Acceleration

It’s All About Rob-bin’ When it Comes to Foreclosures by BDF Hopkins

Crystal Gibson of BDF requests the Court stay deadlines, docket call and bench trial pending a ruling on Cenlar’s Motion for Summary Judgment.

Hicks v. Cenlar FSB

MOTION FOR LEAVE TO FILE DEFENDANT’S OBJECTION TO MEMORANDUM AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE TO THE HONORABLE UNITED STATES DISTRICT JUDGE:

(4:20-cv-01661)
District Court, S.D. Texas

DEC 16, 2021 | REPUBLISHED BY LIT: DEC 16, 2021

NOW COMES Defendant Cenlar FSB (“Cenlar), and files its Motion for Leave to File Defendant’s Objection to Memorandum and Recommendation of United States Magistrate Judge (“Objections”) [Doc. 29] dated November 29, 2021, and respectfully shows the Court as follows:

I. MOTION FOR LEAVE

On July 28, 2021, Defendant filed its Motion for Summary Judgment and brief in Support (“Defendant’s MSJ”) [Doc. 25]. Plaintiff failed to file a response.

1. In response to Defendant’s Motion to Abate, Judge Bennett executed an order on September 22, 2021, staying pretrial order, deadline, docket call and trial date pending a ruling on Defendant’s MSJ. [Doc. 27].

2. On October 21, 2021, Defendant’s MSJ was referred to Judge Stacy for consideration. [Doc. 28].

3. On November 29, 2021, Judge Stacy issued her Memorandum and Recommendation which allowed Defendant fourteen (14) days to file written objections. [Doc. 29].

4. Defendant’s counsel was not able to file her objections on the date they were due as her elderly mother, who lives with her and she cares for, had an unexpected medical issue and had to be medically treated.

The associate who assists Defendant’s counsel was out of the office on personal time off and could not file the objections on Defendant’s counsel’s behalf.

Defendant’s inability to file the Objections on the date they were due was not intentional.

Defendant respectfully requests the Court allow leave to file Defendant’s Objections.

This case can easily be resolved via summary judgment so that the Court’s resources are not waisted with an unnecessary trial.

5. Good cause exists for allowing Defendant to file its Objection. Therefore, Defendant respectfully requests that it be allowed to file its Objection.

II PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant request that the Court grant this Motion for Leave and allow Defendant to file its Objection on the date it is presented to the Court, and that Defendant be awarded all other relief to which it may be justly entitled.

Respectfully submitted,

BARRETT DAFFIN FRAPPIER TURNER & ENGEL, LLP

/s/ Crystal G. Gibson
Crystal G. Gibson
State Bar No. 24027322
4004 Belt Line Rd., Suite 100
Addison, Texas 75001
972-386-5040 (Tel)
972-341-0734 (Fax)
CrystalR@BDFgroup.com

ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was served as indicated below on this the 16th day of December, 2021, to the following:

VIA E-SERVICE: JHICKS4403@GMAIL.COM
Jeanie Hicks
4403 Ebbtide Drive
Houston, Texas 77045

/s/ Crystal Gee Gibson
Crystal Gee Gibson

Hicks v. Cenlar FSB

Yeah, lets get off the forged affidavit submitted with a photocopied signature by BDF’s sanctioned attorney. We can do so by requesting an indefinite stay. “Fabulous idea, it’s Granted”, sayeth Al Bennett.

(4:20-cv-01661)
District Court, S.D. Texas

SEP 21/22, 2021 | REPUBLISHED BY LIT: AUG 27, 2021

Hicks v. Cenlar FSB

DEFENDANT’S OBJECTION TO MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Note: Past invoicing shows that Hopkins works closely with Crystal Gibson on many cases and they are responsible for writing responses similar to the following objection, it’s got Hopkins style all over it, including the obligatory “mistakes”.

DEC 16, 2021 | REPUBLISHED BY LIT: DEC 16, 2021

Pursuant to Section VI. of the Memorandum and Recommendation of United States Magistrate Judge [Doc. 29] (hereinafter “Report”) dated November 29, 2021, Defendant Cenlar FSB (“Cenlar) files its Objection to Section III with regard to said Report as it relates to the Magistrate’s finding the Cenlar did not prove acceleration of the debt and respectfully shows the Court the following:

I. Summary

1. In Section III of the Report, the Magistrate states “the exhibit Cenlar points to and relies upon that Hicks was sent a Notice of Acceleration is a Notice of Acceleration that was sent to Bernice and Leroy Greer in 2017 – not to Hicks (Document 25-7).”

