Sanctioned Lawyer Ray L. Shackelford’s Repeat Frivolous Filings and Perjury Is Fine, Sayeth Courts

MEMORANDUM OPINION AND ORDER

In 2007, Plaintiff Althea Shackelford took out a mortgage for the purchase of her home in Houston, Texas (the “Loan”).

She defaulted on the Loan just two years later.

To avoid foreclosure, Shackelford requested a short sale from her loan servicer, Defendant Specialized Loan Servicing (“SLS”).

SLS denied Shackelford’s request and moved forward with the foreclosure.

Shackelford sued SLS to prevent the foreclosure, alleging that its handling of Shackelford’s short-sale request breached the duty of good faith and fair dealing and violated several Real Estate Settlement Procedures Act (“RESPA”) regulations.

Pending before the Court is Defendants’ Motion for Summary Judgment, (Dkt. No. 10), arguing that each of Shackelford’s claims fail as a matter of law.

For the reasons explained below, the Court agrees. Defendant’s Motion is GRANTED.

I.                   BACKGROUND1

In 2007, Althea Shackelford took out a mortgage loan for $276,000 to finance the purchase of her home in Houston, Texas.

(Dkt. No. 10 at 3).

By December 2009, Shackelford had defaulted on her Loan.

(Dkt. No. 18 at 1).

After the default, Shackelford’s Loan bounced from servicer to servicer, with five total assignments before landing with SLS.

(Dkt. No. 1-1 at 8).

Beginning in 2021, Shackelford started applying to short sell her property with SLS in hopes of avoiding foreclosure.

(Id.).

According to Shackelford, SLS ignored her applications and posted the home for sale by foreclosure.

(Id. at 8–9).

Shackelford now seeks judicial intervention to prevent the sale.

(Id. at 9).

Shackelford sued SLS and Defendant U.S. Bank N.A. (“Defendants”) in the 334th Judicial District Court, Harris County, Texas, alleging that Defendants breached the duty of good faith and fair dealing and violated RESPA.

(Id. at 9–11).

Defendants removed the case to this Court, (see Dkt. No. 1), and moved for summary judgment on both of Shackelford’s claims, (Dkt. No. 10 at 5).

Shackelford filed a response, (Dkt. No. 18), and Defendants replied, (Dkt. No. 20).

II.                LEGAL STANDARD

Summary judgment is appropriate when 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).

1 Except where noted, this section contains only undisputed facts, and all facts and reasonable inferences have been construed in favor of the nonmovant. Renfroe v. Parker, 974 F.3d 594, 599 (5th Cir. 2020). The Court has not weighed evidence or made credibility findings. Id.

A fact is material if it could affect the suit’s outcome under governing law.

Renwick v. PNK Lake Charles, LLC, 901 F.3d 605, 611 (5th Cir. 2018) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)).

And “[a] dispute about a material fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the non-moving party.”

TIG Ins. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002)

(quoting Anderson, 477 U.S. at 248, 106 S.Ct. at 2510).

The moving party “always bears the initial responsibility of informing the district court of the basis for its motion” and identifying the record evidence that “it believes demonstrate[s] the absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

“If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant’s response.”

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam).

If the movant meets this burden, the nonmovant must come forward with specific facts showing a genuine issue for trial.

Fed. R. Civ. P. 56(c); see also Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 585–87, 106 S.Ct. 1348, 1355–56, 89 L.Ed.2d 538 (1986).

The nonmovant must “‘go beyond the pleadings and by [the nonmovant’s] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.’”

Nola Spice Designs, LLC v. Haydel Enters., 783 F.3d 527, 536 (5th Cir. 2015) (quoting Celotex, 477 U.S. at 324, 106 S.Ct. at 2553).

“The nonmovant must ‘identify specific evidence in the record and . . . articulate the precise manner in which that evidence supports his or her claim.’”

Carr v. Air Line Pilots Ass’n, Int’l, 866 F.3d 597, 601 (5th Cir. 2017) (per curiam)

(quoting Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)), as revised (July 14, 2017).

If evidence is merely colorable or not significantly probative, summary judgment is appropriate.

