Smith v. Guild Mortgage Company et al, No. 3:2019cv00188 - Document 14 (S.D. Tex. 2020)
Court Description: MEMORANDUM OPINION AND ORDER Granting 12 MOTION for Summary Judgment (Signed by Judge Jeffrey V Brown) Parties notified.(GeorgeCardenas, 4)
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Smith v. Guild Mortgage Company et al Doc. 14 Case 3:19-cv-00188 Document 14 Filed on 04/06/20 in TXSD Page 1 of 15 United States District Court Southern District of Texas ENTERED IN TH E U N ITED STATES D ISTR ICT COU R T FOR TH E SOU TH ER N D ISTR ICT OF TEX AS GALVESTON D IVISION April 06, 2020 David J. Bradley, Clerk No. 3:19-cv-00188 W ILLIAM T ERRELL S MITH , PLAIN TIFF, v. GUILD M ORTGAGE COMPANY, P ENNYM AC LOAN S ERVICES, LLC, AND M ORTGAGE E LECTRONIC R EGISTRATION S YSTEMS, I NC., D EFEN DAN TS . MEMOR AN D U M OPIN ION AN D OR D ER J EFFREY VINCENT BROWN , U NITED S TATES D ISTRICT J UDGE. Before the court is PennyMac Loan Services, LLC’s and Mortgage Electronic Registration System s, Inc.’s (collectively “defendants”) m otion for sum m ary judgm ent. Dkt. 12. 1 For the reasons discussed below, the court grants the m otion and dism isses William Sm ith’s claim s with prejudice. I. Factu al Backgro u n d In April 2014, Sm ith purchased his hom e, located at 9402 Em erald Green Drive in Rosharon, Texas. Sm ith financed the purchase with a loan from Guild Mortgage Com pany. Dkt. 12– 1. The note was secured by a deed of trust lien payable The defendants’ notice of rem oval states that Guild Mortgage Company was not served prior to rem oval. Dkt. 1, ¶ 4; see Dkt. 1– 9 at 3-4. Smith has not contested or otherwise presented evidence to establish that he has served Guild Mortgage. Therefore, because there is no evidence in the record to establish that Guild Mortgage was ever properly served process, th e court determines that Guild Mortgage is not before the court as a defendant. 1 Dockets.Justia.com Case 3:19-cv-00188 Document 14 Filed on 04/06/20 in TXSD Page 2 of 15 to Guild Mortgage and nam es Mortgage Electronic Recordation System s, Inc. (“MERS”) as the nom inee for Guild Mortgage. Dkt. 12– 2. On J une 3, 2015, Guild Mortgage sold the loan to PennyMac Loan Services, LLC. Dkt. 12– 4. PennyMac notified Sm ith of this transfer in writing on J une 10, 2015. Id. MERS assigned the deed of trust to PennyMac on Decem ber 7, 2015. Dkt. 12– 5. At present, PennyMac holds and services the loan. Dkt. 12– 3, ¶ 3. By J une 2015, Sm ith was in default. See Dkt. 12– 6 at 2. 2 PennyMac sent Sm ith a notice of default and intent to accelerate on J uly 23, 2015. Id. at 2-6. To date, Sm ith has not cured the default. See Dkt. 12– 3 at 35. On October 27, 2016, Sm ith filed for bankruptcy in the United States Bankruptcy Court for the Southern District of Texas, identifying PennyMac as a secured creditor. Dkt. 12– 7 at 10, 24. PennyMac filed its proof of claim on March 7, 2017. Dkt. 12– 9. At that tim e, the outstanding loan balance was $166,940.71, and the am ount due to cure Sm ith’s default was $26,212.60. Id. at 2. On March 22, Sm ith subm itted his proposed bankruptcy plan. Dkt. 12– 10. The plan called for Sm ith to surrender the property at issue to PennyMac once the plan was confirm ed. Dkt. 12– 10 at 2 (“Upon confirm ation of this Plan, the Debtor(s) im m ediately surrender and abandon the property and agree to im m ediately turn over and/ or vacate the property, and the lienholder(s) m ay take any action allowed under applicable law with respect to this property without further order of this Page-number citations to the documents that the parties have filed refer to those that th e court’s electronic-case-filin g system automatically assigns. 2 2 Case 3:19-cv-00188 Document 14 Filed on 04/06/20 in TXSD Page 3 of 15 Court.”). The bankruptcy court confirm ed Sm ith’s proposed bankruptcy plan on April 18, 2017. 