Suarez v. U.S. Bank, N.A., as Trustee

Western District of Texas, txwd-5:2019-cv-01339

Exhibit E - Suit2 Order

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EXHIBIT E Case Case 5:19-cv-01339-XR 5:17-cv-00085-FB Document Document 4-5 10 Filed Filed 09/29/17 12/02/19 Page Page 12 of of 45 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION FELIX SUAREZ and JOYCE SUAREZ, § § Plaintiffs, § § VS. § CIVIL ACTION NO. SA-17-CA-085-FB § OCWEN LOAN SERVICING LLC, ET AL., § § Defendants. § ORDER GRANTING MOTION FOR SUMMARY JUDGMENT Before the Court is Ocwen's Motion for Summary judgment filed August 22, 2017 (docket #9). Pursuant to Western District of Texas Local Rule CV-7(e), any response in opposition to the motion for summary judgment should have been filed "not later than 14 days after the filing of the motion." To date, no response or request for an extension of time to file a response has been received. A motion for summary judgment should be granted when the pleadings, discovery and disclosure materials on file, and affidavits, show "there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(a). A dispute concerning a material fact is considered "genuine" if the evidence "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is not the Court's function to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. The Court must determine if there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. Of course, in ruling on a motion for summary judgment, all inferences drawn from the factual record are viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 Case Case 5:19-cv-01339-XR 5:17-cv-00085-FB Document Document 4-5 10 Filed Filed 09/29/17 12/02/19 Page Page 23 of of 45 (1986). The court also "may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). If the party moving for summary judgment carries its burden of producing evidence which tends to show there is "no genuine issue of material fact, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish the existence of a genuine issue of material fact for trial." Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). The nonmoving party may not rely upon mere conclusory allegations to defeat a motion because allegations of that type are not competent summary judgment evidence and are insufficient to defeat a proper motion. Id. In fact, if the "nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation," a motion for summary judgment may be granted even in cases "where elusive concepts such as motive or intent are at issue." Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994); see Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) ("party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or 'only a scintilla of evidence'"). The party opposing the motion also may not rest on the allegations contained in the pleadings but "must set forth and support by summary judgment evidence specific facts showing the existence of a genuine issue for trial." Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). In meeting this requirement, the party must "identify specific evidence in the record" and "articulate the precise manner in which that evidence supports his or her claim." Id. Rule 56 of the Federal Rules of Civil Procedure does not impose upon this Court the "duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Id. (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909. 915-16 & n.7 (5th Cir.), cert. denied, 506 U.S. 832 (1992)); see Adams v. Travelers Indem. Co., 465 F.3d 156, 164 (5th Cir. 2006) (quoting Ragas "Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a -2- Case Case 5:19-cv-01339-XR 5:17-cv-00085-FB Document Document 4-5 10 Filed Filed 09/29/17 12/02/19 Page Page 34 of of 45 party's opposition to summary judgment"). A summary judgment will only be precluded by disputed facts which are material, i.e. "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Factual disputes which are irrelevant or unnecessary to the issue will not preclude summary judgment. Id. Summary judgment will be granted if the nonmovant "fails to make a show sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The mere failure by a party to oppose a motion is not a sufficient basis for granting summary judgment. Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1022-23 (5th Cir. 1995). The moving party must still "establish the absence of a genuine issue of material fact before it can prevail on a summary judgment motion." Id. at 1023. Although no response to the motion has been filed by the plaintiffs, Felix and Joyce Suarez, defendant's motion will be considered on its merits and summary judgment will not be granted simply because no response was filed. Hiberna Nat'l Bank v. Administracion Central Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985). The Court has reviewed the motion on its merits, the arguments and authorities presented therein, and the supporting evidence attached to the motion. Based on the foregoing, the Court finds as a matter of law that defendant Ocwen Loan Servicing LLC is entitled to summary judgment on plaintiffs's claims relating to: (1) violations of the Texas Property Code--as no foreclosure sale occurred and the summary judgment evidence shows the required notice of default was sent to the only debtor under the note, Felix Suarez; (2) breach of contract claims--because there was no valid and enforceable loan modification agreement between the parties; and (3) injunctive relief--because there is no viable substantive claim. See Pajooh v. Harmon, 82 F. App'x 898, 899 (5th Cir. 2003) (upholding the denial of injunctive relief when plaintiff failed to state a claim). -3- Case Case 5:19-cv-01339-XR 5:17-cv-00085-FB Document Document 4-5 10 Filed Filed 09/29/17 12/02/19 Page Page 45 of of 45 Accordingly, IT IS HEREBY ORDERED that Ocwen's Motion for Summary Judgment (docket #9) is GRANTED as to all of plaintiff's claims, and this case is DISMISSED WITH PREJUDICE. Motions pending, if any, are also DISMISSED, and this case is now CLOSED. It is so ORDERED. SIGNED this 29th day of September, 2017. _________________________________________________ FRED BIERY UNITED STATES DISTRICT JUDGE -4-