Billiter v. Central Mortgage Company et al
MEMORANDUM OPINION granting 48 Second MOTION for Summary Judgment (Signed by Magistrate Judge Nancy K. Johnson) Parties notified.(sjones, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
LLOYD BILLITER, JR.,
CENTRAL MORTGAGE COMPANY,
Company’s (“Defendant”) Second Motion for Summary Judgment (Doc.
Plaintiff Lloyd Billiter Jr. (“Plaintiff”) has not filed a
response, and the submission date has passed.2
The court has
considered the motion and the applicable law. For the reasons set
forth below, Defendant’s motion is GRANTED.
On January 25, 2011, Plaintiff obtained a home equity loan
in the amount of $96,750.00.3
On September 14, 2012, Plaintiff
was sent a letter advising him that he was in default on his
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure (“Rule”) 73. Docs. 10, 11.
See S.D. Tex. R. 7.3, 7.4. The deadline for Plaintiff’s response was
May 29, 2015. To date, Plaintiff has not responded to Defendant’s motion.
See Doc. 48-1, Ex. A-1 to Def.’s 2nd Mot. for Summ. J., Home Equity
Plaintiff filed a petition in Harris County District Court
removed the case to this court based on diversity jurisdiction.6
On May 8, 2014, Defendant filed its answer and counterclaim,
alleging bad faith and seeking a declaratory judgment that it had
a valid lien on Plaintiff’s property, and that it was entitled to
a non-judicial foreclosure, a writ of possession, and attorney’s
Both parties filed motions for summary judgment on their
On February 17, 2015, the court granted
Defendant’s motion with respect to Plaintiff’s claims, but found
that Defendant had not presented clear and unequivocal evidence
See Doc. 48-5, Ex. A-3 to Def.’s 2nd Mot. for Summ. J., Notice of
See Doc. 1-3, Ex. 3 to Def.’s Notice of Removal, Pl.’s State Court
See Doc. 1, Def.’s Notice of Removal.
See Doc. 15, Def.’s Answer & Countercl.
See Doc. 32, Def.’s Am. Mot. for Summ. J.; Doc. 33, Pl.’s Mot. for
February 27, 2015.10
On March 26, 2015, the court held a hearing on Defendant’s
motion and again found that Defendant did not have clear and
Defendant to re-file its motion after it had properly accelerated
Later that day, Defendant sent Plaintiff an acceleration
letter in conformity with the court’s request.13
On May 8, 2015,
declaratory judgment, non-judicial foreclosure, and attorneys’
fees based on its corrected acceleration.14
To date, Plaintiff
has not replied to Defendant’s motion.
Summary Judgment Standard
Summary judgment is warranted when the evidence reveals that
no genuine dispute exists regarding any material fact and the
moving party is entitled to judgment as a matter of law.
See Doc. 42, Mem. Op. dated Feb. 17, 2015.
See Doc. 43, Mot. for Recons.
See Doc. 46, Min. Entry of March 26, 2015 Hr’g.
See Doc. 48-6, Ex. A-5 to Def.’s 2nd Mot. for Summ. J., Acceleration
Letter dated March 26, 2015.
See Doc. 48, Def.’s 2nd Mot. for Summ. J.
Civ. P. 56(c);
(1986); Pustejovsky v. Pliva, Inc., 623 F.3d 271, 277 (5th Cir.
applicable substantive law as critical to the outcome of the
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 271 F.3d
624, 626 (5th Cir. 2001).
To be genuine, the dispute regarding a
reasonable jury could resolve the issue in favor of either party.
Anderson, 477 U.S. at 250; TIG Ins. Co. v. Sedgwick James of
Wash., 276 F.3d 754, 759 (5th Cir. 2002).
summary judgment motion and must point to relevant excerpts from
pleadings, depositions, answers to interrogatories, admissions,
or affidavits that demonstrate the absence of genuine factual
Celotex Corp., 477 U.S. at 323; Chiu v. Plano Indep.
School Dist., 260 F.3d 330, 342 (5th Cir. 2001).
If the moving
party can show that the facts are not in dispute, the party
proffer evidence demonstrating that genuine issues of material
fact do exist that must be resolved at trial.
477 U.S. at 324.
See Celotex Corp.,
When considering the evidence, “[d]oubts are to be resolved
in favor of the nonmoving party, and any reasonable inferences
are to be drawn in favor of that party.”
