Anderson v. Compass Bank
| Decision Date | 28 October 2014 |
| Docket Number | CIVIL ACTION NO. H-14-0410 |
| Parties | KERRY ANDERSON, et al., Plaintiffs, v. COMPASS BANK d/b/a BBVA COMPASS, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
This foreclosure case is before the Court on Defendant Compass Bank d/b/a BBVA Compass's ("Defendant") Motion for Summary Judgment [Doc. # 16], to which Plaintiffs Kerry and Diane Anderson ("Plaintiffs") filed a Response [Doc. # 19]. Defendant filed a Reply [Doc. # 21] three weeks after the September 23, 2014 deadline. Also pending is an opposed Motion to Withdraw as Attorney of Record ("Motion to Withdraw") [Doc. # 20] filed by Plaintiffs' attorney on the grounds that Plaintiffs are not communicating with counsel.1 Both motions are ripe for review.Having carefully considered the parties' briefing, the applicable legal authorities, and all matters of record, the Court grants Defendant's Motion for Summary Judgment and grants Plaintiffs' counsel's Motion to Withdraw.
This case stems from a second-lien mortgage that Plaintiffs Kerry and Diane Anderson, husband and wife, took on their home located at 8415 Kelsey Pass, Missouri City, Texas 77459 ("Property"). Plaintiffs' Original Petition ("Petition") [Doc. # 1-6],¶ 4.1.2 On or about May 5, 2007, Plaintiff Kerry Anderson executed an Equity Optimizer Credit Agreement and Disclosure ("Note") in favor of Defendant Compass Bank. See Equity Optimizer Credit Agreement and Disclosure ("Note") [Doc. # 16-1], at ECF pages 5-11. That same day, Plaintiffs executed a HomesteadLien Contract and Deed of Trust ("Deed of Trust") establishing a lien on the Property. See Homestead Lien Contract and Deed of Trust ("Deed of Trust") [Doc. # 16-1], at ECF pages 13-19.
Plaintiffs claim (but supply no evidence) that they made timely payments in complete compliance with the Deed of Trust and Note from May 2007 to January 2013. Petition, ¶ 4.2; Response, at 1. Defendant, on the other hand, has submitted payment records that reveal Plaintiffs continuously failed to make timely payments on the loan as early as 2007. See Exhibit A-5 ("Payment Records") [Docs. # 16-4 through # 16-9]. Defendant also informed the Court that Plaintiff Diane Anderson filed for Chapter 13 bankruptcy protection in January 2011. See In re Diane Anderson, et. al., No. 11-30111-KKB-13 (Bankr. S.D. Tex. 2011). During the bankruptcy proceedings, the parties stipulated that Plaintiffs owed $3,2848.00 in post-petition unpaid installments. Agreed Order Conditioning Automatic Stay (Home) ("Agreed Order") [Docs. # 54 and # 55 of Bankr. Case No. 11-30111-KKB-13]. Diane Anderson's bankruptcy case was dismissed in June 2012 for failure to make payments in compliance with the plan. See Motion to Dismiss for Failure to Make Payments [Doc. # 57 of Bankr. Case No. 11-30111-KKB-13].
In a letter dated December 19, 2012, Defendant notified Plaintiffs that they were in "breach of the mortgage" for missed payments due in October, November, andDecember 2012, and giving Plaintiffs until January 20, 2013, to pay the full amount due. Letter From BBVA Compass dated Dec. 19, 2012 ("Defendant's Dec. 2012 Letter") [Doc. # 16-3], at ECF pages 4-5. When Plaintiffs subsequently failed to make payments, Defendant sent Plaintiffs a Notice of Default and Intent to Accelerate, followed by a Notice of Acceleration. See Notice of Default and Intent to Accelerate [Doc. # 16-1], at ECF pages 22-28; Notice of Acceleration [Doc. # 16-1], at ECF pages 29-35.
