Ifreedom Direct v. First Tennessee Bank National et al

Filing 235

MEMORANDUM DECISION AND ORDER granting in part and denying in part 233 Motion for Directed Verdict. Signed by Judge David Nuffer on 8/21/12 (alt)

Thomas E. Lowe, Utah State Bar No.2006
Lowe, Hutchinson & Cottingham
2150 South 1300 East, Suite 120
Salt Lake City, UT 84106
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Plaintiff
Thomas M. Barton
Coles Barton, LLP
150 South Perry Street, Suite 100
Lawrenceville, GA 30046
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

IFREEDOM DIRECT CORPORATION,
f/k/a New Freedom Mortgage Corporation,

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Plaintiff,
v.
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, successor-in-interest to
First Horizon Home Loan Corporation,

Defendants.

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MEMORANDUM DECISION and
ORDER GRANTING IN PART
AND DENYING IN PART
MOTION FOR DIRECTED
VERIDCT ON DEFENDANT’S
AFFIRMATIVE DEFENSES OF
WAIVER AND ESTOPPEL
JURY DEMANDED
Case No. 2:09-cv-205-DN
Judge David Nuffer

Based upon Plaintiff’s Motion for Directed Verdict 1 on Defendant’s Affirmative
Defenses of Waiver and Estoppel, and the Memorandum submitted in Support of that Motion, as
well as the testimony and evidence presented at trial,
IT IS HEREBY ORDERED that
1.

Plaintiff’s Motion is GRANTED as to defendant’s affirmative defense of

estoppel. An essential element of estoppel under Texas law is detrimental reliance on the
concealing or misrepresentation of material facts. See Nelson v. Jordan, 663 S.W.2d 82, 87
(Tex. App. 1983).

Defendant did not introduce any evidence that Plaintiff concealed or

misrepresented any facts to Defendant. Nor did Defendant introduce any evidence that it relied
to its detriment on anything Plaintiff did.

Accordingly, a directed verdict on Defendant’s

affirmative defense of estoppel is appropriate.
2.

Plaintiff’s Motion is DENIED at this time as to Defendant’s affirmative defense

of waiver.
Dated August 21, 2012.
BY THE COURT:

____________________________
David Nuffer
United States District Judge

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Docket no. 233.

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