[Doc. 29, at P. 5].

Document 25-7 was erroneously included as Exhibit A-6 to Cenlar’s Motion for Summary Judgment and should have been a 2011 notice of default mailed to Hicks.

Notwithstanding, Document 25-7 was superfluous and not the exhibit Cenlar relies on in support that Hicks was sent a notice of acceleration.

Instead, Cenlar relies on the filing of its counterclaim in this case which serves as notice to Hicks of acceleration of the debt. [Doc. 25, P. 18 at ¶ 33(d)].

 

II. Objection to Magistrate’s Conclusion Regarding Acceleration

2. As explained in paragraph 27 of Cenlar’s summary judgment motion, Cenlar initially mailed a notice of default in July 21, 2011 when the loan first went into default. [Doc. 25, P. 15 at ¶ 27].

Document 25-7 (the Greer notice) was erroneously included and should have been the 2011 notice of default mailed to Hicks, which was simply provided to show the length of time Hicks’ loan has been in default.

Cenlar’s brief went on to explain that in 2015 foreclosure counsel mailed a notice of rescission of acceleration. [Doc. 25-8].

No new notice of default and intent to accelerate was mailed out after that 2015 rescission of acceleration.

Consequently, Cenlar was required to mail a new notice of default in order to comply with the Fifth Circuit’s opinion in the Rob case, which is discussed below.

Cenlar mailed new notices two months after Hicks’ lawsuit was filed and counterclaimed in the lawsuit once Hicks’ deadline to cure expired. Consequently, Cenlar’s counterclaim constitutes the acceleration — not Document 25-7 as the Magistrate incorrectly opines.

3. Like this case, the Rob’s loan was due for 2011. Wilmington Trust, National Association v. Rob, 891 F.3d 174, 176 (5th Cir. 2018).

Notices of default were mailed to the Robs in 2011 and 2012. Id. The Rob’s debt was accelerated in 2013, and in 2014 Wilmington mailed the Robs a notice of rescission of acceleration. Id. After the 2015 rescission notice was mailed, Wilmington did not mail a new notice of default before it sued the Robs for an order allowing foreclosure. Id.

Summary judgment was granted in favor of Wilmington, and the Robs appealed the summary judgment arguing Wilmington failed to prove it provided notice of acceleration prior to proceeding with foreclosure. Id.

The Fifth Circuit made an Erie guess when it held that the Texas Supreme Court would require such notice, and that Wilmington failed to meet its summary judgment burden. Id.

The Fifth Circuit ultimately held that “[o]nce notice of acceleration had been rescinded, the Robs did not have ‘clear and unequivocal notice that [Wilmington Trust] would exercise the option.’”

Id. (citing Ogden, 640 S.W.2d at 233– 34 (emphasis added)).

4. In this case, the Report cites to Rob in support of its proposition that there must be evidence that a separate notice of acceleration must be sent to Hicks. [Doc. 29, at P. 5].

However, the Magistrate disregards the portion of the Rob opinion that states that a complaint can serve as adequate notice of acceleration if it is preceded by valid notice of intent to accelerate. Id. at 177 (citing Jasper Fed. Sav. & Loan Ass’n v. Reddell, 730 S.W.2d 672, 674 (Tex. 1987) (“In Texas, notice that the debt has been accelerated is ineffective unless preceded by proper notice of intent to accelerate.”)).

As argued in Cenlar’s summary judgment motion, case law is clear that acceleration can occur by some other unequivocal action indicating the debt is accelerated such as the filing of a counterclaim.

Burney v. Citigroup Global Markets Realty Corp., 244 S.W.3d 900 (Tex.App.—Dallas 2008); see also Alcala v. Deutsche Bank Nat’l Tr. Co., 684 F. App’x 436, 438 (5th Cir. 2017) citing Burney v. Citigroup Global Markets Realty Corp.,244 S.W.3d 900 (Tex. App. – Dallas 2008); see also Mueller v. Select Portfolio Servicing, Inc., No. 1:18-CV-624-LY-ML, 2019 WL 5027073, at *3 (W.D. Tex. Sept. 17, 2019) (“Filing a Rule 736 application suffices as a notice of acceleration.”), report and recommendation adopted, No. 1:18-CV-624-LY-ML, 2019 WL 7759103 (W.D. Tex. Oct. 7, 2019).

