Eddings v. Bank of America, N.A.
Filing
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MEMORANDUM AND ORDER Granting 15 MOTION for Summary Judgment. Case is DISMISSED WITH PREJUDICE. (Signed by Judge Nancy F. Atlas) Parties notified.(gkelner, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MICHAEL C. EDDINGS,
Plaintiff,
v.
BANK OF AMERICA, NA,
Defendant.
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CIVIL ACTION NO. H-12-0210
MEMORANDUM AND ORDER
This case is before the Court on the Motion for Summary Judgment (“Motion”)
filed by Defendant Bank of America, NA (“BOA”) [Doc. # 15]. By Order [Doc. # 16]
entered April 29, 2013, the Court directed Plaintiff Michael C. Eddings to file a
response to the Motion by May 17, 2013. The Court cautioned Eddings that failure
to file a response by the deadline could result in the entry of summary judgment in
BOA’s favor. Plaintiff neither filed a response as ordered nor requested additional
time to respond. The Court has reviewed the full record and the applicable legal
authorities. Based on this review, the Court grants Defendant’s Motion.
I.
BACKGROUND
In September 1986, Eddings executed a Promissory Note in the amount of
$134,842.00, secured by a lien on property located in Kingwood, Texas, as outlined
in the Deed of Trust. The monthly payment was $1,133.83.
In April 1998, Plaintiff’s mortgage was assigned to MERS. In October 1999,
Plaintiff’s mortgage was assigned to the Secretary of Veteran Affairs. BOA is the
loan servicer for the Secretary of Veteran Affairs.
Plaintiff did not make the August 1, 2008 payment until October 8, 2010, more
than two years after it was due. Plaintiff failed to make his September 1, 2008
payment, and has not made any subsequent payments.
Plaintiff’s property was severely damaged during Hurricane Ike in September
2008. As of July 1, 2010, Plaintiff’s insurer had issued two insurance proceeds checks
totaling $64,149.26. BOA required Plaintiff to submit a repair bid from a licensed
contractor, which Plaintiff failed to do. As a result, BOA retained the insurance
proceeds and intended to apply them toward reduction of the principal debt in
accordance with the Deed of Trust.
On January 2, 2009, BOA sent a Default Notice to Plaintiff advising him that
he was in default and could cure the default by paying $16,917.04 by February 1,
2009. Plaintiff remained in default and foreclosure proceedings were initiated. A
Foreclosure Notice and Notice of Substitute Trustee Sale were sent to Plaintiff on
December 12, 2011. Plaintiff was notified that the property would be sold at
foreclosure on January 3, 2012.
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On December 30, 2011, just prior to the foreclosure sale, Plaintiff filed his
original petition in Texas state court. BOA filed a timely Notice of Removal. After
an adequate time to complete relevant discovery, BOA filed its Motion for Summary
Judgment.
II.
SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who
fails to make a sufficient showing of the existence of an element essential to the
party’s case, and on which that party will bear the burden at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v.
ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). Summary judgment “should
be rendered if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); Celotex,
477 U.S. at 322-23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008).
For summary judgment, the initial burden falls on the movant to identify areas
essential to the non-movant’s claim in which there is an “absence of a genuine issue
of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005).
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The moving party, however, need not negate the elements of the non-movant’s case.
See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). The moving
party may meet its burden by pointing out “‘the absence of evidence supporting the
nonmoving party’s case.’” Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th
Cir. 1995) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir.
1992)).
If the moving party meets its initial burden, the non-movant must go beyond the
pleadings and designate specific facts showing that there is a genuine issue of material
fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001)
(internal citation omitted). “An issue is material if its resolution could affect the
outcome of the action. A dispute as to a material fact is genuine if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” DIRECT
TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal citations omitted).
In deciding whether a genuine and material fact issue has been created, the
court reviews the facts and inferences to be drawn from them in the light most
favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). A genuine issue of material fact
exists when the evidence is such that a reasonable jury could return a verdict for the
non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th Cir. 2009) (citing Anderson
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v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The non-movant’s burden is not
met by mere reliance on the allegations or denials in the non-movant’s pleadings. See
Chambers v. Sears Roebuck and Co., 428 F. App’x 400, 407 (5th Cir. June 15, 2011)
(citing Diamond Offshore Co. v. A&B Builders, Inc., 302 F.3d 531, 545 n.13 (5th Cir.