Parrish v. Premier Directional Drilling, L.P., 917 F.3d 369, 378 (5th Cir. 2019) (citing Anderson, 477 U.S. at 249–50, 106 S.Ct. at 2511).

In reviewing a motion for summary judgment, the district court views the evidence in the light most favorable to the nonmovant.

Carr, 866 F.3d at 601.

This means that courts must resolve factual controversies in the nonmovant’s favor, “but only when . . . both parties have submitted evidence of contradictory facts.”

Little, 37 F.3d at 1075.

III.             DISCUSSION

Defendants move for summary judgment on both of Shackelford’s claims, as well as her request for injunctive relief.

(Dkt. No. 10 at 5).

A.                Duty of Good Faith and Fair Dealing

Shackelford alleges that Defendants breached their duty of good faith and fair dealing by denying her short-sale request and scheduling her home for foreclosure sale.

(Dkt. No. 1-1 at 9–10).

Defendants insist that this claim fails because no special relationship exists between the Parties.

(Dkt. No. 10 at 5–6).

The Court agrees with Defendants.

The Texas Supreme Court has consistently held that “a duty of good faith is not imposed in every contract but only in special relationships marked by shared trust or an imbalance in bargaining power.”

FDIC v. Coleman, 795 S.W.2d 706, 708–09 (Tex. 1990) (collecting cases);

see also Arnold v. Nat’l Cnty. Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex. 1987)

(“While this court has declined to impose an implied covenant of good faith and fair dealing in every contract, we have recognized that a duty of good faith and fair dealing may arise as a result of a special relationship between the parties governed or created by a contract.” (emphasis in original)).

“[T]his requisite special relationship and the circumstances which give rise to a duty of good faith and fair dealing are very limited.”

White v. Mellon Mortg. Co., 995 S.W.2d 795, 800 (Tex. App.—Tyler 1999, no pet.).

Here, Shackelford offers no evidence of a special relationship with Defendants.

That failure is fatal.

“The relationship of mortgagor and mortgagee ordinarily does not involve a duty of good faith.”

Coleman, 795 S.W.2d at 709;

see also Smith v. JPMorgan Chase Bank, N.A., 699 F.App’x 393, 395 (5th Cir. 2017) (per curiam)

(“Under Texas law, a duty of good faith is implied only in contracts involving a special relationship marked by shared trust or an imbalance in bargaining power, which ordinarily does not include a mortgagor and mortgagee relationship.”);

Hernandez v. Servis One, Inc., No. 4:15-CV-00596, 2017 WL 9250311, at *3 (E.D. Tex. 2017)

(“Texas courts have universally held that no such ‘special relationship’ (necessary to create a common law duty to act in good faith) exists between a mortgagor and mortgagee.”) (collecting cases).

In sum, no special relationship exists between mortgagors (like Defendants) and a mortgagee (like Shackelford).

Shackelford does not cite any authority to the contrary, nor does she provide any evidence suggesting an imbalance in bargaining power so extreme as to warrant finding a special relationship.

With no special relationship present, Shackelford’s claim for breach of duty of good faith and fair dealing fails as a matter of law.

B.                 RESPA2

Shackelford alleges that Defendants violated RESPA in four different ways: by

(1) failing to provide her with a specific reason for their determinations “for each such trial or permanent loan modification option”;

(2) failing to provide her with accurate information regarding loss mitigation options and foreclosure;

(3) failing to provide a specific reason for their denial of “all loan workout alternatives”;

and

(4) improperly moving for foreclosure judgment before providing a specific reason for their denial of all “loan workout alternatives.”

(Dkt. No. 1-1 at 10).

These acts, according to Shackelford, broadly violate 12 U.S.C. § 2614 and 12 C.F.R. §§ 1024.35, 1024.39, 1024.41.3  (Id.).

Defendants insist that summary judgment is proper because RESPA claims require actual damages, which Shackelford cannot show. (Dkt. No. 10 at 6–8).

Again, Defendants are correct.

2  Shackelford brought a nearly identical suit against a previous mortgage servicer prior to the Loan being assigned to Defendants.

See Shackelford v. Ocwen Loan Servicing LLC, No. 4:19-CV- 01540, 2020 WL 3542276 (S.D. Tex. June 29, 2020).

