Silver Gryphon, LLC a Texas Limited Liability Company v. Wells Fargo, N.A. As Trustee for Registered Holders
Filing
21
MEMORANDUM OPINION AND ORDER granting 19 MOTION for Summary Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SILVER GRYPHON, L. L. C., A TEXAS
LIMITED LIABILITY COMPANY,
Plaintiff.
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v.
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§
§
WELLS FARGO BANK, N.A.,
AS TRUSTEE FOR THE REGISTERED
HOLDERS OF MORGAN STANLEY ABS
CAPITAL TRUST 2007-HE4,
MORTGAGE PASS-THROUGH
CERTIFICATES 2007 HE4
Defendant.
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CYRENA KIMBERLY GULER and
JESSE WILLIAM GULER,
CIVIL ACTION NO. H-14-3539
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§
§
§
v.
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff
Silver Gryphon,
L. L. C.
("Plaintiff")
sued Wells
Fargo Bank, N.A., as Trustee for the Registered Holders of Morgan
Stanley
ABS
Capital
Trust
2007-HE4,
Mortgage
Pass-Through
Certificates 2007-HE4 ("Wells Fargo" or "Defendant") in the 129th
Judicial
District
Court
of
Harris
County,
Texas,
No. 2014-69867. 1 Defendant removed to this court. 2
under
Cause
Pending before
1See Plaintiffs' Original Petition, and Application for
Temporary Restraining Order ("Original Petition"), Exhibit C-1 to
Defendant's Notice of Removal, Docket Entry No. 1-4.
2Defendant's Notice of Removal ("Notice of Removal"), Docket
Entry No. 1.
the court is Defendant's Motion for Summary Judgment ("Motion for
Summary Judgment")
below,
(Docket Entry No. 19).
For the reasons stated
the Motion for Summary Judgment will be granted, and this
action will be dismissed with prejudice.
I.
Background
In October of 2006 Jesse and Cyrena Guler executed a note (the
"Note") in favor of Decision One Mortgage Company, LLC. 3
The Note
was secured by a deed of trust (the "Deed of Trust") also in favor
of
Decision
One
Mortgage
Company,
LLC. 4
The
Deed
of
Trust
identified the Gulers' Harris County property (the "Property") as
collateral for the Gulers'
loan.5
The Gulers defaulted on their
loan in 2009 and have not made any payments since. 6
In June of
2011 MERS, a beneficiary under the Deed of Trust, assigned the Deed
of Trust to Defendant. 7
Plaintiff purchased the Property at a
conptable's sale in September of 2013, apparently in relation to an
action
brought
against
the
Gulers
by
their
homeowner's
3S ee Adjustable Rate Note, Exhibit 1A to Motion for Summary
Judgment, Docket Entry No. 19-2.
4See Deed of Trust, Exhibit 1B to Motion for Summary Judgment,
Docket Entry No. 19-3.
5S ee id. at 2.
6S ee Declaration of Select Portfolio Servicing, Inc., Exhibit 1
to Motion for Summary Judgment, Docket Entry No. 19-1, p. 2 ~~ 6-7;
Original Petition, Exhibit C-1 to Notice of Removal, Docket Entry
No. 1-4, pp. 2-3 ~ 10.
7Corporation Assignment of Deed of Trust/Mortgage, Exhibit 1C
to Motion for Summary Judgment, Docket Entry No. 19-4.
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association. B
In October of 2014 Defendant's mortgage servicer
notified the Gulers that Defendant had elected to accelerate the
Gulers' loan and intended to foreclose on the property. 9 Plaintiff
became aware that the Property was posted for foreclosure, and this
li tigation ensued. 10
II.
Standard of Review
Summary judgment is appropriate if the movant establishes that
there is no genuine dispute about any material fact and the movant
is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).
Disputes about material facts are genuine "if the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party. "
Anderson v. Liberty Lobby,
Inc.,
106 S.
Ct.
