Windsor Mortgage Holdings Limited, LLC v. Pyron et al

Filing 53

ORDER DENYING RECONSIDERATION AND GRANTING IN PART PLAINTIFF'S SECOND MOTION FOR FINAL SUMMARY JUDGMENT granting in part and denying in part 38 Motion for Summary Judgment; denying 46 Motion for Reconsideration. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(bcortez, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
WINDSOR MORTGAGE HOLDINGS
LIMITED, LLC,
Plaintiff,
VS.
BRENDA S PYRON, et al,
Defendants.

October 09, 2018
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:17-CV-170
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ORDER DENYING RECONSIDERATION AND
GRANTING IN PART PLAINTIFF’S SECOND
MOTION FOR FINAL SUMMARY JUDGMENT
Plaintiff Windsor Mortgage Holdings Limited LLC (Windsor) filed this action
seeking judicial foreclosure on residential property owned by Defendants Brenda S.
Pyron and Dennis L. Pyron (the Pyrons) for failure to pay all amounts due under the note
secured by the property. By Order of April 25, 2018 (D.E. 37), the Court granted
summary judgment eliminating Defendants’ defenses and establishing that Plaintiff was
entitled to enforce the note and deed of trust and that Defendants were in default. The
only issues left were liquidation of the amount Defendants owe, an order permitting
foreclosure, and Plaintiff’s request for attorney’s fees for prosecuting this case.
A. Motion for Reconsideration
On August 8, 2018, the Pyrons filed a motion for partial reconsideration of the
April 25, 2018 Order. D.E. 46. In this motion, they demonstrated that Windsor supplied
them with additional discovery after the discovery deadline and that the documents
provided included evidence that the loan had been charged off as of December 31, 2012.
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The Pyrons argue that this negated Windsor’s argument and the Court’s holding that the
prior acceleration of the indebtedness had been abandoned and the loan had been
reinstated. As a result, they claim, the newly discovered evidence supports dismissal on
the basis of their affirmative defense of limitations.
In response, Windsor argues that the evidence does not constitute “newly
discovered evidence” because the Pyrons did not exercise due diligence in attempting to
obtain it. It was equally available to the Pyrons by subpoena. Perhaps more importantly,
the additional records regarding the note are not material because a “charge-off” is an
internal accounting matter that has no legal significance with respect to the collectability
of the debt in general or the specific methods for doing so. Long v. Turner, 134 F.3d 312,
317–18 (5th Cir. 1998). The charge-off of the loan did not prevent the noteholder from
reinstating the note and seeking payment of any amount to retire the debt. This includes
a willingness to abandon acceleration and accept payments for less than the full amount
due. Id.
Thus the cause of action did not accrue for purposes of limitations by virtue of the
charge-off. The Pyrons, while having filed a reply (D.E. 51), have offered no authority to
the contrary. The Court DENIES the motion for reconsideration (D.E. 46).
B. Second Motion for Final Summary Judgment
Before the Court is Plaintiff’s Second Motion for Final Summary Judgment
seeking a determination of the amount owed and an order of foreclosure. D.E. 38.
Defendants have responded with objections to Plaintiff’s summary judgment evidence, a
declaration questioning Plaintiff’s evidence of loan modification, and a declaration
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controverting the attorney’s fees that have been added to the amount due on the note.
D.E. 44. Plaintiff has filed its reply, defending its evidence and objecting to Defendants’
evidence. For the reasons set out below, the motion (D.E. 38) is GRANTED IN PART
and DENIED IN PART.
Plaintiffs have demonstrated that Defendants’ loan was modified on or about June
30, 2010, to capitalize accrued unpaid interest and to establish a new maturity date and
interest rate. Fuss Declaration, D.E. 38-2, ¶ 7. Defendants objected to that evidence with
conclusory, self-serving, and speculative testimony from Defendant Dennis Pyron. D.E.
44-1. The Court sustains the objections to the Pyron declaration and overrules the
objections to the Fuss declaration and its exhibits.
The Fuss declaration established that as of May 17, 2018, the amount due on the
modified note, which includes unpaid principal and interest, payoff of a private tax loan
Defendants had incurred (encumbering the property), direct payment of property taxes,
and attorneys’ fees and costs in pursuing foreclosure, totals $89,722.46. D.E. 38-2, ¶¶ 711. The note continues to accrue interest at the rate of $7.058831575 per day. D.E. 38-2,
¶ 8.
Defendants complain that this accounting does not take into consideration all
payments made on the loan. However, Defendants have failed to supply the Court with
evidence of any particular loan payment that is not properly accounted for.

Their

argument is thus conclusory, speculative, and fails to provide evidence necessary to
controvert the summary judgment evidence Plaintiff has offered. This is a failure to
comply with Federal Rule of Civil Procedure 56(c). “[U]nsubstantiated assertions are not
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competent summary judgment evidence. The nonmovant is required to identify specific
evidence in the record and to articulate the precise manner in which that evidence
supports his or her claim.” Fuentes v. Postmaster Gen. of U.S. Postal Serv., 282 F. App'x
296, 300 (5th Cir. 2008) (citations omitted). It is not the task of this Court to sift through
the record in an attempt to locate evidence to advance one party’s claim. Id.
The Pyrons, through the Declaration of Lynda S. Ladymon (D.E. 44-2), complain
that the attorneys’ fees that have been included in the amount due are not reasonable.
Windsor objects to the declaration on the basis that Ladymon is not qualified to testify as
an expert regarding attorney’s fees. Ladymon is a licensed attorney representing the
Pyrons in this case. The Court OVERRULES the objection.
However, when there is competing evidence, the reasonableness of attorney’s fees
as damages presents a question of fact for a jury. Satterwhite v. Safeco Land Title of
Tarrant, 853 S.W.2d 202, 206 (Tex. App.—Fort Worth 1993, writ denied ); Argonaut
Ins. Co. v. ABC Steel Prod. Co., 582 S.W.2d 883, 889 (Tex. Civ. App.—Texarkana 1979,
writ ref’d n.r.e.). Consequently, the Court cannot award attorney’s fees as damages in
this summary judgment proceeding.
Nonetheless, the Court can grant summary judgment that Windsor is entitled to
recover the remaining amounts due as a matter of law and order foreclosure to recover
those amounts. The total amount claimed ($89,722.46) less the attorney’s fees and costs
($24,409.59) renders a partial judgment of $65,312.87. Any remaining proceeds of the
foreclosure sale shall be placed in the registry of the Court pending a determination of
reasonable attorney’s fees.
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The Court further finds that there is no just reason for delay and will enter partial
final judgment allowing the foreclosure to proceed.
CONCLUSION
For the reasons set out above, the Court GRANTS IN PART the motion and
HOLDS as a matter of law that the amount Defendants owe to Plaintiff, with the
exception of attorney’s fees, is $65,312.87, together with interest accruing in the amount
of $7.058831575 per day from May 18, 2018, to the date of judgment. Plaintiff is
entitled to judgment for this amount, together with judgment permitting foreclosure of the
property, all to be set out in a separate document pursuant to Federal Rule of Civil
Procedure 54(a). The motion (D.E. 38) is DENIED IN PART with respect to the claim
for attorney’s fees.
ORDERED this 9th day of October, 2018.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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