3 Dkt. 12– 11. PennyMac did not im m ediately seek to foreclose on Sm ith’s hom e. Instead, m ore than two years later, on April 25, 2019, PennyMac, through its counsel, sent Sm ith a notice of acceleration and posting, which advised Sm ith that a foreclosure sale was scheduled for J une 4, 2019. Dkt. 12– 13. On May 30, 2019, Sm ith filed his original petition and application for tem porary restraining order, tem porary injunction, and perm anent injunction in the 149th J udicial District Court of Brazoria County, asserting claim s against all defendants for statutory fraud, com m on-law fraud, breach of contract, and to quiet title. Dkt. 1– 5. Sm ith’s allegations are vague, disjointed, and leave out basic facts, but the court has derived the following principal argum ents: (1) MERS’ assignm ent of deed of trust to PennyMac was fraudulent; (2) the loan itself is fraudulent due to the “switching of loan docum ents”; (3) that, by sending Sm ith m onthly m ortgage statem ents “requesting a norm al m onthly paym ent less than the fully accelerated am ount due,” PennyMac abandoned its attem pt to accelerate the loan; and (4) PennyMac failed to properly notice the foreclosure sale. Id. at 4-5. The state trial court issued a tem porary restraining order on May 31, 2019, which prohibited the scheduled foreclosure sale from going forward. Dkt. 1– 6. The The bankruptcy court ultim ately dism issed Sm ith’s case on J uly 15, 2019. Dkt. 12-12. The dism issal order provides only that Sm ith’s case was d ismissed for “reasons [that] were stated on the record in open court.” Id . PennyMac, however, contends it was due to Smith’s failure to make certain paym ents due under the approved plan. Dkt. 12 at 4. 3 3 Case 3:19-cv-00188 Document 14 Filed on 04/06/20 in TXSD Page 4 of 15 defendants tim ely rem oved the action to this court on the basis of diversit y jurisdiction. Dkt. 1. On Novem ber 20, 2019, the defendants m oved for sum m ary judgm ent. Dkt. 12. Sm ith did not respond. II. Le gal Stan dard Sum m ary judgm ent is proper when “there is no genuine dispute as to any m aterial fact and the m ovant is entitled to a judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). The court m ust view the evidence in a light m ost favorable to the nonm ovant. Colem an v. H ous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997). Initially, the m ovant bears the burden of presenting the basis for the m otion and the elem ents of the causes of action upon which the nonm ovant will be unable to establish a genuine dispute of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonm ovant to com e forward with specific facts showing there is a genuine dispute for trial. See Fed. R. Civ. P. 56(c); M atsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). “A dispute about a m aterial fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonm oving party.” Bodenheim er v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993) (citation om itted). Even though Sm ith did not file a response, sum m ary judgm ent m ay not be awarded by default. See H ibernia Nat’l Bank v. Adm in. Cent. Sociedad Anonim a, 776 F.2d 1277, 1279 (5th Cir. 1985). The defendants, as the m ovants, have the burden of establishing the absence of a genuine issue of m aterial fact. The court 4 Case 3:19-cv-00188 Document 14 Filed on 04/06/20 in TXSD Page 5 of 15 m ay not grant the m otion unless the defendants have m et their burden. H etzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 n.3 (5th Cir. 1995). Nevertheless, Sm ith’s failure to respond m eans he has not designated specific facts showing a genuine issue for trial, and is, therefore, relegated to his unsworn pleadings, which are not sum m ary-judgm ent evidence. Bookm an v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996) (citing Solo Serve Corp. v. W estow ne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)); see Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 247-48 (1986) (holding that the nonm oving party’s bare allegations, standing alone, are insufficient to create a m aterial dispute of fact and defeat a m otion for sum m ary judgm ent); Nat’l Ass’n of Gov’t Em ploy ees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir. 1994) (“Conclusor y allegations unsupported by specific facts, however, will not prevent an award of sum m ary judgm ent . . .”). Moreover, when a nonm oving party fails to respond to a m otion for sum m ary judgm ent, the court m ay accept the m ovant’s uncontroverted factual assertions as true. See Eversley v. M Bank of Dall., 843 F.2d 172, 174 (5th Cir. 1988). If a reasonable jury could not return a verdict for the nonm oving party, then sum m ary judgm ent is appropriate. Anderson, 477 U.S. at 248. It is not the function of the court to search the record on the nonm ovant’s behalf for evidence which m ay raise a fact issue. Topalian v. Ehrm an, 954 F.2d 1125, 1137 n.30 (5th Cir. 1992). Therefore, “[a]lthough we consider the evidence and all reasonable inferences to be drawn therefrom in the light m ost favorable to the nonm ovant, the nonm ovin g 5 Case 3:19-cv-00188 Document 14 Filed on 04/06/20 in TXSD Page 6 of 15 party m ay not rest on the m ere allegations or denials of its pleadings, but m ust respond by setting forth specific facts indicating a genuine issue for trial.” Goodson v. City of Corpus Christi, 202 F.3d 730, 735 (5th Cir. 2000). III. An alys is A. Sm ith ’s Bre ach -o f-Co n tract Claim s Sm ith’s claim s for breach of contract are predicated on the MERS’ assignm ent of the deed of trust to PennyMac, PennyMac’s purchase of the underlying note from Guild Mortgage, and PennyMac’s alleged failure to provide written notice of the scheduled foreclosure sale. Dkt. 1– 5 at 4-5, 7. The essential elem ents of a breach-of-contract claim in Texas are: “(1) the existence of a valid contract; (2) perform ance or tendered perform ance by the plaintiff; (3) breach of the contract by the defendant; and (4) dam ages sustained by the plaintiff as a result of the breach.” Aguiar v. Segal, 167 S.W.3d 443, 450 (Tex. App.—H ouston [14th Dist.] 2005, pet. denied). 1. MER S H ad th e Au th o rity to As s ign th e D e e d o f Tru s t to Pe n n yMac The Fifth Circuit “has expressly recognized that MERS m ay assign a deed of trust to a third party and that such assignm ents confer the new assignee standing to non-judicially foreclose on property associated with that particular deed of trust.” Reece v. United States Bank Nat’l Ass’n, 762 F.3d 422, 425 (5th Cir. 2014) (citing M artins v. BAC H om e Loans Servicing, L.P., 722 F.3d 249, 253-55 (5th Cir. 2013)). 6 Case 3:19-cv-00188 Document 14 Filed on 04/06/20 in TXSD Page 7 of 15 MERS assigned the deed of trust to PennyMac and recorded the transfer in the public records of Brazoria County. Dkt. 12– 5. Therefore, as a m atter of law, PennyMac, as the beneficiary of the deed of trust, has the right to foreclose on the underlying property pursuant to the deed of trust. W iley v. Deutsche Bank Nat’l Tr. Co., 539 F. App'x 533, 537 (5th Cir. 2013) (“the deed of trust unquestionably nam es MERS as its beneficiary; MERS transferred the deed of trust to Deutsche Bank and recorded that transfer. The [plaintiff-appellants’] claim that a transferee in Deutsche Bank’s position does not have the power to foreclose is incorrect as a m atter of Texas law.”). Sm ith’s first argum ent is foreclosed by Fifth Circuit precedent. 2 . N o “Sw itch in g o f Lo an D o cu m e n ts ” Occu rre d Sm ith appears to argue that PennyMac’s purchase of his m ortgage loan was done so without his knowledge and, therefore, breached the term s of the loan agreem ent. Dkt. 1– 5 at 5. But the deed of trust expressly grants Guild Mortgage the right to sell the prom issory note without notifying Sm ith: 20. Sale of Note; Change of Loan Servicer; Notice of Grievance. The note or a partial interest in the Note (together with this Security Instrum ent) can be sold one or m ore tim es without prior notice to the Borrower. A sale m ight result in a change in the entity (known as the “Loan Servicer”) that collects Periodic Paym ents under the Note and this Security Instrum ent and perform s other m ortgage loan servicing obligations under the Note . . . Dkt. 12– 2 at 11. Moreover, PennyMac notified Sm ith it had purchased his loan from Guild Mortgage in writing on J une 10, 2015. Dkt. 12– 5. This argum ent warrants no further discussion. 