2505,
2510
(1986).
The moving party is entitled to judgment as a matter of
law if "the nonmoving party has failed to make a sufficient showing
on an essential element of her case with respect to which she has
the burden of proof."
Celotex Corp. v. Catrett, 106 S. Ct. 2548,
2552 (1986).
"In
order
to
avoid
identify specific facts
summary
judgment,
within the
the
nonmovant
must
record that demonstrate the
BSee Original Petition, Exhibit
Docket Entry No. 1-4, p. 2 ~ 6.
C-1
to Notice of Removal,
9Notice of Maturity/Acceleration of Texas Recourse Loan and
Enclosing Notice of Substitute Trustee's Sale, Exhibit 1G to Motion
for Summary Judgment, Docket Entry No. 19-8, pp. 2-4.
lOSee Original Petition, Exhibit
Docket Entry No. 1-4, p. 2 ~ 8.
-3-
C-1
to Notice of Removal,
existence of a genuine issue of material fact."
CO,
Min. Co., L.P., 565 F.3d 268, 273 (5th Cir. 2009)
also
articulate
the
precise
manner
in
which
"The party must
the
identified evidence supports his or her claim."
quotation marks and citation omitted) .
Inc. v. TXU
submitted or
Id.
(internal
"When 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,
evidence is not properly before the district court."
Id.
that
(same).
In reviewing the evidence "the court must draw all reasonable
inferences in favor of the nonmoving party,
credibility determinations
or weigh
Sanderson Plumbing Prods.,
Inc.,
the
120 S.
and it may not make
Reeves
evidence."
Ct.
2097,
2110
v.
(2000).
Factual controversies are to be resolved in favor of the nonmovant,
"but only when there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts."
Little v.
Liquid Air Corp.! 37 F.3d 1069, 1075 (5th Cir. 1994).
III.
Plaintiff's
Original
Analysis
Petition
makes
numerous
allegations but pleads no specific causes of action.
factual
To the
extent that they do state a cognizable claim, Plaintiff's factual
allegations lack merit, and summary judgment is appropriate.
As a
threshold matter, Plaintiff alleges that (1) the Deed of Trust was
never assigned to Wells Fargo;l1 (2) Wells Fargo is not the owner
110riginal Petition, Exhibit C-l to Notice of Removal, Docket
Entry No. 1-4, p. 3 ~ 11.
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and holder of the Note and has no interest in the Deed of Trusti 12
and
(3)
Plaintiff never received notice of the trustee's sale.13
The unrebutted evidence on summary judgment shows that
(1) MERS,.
which was a named beneficiary of the Deed of Trusti 14 assigned the
Deed of Trust to Wells Fargo in July of 2011i 15 (2) Wells Fargo's
loan servicer is presently in possession of the Note, endorsed in
blanki 16 and (3) a Notice of Substitute Trustee's Sale was sent to
Plaintiff on October 29, 2014.17
to
Defendant's
Motion
for
Plaintiff has neither responded
Summary
Judgment
nor
proffered
any
evidence in support of its factual allegations.
Plaintiff
foreclosing
further
on
limitations. l8
the
alleges
Property
that
by
Defendant
the
applicable
barred
statute
from
of
This allegation is conclusory, and it is directly
refuted by the evidence in the record.
12Id. at 3
is
~
Under Texas law a real
12.
14Deed of Trust, Exhibit 1B to Motion for Summary Judgment,
Docket Entry No. 19-3, p. 1 ~ E.
15Corporation Assignment of Deed of Trust/Mortgage, Exhibit 1C
to Motion for Summary Judgment, Docket Entry No. 19-4.
16Declaration of Select Portfolio Servicing, Inc., Exhibit 1
to Motion for Summary Judgment, Docket Entry No. 19-1, p. 2 ~ 3i
Adjustable Rate Note, Exhibit 1A to Motion for Summary Judgment,
Docket Entry No. 19-2.
