Judge David Hittner Replaced Judge Nancy Atlas after a Late Recusal. His Speedy Termination Against the Homeowners Followed

The plaintiffs in the case, the Thomas’s home was sold on March 27, 2020 according to Realtor.com, for an undisclosed sum, so most likely the bank bought it as this sale is in the middle of a pandemic and the home is empty.

The other side-note is that a familiar name, Jason LeBeouf, now attorney at “Vilt and Associates”, was listed as representing Wells Fargo prior to termination in 2018. LeBeouf is formerly a BDF Law Group (Barrett Daffin) attorney, a creditor rights, foreclosure mill. He then left and joined Locke Lord, another creditor rights law firm who represented Wells Fargo Bank in this case. The Vilt law firm, however, touts itself as a “Foreclosure Defense” firm. Apparently he’s moving to the other side of the table and now sees his future defending foreclosures rather than litigating for the banks.

“Deed of Trust”) on the Thomas’ real property located at 20202 Cortina Valley Drive, Cypress, Texas 77433-6330 (the “Property”). On April 4, 2017, after the Thomases failed to make payments to Wells Fargo on the Note, Defendant Federal National Mortgage Association a/k/a Fannie Mae (“Fannie Mae”) purchased the Property at a foreclosure sale (the “Foreclosure Sale”). The Thomases allege they were not provided service of notices required by the Deed of Trust before the Foreclosure Sale.

Based on the foregoing, on July 6, 2017, the Thomases filed this lawsuit against Wells Fargo, alleging breach of contract and violations of the Texas Debt Collection Practices Act (“TDCPA”). On January 29, 2018, the Thomases joined Fannie Mae as a defendant. On August 28, 2018, Wells Fargo and Fannie Mae (collectively, “Defendants”) moved for summary judgment. On August 28, 2018, the Thomases also moved for summary judgment.

STANDARD OF REVIEW

Summary judgment is proper when “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.”  Fed. R.  Civ. P. 56(a). The Court must view the evidence in a light most favorable to the nonmovant. Coleman v. Haus. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997). Initially, the movant bears the burden of presenting the basis for the motion and the elements of the causes of action upon which the nonmovant will be unable to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmovant to come forward with specific facts showing there is a genuine issue for trial. See Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). “A dispute about a material fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Bodenheimer v. PPG Indus., Inc., 5 F.3d 955,956 (5th Cir. 1993) (citation omitted).

But the nonmoving party’s bare allegations, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Moreover, conclusory allegations unsupported by specific facts will not prevent an award of summary judgment; the plaintiff cannot rest on his allegations to get to a jury without any significant probative evidence tending to support the complaint. Nat’! Ass’n o/Gov’t Emps. v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 713 (5th Cir. 1994). If a reasonable jury could not return a verdict for the nonmoving party, then summary judgment is appropriate. Liberty Lobby, Inc., 477 U.S. at 248. The nonmovant’ s burden cannot be satisfied by conclusory allegations, unsubstantiated assertions, or “only a scintilla of evidence.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)). Further, it is not the function of the Court to search the record on the nonmovant’ s behalf for evidence which may raise a fact issue. Topalian v. Ehrman, 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 most favorable to the nonmovant, the nonmoving party may not rest on the mere allegations or denials of its pleadings, but must 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) (quoting Rushing v. Kansas City S. R.R. Co., 185 F.3d 496, 505 (5th Cir. 1999)).

LAW & ANALYSIS

Defendants and the Thomases cross-move for summary judgment as to the Thomas’ breach of contract and TDCPA claims. The Court addresses each claim in turn.

Breach of Contract

The Thomases contend Defendants breached the Deed of Trust by failing to provide service of a notice of default (the “Notice of Default”) and notice of acceleration (the “Notice of Acceleration”) (collectively, the “Foreclosure Notices”). The Court addresses the Thomas’ breach of contract claim against Fannie Mae and Wells Fargo in turn.

Fannie Mae

The Thomases contend Fannie Mae breached the Deed of Trust by failing to provide service of the Foreclosure Notices. Defendants contend summary judgment is proper because Fannie Mae was not a party to the Deed of Trust. The Thomases contend Fannie Mae stepped into the shoes of Wells Fargo by purchasing the Property at the Foreclosure Sale. The elements of a valid contract are: “(1) an offer; (2) an acceptance in strict compliance with the terms of the offer;

(3) a meeting of the minds; (4) each party’s consent to the terms; and (5) execution and delivery of the contract with intent that it be mutual and binding.” Huckaba v. RefChem, L.P., 892 F.3d 686, 689 (5th Cir. 2018) (quoting In re Capco Energy, Inc., 669 F.3d 274, 279-80 (5th Cir. 2012)). “[A] suit for breach of contract may not be maintained against a person who is not a party to the contract[.]” Am. Realty Tr. Inc. v. Matisse Capital Partners LLC, 91 F. App’x 904, 912 (5th Cir. 2003) (per curiam) (quoting Bernard Johnson, Inc. v. Cont’! Constructors, Inc., 630 S.W.2d 365, 369 (Tex. App.-Austin 1982, writ ref’d n.r.e.)).

