Martinez v. CitiMortgage, Inc.

Filing 21

MEMORANDUM AND ORDER GRANTED 18 MOTION for Summary Judgment and Brief in Support(Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
PHILLIP MARTINEZ,
Plaintiff,
v.
CITIMORTGAGE, INC.,
Defendant.

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CIVIL ACTION NO. H-13-0727

MEMORANDUM AND ORDER
This foreclosure case is before the Court on the Motion for Summary Judgment
[Doc. # 18] filed by Defendant CitiMortgage, Inc. (“CMI”) seeking summary
judgment on Plaintiff Phillip Martinez’s fraud claim.1 Martinez filed a timely
Response [Doc. # 19]. Based on the Court’s review of the full record and the
applicable legal authorities, the Court grants the Motion for Summary Judgment.
I.

BACKGROUND
On June 11, 2007, as part of his purchase of property in Channelview, Texas

(the “Property”), Plaintiff executed a Note for $75,000.00 payable to Fieldstone
Mortgage Company (“Fieldstone”). Plaintiff also executed a Deed of Trust with
Fieldstone as the Lender, Mortgage Electronic Registration Systems, Inc. (“MERS”)

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By Memorandum and Order [Doc. # 16] entered May 28, 2013, the Court dismissed
Plaintiff’s trespass to try title and breach of contract claims.

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as the Beneficiary, and Rob V. Budhwa as the Trustee. The Note and Deed of Trust
were transferred to CMI, who acted also as the loan servicer.
During the term of the loan, Plaintiff began to experience financial difficulties.
Plaintiff alleges that he contacted CMI and entered into debt restructuring negotiations
in an attempt to modify the terms and conditions of the Note. Plaintiff alleges that
CMI’s representative told him not to make any mortgage payments during the loan
modification process. Plaintiff alleges further that CMI’s representative told him to
ignore any foreclosure notices that he received and promised that CMI would not take
any action to foreclose on the Property while the loan was in modification status.
CMI conducted a foreclosure sale of the Property on November 6, 2012.
Plaintiff filed this lawsuit in Texas state court, asserting causes of action for
trespass to try title, breach of contract, and common law fraud. On March 15, 2013,
CMI filed a timely Notice of Removal. The Court has dismissed all but the fraud
claim, on which Defendant now seeks summary judgment. The Motion is ripe for
decision.
II.

APPLICABLE LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary

judgment 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.

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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).
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)

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(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
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
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

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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
evidence. Id. (citing Reaves Brokerage, 336 F.3d at 413).
III.

ANALYSIS
“Under Texas law, the elements of a fraud cause of action are: (1) a material

representation was made; (2) it was false when made; (3) the speaker either knew it
was false, or made it without knowledge of its truth; (4) the speaker made it with the
intent that it should be acted upon; (5) the party acted in reliance; and (6) the party
was injured as a result.” Coffel v. Stryker Corp., 284 F.3d 625, 631 (5th Cir. 2002)
(citing Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960
S.W.2d 41, 47 (Tex. 1998)). In this case, Plaintiff has failed to present any evidence
to raise a genuine issue of material fact in support of his fraud claim. Instead, in the

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Response, Plaintiff cites exclusively to his Amended Complaint and asserts without
supporting evidence that the elements of his fraud claim are “undisputed.” Absent
evidence to support the fraud claim, Defendant is entitled to summary judgment.
Additionally, Plaintiff failed to respond or object to Defendant’s Request for
Admissions. As a result, pursuant to Rule 36(a)(3) of the Federal Rules of Civil
Procedure, the matters in the Request for Admissions are deemed admitted.2 See
Hulsey v. Texas, 929 F.2d 168, 171 (5th Cir. 1991); Murrell v. Casterline, 307 F.
App’x 778, 780 (5th Cir. 2008); Lockett v. Wal-Mart Stores, Inc., 337 F. Supp. 2d
887, 889 (E.D. Tex. 2004); Kirksey v. America’s Servicing Co., 2013 WL 3992179,
*3 (S.D. Tex. Aug. 2, 2013). Plaintiff has admitted that “CMI did not make any false
representation” and that he has “not been damaged by any action of CMI.” See
Requests for Admission [Doc. # 18-6], No. 1; No. 19. As a result of these admissions,
Plaintiff cannot establish the necessary elements of his fraud claim. Defendant is
entitled to summary judgment.

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CMI served its Request for Admissions on Plaintiff on August 29, 2013. In its
Motion for Summary Judgment filed November 25, 2013, CMI relied on Plaintiff’s
failure to respond to the Request for Admissions. Neither in the Response filed
December 4, 2013, nor in any other filing in this case, does Plaintiff address his
failure to respond.

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IV.

CONCLUSION AND ORDER
Plaintiff has failed to present any evidence to support his fraud claim, and his

deemed admissions establish that there is no genuine issue of material fact. Defendant
is entitled to judgment on Plaintiff’s fraud claim, and it is hereby
ORDERED that Defendant’s Motion for Summary Judgment [Doc. # 18] is
GRANTED and this case is DISMISSED WITH PREJUDICE. The Court will
issue a separate final judgment.
SIGNED at Houston, Texas, this 16th day of December, 2013.

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