale.
As Carrisalez’s Response points out, “This argument is unsound because the very
nature of the provision under the contract regarding notice commences if there is a
default by the Debtor.” D.E. 27, p. 7. A party to a loan agreement may enforce the terms
of that agreement that arise upon the debtor’s default.
See generally, Shumway v.
Horizon Credit Corp., 801 S.W.2d 890 (Tex. 1991); Abraham v. Ryland Mortg. Co., 995
S.W.2d 890, 894 (Tex. App.—El Paso 1999, no pet). See also, Tex. Prop.Code Ann.
§ 51.002 (lender required to provide borrower with notice of the foreclosure sale).
Carrisalez’s complaint for wrongful foreclosure referenced her statutory right to notice
along with the contractual agreement to provide notice, all of which is actionable. D.E.
11, p. 4.
B. The Bank Provided Proper Notice of
Foreclosure With Respect to 107 Holly.
Carrisalez claims that she did not get proper notice of the Notice of Acceleration
and Substitute Trustee’s Sale because the Bank did not send it to her at the 222 Llano
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address.
More specifically, Carrisalez claims that the Bank’s summary judgment
evidence “does not indicate where the foreclosure notice was sent . . . .” D.E. 27, p. 5.
Contrary to this assertion, the affidavit of Becky Howell includes copies of two letters
providing notice of the foreclosure sale. One was addressed to 222 Llano (D.E. 25-2, pp.
5-10) and one was addressed to 107 Holly (D.E. 25-2, pp. 11-16). Both were sent by
certified mail. D.E. 25-2, p. 17. Only the one addressed to 107 Holly was returned as
unclaimed. Thus Carrisalez’s complaint that the Bank failed to show that notice was
properly addressed to her at 222 Llano fails.
This does not, however, eliminate the question of whether Carrisalez actually
received the notice that was addressed to her at 222 Llano, which she denies. This matter
is eliminated by the evidentiary law applicable to such questions of notice by mail. An
affidavit including the bare assertion of lack of notice, alone, is inadequate to rebut the
presumption of delivery of certified mail. Maknojiya v. Gonzales, 432 F.3d 588, 589-90
(5th Cir. 2005) (affidavit may rebut presumption of receipt by regular mail but the
presumption of effective service by certified mail may be overcome only by “substantial
and probative evidence such as documentary evidence from the Postal Service, third
party affidavits, or other similar evidence demonstrating that there was improper delivery
. . .”). See also, Rabie v. Sonitrol of Houston, Inc., 982 S.W.2d 194, 197 (Tex. App.—
Houston [1st Dist.] 1998, no pet.) (noting that presumption of receipt was rebuttable
because there was no evidence of a postal receipt for the certified mail).
Because the Bank has provided a postal receipt evidencing that the necessary
notice was sent by certified mail (D.E. 25-2, p. 17), Carrisalez’s bare testimony that she
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did not receive it is insufficient to raise a fact issue as to whether she received notice.
The Bank is entitled to summary judgment on Carrisalez’s cause of action for wrongful
foreclosure based upon lack of notice.
C. Carrisalez is Not Entitled to Injunctive Relief.
Carrisalez complains of the need for injunctive relief, as foreclosures of liens on
her three remaining properties were scheduled for March 6, 2012. D.E. 11, p. 6. Those
foreclosures did not take place and it is undisputed that no foreclosures are currently
scheduled for those properties. D.E. 25, p. 8.
Carrisalez defends her request for injunctive relief only on the basis that she has
not received proper notices that are prerequisite to a proper foreclosure.2 Without a
scheduled foreclosure, it is impossible for this Court to determine whether proper notices
have been, or will be, issued. Given that Carrisalez’s default on her obligations under the
notes is undisputed, this Court cannot conclude that she has a likelihood of success on the
merits of her claims. See generally, Winter v. Natural Resources Defense Council, Inc.,
555 U.S. 7, 20, 129 S.Ct. 365, 374 (2008).
CONCLUSION
For these reasons, the Motion for Summary Judgment (D.E. 25) is GRANTED.
The action brought by Plaintiff Yolanda Carrisalez against Defendant Bank of America,
2
While there is a reference to a Deceptive Trade Practices Act claim in her Complaint, the Bank challenged that
basis and Carrisalez has not joined issue on that challenge in her Response. The Court notes that the factual
allegations are insufficient to state a DTPA claim under Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955, 1966 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009).
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N.A. is hereby DISMISSED WITH PREJUDICE as to the foreclosure of the property
known as 107 Holly, Portland, Texas.
The action is DISMISSED WITHOUT
PREJUDICE as to the remaining properties.
ORDERED this 31st day of October, 2012.
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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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