The Thomases identify the Deed of Trust as the contract Fannie Mae allegedly breached. It is undisputed the original parties to the Deed of Trust were the Thomases and Wells Fargo. It is further undisputed Fannie Mae was not an original party to the Deed of Trust and purchased the Property at the Foreclosure Sale. The Thomases allege Fannie Mae stepped into the shoes of Wells Fargo by purchasing the Property at the Foreclosure Sale. The Thomases do not allege, or produce any evidence showing, the elements of a valid contract with Fannie Mae are satisfied. Fannie Mae’s act of purchasing the Property at the Foreclosure Sale, without more, did not make Fannie Mae a party to the Deed of Trust. See Nicobar, Inc. v. JPMorgan Chase Bank, NA., No. 4:15-CV-1151, 2015 WL 4545639, at *3 (S.D. Tex. July 28, 2015) (Hoyt, J.) (quoting 402 Lone Star Prop., LLC v. Bank of Am., NA., No. 03-13-00322-CV, 2014 WL 4058715, at *3 (Tex. App.-Austin,

Aug.12, 2014, no pet.) (mem. op.) (explaining person does not become party to deed of trust merely by purchasing property subject to deed of trust at foreclosure sale)). The Court therefore finds Fannie Mae was not a party to the Deed of Trust. The Court thus finds the Thomases fail to raise a genuine dispute of material fact as to the Thomas’ breach of contract claim against Fannie Mae.

Wells Fargo

The Thomases contend Wells Fargo breached the Deed of Trust by failing to provide service of the Foreclosure Notices. Defendants contend summary judgment is proper because Wells Fargo provided service of the Foreclosure Notices as required by the Deed of Trust. “Service of notice is complete when the notice is sent via certified mail.” Martins v. BAC Home Loans Serv., L.P., 722 F.3d 249,256 (5th Cir. 2013) (quoting Tex. Prop. Code§ 51.002(e)). “The affidavit of a person knowledgeable of the facts to the effect that service was completed is prima facie evidence of service.” Id. (quoting Tex. Prop. Code§ 51.002(e)). “There is no requirement that [a plaintiff] receive the notice.” Id.

Wells Fargo cites to a sworn declaration of its Vice President of Loan Documentation, who, based on personal knowledge, states Wells Fargo sent the Notice of Default to the Thomases via certified mail on October 19, 2015.1 In addition, Wells Fargo cites to a sworn declaration of its Foreclosure Counsel, who, based on personal knowledge, states Wells Fargo sent the Notice of Acceleration to the Thomases via certified mail on March 8, 2017.2 The Foreclosure Notices notified the Thomases, inter alia, as to the Thomas’ failure to make required payments and right to cure their failure to make required payments.3 The Thomases cite to United States Postal Service tracking reports (the “Tracking Reports”), which contain tracking numbers as to the Foreclosure Notices. The Tracking Reports state “Label Created, not yet in system[.]”4 However, the Tracking Reports do not show Wells Fargo failed to send the Foreclosure Notices via certified mail. Although the Thomases allege they never received the Foreclosure Notices, there

1 Defendants’ Motion for Summary Judgment, Document No. 33 [hereinafter

Defendants’ Motion], Exhibit A, ,r,r 2, 9 (Declaration of Jacqueline Hunter).

2 Defendants’ Motion, supra note 1, Exhibit B, ,r,r 2, 4 (Declaration of Robert D. Forster, II).

3 Defendants’ Motion, supra note 1, Exhibit A.4 (Notice of Default), Exhibit B.1

(Notice of Acceleration).