There, Shackelford’s RESPA claim accused the previous servicer, Ocwen, of the same behavior complained of here.

Id. at *1.

Judge Charles E. Eskridge dismissed the suit with prejudice at the Rule 12 stage.

Id. at *4.

Although that judgment is not preclusive, the Court views Judge Eskridge’s reasoning, conducted on essentially the same facts and arguments presented here, as very persuasive.

3  The Court interprets Shackelford’s claims “broadly” because the alleged facts giving rise to each RESPA violation are not tied to a specific provision.

(Dkt. No. 1-1 at 10).

Instead, Shackelford’s Complaint summarily states that each provision was violated and then describes general acts that allegedly violate the previously referenced provisions.

(Id.).

Damages are an essential element of a RESPA claim.

Section 2605(f) of RESPA provides that “whoever fails to comply with any provision of [RESPA] shall be liable to the borrower for each such failure in the following amounts:

(A) any actual damages to the borrower . . . and (B) any additional damages, as the court may allow, in the case of a pattern or practice of noncompliance with the requirements of this section, in an amount not to exceed $2,000.

12 U.S.C. § 2605(f).

The Fifth Circuit has made this point clear:

“To recover, a claimant must show that actual damages resulted from a RESPA violation.”

Whittier v. Ocwen Loan Servicing, L.L.C., 594 F.App’x 833, 836 (5th Cir. 2014) (per curiam);

see also Solis v. U.S. Bank, N.A., 4:16-CV-00661, 2017 WL 4479957, at *4, 4 n.10 (S.D. Tex. June 23, 2017)

(granting defendant’s motion to dismiss partly because plaintiffs did not allege actual damage from RESPA violation), aff’d, 726 F.App’x 221 (5th Cir. 2018);

Shackelford v. Ocwen Loan Servicing, No. 4:19-CV-01540, 2020 WL 3542276, at *3 (S.D. Tex. June 29, 2020)

(dismissing suit partly because Shackelford’s conclusory statement regarding actual damages “fail[ed] to state a plausible claim for relief under RESPA”).

Defendants argue in their Motion that Shackelford “cannot show any damages suffered in relation to a RESPA violation.”

(Dkt. No. 10 at 8).

Shackelford’s Response makes no mention of actual damages in her RESPA analysis.

(See Dkt. No. 18 at 2–5).

In her good faith and fair dealing analysis, however, Shackelford does state that if Defendants are allowed to proceed with a foreclosure sale on her property, she will suffer damages in the form of “los[ing] all of the money previously invested in the property.”

(Dkt. No. 18 at 2).

No evidence is attached or cited in support of this assertion.

Thus, because Shackelford has failed to show how any alleged RESPA violations have caused her actual damages, her RESPA claims fail as a matter of law.4

C.                Injunctive Relief

Shackelford’s Complaint requests a temporary injunction, a permanent injunction, and general equitable relief.

(Dkt. No. 1-1 at 13–14).

Defendants move for summary judgment on Shackelford’s requests, arguing that Shackelford is not entitled to equitable remedies absent a meritorious claim.

(Dkt. No. 10 at 8–9).

Defendants are correct. Injunctive relief is a remedy, not a cause of action.

See Johnson v. Wells Fargo Bank, NA, 999 F.Supp.2d 919, 935 (N.D. Tex. 2014).

Because all Shackelford’s causes of action fail as a matter of law, no injunctive relief is available.

IV.             CONCLUSION

In light of the foregoing, the Court GRANTS Defendants’ Motion for Summary Judgment, (Dkt. No. 10).

All claims against Defendants are DISMISSED WITH PREJUDICE.

It is SO ORDERED.

Signed on October 4, 2024.

Drew B. Tipton

UNITED STATES DISTRICT JUDGE

4  Where “the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party’s claim.”

Norwegian Bulk Transp. A/S v. Int’l Marine Terminals P’ship, 520 F.3d 409, 412 (5th Cir. 2008) (per curiam).

The Untouchable Shack: Judge Drew Tipton let’s the Wolves of Texas motion to strike and PROPOSED ORDER percolate on his bench for 2 and a half months, so we selected the share and publish on courtlistener today to send a memo about the Bandit’s personal family foreclosure.

