Keen v. SunTrust Mortg., Inc.
| Decision Date | 18 March 2013 |
| Docket Number | CIVIL ACTION NO. 1:10-CV-733 |
| Parties | KEITH R. KEEN and JULIA R. KEEN, Plaintiffs, v. SUNTRUST MORTGAGE, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Texas |
Pending before the court is Defendant SunTrust Mortgage, Inc.'s ("SunTrust") Motion for Summary Judgment (#44). SunTrust moves for judgment as a matter of law on the claims asserted by Keith R. Keen and Julia R. Keen ("the Keens"). Having considered the motion, the response, the submissions of the parties, and the applicable law, the court is of the opinion that summary judgment should be granted.
On April 24, 2000, the Keens executed a Deed of Trust and obtained a mortgage loan in the amount of $123,000.00 against real property located in Groves, Texas, from Southtrust Mortgage Corporation ("Southtrust"). Subsequently, the Deed of Trust was assigned to Washington Mutual Home Loans, Inc. On November 22, 2002, the Keens obtained two loans from SunTrust to pay off the loan to acquire a release of the Deed of Trust and real estate taxes assessed against the property in 2002. The Keens executed a Note and Deed of Trust ("2002 Deed of Trust") for the first loan in the amount of $117,600.00 and promised to pay the principal plus interest, securing the loan by granting SunTrust a first lien against the Groves property. On the same day, the Keens executed a Note and Refinance Money Deed of Trust for the second loan of$16,200.00, promising to pay principal plus interest. This loan was secured by granting SunTrust a second lien against the Groves property.
The Keens made payments pursuant to their financial agreement until April 2010, when they could no longer afford to pay the first loan. The Keens, through U.S. Mortgage Solutions, applied for relief under the Home Affordable Modification Program, which provided the Keens with new, reduced mortgage loan figures under the program. On June 9, 2010, the Keens sent the application prepared by U.S. Mortgage Solutions to SunTrust for review. The Keens did not communicate with SunTrust prior to submitting their application, and SunTrust never agreed to modify the loan. On July 26, 2010, Barrett Daffin Frappier Turner & Engel, LLP ("BDFTE"), the law firm representing SunTrust, notified the Keens the first loan had been accelerated and that the property would be sold in a foreclosure proceeding on September 7, 2010. On July 28, 2010, BDFTE sent the Keens an additional letter providing alternate options to avoid foreclosure. BDFTE advised the Keens, however, that the letter was not an approval of any available program and that the firm would continue with the foreclosure as scheduled until such time as the Keens received written confirmation that SunTrust had approved their loan workout.
The Keens allege that they had telephonic conversations with several SunTrust employees who reported that the loan modification paperwork was still under review and that the Keens' request for a postponement of the sale would be made to the foreclosure department. On August 21, 2010, SunTrust notified the Keens via letter that it would not accept the loan modification application and that all collection activity, including foreclosure proceedings, would continue. After receiving this letter, however, the Keens were allegedly informed over the telephone that the paperwork was still being reviewed. The Keens contend that, from May to August 2010,SunTrust represented continually that payments on the note were not required because their loan modification proposal remained under review. On September 28, 2010, SunTrust informed the Keens that their property had been foreclosed and sold. Subsequently, SunTrust filed a forcible entry and detainer action to evict the Keens from the property.
On November 3, 2010, the Keens filed the instant lawsuit in the 60th Judicial District Court of Jefferson County, Texas, alleging violations of the Texas Deceptive Trade Practices Act ("DTPA"), breach of fiduciary duty, breach of contract, fraud, and intentional infliction of emotional distress. The Keens also seek a declaratory judgment that the foreclosure was illegal and a temporary restraining order prohibiting SunTrust from evicting them. Further, the Keens assert in their petition that they tendered $10,000.00—the amount owed "to bring the loan current and comply with their obligations"—into the registry of the court. On November 15, 2010, this suit was removed to federal court.