7 Case 3:19-cv-00188 Document 14 Filed on 04/06/20 in TXSD Page 8 of 15 3 . Pe n n yMac D id N o t W aive its Prio r Acce le ratio n o f th e Lo an Sm ith alleges that PennyMac abandoned its attem pt to accelerate the loan when it sent Sm ith m onthly m ortgage statem ents “requesting a norm al m onthly paym ent [that were] less than the full accelerated am ount due.” Dkt. 1– 5 at 5. “When an acceleration is abandoned by conduct, the intent to abandon m ust be ‘unequivocally m anifested.’” Sexton v. Deutsche Bank Nat’l Tr. Co. for GSAM P Tr. 2007-FM 2, M ortg. Pass-Through Certificates, Series 2007-FM 2, 731 F. App’x 302, 305 (5th Cir. 2018) (citing Thom pson v. Bank of Am . Nat’l Ass’n, 783 F.3d 1022, 1025 (5th Cir. 2015)). The m onthly m ortgage statem ents to which Sm ith refers explicitly provide: This account is severely delinquent, and as such, foreclosure action has begun. Failure to cure the default m ay result in foreclosure and the loss of your hom e. Please see below for inform ation on the am ount needed to reinstate the account and avoid foreclosure. Dkt. 12– 14 at 1 (em phasis added). The Fifth Circuit determ ined sim ilar language was inconsistent with abandonm ent in Sexton. 731 F. App’x at 307. There, as here, the m onthly statem ents sought less than the full balance of the loan, but also advised that the “loan is in foreclosure.” Id. The Fifth Circuit held: “At m ost, drawing all reasonable inferences, as required, in the [plaintiffs’] favor, this language arguably renders the m onthly statem ents am biguous, rather than unequivocal.” Id. Because of this am biguity, the Fifth Circuit could not determ ine that the m onthly statem ents, on their own, “unequivocally m anifested abandonm ent.” Id. at 307– 08. 8 Case 3:19-cv-00188 Document 14 Filed on 04/06/20 in TXSD Page 9 of 15 The court reaches the sam e conclusion in the case at bar; PennyMac’s m onthly statem ents do not “unequivocally m anifest” its abandonm ent of its acceleration of Sm ith’s loan. See Pitts v. Bank of New York M ellon Tr. Co., 583 S.W.3d 258, 265 (Tex. App.—Dallas 2018, no pet.) (“The language in the m onthly statem ents and first delinquency notice that the loan was in the process of foreclosure indicated that the loan’s m aturity date had already been accelerated and that the noteholder did not intend to abandon the prior acceleration.”). 4 . Pe n n yMac Pro pe rly N o tifie d Sm ith o f th e Fo re clo s u re Sale Under Texas law, a debtor in default of a note m ust be served with written notice of the default by certified m ail and given at least 20 days to cure the default before notice of sale can be given. Tex. Prop. Code. § 51.002(d). 4 Further, notice of the foreclosure sale m ust be given at least 21 days before the date of the sale. Id. § 51.002(b). The uncontested evidence establishes that PennyMac sent Sm ith a notice of default by certified m ail on J uly 23, 2015—nearly two years before it notified Sm ith of the foreclosure sale—advising that he had 30 days to cure the default, otherwise, “PennyMac m ay take steps to term inate your ownership in the property by a foreclosure proceeding or other action to seize the property.” Dkt. 12– 6. Then, on April 25, 2019, PennyMac sent Sm ith a notice of acceleration and posting, which The deed of trust similarly requires PennyMac to send Smith a notice of default and then, if after 30 days Sm ith failed to cure his defau lt, PennyMac is permitted send a notice of acceleration and schedule the property for foreclosure. Dkt. 12– 2 at 12. 