Maday-Jokinen v. Flagstar Bank, FSB et al
Filing
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OPINION AND ORDER granting 14 Motion for Summary Judgment.(Signed by Judge Melinda Harmon) Parties notified.(rvazquez)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MARY J. MADAY-JOKINEN,
Plaintiff,
VS.
FLAGSTAR BANK, FSB, et al,
Defendants.
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CIVIL ACTION NO. 4:12-CV-2373
OPINION AND ORDER
Pending before the Court is the Motion for Summary Judgment (Doc. 14) filed by
Defendant Flagstar Bank, FSB (“Flagstar”) against Plaintiff Mary J. Maday-Jokinen (“MadayJokinen”) and Third-Party Defendant David Jokinen (“Jokinen”). No response to the motion has
been filed; thus, under Local Rule 7.4, it is deemed unopposed.
Having considered the merits of the motion, the facts in the record, and the applicable
law, the Court concludes that the motion should be granted.
I.
Background
The subject of this dispute is the real property located at 115 Capri Street, Sugar Land,
Fort Bend County, Texas 77478 (the “Property”). (Original Pet. ¶ 10, Doc. 1-4). On July 18,
2008, Maday-Jokinen executed a Texas Home Equity Note (the “Note,” Doc. 1-4 Ex. A) in the
amount of $280,000, plus interest, made payable to Highland Capital Lending, Inc. (“Highland”)
and its assigns. The Note was secured by a Texas Home Equity Security Instrument (the
“Security Instrument,” Doc. 1-4 Ex. B), establishing a first lien on the Property. According to
Flagstar, Maday-Jokinen defaulted on her payment obligations, and, on October 25, 2012,
Flagstar sent her a Notice of Default and Intent to Accelerate. (Def.’s Countercl. ¶¶ 7-8, Doc. 9).
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One month later, as Maday-Jokinen had failed to cure her default, Flagstar sent her a Notice of
Acceleration. (Doc. 9 ¶ 9).
On July 12, 2011, Maday-Jokinen filed her Original Petition in state court, alleging that
Flagstar is not the valid holder of the Note and seeking to prevent foreclosure on the Property.
Flagstar subsequently removed the action to this Court, (Notice of Removal, Doc. 1), and filed a
Counterclaim and Third-Party Complaint (Doc. 10) against Maday-Jokinen and Jokinen,1
respectively, asserting that it is the valid holder of the Note and requesting a declaration
authorizing foreclosure.
II.
Legal Standard
Summary judgment is proper if the evidence, viewed in the light most favorable to the
nonmoving party, shows that there is no genuine dispute of material fact and the movant is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). A dispute is genuine if the evidence presents an
issue “that properly can be resolved only by a finder of fact because [it] may reasonably be
resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A
fact is material if, according to the substantive law governing the claims, it is determinative of an
element essential to the outcome of the case. Id. at 248.
III.
Discussion
The issue underlying both Maday-Jokinen’s Original Petition and Flagstar’s
Counterclaim and Third-Party Complaint is the same: whether Flagstar is the valid holder of the
Note. In support of her claims for a declaratory judgment and to quiet title, Maday-Jokinen
alleges that the loan documents evidenced violations of the Texas Constitution; specifically, the
1
Though not a debtor under the Note, Jokinen, as Maday-Jokinen’s husband, signed the Security Instrument as
required by Texas law.
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requirement that the lender “sign a written acknowledgement as to the fair market value of the
homestead property on the date the extension of credit is made.” (Doc. 1-4 ¶ 14) (quoting Tex.
Const. art. XVI, § 50(a)(6)(Q)(ix)). She goes on to state that on July 9, 2012, she sent Flagstar a
letter requesting that Flagstar cure the violations within sixty days. (Doc. 1-4 ¶ 14). MadayJokinen makes no further factual allegations in support of her claims.
Accepting these allegations as true and viewing them in the light most favorable to
Maday-Jokinen, they are still insufficient to survive the motion for summary judgment. On
September 4, 2012, Flagstar authored a cure letter (Letter from Hirsch & Westheimer, P.C., to
Middagh & Lane, PLLC (Sep. 4, 2012), Doc. 14-13) and attached a fully executed “Lender and
Borrower Acknowledgement of Fair Market Value of Homestead Property” (Doc. 14-13 at 3).
The relevant provision of the Texas Constitution provides that a defect is cured if the appropriate
signatures are obtained within sixty days of receiving the borrower’s demand letter, Tex. Const.
art. XVI, § 50(a)(6)(Q)(x)(d), and the evidence that this was done is undisputed. Meanwhile,
Maday-Jokinen remains in default and, through its competent summary judgment evidence,
Flagstar has demonstrated its compliance with all prerequisites to foreclosure. (See Doc. 14 ¶¶
29-36). In sum, as shown by the uncontroverted evidence in the record, Flagstar is the holder of
the Note, Maday-Jokinen has defaulted on her mortgage loan, and, as a matter of law, Flagstar is
entitled to foreclose on the Property.
Finally, Flagstar requests an award of its attorney’s fees under the Texas Declaratory
Judgment Act (TDJA), Tex. Civ. Prac. & Rem. Code § 37.009. (Doc. 9 ¶ 14). The TDJA,
however, is a procedural mechanism that does not apply in federal court, Utica Lloyd’s of Tex. v.
Mitchell, 138 F.3d 208, 210 (5th Cir. 1998), and the Federal Declaratory Judgment Act, 28
U.S.C. §§ 2201-02, which does apply in federal court, does not provide the requisite statutory
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authority to award attorney’s fees in this case, Mercantile Nat. Bank v. Bradford Trust Co., 850
F.2d 215, 218 (5th Cir. 1988). Accordingly, Flagstar is not entitled to recover its attorney’s fees.
IV.
Conclusion
For the foregoing reasons, it is hereby
ORDERED that Flagstar’s Motion for Summary Judgment (Doc. 14) is GRANTED and
Maday-Jokinen’s case is DISMISSED. It is further
DECLARED that Flagstar is authorized to foreclose on the real property collateral
located at 115 Capri Street, Sugar Land, Fort Bend County, Texas 77478.2
SIGNED at Houston, Texas, this 11th day of September, 2013.
___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
2
In its motion for summary judgment (Doc. 14 ¶ 8) and proposed order granting summary judgment (Doc. 14-14),
Flagstar requests authorization to foreclose on the “property located at 4031 Scenic Orchard, Richmond, Fort Bend
County, Texas 77469.” Because there is nothing in the record indicating that that property is at issue here, the Court
will authorize foreclosure only on the property that is the subject of this case. Additionally, in its Counterclaim
(Doc. 9 ¶¶ 5-6) and Third-Party Complaint (Doc. 10 ¶¶ 7-8), Flagstar states that the first lien on the Property is
“recorded under Document No. 208083528 in the real property records of Fort Bend County, Texas,” and that the
assignment to Flagstar is “recorded in Fort Bend County as document no. 2012122414.” In its motion (Doc. 14 ¶ 7)
and supporting affidavit (Bilek Aff. ¶ 3, Doc. 14-1), however, Flagstar states that the Texas Home Equity Security
Instrument is “recorded in the Official Real Property Records of Haris County, Texas as Document No.
2008083528,” and that the assignment is “recorded in the Official Real Property Records of Harris County, Texas as
Document No. 2012122414.” The Court strongly suggests that Flagstar correct its administrative errors before
proceeding further, as such errors could have grievous substantive effect.
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