What we do see, is the Shack’s bookkeeper Natasha Martinez, who’s also a HAR Realtor these days, is offering her services once more. As she’s done previously (around September 2022, as this article discusses), she listed the home “for sale” and after 63 days at the time of this update on Feb. 15, 2024, it’s “under contract – pending” once more.

This leads LIT to assume Federal Judge Tipton’s delay is so that the non-bank servicer can settle the accrued $600k plus debt for cents on the dollar for Bandit Shack, which will allow the case to be part of the Wolves and Gov. “Operation Cleanup”.

One will never know how much the debt settlement will be, but Shack clearly wants to keep this family home, and as it’s benefiting the judiciary in their ultimate quest to target LIT, they’ll probably write Shack a check.

That stated, this delay should never have stopped the Catholic Bandit and his Wolves from auctioning the home, based on his recent acts – as this homestead has been facing foreclosure for over 22 years.

DEFENDANTS’ MOTION FOR FINAL SUMMARY JUDGMENT

Defendants U.S. Bank National Association, as Trustee for TBW Mortgage-Backed Trust Series 2007-2, TBW Mortgage Pass-Through Certificates, Series 2007-21 (“U.S. Bank”), and Specialized Loan Servicing, LLC (“SLS” and together with U.S. Bank, “Defendants”) file this its Motion for Final Summary Judgment (“Motion”) against Plaintiff Althea Shackelford (“Plaintiff”), and states as follows:

I.  SUMMARY

Plaintiff is a borrower on a promissory note secured by real property.

The allegations in Plaintiff’s Original Petition and Application for Injunctive Relief (the “Complaint”) relate to a deed of trust and foreclosure proceedings on Plaintiff’s real property located at 3241 Ozark Street, Houston, Texas 77021 (the “Property”).

(See Complaint at ¶ 4.1).

Plaintiff alleges that foreclosure of the Property cannot proceed because Defendants improperly denied her an opportunity for a loss mitigation workout, specifically pursuing a short sale or selling the Property by other means.

For these alleged wrongs, Plaintiff brings causes of action for

(1) breaching a duty of good faith & fair dealing,

and

(2) violation of the Real Estate Settlement Procedures Act Section 6 (f); 12 USC § 1024.

Plaintiff seeks an injunction against foreclosure, attorney fees, and actual damages.

(See Id. at Prayer.). (See Complaint at ¶¶ 37-39, 56, 57, Prayer).

This Motion will show that Defendants all times complied with the terms of both the promissory note and its accompanying deed of trust.

Further, Defendants have not violated any state or federal statutes.

Ultimately, Plaintiff’s causes of action all fail because, despite Defendant’s best efforts to assist, Plaintiff remains severely delinquent on her Loan.

Plaintiff will be unable to produce any admissible evidence that would create a genuine issue of material fact regarding the history of his loan.

Accordingly, Defendants are entitled to summary judgment in its favor.

I.     EVIDENCE

Where appropriate, Defendants rely upon the following evidence, true and correct copies of which are attached hereto and incorporated herein by reference for all purposes:

Exhibit A:       Order Granting Independent Administration, signed May 16, 2018

Exhibit B:                    Judgment Declaring Heirship, signed May 16, 2018

Exhibit C:        Case Docket for Probate Proceeding

Exhibit D:       Memorandum and Order Granting Motion for Judgment on the Pleadings, cause no. 4:19-cv-01540

Exhibit E:        Final Summary Judgment Order, cause no. 2019-08212

Defendants also rely on the pleadings on file in this cause where specifically referenced herein.

II.      UNDISPUTED AND RELEVANT FACTS

The Loan

On or about April 3, 2007, Plaintiff and Lingie Shackelford (collectively, the Borrowers”) obtained a mortgage loan (the “Loan”) from Taylor, Bean & Whitaker Mortgage Corp. (“TBW”) in the original principal sum of $276,000.00, which was evidenced by a Note secured by a Texas Home Security Instrument (First Lien) (the “Security Instrument” and together with the Note, “Loan Agreement”) encumbering the real property commonly known as 3241 Ozark Street, Houston, TX77021.

