Opinion
Civil Action 4:21-cv-03612
05-31-2022
CAROLE A. JONES, Plaintiff, v. US BANK NA and SELECT PORTFOLIO SERVICING INC, Defendants.
ORDER GRANTING SUMMARY JUDGMENT
CHARLES ESKRIDGE, JUDGE.
Plaintiff Carole A. Jones executed a promissory note and deed of trust on her residence on September 15, 2004. Dkts 10-2 & 10-3. She executed two loan modification agreements in 2010 and 2012. Dkts 10-5 & 10-6. Jones defaulted on the second loan modification agreement on November 1, 2014.
Defendants sent a notice of default with intent to accelerate in August 2016 and a notice of acceleration and substitute trustee's sale in September 2021. Dkts 10-7 & 10-8. Jones in response brought this action seeking injunctive relief against Defendants in Texas state court, alleging violations of Regulation X of the Real Estate Settlement Procedures Act, negligence, violations of the Texas Property Code, and breach of contract. See Dkt 1-4 at 1-11.
Defendants removed the action and now move for summary judgement on all claims. Dkts 1 & 10. Jones hasn't responded.
“It is well established in the Fifth Circuit that a federal court may not grant a ‘default' summary judgment when no response has been filed.” Morgan v Federal Express Corp, 114 F.Supp.3d 434, 437 (SD Tex 2015) (quotation marks and alteration omitted), citing Eversley v MBank of Dallas, 843 F.2d 172, 174 (5th Cir 1988). But if no response to the motion for summary judgment has been filed, the court may find as undisputed the statement of facts in the motion for summary judgment. Ibid. The Fifth Circuit likewise holds that when a nonmovant bears the burden of proof at trial, a movant may make a proper summary judgment motion under Rule 56 by alleging that the nonmovant has “no evidence” of its claims. Austin v Kroger Texas LP, 864 F.3d 326, 335 (5th Cir 2017, per curiam).
Jones bears the burden of proof as to each of her claims. And Defendants assert that she has no evidence supporting these claims. Dkt 10 at 7-14. Defendants further submit that undisputed evidence and controlling law entitle them to judgment against Jones on these claims because (among other reasons) Regulation X of the RESPA isn't applicable, there's no support for the proposition that Defendants were required to comply with any Department of Housing and Urban Development regulations, and no foreclosure sale has occurred. Ibid. Any claim for injunctive relief likewise fails because Jones has no viable underlying cause of action. Id. at 15.
Defendants are entitled to summary judgment on all claims by Jones.
The motion by Defendants U.S. Bank NA and Select Portfolio Servicing Inc for summary judgment on all claims by Plaintiff Carole A. Jones is GRANTED. Dkt 10.
The claims brought by Plaintiff Carole A. Jones are DISMISSED WITH PREJUDICE.
A final judgment will enter separately.
SO ORDERED.