17Letter from Hughes, Watters & Askanase, L.L.P. to Silver
Gryphon LLC, Exhibit 1G to Motion for Summary Judgment, Docket
Entry No. 19-8, pp. 17-20.
1BOriginal Petition, Exhibit C-1 to Notice of Removal, Docket
Entry No. 1-4, pp. 2-3 ~ 10.
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property lien and the power of sale to enforce it become void if a
lender does not seek to foreclose within four years of the day the
cause of action accrues.
Tex.
civ.
Holy Cross Church of God in Christ v.
(Tex.
2001)
"If a
note
& Rem.
Prac.
Wolf,
secured by a
real
property
Dist.]
2012,
371
S.W.3d 347,
no pet.).
353
16.035;
(Tex.
567
lien
is
then the date of
accrual becomes the date the note was accelerated."
Inc.,
§
44 S.W.3d 562,
accelerated pursuant to the terms of the note,
Properties,
Code
Khan v. GBAK
App.-Houston
[1st
Where acceleration is optional at the
election of the note holder, the cause of action accrues only when
the note holder actually exercises its option to accelerate.
Cross, 44 S.W.3d at 566.
of intent to accelerate,
Holy
Effective acceleration requires (1) notice
and
(2)
notice of acceleration.
Id. at
566.
Paragraph 22 of the Deed of Trust gives the lender the option
to
accelerate
the
loan
upon
the
borrower's
default .19
It
is
undisputed that "the original borrower had been in default on the
original note for several years prior to Plaintiff's acquisition of
the Property" in 2013. 20
November
30,
2009,
The summary judgment evidence includes a
notice
of
intent
to
accelerate 21
and
an
19See Deed of Trust, Exhibit 1B to Motion for Summary Judgment,
Docket Entry No. 19-3, p. 10 ~ 22.
20See Original Petition, Exhibit C-1 to Notice of Removal,
Docket Entry No. 1-4, pp. 2-3 ~~ 6, 10.
21Letter from BAC Home Loans Servicing, LP to Jesse William
Guler and Cyrena Kimberly Guler, Exhibit 1D to Motion for Summary
Judgment, Docket Entry No. 19-5.
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October 29, 2014, notice of acceleration. 22
There is no evidence
that Defendant accelerated the loan at issue prior to October 29,
2014.
Accordingly, there is no evidence that the four-year statute
of limitations has run, and summary judgment is appropriate. 23
IV.
Conclusion and Order
The court concludes that Plaintiff has failed to raise a fact
issue
as
to
any
cognizable
claim
for
relief.
Accordingly,
Defendant's Motion for Summary Judgment is GRANTED, and this action
will be dismissed with prejudice.
SIGNED at Houston, Texas, on this 11th day of August, 2015.
,
SIM LAKE
UNITED STATES DISTRICT JUDGE
22Notice of Maturity/Acceleration of Texas Recourse Loan and
Enclosing Notice of Substitute Trustee's Sale, Exhibit 1G to Motion
for Summary Judgment, Docket Entry No. 19-8, pp. 2-4.
23Plaintiff seeks various declarations regarding the validity
of liens on the Property and the identity of the owner. Original
Petition, Exhibit C-1 to Notice of Removal, Docket Entry No. 1-4,
p. 4 "18-19.
"Both Texas and federal law require the existence
of a justiciable case or controversy in order to grant declaratory
relief.
Val-Com Acquisitions Trust v. CitiMortgage, Inc., 421
F. App'x 398, 400 (5th Cir. 2011); see also Conrad v. SIB Mortg.
Corp., No. 4:14-CV-915-A, 2015 WL 1026159, at *7 (N.D. Tex. Mar. 6,
2015) ("A declaratory judgment action requires the parties to
li tigate some underlying cla.im or cause of action. ") .
Because
Plaintiff's claims will be dismissed, its request for declaratory
relief will be denied as well.
II
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