Opinion
Civil Action H-22-1525
05-21-2024
JOHN M. McMAHAN, Plaintiff, v. U.S. BANK NATIONAL ASSOCIATION, et al., Defendants.
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
LEE H. ROSENTHAL UNITED STATES DISTRICT JUDGE
The court has reviewed the Memorandum and Recommendation of United States Magistrate Judge Neurock signed on April 11, 2024. (Docket Entry No. 73). FED. R. CIV. P. 72(b). Neither party has objected to the proposed findings and recommendations. See 28 U.S.C. § 636(b)(1)(C). Based on the pleadings, the record, the briefing, and the applicable law, the court adopts the Memorandum and Recommendation as this court's Memorandum and Opinion.
Accordingly:
• Summary judgment is entered in favor of U.S. Bank Trust National Association (the “Intervenor”). (Docket Entry No. 56). The Intervenor may foreclose on the property under the security instrument and § 51.002 of the Texas Property Code.
• John M. McMahan's claims are dismissed with prejudice.
• The Intervenor must submit a proposed judgment, including a provision directing the payment of any excess proceeds to the United States after the property is sold and the Intervenor's lien is satisfied.
• The Intervenor may file a separate application for attorneys' fees that establishes the amount of reasonable and necessary attorneys' fees and costs that it has incurred, with supporting evidence, based on an acceptable method for calculating attorneys' fees under § 38.001(b)(8) of the Texas Civil Practice and Remedies Code and under the note and deed of trust.
• McMahan's motion to dismiss his counsel is granted. (Docket Entry No. 71).
• McMahan's motion for continuance or leave to amend is denied. (Docket Entry No. 70).
After Judge Neurock signed the Memorandum and Recommendation, McMahan filed a second motion for leave to file an amended complaint. (Docket Entry No. 74). The motion is denied for the same reasons that support denial of McMahan's first motion for leave to amend, (Docket Entry No. 71)-McMahan has not shown he could not have reasonably amended before the deadline, despite diligence.