2002)). Likewise, “conclusory allegations” or “unsubstantiated assertions” do not
meet the non-movant’s burden. Delta & Pine Land Co. v. Nationwide Agribusiness
Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008). Instead, the nonmoving party must
present specific facts which show “the existence of a genuine issue concerning every
essential component of its case.” Am. Eagle Airlines, Inc. v. Air Line Pilots Ass’n,
Int’l, 343 F.3d 401, 405 (5th Cir. 2003) (citation and internal quotation marks
omitted). In the absence of any proof, the court will not assume that the non-movant
could or would prove the necessary facts. Little, 37 F.3d at 1075 (citing Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
The Court may make no credibility determinations or weigh any evidence, and
must disregard all evidence favorable to the moving party that the jury is not required
to believe. See Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010)
(citing Reaves Brokerage Co., 336 F.3d at 412-413). The Court is not required to
accept the nonmovant’s conclusory allegations, speculation, and unsubstantiated
assertions which are either entirely unsupported, or supported by a mere scintilla of
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evidence. Id. (citing Reaves Brokerage, 336 F.3d at 413). Affidavits cannot preclude
summary judgment unless they contain competent and otherwise admissible evidence.
See FED. R. CIV. P. 56(c)(4); Love v. Nat’l Med. Enters., 230 F.3d 765, 776 (5th Cir.
2000); Hunter-Reed v. City of Houston, 244 F. Supp. 2d 733, 745 (S.D. Tex. 2003).
A party’s self-serving and unsupported statement in an affidavit will not defeat
summary judgment where the evidence in the record is to the contrary. See In re
Hinsley, 201 F.3d 638, 643 (5th Cir. 2000) (“A party’s self-serving and unsupported
claim that she lacked the requisite intent is not sufficient to defeat summary judgment
where the evidence otherwise supports a finding of fraud.” (citation omitted)).
Finally, “[w]hen evidence exists in the summary judgment record but the
nonmovant fails even to refer to it in the response to the motion for summary
judgment, that evidence is not properly before the district court. Malacara v. Garber,
353 F.3d 393, 405 (5th Cir. 2003). “Rule 56 does not impose upon the district court
a duty to sift through the record in search of evidence to support a party’s opposition
to summary judgment.” See id. (internal citations and quotations omitted).
III.
ANALYSIS
Plaintiff’s Original Petition contains a “First Cause of Action For Declaratory
Relief,” a separate section entitled “Grounds for Temporary Restraining Order,” and
a section entitled “Damages.” In the “Declaratory Relief” section, Plaintiff seeks a
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declaration “of Defendant’s rights, obligations and duties, and a declaration as to who
is the holder in due course of Plaintiff’s Note and Deed of Trust and who owns
Plaintiff’s Subject Property.” See Plaintiff’s Original Petition [Doc. # 1-1], ¶ 48.
Plaintiff seeks a restraining order and monetary damages.
The Texas Property Code states that “a mortgage servicer may administer the
foreclosure of property.” TEX. PROP. CODE § 51.0025. Under Texas law, a mortgage
servicer need not be the holder of the original note. See id. ¶ 51.0001(3), (4)
(including “holder of a security instrument” in the definition of mortgagee and stating
that a “mortgagee may be the mortgage servicer”). Consequently, the Property Code
contemplates that someone other than the holder of the original note may lawfully
foreclose on the security interest. See Martins v. BAC Home Loans Servicing, L.P.,
___ F.3d ___, 2013 WL 3213633 (5th Cir. June 26, 2013). BOA has presented to the
Court and to Plaintiff an unbroken chain of title establishing that it has authority under
Texas law to foreclose on Plaintiff’s property.1 Plaintiff has presented no evidence
to the contrary and, as a result, BOA is entitled to summary judgment that it has
authority under the Note and Deed of Trust to foreclose on Plaintiff’s property. See
id.
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BOA also provided financial information needed for Plaintiff to apply and be
considered for a loan modification. Several months have passed, and Plaintiff has
neither submitted the completed loan modification application nor provided repair
estimates required prior to disbursal of the insurance proceeds.
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BOA has presented evidence that the Deed of Trust provides for application of
insurance proceeds either toward reduction of the principal debt or toward repair of
the property at BOA’s discretion. Plaintiff has failed to present evidence to the
contrary. Because Plaintiff failed to provide repair estimates as requested, BOA has
elected to apply the insurance proceeds to reduce the principal amount due on the
Note.
IV.
CONCLUSION AND ORDER
Based on the foregoing, it is hereby
ORDERED that Defendant Bank of America’s Motion for Summary Judgment
[Doc. # 15] is GRANTED and this case is DISMISSED WITH PREJUDICE. The
Court will issue a separate final judgment.
SIGNED at Houston, Texas, this 28th day of June, 2013.
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