On July 10, 2012, the court entered a Memorandum and Order dismissing the Keens' claims for violations of the DTPA, breach of fiduciary duty, and intentional infliction of emotional distress as a matter of law. The court granted the Keens leave to amend their complaint as to their claims for fraud, breach of contract, and declaratory and injunctive relief. On July 24, 2012, the Keens filed an Amended Complaint. On August 16, 2012, SunTrust moved to dismiss the Amended Complaint, and on October 19, 2012, SunTrust filed the instant motion for summary judgment.1
In its motion, SunTrust contends that there is no evidence that it committed fraud against the Keens, that it breached the contract with the Keens, or that it is liable for negligent misrepresentation. In response, the Keens maintain that there are disputed, material facts supporting their claims for fraud and negligent misrepresentation.
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); QBE Ins. Corp. v. Brown & Mitchell, Inc., 591 F.3d 439, 442 (5th Cir. 2009); Warfield v. Byron, 436 F.3d 551, 557 (5th Cir. 2006); Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005).
"A fact is material only if its resolution would affect the outcome of the action . . . ." Wiley v. State Farm Fire & Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009); accord Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012); Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir. 2005). "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "An issue is 'genuine' if it is real and substantial, as opposed to merely formal, pretended, or a sham." Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001) (emphasis in original). Thus, agenuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; accord Poole, 691 F.3d at 627; Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir. 2010); Wiley, 585 F.3d at 210; EMCASCO Ins. Co. v. Am. Int'l Specialty Lines Ins. Co., 438 F.3d 519, 523 (5th Cir. 2006); Cooper Tire & Rubber Co., 423 F.3d at 454. The moving party, however, need not negate the elements of the nonmovant's case. See Bayle, 615 F.3d at 355; Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)); Millennium Petrochemicals, Inc. v. Brown & Root Holdings, Inc., 390 F.3d 336, 339 (5th Cir. 2004).
Once a proper motion has been made, the nonmoving parties may not rest upon mere allegations or denials in the pleadings but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. Celotex Corp., 477 U.S. at 322 n.3 (quoting FED. R. CIV. P. 56(e)); Anderson, 477 U.S. at 256; Bayle, 615 F.3d at 355; EMCASCO Ins. Co., 438 F.3d at 523; Smith ex rel. Estate of Smith v. United States, 391 F.3d 621, 625 (5th Cir. 2004). "[T]he court must review the record 'taken as a whole.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); see Riverwood Int'l Corp. v. Emp'rs Ins. of Wausau, 420 F.3d 378, 382 (5th Cir. 2005). All the evidence must be construed in the light most favorable to the nonmoving party, and the court will not weigh the evidence or evaluate its credibility. Reeves, 530 U.S. at 150; Downhole Navigator, LLC v. Nautilus Ins. Co., 686 F.3d 325, 328 (5th Cir. 2012); EEOC v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th Cir. 2009); Lincoln Gen. Ins. Co., 401 F.3d at 350; Smith, 391 F.3d at 624. The evidence of the nonmovantsis to be believed, with all justifiable inferences drawn and all reasonable doubts resolved in their favor. Groh v. Ramirez, 540 U.S. 551, 562 (2004) (citing Anderson, 477 U.S. at 255); Cotroneo v. Shaw Env't & Infrastructure, Inc., 639 F.3d 186, 192 (5th Cir. 2011); Tradewinds Envtl. Restoration, Inc. v. St. Tammany Park, LLC, 578 F.3d 255, 258 (5th Cir. 2009). The evidence is construed "'in favor of the nonmoving party, but only where there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts.'" Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075).
Furthermore, "only reasonable inferences in favor of the nonmoving party can be drawn from the evidence." Mills v. Warner-Lambert Co., 581 F. Supp. 2d 772, 779 (E.D. Tex. 2008) (citing Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 469 n.14 (1992)); accord Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012). "If the [nonmoving party's] theory is . . . senseless, no reasonable jury could find in its favor, and summary judgment should be granted." Eastman Kodak...
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