Prior Legal History

LIT Note: Ray L. Shackelford, attorney in these proceedings, deeded the home to his mom, Althea Shackelford in 1984.

On February 14, 2017, Lingie Shackelford passed away. (See Exhibit A.)2

A Judgment Declaring Heirship was signed on May 16, 2018, in the matter of In the Estate of Lingie Shackelford, Cause No. 459780 in Probate Court No. 1, Harris County, Texas (the “Probate Proceeding”). (See Exhibit B.)

The judgment states that 100% of the community real property goes to Plaintiff. (Id.)

Thus, any interest Mr. Shackelford had in the Property was inherited by Plaintiff and Plaintiff is the sole owner of the Property.3

On February 1, 2019, Plaintiff filed an Original Petition against the former servicer of the loan and SLS’s predecessor in interest, Ocwen Loan Servicing LLC (“Ocwen”), under Cause No. 2019-08212, in the 61st Judicial District, Harris County, Texas.

Plaintiff brought claims for

(i) breach of contract;

(ii) violations of RESPA;

(iii) violations of the TDCA;

and

(iv) negligence.

Ocwen filed a counterclaim for judicial foreclosure.

The state court action was subsequently removed to the United States Southern District of Texas, Houston Division under Cause No. 4:19-cv-01540.

On June 29, 2020, the Court granted Ocwen’s Motion for Judgment on the Pleadings dismissing Plaintiff’s claims with prejudice. See Exhibit D.

The case was subsequently remanded to the state court.

On November 29, 2021, the state court granted Ocwen’s Motion for Summary Judgment on its counterclaim for foreclosure finding that “due to an event of default on the Note, PHH and/or U.S. Bank, or its successors and assigns, may enforce their security interest against the Property through non-judicial foreclosure of the Property as provided in the Deed of Trust and section 51.002 of the Texas Property Code .” See Exhibit E.

I.        SUMMARY JUDGMENT STANDARD

Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(c).

The Supreme Court has further held that the moving party may discharge its summary judgment burden of proof by showing that there is an absence of evidence to support the non-moving party’s case.

Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

If the non-moving party bears the burden of proof at trial, the moving party need only point to the absence of any fact issue in the record, and the evidentiary burden then shifts to the non-moving party to show with “significant probative” evidence that there exists a triable issue of fact.

Celotex, 477 U.S. at 322; see also Stahl v. Novartis Pharms. Corp., 283 F.3d 254, 263 (5th Cir. 2002)

(“The moving party may meet its burden to demonstrate the absence of a genuine issue of material fact by pointing out that that record contains no support for the non-moving party’s claim.”).

If the moving party meets its burden, the burden shifts to the non-moving party to establish the existence of a genuine issue for trial.

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 585-87 (1986).

The non-moving party must do more than show that there is some metaphysical doubt as to the material facts.

Matsushita, 475 U.S. at 586; see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)

(non-movant cannot defeat a motion for summary judgment with “conclusory allegations,” “unsubstantiated assertions,” or a mere “scintilla” of evidence).

On summary judgment, the district court must view the evidence and the inferences in the light most favorable to the non-movant.

FDIC v. Dawson, 4 F.3d 1303, 1306 (5th Cir. 1993).

II.  GROUNDS FOR SUMMARY JUDGMENT

A.     Plaintiff’s claim for breach of duty of good faith and fair dealing fails because there is no special relationship between the parties.

B.     Plaintiff’s RESPA claim fails because the Loan was previously modified and Plaintiff suffered no actual damages;

C.     Plaintiff is not entitled to injunctive relief because Plaintiff does not have a valid underlying claim.

Plaintiff’s claim for breach of duty of good faith and fair dealing fails because there is no special relationship between the parties.

“[A]bsent a special relationship, parties to a contract have no duty to act in good faith.”

Barrow-Shaver Resources Company v. Carrizo Oil & Gas, Inc., 590 S.W.3d 471, 490 (Tex. 2019).

“It is well settled that the relationship between a borrower and its lender is neither a fiduciary relationship, nor a special relationship.”