Evans v. City of
Houston, 246 F.3d 344, 348 (5th Cir. 2001); see also Boston Old
Colony Ins. Co. v. Tiner Assocs. Inc., 288 F.3d 222, 227 (5th
credibility, or determine the most reasonable inference to be
drawn from the evidence.”
Honore v. Douglas, 833 F.2d 565, 567
(5th Cir. 1987).
Even when a nonmovant fails to respond to a motion for
summary judgment, the movant still bears the burden of proving
that no issue of material fact exists.
Celotex, 477 U.S. at 323.
However, the court will only resolve factual controversies in
favor of the nonmoving party when a controversy actually exists;
in other words, no controversy exists when factual allegations
are not challenged by the nonmoving party.
Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (relying on Lujan v.
Therefore, assumptions or inferences that the nonmoving party
could or would prove the necessary facts will not be made.
Rule 7.3 provides that “[o]pposed motions will be submitted
to the judge twenty-one days from filing without notice from the
clerk and without appearance by counsel.”
S.D. Tex. R. 7.3
Local Rule 7.4 provides that “[f]ailure to respond will
be taken as a representation of no opposition.”
S.D. Tex. R. 7.4
because there is no opposition to the motion, the court may
accept the movant's version of the facts as undisputed and grant
a motion for summary judgment if the movant makes a prima facie
showing of entitlement to summary judgment.
See John v. State of
Louisiana (Board of Trs. for State Colls. and Univs.), 757 F.2d
698, 708 (5th Cir. 1985) (when the movant's evidence establishes
its right to judgment as a matter of law, the district court is
entitled to grant summary judgment).
Therefore, the court will
consider Plaintiff's failure to respond to the pending motion as
assertions made in this motion. See id.
Defendant moves for summary judgment on its claims for a
declaratory judgment, the right to non-judicial foreclosure, and
Plaintiff failed to respond to Defendant’s
Defendant seeks non-judicial foreclosure pursuant to Article
XVI, Section 50(a)(6).
In order to foreclose under a security
instrument in Texas, the lender must demonstrate that: (1) a debt
exists; (2) the debt is secured by a lien created under Art. 16,
§ 50(a)(6) of the Texas Constitution; (3) plaintiff is in default
received notice of default and acceleration.
Tex. Prop. Code §
The court found in its previous opinion that Defendant
has demonstrated the first three requirements but had not proven
that Plaintiff had received notice of acceleration.
second motion attaches an acceleration letter correcting this
authorizing nonjudicial foreclosure of the property.
entitled to recover attorneys’ fees and costs.
$13,910.80, and it has incurred additional expenses of $410.80,
Under Texas contract law, a party may recover attorney’s
fees when such recovery is provided by statute or by contract. In
re Velazquez, 660 F.3d 893, 895-96 (5th Cir. 2011).
Tex. Const. Art. XVI § 50(a)(6)(C); Huston
v. U.S. Bank Nat’l Ass’n, 988 F. Supp. 2d 732, 741 (S.D. Tex.
See Doc. 48-6, Ex. B to Def.’s 2nd Mot. for Summ. J., Aff. of Crystal
However, a mortgagee may recover its attorneys’ fees if
permitted under the contract.
Huston, 988 F. Supp. 2d at 741.
Here, the security instrument provides the lender the right
to pay reasonable attorneys’ fees to protect the lien and the
security instrument, and states that any amounts disbursed by the
lender shall become additional debt of the mortgagor and secured
by the security instrument.16
Thus, although Plaintiff does not
Defendant is entitled to add attorneys’ fees to the secured
balance due under the note, and may recover such fees upon any
See id. at 741-42.
Because the court finds
that Defendant has established its right to foreclosure, the
court GRANTS Defendant’s motion and authorizes the proceeds of
any sale to be applied to the costs of sale and amounts due under
the note, including attorneys’ fees and costs.
Summary Judgment (Doc. 48)
Defendant is authorized
to foreclose on the property under the Security Instrument and
the Texas Property Code § 51.002, with the proceeds of such sale
to be applied to the costs of sale and the amounts due and owing
See Doc. 48-3, Ex. A-2 to Def.’s 2nd Mot. for Summ. J., Security
Instrument p. 5 ¶ 9.
under the note.
Defendant is also entitled to attorneys’ fees
Defendant may not seek to recover any deficiency from
Plaintiff in his individual capacity.
The court will enter a separate final judgment consistent
with this order.
SIGNED in Houston, Texas, this 18th day of September, 2015.
U.S. MAGISTRATE JUDGE
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