On June 17, 2013, Defendant initiated foreclosure proceedings against the Property in the 400th Judicial District Court of Fort Bend County, Texas, alleging that Plaintiffs had failed to make eight scheduled payments and that the Note had been in default since October 16, 2012. See Application for Court Order Allowing Foreclosure of a Lien Securing a Home Equity Loan Under Texas Constitution Article XVI, Section 50(a)(b) ("Application for Foreclosure") [Doc. # 16-2], at ECF pages 2-5. Defendant's foreclosure suit was abated when Plaintiffs filed this case on August 9, 2013 in the 400th Judicial District Court of Fort Bend County, Texas, suing Defendant for breach of contract, negligence, violating HUD regulations and, violating the Texas Debt Collection Practices Act. See generally Petition. Defendant timely removed this case on the basis of diversity jurisdiction. See Notice of Removal [Doc. # 1]. On May 15, 2014, Defendant filed an answer raising affirmative defensesand asserting counterclaims against Plaintiffs for (1) an order authorizing judicial foreclosure and (2) attorneys fees. See Defendant Compass Bank's Amended Answer ("Amended Answer") [Doc. # 15].
According to both Plaintiffs' and Defendant's counsel, Plaintiffs have been unresponsive and have failed to participate in the litigation process.
On August 8, 2014, Defendant filed a motion seeking summary judgment on all of Plaintiffs' claims. While Defendant's motion did not reference its counterclaims, Defendant requested an order authorizing foreclosure and attorneys fees. On September 16, 2014, Plaintiffs' counsel filed a motion to withdraw and a subsequent memorandum in support [Docs. # 20 and # 23].
Rule 56 of the Federal Rules of Civil Procedure provides for the entry of summary judgment against a plaintiff who fails to make a sufficient showing of the existence of an element essential to her case and on which she will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as amatter of law." FED. R. CIV. P. 56(a); Celotex, 477 U.S. at 322-23; Curtis, 710 F.3d at 594.
For summary judgment, the initial burden falls on the movant to identify areas essential to the non-movant's claim in which there is an "absence of a genuine issue of material fact." ACE Am. Ins. Co. v. Freeport Welding & Fabricating, Inc., 699 F.3d 832, 839 (5th Cir. 2012). The moving party, however, "need not negate the elements of the nonmovant's case." Coastal Agric. Supply, Inc. v. JP Morgan Chase Bank, N.A., 759 F.3d 498, 505 (5th Cir. 2014) (quoting Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)). The moving party may meet its burden by pointing out "the absence of evidence supporting the nonmoving party's case." Malacara v. Garber, 353 F.3d 393, 404 (5th Cir. 2003) (citing Celotex, 477 U.S. at 323; Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996)).
If the moving party meets its initial burden, the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th Cir. 2004); Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001) (internal citation omitted). "An issue is material if its resolution could affect the outcome of the action." Spring Street Partners-IV, L.P. v. Lam, 730 F.3d 427, 435 (5th Cir. 2013). "A dispute as to a material fact is genuine if the evidence is such that areasonable jury could return a verdict for the nonmoving party." DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal citations omitted).
In deciding whether a genuine and material fact issue has been created, the court reviews the facts and inferences to be drawn from them in the light most favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th Cir. 2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "'Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial.'" Pioneer Exploration, L.L.C. v. Steadfast Ins. Co., No. 13-30802, 2014 WL 4693789, at *5 (5th Cir. Sept. 22, 2014) (quoting Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002); accord Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008). Instead, the nonmoving party must present specific facts which show "the existence of a genuine issue concerning every essential component of its case." Firman v. Life Ins. Co. of N. Am., 684 F.3d 533, 538 (5th Cir. 2012) (citation and internal quotation marks omitted). In the absence of any proof, the court will not assume that the non-movant could or would prove the necessary facts.Little, 37 F.3d at 1075 (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)).
The Court may make no credibility determinations or weigh any evidence, and must disregard all evidence favorable to the moving party that the jury is not required to believe. Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010) (citing Reaves Brokerage Co., 336 F.3d at 412-13). The Court is not required to accept the nonmovant's conclusory allegations, speculation, and unsubstantiated assertions which are either entirely unsupported, or supported by a mere scintilla of evidence. Id. (citing Reaves Brokerage, 336 F.3d at 413).
Finally, "[w]hen 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, that evidence is not properly before the district court." Malacara, 353 F.3d at 405. "Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Id. (internal citations...
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