Manufacturers Hanover Trust Co. v. Kingston Investors Corp., 819 S.W.2d 607, 610 (Tex. App.— Houston [1st Dist.] 1991, no writ).

The Texas Supreme Court has refused to imply a duty of good faith and fair dealing into Texas contracts.

English v. Fischer, 660 S.W.2d 521, 522 (Tex. 1983).

Texas courts “have found no special relationship between a mortgagor and a mortgagee . . . that would impose an independent common law duty of good faith and fair dealing.”

UMLIC VP LLC v. T & M Sales & Envtl. Sys., Inc., 176 S.W.3d 595, 612 (Tex. App.—Corpus Christi 2005, pet. denied) (citations omitted).

“Ordinarily, there is no such duty in lender/lendee relationships.”

Vogel v. Travelers Indem. Co., 966 S.W.2d 748, 753 (Tex. App.— San Antonio 1998, no pet.) (citing Federal Deposit Ins. Corp. v. Coleman, 795 S.W.2d 706, 709 (Tex. 1990)); English v. Fischer, 660 S.W.2d 521, 522 (Tex. 1983).

Texas law does not “recognize a common law duty of good faith and fair dealing in transactions between a mortgagee and mortgagor, absent a special relationship marked by shared trust or an imbalance in bargaining power.”

Coleman v. Bank of Am., N.A., 2011 U.S. Dist. LEXIS 67056, 2011 WL 2516169, at *1 (N.D. Tex. 2011) (citing Federal Deposit Ins. Corp. v. Coleman, 795 S.W.2d 706, 708-709 (Tex. 1990)) (internal quotations omitted).

Here, Plaintiff has not alleged any facts which would constitute a “special relationship” with the Defendants, nor has Plaintiff pointed to any authority to show that there is a duty of good faith and fair dealing in the mortgage context.

See Casterline v. Indy Mac/One West, 761 F. Supp. 2d 483, 491 (S.D. Tex. 2011); Smith v. National City Mortg, 2010 U.S. Dist. LEXIS 86221, 2010 WL 3338537, at *12 (W.D. Tex. 2010).

Therefore, Plaintiff’s claim for breach of duty and good faith and fair dealing fails as a matter of law.

Plaintiff’s RESPA claims fail as a matter of law.

Plaintiff fails to state a claim for a violations of RESPA. Plaintiff alleges that Defendants violated various provisions of RESPA. Plaintiff specifically invokes 12 U.S.C. § 2614, 12 C.F.R. § 1024.35, 12 C.F.R. § 1024.39, and 12 C.F.R. § 1024.41. She alleges that

Defendants violated these provisions by:

(i) failing to provide her with a specific reason for its determinations “for each such trial or permanent loan modification option[;]”

(ii) failing to provide her with accurate information regarding loss mitigation options and foreclosure;

(iii) failing to provide a specific reason for its denial of “all loan workout alternatives;”

and

(iv) improperly moving for foreclosure judgment prior to providing a specific reason for its denial of all “loan workout alternatives.”

See Petition at ¶6.4.

As a threshold matter, 12 U.S.C. § 2614 is a jurisdictional statute. It does not impose any requirements on Defendants in connection with its servicing of the Loan.

Moreover, Plaintiff does not have a private right of action for violations of 12 C.F.R. § 1024.35 and/or 1024.39.

See Solis v. U.S. Bank, N.A., 2017 U.S. Dist. LEXIS 211711, at *8-9 (S.D. Tex. 2017).

Plaintiff’s second cause of action is therefore legally deficient to the extent it is based on 12 U.S.C. § 2614 and 12 C.F.R. §§1024.35 and 1024.39.

Section 1024.41 establishes procedures for reviewing applications for loss mitigation assistance.

See generally 12 C.F.R. § 1024.41.

Plaintiff alleges that Defendant violated these procedures by failing to provide clarification on what additional documentation was needed. There is very little factual support for these conclusory allegations in the Petition.

Attached to Plaintiff’s Petition are two notices from SLS informing Plaintiff that her application is incomplete and the specific documents needed to complete her application.

See Petition, Exhibit A, B.