4 9 Case 3:19-cv-00188 Document 14 Filed on 04/06/20 in TXSD Page 10 of 15 advised Sm ith that a foreclosure sale was scheduled for J une 4, 2019—40 days later. Dkt. 12– 13. Further, even if Sm ith’s allegations were true, there is no claim under section 51.002(b) or (d) where no foreclosure has taken place. See Suarez v. Ocw en Loan Servicing, LLC, 5:15-CV-664-DAE, 2015 WL 7076674, at *3 (W.D. Tex. Nov. 12, 2015) (“Failure to com ply with Texas Property Code §§ 51.002 (b) and (d) does not provide Plaintiff with a cause of action prior to an actual foreclosure sale.”) (citing Crucci v. Seterus, Inc., EP-13-CV-317-KC, 2013 WL 6146040, at *3 (W.D. Tex. Nov. 21, 2013)). Again, the unrefuted sum m ary judgm ent evidence establishes that no foreclosure has occurred. Dkt. 12– 3, ¶ 13. For the reasons discussed above, Sm ith’s claim s for breach of contract are dism issed with prejudice. B. Sm ith ’s Frau d Claim s The defendants urge the court that Sm ith’s fraud allegations fail to satisfy Rule 9(b)’s heightened pleading standard and, in any event, are not supported by com petent sum m ary-judgm ent evidence. Dkt. 12 at 11-14. The defendants’ allegation of a Rule 9(b) violation in their sum m aryjudgm ent m otion is arguably untim ely. See Lancaster v. Kordsiem on, 1:15-CV00239-BLW, 2016 WL 5662011, at *6 (D. Idaho Sept. 29, 2016) (“Rule 9(b) m otions belong alongside a Rule 12(b)(6) m otion to dism iss”); Doe v. Boy Scouts of Am ., 329 F. Supp. 3d 1168, 1189 (D. Idaho 2018) (striking Rule 9 challenge from m otion for sum m ary judgm ent where the defendants tim ely raised the affirm ative 10 Case 3:19-cv-00188 Document 14 Filed on 04/06/20 in TXSD Page 11 of 15 defense), reconsideration denied sub nom . Does I-XIX v. Boy Scouts of Am ., 1:13CV-00275-BLW, 2019 WL 1233618 (D. Idaho Mar. 15, 2019); but see United States ex rel. Bibby v. W ells Fargo Bank, N.A., 165 F. Supp. 3d 1340, 1346 (N.D. Ga. 2015) (“[A] Rule 9(b) deficiency m ay be resolved at sum m ary judgm ent or by another type of m otion late in litigation.”). Rule 9(b) exists to ensure that defendants have sufficient knowledge of the fraud alleged in a com plaint to present a defense in an answer. A Rule 9(b) m otion is proper when a defendant feels that a fraud allegation has not been properly pleaded with enough particularly to allow defendants to respond adequately. It is highly unusual for a Rule 9(b) m otion to be brought within a m otion for sum m ary judgm ent because Rule 9(b) concerns the plaintiff’s allegations while Rule 56 concerns the record evidence that supports or defends against those allegations. Regardless, the court finds that the defendants have satisfied their burden of dem onstrating the absence of a genuine issue of m aterial fact as to Sm ith’s fraud claim s. The elem ents of a com m on-law fraud claim are “(1) that a m aterial m isrepresentation was m ade; (2) the representation was false; (3) when the representation was m ade, the speaker knew it was false or m ade it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker m ade a representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered an injury.” United States ex rel. Grubbs v. Ravikum ar Kanneganti, 565 F.3d 180, 11 Case 3:19-cv-00188 Document 14 Filed on 04/06/20 in TXSD Page 12 of 15 188 (5th Cir. 2009) (citing Allstate Ins. Co. v. Receivable Fin. Co., 5Allstate Ins. Co. v. Receivable Fin. Co., L.L.C., 501 F.3d 398, 406 (5th Cir. 2007), 406 (5th Cir. 2007) (interpreting Texas law)). The elem ents of statutory fraud under Texas law are that a defendant m ade either: (1) a false representation of past or existing m aterial fact for the purpose of inducing a person to enter a contract and relied upon in entering the contract, or (2) a false m aterial prom ise to do an act, m ade with the intent not to fulfill it, m ade to a person to induce the person to enter a contract, and relied upon in entering the contract. Tex. Bus. & Com . Code § 27.01(a)(1)-(2) Sm ith’s fraud claim s are hardly decipherable. Indeed, it is not clear what “actions com m itted by [the] [d]efendants, [sic] constitute statutory fraud” or what “false and m aterial m isrepresentations” were m ade by the “[d]efendants’ representatives,” m uch less which of the defendants’ representatives m ade the purportedly fraudulent representations. See Dkt. 1– 5 at 6-7. Without question, Sm ith has presented no evidence to support a statutory or com m on-law claim for fraud. Conversely, the defendants have subm itted uncontroverted evidence showing that MERS was authorized to assign the deed of trust; that the loan docum ents—which Sm ith signed—expressly authorized the transfer of the note to PennyMac; that PennyMac notified Sm ith of said transfer