4 Appendix to Plaintiffs’ Motion for Summary Judgment, Document No. 35, Exhibits A.I, A.2 (US.P.S. Tracking Reports).

is no requirement that the Thomases receive the Foreclosure Notices. The Court therefore finds Wells Fargo provided service of the Foreclosure Notices as required by the Deed of Trust. The Court thus finds the Thomases fail to raise a genuine dispute of material fact as to the Thomas’ breach of contract claim against Wells Fargo. Accordingly, Defendants’ motion for summary judgment is granted, and the Thomas’ motion for summary judgment is denied, as to the Thomas’ breach of contract claim.5

TDCPA

The Thomases contend Defendants committed a TDCPA violation by failing to provide service of the Foreclosure Notices as required by the Deed of Trust. The Court addresses the Thomas’ TDCPA claim against Fannie Mae and Wells Fargo in tum.

Fannie Mae

The Thomases contend Fannie Mae committed a TDCPA violation by failing to provide service of the Foreclosure Notices as required by the Deed of Trust. Defendants contend summary judgment is proper because Fannie Mae is not a debt collector. The Thomases contend Fannie Mae stepped into the shoes of Wells Fargo by purchasing the Property at the Foreclosure Sale. To recover for a

5 The Thomases object to certain summary judgment evidence Wells Fargo offers. The Court, however, resolves the motions for summary judgment without considering the objected-to evidence. The Thomas’ evidentiary objections are therefore overruled.

TDCPA violation, a plaintiff must show, inter alia, the defendant is a “debt collector.” See Perry v. Stewart Title Co., 756 F.2d 1197, 1208-09 (5th Cir. 1985). The TDCPA defines two types of debt collectors: “debt collectors” and “third­ party debt collectors.” Tex. Fin. Code §§ 392.001(6)-(7). “[A] purchaser at a foreclosure sale-without more-is not a debt collector.” Couch v. Wells Fargo Bank, NA., No. 3:11-CV-02008-P, 2012 WL 13027438, at *5 (N.D. Tex. Sept. 7, 2012) (Solis, J.).

Fannie Mae purchased the Property at the Foreclosure Sale. The Thomases do not produce any evidence showing Fannie Mae did more than purchase the Property at the Foreclosure Sale. The Court therefore finds Fannie Mae is not a debt collector. The Court thus finds the Thomases fail to raise a genuine dispute of material fact as to the Thomas’ TDCPA claim against Fannie Mae.

Wells Fargo

The Thomases contend Wells Fargo committed a TDCPA violation by failing to provide service of the Foreclosure Notices as required by the Deed of Trust. Defendants contend summary judgment is proper because Wells Fargo did not commit a TDCPA violation. The TDCPA prohibits certain forms of threats, coercion, harassment, abuse, unconscionable conduct, and deception by debt collectors collecting or attempting to collect a debt. Tex. Fin. Code§§ 392.301-06. Assuming, without deciding, the Thomases could use their breach of contract claim to establish a TDCPA violation, the Court found the Thomases failed to raise a genuine dispute of material fact as to the Thomas’ breach of contract claim. The Court therefore finds the Thomases fail to show Wells Fargo committed a TDCPA violation. The Court thus finds the Thomases fail to raise a genuine dispute of material fact as to the Thomas’ TDCPA claim against Wells Fargo. Accordingly, Defendants’ motion for summary judgment is granted, and the Thomas’ motion for summary judgment is denied, as to the Thomas’ TDCPA claim.

CONCLUSION

Accordingly, the Court hereby

ORDERS that Defendants’ Motion for Summary Judgment (Document No. 33) is GRANTED.

The Court further

ORDERS that Plaintiffs’ Motion for Summary Judgment (Document No. 34) is DENIED.

The Court further ORDERS that all objections to evidence contained in Plaintiffs’ Response to Defendants’ Motion for Summary Judgment (Document No. 41) are OVERRULED.

The Court will issue a separate final judgment.

September 12, 2018

To the Honorable Judge Nancy Atlas,

We respectfully request that this letter  to be shown to the judge.

We have been fighting for our home since 2017. At the end of 2016, Emerald lost her mom and grandma within a few weeks’ time. Soon after we found out that we were expecting  our 2nd child. Before we knew it, our home was unexpectedly foreclosed on. This was a very dark time for us. My wife was pregnant and afraid that she wouldn’t have a home to come to after giving birth. I had to witness her going through the “nesting” phase that many women experience, and struggle due to the uncertainty of our situation. She had to deal with grief and stress of realtors approaching our family about our foreclosure. In the midst of  our uncertainty we continue to have faith.

As you can see from the documents that our lawyer submitted  we are doing everything we can to keep our home. We have co-operated with the court to show that we are willing to do whatever it takes to keep our home. We make our court ordered payments early every month. This is not a house to us, it’s the home where we want to raise our children. We pray that you have mercy on us as we rebuild our lives.

Sincerely,

Mr. and Mrs. Trentin Thomas