Silver Gryphon, LLC a Texas Limited Liability Company v. Wells Fargo, N.A. As Trustee for Registered Holders, No. 4:2014cv03539 - Document 21 (S.D. Tex. 2015)
Court Description: MEMORANDUM OPINION AND ORDER granting 19 MOTION for Summary Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Silver Gryphon, LLC a Texas Limited Liability Company v. Wells Fargo, N.A...e for Registered Holders Doc. 21 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION SILVER GRYPHON, L. L. C., A TEXAS LIMITED LIABILITY COMPANY, Plaintiff. § § § § § v. § § § § § § § § § WELLS FARGO BANK, N.A., AS TRUSTEE FOR THE REGISTERED HOLDERS OF MORGAN STANLEY ABS CAPITAL TRUST 2007-HE4, MORTGAGE PASS-THROUGH CERTIFICATES 2007 HE4 Defendant. § § § § CYRENA KIMBERLY GULER and JESSE WILLIAM GULER, CIVIL ACTION NO. H-14-3539 § § § § v. Defendants. MEMORANDUM OPINION AND ORDER Plaintiff Silver Gryphon, L. L. C. ("Plaintiff") sued Wells Fargo Bank, N.A., as Trustee for the Registered Holders of Morgan Stanley ABS Capital Trust 2007-HE4, Mortgage Pass-Through Certificates 2007-HE4 ("Wells Fargo" or "Defendant") in the 129th Judicial District Court of Harris County, Texas, No. 2014-69867. 1 Defendant removed to this court. 2 under Cause Pending before 1See Plaintiffs' Original Petition, and Application for Temporary Restraining Order ("Original Petition"), Exhibit C-1 to Defendant's Notice of Removal, Docket Entry No. 1-4. 2Defendant's Notice of Removal ("Notice of Removal"), Docket Entry No. 1. Dockets.Justia.com the court is Defendant's Motion for Summary Judgment ("Motion for Summary Judgment") below, (Docket Entry No. 19). For the reasons stated the Motion for Summary Judgment will be granted, and this action will be dismissed with prejudice. I. Background In October of 2006 Jesse and Cyrena Guler executed a note (the "Note") in favor of Decision One Mortgage Company, LLC. 3 The Note was secured by a deed of trust (the "Deed of Trust") also in favor of Decision One Mortgage Company, LLC. 4 The Deed of Trust identified the Gulers' Harris County property (the "Property") as collateral for the Gulers' loan.5 The Gulers defaulted on their loan in 2009 and have not made any payments since. 6 In June of 2011 MERS, a beneficiary under the Deed of Trust, assigned the Deed of Trust to Defendant. 7 Plaintiff purchased the Property at a conptable's sale in September of 2013, apparently in relation to an action brought against the Gulers by their homeowner's 3S ee Adjustable Rate Note, Exhibit 1A to Motion for Summary Judgment, Docket Entry No. 19-2. 4See Deed of Trust, Exhibit 1B to Motion for Summary Judgment, Docket Entry No. 19-3. 5S ee id. at 2. 6S ee Declaration of Select Portfolio Servicing, Inc., Exhibit 1 to Motion for Summary Judgment, Docket Entry No. 19-1, p. 2 ~~ 6-7; Original Petition, Exhibit C-1 to Notice of Removal, Docket Entry No. 1-4, pp. 2-3 ~ 10. 7Corporation Assignment of Deed of Trust/Mortgage, Exhibit 1C to Motion for Summary Judgment, Docket Entry No. 19-4. -2- association. B In October of 2014 Defendant's mortgage servicer notified the Gulers that Defendant had elected to accelerate the Gulers' loan and intended to foreclose on the property. 9 Plaintiff became aware that the Property was posted for foreclosure, and this li tigation ensued. 10 II. Standard of Review Summary judgment is appropriate if the movant establishes that there is no genuine dispute about any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Disputes about material facts are genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. " Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986). The moving party is entitled to judgment as a matter of law if "the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552 (1986). "In order to avoid identify specific facts summary judgment, within the the nonmovant must record that demonstrate the BSee Original Petition, Exhibit Docket Entry No. 1-4, p. 2 ~ 6. C-1 to Notice of Removal, 9Notice of Maturity/Acceleration of Texas Recourse Loan and Enclosing Notice of Substitute Trustee's Sale, Exhibit 1G to Motion for Summary Judgment, Docket Entry No. 19-8, pp. 2-4. lOSee Original Petition, Exhibit Docket Entry No. 1-4, p. 2 ~ 8. -3- C-1 to Notice of Removal, existence of a genuine issue of material fact." CO, Min. Co., L.P., 565 F.3d 268, 273 (5th Cir. 2009) also articulate the precise manner in which "The party must the identified evidence supports his or her claim." quotation marks and citation omitted) . Inc. v. TXU submitted or Id. (internal "When 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, evidence is not properly before the district court." Id. that (same). In reviewing the evidence "the court must draw all reasonable inferences in favor of the nonmoving party, credibility determinations or weigh Sanderson Plumbing Prods., Inc., the 120 S. and it may not make Reeves evidence." Ct. 2097, 2110 v. (2000). Factual controversies are to be resolved in favor of the nonmovant, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp.! 37 F.3d 1069, 1075 (5th Cir. 1994). III. Plaintiff's Original Analysis Petition makes numerous allegations but pleads no