and recorded it in the public records of Brazoria County; that PennyMac notified Sm ith of his default and its intent to accelerate; and that the foreclosure 12 Case 3:19-cv-00188 Document 14 Filed on 04/06/20 in TXSD Page 13 of 15 proceedings otherwise com plied with the Texas Property Code. See supra Section III(A). Sm ith’s fraud claim s fail. 5 C. Sm ith ’s Claim to Qu ie t Title Under Texas law, to prevail in a suit to quiet title, the plaintiff m ust prove (1) his right, title, or ownership in real property; (2) that the defendant has asserted a “cloud” on his property, m eaning an outstanding claim or encum brance valid on its face that, if it were valid, would affect or im pair the property owner’s title; and (3) that the defendant’s claim or encum brance is invalid. W arren v. Bank of Am ., N.A., 566 F. App’x 379, 382 (5th Cir. 2014) (citing Gordon v. W . H ous. Trees, Ltd., 352 S.W.3d 32, 42 (Tex. App.—H ouston [1st Dist.] 2011, no pet.; H ahn v. Love, 321 S.W.3d 517, 531 (Tex. App.—H ouston [1st Dist.] 2009, pet. denied)). Texas courts have m ade clear that “a necessary prerequisite to the . . . recovery of title . . . is tender of whatever am ount is owed on the note.” Cook-Bell v. M ortg. Elec. Registration Sy s., 868 F. Supp. 2d 585, 591 (N.D. Tex. 2012) (quoting Fillion v. David Silvers Co., 709 S.W.2d 240, 246 (Tex. App.—H ouston [14th Dist.] 1986, writ ref’d n.r.e.) (om issions in original)). Furtherm ore, Sm ith has the burden of establishing his “superior equity and right to relief,” relying on the strength of his own title, not the inferiority of the defendants’ title. Id. (citing H ahn, 321 S.W.3d at 531). 5 In ad d it ion t o wh at t h e cou rt h as set ou t ab ove, Sm it h ’s frau d claim s also ap p ear t o ru n afou l of t h e econ om ic-loss d oct rin e. Bu t in clu d in g t h at an alysis h ere wou ld b e overkill. 13 Case 3:19-cv-00188 Document 14 Filed on 04/06/20 in TXSD Page 14 of 15 Sm ith’s entire argum ent to quiet title is as follows: “Defendants have no . . . interest of any kind in or to the Property, or any part of the Property, due to the fact that no Defendant is now, or ever was a real party in interest with standing to foreclose. . . .” Dkt. 1– 5 at 8. This argum ent is, not to put too fine a point on it, fatuous. See supra Section III(A)(1)– (2). For reasons already explained in this opinion, Sm ith’s claim to quiet title is dism issed with prejudice. D . Sm ith Is N o t En title d to In ju n ctive R e lie f o r Atto rn e ys ’ Fe e s Sm ith’s request for an injunction is dependent upon the assertion of a viable cause of action. See, e.g., Turnbow v. PNC M ortg., 4:12-CV-2835, 2013 WL 5410075, at *7 (S.D. Tex. Sept. 25, 2013) (H arm on, J .) (“To sustain a claim for injunctive relief, a plaintiff m ust first plead a viable underlying cause of action.”); H udson v. Bd. of Regents of Tex. S. Univ., 4:05-CV-03297, 2008 WL 2754622, at *6 (S.D. Tex. J uly 14, 2008) (Ellison, J .) (“Plaintiffs m ay not request injunctions that relate to unm eritorious federal law claim s.”). As explained above, Sm ith has not asserted a valid cause of action. Therefore, he is not entitled to injunctive relief. The sam e is true for Sm ith’s request for attorneys’ fees. Green Int’l v. Solis, 951 S.W.2d 384, 389 (Tex. 1997) (“[A]ttorney’s fees are recoverable only for authorized claim s.”); cf. M acDonald v. JPM organ Chase Bank, 7:18-CV-289, 2019 WL 3361283, at *7 (S.D. Tex. J uly 25, 2019) (Alvarez, J .). *** For the reasons set forth above, the court grants the defendants’ m otion for sum m ary judgm ent and dism isses Sm ith’s claim s with prejudice. As Guild 14 Case 3:19-cv-00188 Document 14 Filed on 04/06/20 in TXSD Page 15 of 15 Mortgage, the only other nam ed defendant, has not been served, this order disposes of all of Sm ith’s pending claim s. Accordingly, the court will issue a final judgm ent along with this order. Signed on Galveston Island on this, the 6th day of April, 2020. _________________________ J EFFREY VINCENT BROWN U NITED S TATES D ISTRICT J UDGE 15
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