Ultimately, the requirement for a servicer to provide a specific reason for its denial of a loss mitigation application is dependent on a borrower submitting a complete application.

See 12 C.F.R. § 1024.41(d).

An application is “complete” when “a servicer has received all information that the servicer requires from a borrower in evaluating applications for the loss mitigation options available to the borrower.”

See 12 C.F.R. § 1024.41(b)(1).

Plaintiff has failed to establish the “completeness” of her short sale application and her own exhibit demonstrates that the application was incomplete.

Plaintiff also fails to allege that the application at issue was her first application for loss mitigation assistance. Absent such an allegation, Plaintiff has not established that SLS was obligated to review the application.

See 12 C.F.R. § 1024.41(i) (recognizing that a servicer is not required to review duplicative loss mitigation applications);

see also Solis, 726 F. App’x at 223

(affirming dismissal of claim under section 1024.41 where borrowers failed to allege that application at issue was there first application).

8.                  Further, to recover, a claimant must show that actual damages resulted from a RESPA violation. § 2605(e), (f).

Whittier v. Ocwen Loan Servicing, L.L.C., 594 F. App’x 833, 836 (5th Cir. 2014)

(“To recover, a claimant must show that actual damages resulted from a RESPA violation.”)

Plaintiff cannot show any damages suffered in relation to a RESPA violation.

As a result, Plaintiff’s RESPA claim fails as a matter of law and must be dismissed.

Plaintiffs is not entitled to injunctive relief because she does not have a valid underlying claim.

Plaintiff has requested a temporary injunction, a permanent injunction, a restraining order, and general equitable relief.

(See Petition at Prayer). To prevail on a claim for injunctive relief in federal court, a plaintiff must show, among other things, “a substantial likelihood of success on the merits.”

Green v. JPMorgan Chase Bank, N.A., Civil Action No. 3:11-CV-1498-N, 2013 U.S. Dist. LEXIS 191364, at *14 (N.D. Tex. Aug. 16, 2013) (citing DSC Communs. Corp. v. DGI Techs., 81 F.3d 597, 600 (5th Cir. 1996)).

Further, injunctive relief is an equitable remedy, not a cause of action. Garza v. Morgan, No. 1:17cv82, 2017 U.S. Dist. LEXIS 208298, at *34 (S.D. Tex. Oct. 25, 2017)

(citing Howard v. AMH ROMAN TWO TX, LLC, Case No. 4:15CV526, 2016 U.S. Dist. LEXIS 78701, 2016 WL 3392417, at *5 (E.D. Tex., May 11, 2016)

(“A request for equitable or injunctive relief must be premised upon the existence of a viable underlying legal claim. Here, Plaintiff’s claims for legal relief have failed. Thus, his claims for equitable and injunctive relief also fail.”);

Hanna v. RFC Deutsche Bank Nat. Trust Co., 2012 U.S. Dist. LEXIS 76314, 2012 WL 1969948, at *5 (N.D. Tex., 2012).

Since Plaintiff does not have a valid underlying claim, she is not entitled to injunctive relief.

WHEREFORE, Defendants request that Plaintiff takes nothing on her claims plus Defendants recover its attorneys’ fees and all costs of suit as a further obligation on the debt. Defendants further request such other and further relief to which it may be entitled.

Respectfully submitted,

By:  /s/ Nicholas M. Frame

MARK D. CRONENWETT
Texas Bar No. 00787303
Southern District Bar No. 21340
mcronenwett@mwzmlaw.com

NICHOLAS M. FRAME
Texas Bar No. 24093448
Southern District Bar No. 3121681
nframe@mwzmlaw.com

Mackie Wolf Zientz & Mann, P. C.
14160 North Dallas Parkway, Suite 900
Dallas, TX 75254
Telephone: (214) 635-2650
Facsimile: (214) 635-2686

ATTORNEYS FOR DEFENDANTS

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was served on the persons listed below on Friday, June 23, 2023, in the manner indicated.

Via Electronic Case Notice
Ray L. Shackelford, Esq.
rshackctic@yahoo.com
1406 Southmore Blvd.
Houston, Texas 77004

Counsel for Plaintiff

/s/ Nicholas M. Frame
NICHOLAS M. FRAME