specific causes of action. factual To the extent that they do state a cognizable claim, Plaintiff's factual allegations lack merit, and summary judgment is appropriate. As a threshold matter, Plaintiff alleges that (1) the Deed of Trust was never assigned to Wells Fargo;l1 (2) Wells Fargo is not the owner 110riginal Petition, Exhibit C-l to Notice of Removal, Docket Entry No. 1-4, p. 3 ~ 11. -4- and holder of the Note and has no interest in the Deed of Trusti 12 and (3) Plaintiff never received notice of the trustee's sale.13 The unrebutted evidence on summary judgment shows that (1) MERS,. which was a named beneficiary of the Deed of Trusti 14 assigned the Deed of Trust to Wells Fargo in July of 2011i 15 (2) Wells Fargo's loan servicer is presently in possession of the Note, endorsed in blanki 16 and (3) a Notice of Substitute Trustee's Sale was sent to Plaintiff on October 29, 2014.17 to Defendant's Motion for Plaintiff has neither responded Summary Judgment nor proffered any evidence in support of its factual allegations. Plaintiff foreclosing further on limitations. l8 the alleges Property that by Defendant the applicable barred statute from of This allegation is conclusory, and it is directly refuted by the evidence in the record. 12Id. at 3 is ~ Under Texas law a real 12. 14Deed of Trust, Exhibit 1B to Motion for Summary Judgment, Docket Entry No. 19-3, p. 1 ~ E. 15Corporation Assignment of Deed of Trust/Mortgage, Exhibit 1C to Motion for Summary Judgment, Docket Entry No. 19-4. 16Declaration of Select Portfolio Servicing, Inc., Exhibit 1 to Motion for Summary Judgment, Docket Entry No. 19-1, p. 2 ~ 3i Adjustable Rate Note, Exhibit 1A to Motion for Summary Judgment, Docket Entry No. 19-2. 17Letter from Hughes, Watters & Askanase, L.L.P. to Silver Gryphon LLC, Exhibit 1G to Motion for Summary Judgment, Docket Entry No. 19-8, pp. 17-20. 1BOriginal Petition, Exhibit C-1 to Notice of Removal, Docket Entry No. 1-4, pp. 2-3 ~ 10. -5- property lien and the power of sale to enforce it become void if a lender does not seek to foreclose within four years of the day the cause of action accrues. Tex. civ. Holy Cross Church of God in Christ v. (Tex. 2001) "If a note & Rem. Prac. Wolf, secured by a real property Dist.] 2012, 371 S.W.3d 347, no pet.). 353 16.035; (Tex. 567 lien is then the date of accrual becomes the date the note was accelerated." Inc., § 44 S.W.3d 562, accelerated pursuant to the terms of the note, Properties, Code Khan v. GBAK App.-Houston [1st Where acceleration is optional at the election of the note holder, the cause of action accrues only when the note holder actually exercises its option to accelerate. Cross, 44 S.W.3d at 566. of intent to accelerate, Holy Effective acceleration requires (1) notice and (2) notice of acceleration. Id. at 566. Paragraph 22 of the Deed of Trust gives the lender the option to accelerate the loan upon the borrower's default .19 It is undisputed that "the original borrower had been in default on the original note for several years prior to Plaintiff's acquisition of the Property" in 2013. 20 November 30, 2009, The summary judgment evidence includes a notice of intent to accelerate 21 and an 19See Deed of Trust, Exhibit 1B to Motion for Summary Judgment, Docket Entry No. 19-3, p. 10 ~ 22. 20See Original Petition, Exhibit C-1 to Notice of Removal, Docket Entry No. 1-4, pp. 2-3 ~~ 6, 10. 21Letter from BAC Home Loans Servicing, LP to Jesse William Guler and Cyrena Kimberly Guler, Exhibit 1D to Motion for Summary Judgment, Docket Entry No. 19-5. -6- October 29, 2014, notice of acceleration. 22 There is no evidence that Defendant accelerated the loan at issue prior to October 29, 2014. Accordingly, there is no evidence that the four-year statute of limitations has run, and summary judgment is appropriate. 23 IV. Conclusion and Order The court concludes that Plaintiff has failed to raise a fact issue as to any cognizable claim for relief. Accordingly, Defendant's Motion for Summary Judgment is GRANTED, and this action will be dismissed with prejudice. SIGNED at Houston, Texas, on this 11th day of August, 2015. , SIM LAKE UNITED STATES DISTRICT JUDGE 22Notice of Maturity/Acceleration of Texas Recourse Loan and Enclosing Notice of Substitute Trustee's Sale, Exhibit 1G to Motion for Summary Judgment, Docket Entry No. 19-8, pp. 2-4. 23Plaintiff seeks various declarations regarding the validity of liens on the Property and the identity of the owner. Original Petition, Exhibit C-1 to Notice of Removal, Docket Entry No. 1-4, p. 4 "18-19. "Both Texas and federal law require the existence of a justiciable case or controversy in order to grant declaratory relief. Val-Com Acquisitions Trust v. CitiMortgage, Inc., 421 F. App'x 398, 400 (5th Cir. 2011); see also Conrad v. SIB Mortg. Corp., No. 4:14-CV-915-A, 2015 WL 1026159, at *7 (N.D. Tex. Mar. 6, 2015) ("A declaratory judgment action requires the parties to li tigate some underlying cla.im or cause of action. ") . Because Plaintiff's claims will be dismissed, its request for declaratory relief will be denied as well. II -7-
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