5. Here, acceleration was rescinded on September 2, 2015. [Doc. 25-8].

In order to comply with Rob, Cenlar’s foreclosure counsel mailed new notices of demand on May 13, 2020. [Doc. 25-4].

Once new demands were mailed and the deadline to cure the default expired, Cenlar filed its counterclaim which per sound federal and state law effectuated an acceleration of Hicks’ debt.

Cenlar relies on its counterclaim as evidence of acceleration as stated in paragraphs 25 and 33(d.) of Cenlar’s summary judgment motion. [Doc. 25, at ¶¶ 25 and 33(d)].

Indeed, paragraph 11 of Cenlar’s counterclaim contains acceleration language. [Doc. 6, at ¶ 11].

Consequently, Cenlar’s summary judgment evidence establishes it mailed the requisite notice of demand and accelerated the debt through the filing of its counterclaim. [Doc. 25-5]. As stated in the Report, the remaining elements Cenlar needs to prove in order to be entitled to a foreclosure order are undisputed.

WHEREFORE, Cenlar respectfully objects to the Magistrate’s Report recommending Cenlar’s counterclaim seeking an order allowing foreclosure be denied.

Cenlar respectfully requests the Court grant Cenlar’s summary judgment motion on its counterclaim and issue an order allowing judicial foreclosure of the Property and for such other relief to which Cenlar may be justly entitled.

Dated: December 16, 2021.

BARRETT DAFFIN FRAPPIER TURNER & ENGEL, LLP

By: /s/ Crystal Gee Gibson
Crystal Gee Gibson,
Attorney-in-Charge
State Bar No. 24027322
SD No. 706039
4004 Belt Line Road, Ste. 100
Addison, Texas 75001
(972) 340-7901
(972) 341-0734 (Facsimile)
CrystalR@bdfgroup.com

ATTORNEY FOR DEFENDANT

CERTIFICATE OF SERVICE

I certify that a copy of Defendant’s Objection to Report and Recommendation of United State Magistrate Judge has been served on all counsel of record and parties listed via ECF on December 16, 2021.

VIA E-SERVICE:
JHICKS4403@GMAIL.COM
Jeanie Hicks
4403 Ebbtide Drive
Houston, Texas 77045

/s/Crystal G. Gibson
Crystal G. Gibson

Foreclosure Defense Lawyer Rob Newark is Counsel for the Homeowner(s) in Both 2022 Federal Lawsuits

The first lawsuit before Judge Biery ended in default judgment because no answer filed by Joyce Gordon. Newark now represents Joyce Gordon.

CitiMortgage Violated the Loan Modification Agreement Sayeth Judge Ho for the Fifth Circuit Panel

CitiMortgage offered no reason why favoring the monthly deadlines and ignoring the grace period would do the least damage to the text of TPP.

BDF Hopkins Removed Prior to Joint Agreement to Dismiss Foreclosure in Corbitt v Lakeview

A Vote Of No Confidence: MOTION for Shelley L. Hopkins, Robert D. Forster, II, to Withdraw as Attorney by Lakeview Loan Servicing, LLC

U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:20-cv-01661

Create an Alert for This Case on RECAP

Hicks v. Cenlar FSB
Assigned to: Judge Alfred H Bennett

Case in other court:  190th District of Harris County, 20-13548

Cause: 28:1441 Notice of Removal

Date Filed: 05/12/2020
Jury Demand: None
Nature of Suit: 220 Real Property: Foreclosure
Jurisdiction: Diversity
Plaintiff
Jeanie Hicks represented by Jeanie Hicks
4403 Ebbtide Drive
Houston, TX 77045
832-293-5861
PRO SE
V.
Defendant
Cenlar FSB represented by Shelley L. Hopkins
Hopkins Law, PLLC
3 Lakeway Centre Ct.
Suite 110
Austin, TX 78734
512-600-4320
Email: shelley@hopkinslawtexas.com
ATTORNEY TO BE NOTICEDCrystal G Gibson
Barrett Daffin et al
4004 Belt Line Road
Ste 100
Addison, TX 75001
972-340-7901
Email: crystalr@bdfgroup.com
ATTORNEY TO BE NOTICED
Counter Claimant
Cenlar FSB represented by Crystal G Gibson
(See above for address)
ATTORNEY TO BE NOTICED
V.
Counter Defendant
Jeanie Hicks

