Opinion
SA-23-CV-00708-XR
07-22-2024
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY DEAN WITTER CAPITAL I INC. TRUST 2002-AM3 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-AM3, Plaintiff v. CHERYL ALLEN EMERSON, INDIVIDUALLY AND IN HER CAPACITY AS INDEPENDENT EXECUTOR OF THE ESTATE OF IDA KIRBY ALLEN; Defendant
ORDER ADOPTING REPORT AND RECOMMENDATION
XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE
On this date the Court considered United States Magistrate Judge Elizabeth S. Chestney's Report and Recommendation in the above-numbered and styled case, filed June 18, 2024. ECF No. 18.
Plaintiff Deutsche Bank National Trust Company, as Trustee for Morgan Stanley Dean Witter Capital 1 Inc. Trust 2002-AM3 Mortgage Pass-Through Certificates, Series 2022-AM3 (“Deutsche Bank”), filed this action against Defendant Cheryl Allen Emerson (Individually and in her Capacity as Independent Executor of the Estate of Ida Kirby Allen) and John Allen. According to Deutsche Bank, Ida Kirby Allen a/k/a Ida K. Allen was a borrower under a loan agreement secured by real property located at 7819 Quirt Drive, San Antonio, Texas 78227 (the “Property”). However, Ms. Allen subsequently passed away, and Ms. Emerson was then appointed the executor of her estate. In its complaint, Deutsche Bank alleges that “[t]he Loan Agreement is currently due for the January 1, 2020 payment and all subsequent monthly payments. A Notice of Default . . . was served in accordance with the Loan Agreement and the Texas Property Code on June 16, 2022.” ECF No. 1 ¶ 20. Deutsche Bank seeks a declaratory judgment that it is the current holder and owner of the note and mortgagee of the loan agreement, and an order of foreclosure to enforce its security interest in the Property. See generally id.
On September 21, 2023, the Court dismissed Deutsche Bank's claims against John Allen. ECF No. 15.
On June 15, 2023, Deutsche Bank properly served Ms. Emerson. ECF No. 5. Thereafter, when Ms. Emerson failed to respond, the Clerk entered default against her. ECF No. 10. On September 22, 2023, Deutsche Bank moved for default judgment. ECF No. 16. Thereafter, on March 8, 2024, this Court referred that motion to the Magistrate Judge for consideration.
Any party who desires to object to a Magistrate Judge's findings and recommendations must serve and file his or her written objections within fourteen days after being served with a copy of the findings and recommendations. 28 U.S.C. § 636(b)(1). The Magistrate Judge's Report and Recommendation was entered on June 18, 2024 and mailed by certified mail on July 3, 2024. ECF Nos. 19. No objections have been filed.
The Court sent a copy of the Report and Recommendation via certified mail to 7819 Quirt Drive, San Antonio, Texas 78227 on July 19, 2024. ECF No. 4. Service for the purposes of Rule 72 was complete upon this mailing. See FED R. CIV. P. 5(b)(2)(C) (“A paper is served under this rule by mailing it to the person's last known address-in which event service is complete upon mailing.”); cf. N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 142 (5th Cir. 1996).
Because no party has objected to the Magistrate Judge's Report and Recommendation, the Court need not conduct a de novo review. See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”).
The Court has reviewed the Report and Recommendation and finds it to be neither clearly erroneous nor contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989). Accordingly, the Court ACCEPTS the Magistrate Judge's Recommendation, and Plaintiff's motion for default judgment (ECF No. 16) is hereby GRANTED. A final judgment pursuant to Rule 58 will follow.
The Clerk is DIRECTED to mail a copy of this Order to 7819 Quirt Drive, San Antonio, Texas 78227.
It is so ORDERED.