 

Date Filed # Docket Text
05/12/2020 1 NOTICE OF REMOVAL from 190th District of Harris County, case number 2020-13548 (Filing fee $ 400 receipt number 0541-24653828) filed by Cenlar FSB. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A-State Court Pleadings, # 3 Exhibit B-Notice to State Court of Removal, # 4 Exhibit C-List of All Counsel, # 5 Exhibit D-Harris Co. CAD)(Gibson, Crystal) (Entered: 05/12/2020)
05/12/2020 2 First CORPORATE DISCLOSURE STATEMENT by Cenlar FSB, filed.(Gibson, Crystal) (Entered: 05/12/2020)
05/12/2020 3 NOTICE OF SERVICE of Mandatory Initial Discovery Responses by Cenlar FSB, filed. (Gibson, Crystal) (Entered: 05/12/2020)
05/13/2020 4 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 8/14/2020 at 09:30 AM in Courtroom 8C before Judge Alfred H Bennett. (Signed by Judge Alfred H Bennett) Parties notified.(ChristopherSarratadi, 4) (Entered: 05/13/2020)
05/13/2020 5 NOTICE to Pro Se Litigant of Case Opening. Party notified, filed. (ChristopherSarratadi, 4) (Entered: 05/13/2020)
06/16/2020 6 ANSWER to 1 State Court Petition/Notice of Removal, COUNTERCLAIM against Jeanie Hicks by Cenlar FSB, filed. (Attachments: # 1 Exhibit A-Note, # 2 Exhibit B-Deed of Trust, # 3 Exhibit C-Assignment, # 4 Exhibit D-Notice of Default)(Gibson, Crystal) (Entered: 06/16/2020)
08/05/2020 7 JOINT DISCOVERY/CASE MANAGEMENT PLAN by Cenlar FSB, filed. (Attachments: # 1 Proposed Order)(Gibson, Crystal) (Entered: 08/05/2020)
08/06/2020 8 MOTION for Continuance of Initial Pretrial Conference by Jeanie Hicks, filed. Motion Docket Date 8/27/2020. (EdnitaPonce, 1) (Entered: 08/06/2020)
08/07/2020 9 NOTICE of Resetting. Parties notified. Initial Conference set for 10/2/2020 at 09:00 AM in Courtroom 8C before Judge Alfred H Bennett, filed. (ledwards, 4) (Entered: 08/07/2020)
10/02/2020 10 SCHEDULING ORDER. Amended Pleadings due by 10/9/2020. Pltf Expert Report due by 12/4/2020. Deft Expert Report due by 12/18/2020. Discovery due by 11/6/2020. Dispositive Motion Filing due by 1/15/2021. Non-Dispositive Motion Filing due by 1/15/2021. Joint Pretrial Order due by 3/8/2021. Pretrial Conference set for 3/26/2021 at 01:30 PM in Courtroom 8C before Judge Alfred H Bennett Docket Call set for 3/29/2021 at 09:00 AM in Courtroom 8C before Judge Alfred H Bennett(Signed by Judge Alfred H Bennett) Parties notified.(ledwards, 4) (Entered: 10/02/2020)
10/02/2020 11 NOTICE of Setting. Parties notified. Status Conference set for 1/8/2021 at 10:00 AM in Courtroom 8C before Judge Alfred H Bennett, filed. (ledwards, 4) (Entered: 10/02/2020)
11/30/2020 12 CLERKS NOTICE of Status Hearing. A status hearing is scheduled in this case January 8, 2021 at 10:00 a.m. via Zoom. Parties will receive connection instructions the day before the hearing. Parties notified, filed. (ledwards, 4) (Entered: 11/30/2020)
12/16/2020 13 Expert Report of Crystal Gee Gibson by Cenlar FSB, filed.(Gibson, Crystal) (Entered: 12/16/2020)
01/08/2021 14 CLERKS NOTICE of Status Conference. A status conference is scheduled April 30, 2021 at 10:00 a.m. via Zoom. Parties will receive connection instructions the day before the setting. Parties notified, filed. (ledwards, 4) (Entered: 01/08/2021)
01/20/2021 15 Opposed MOTION to Modify as to 10 Scheduling Order,, by Cenlar FSB, filed. Motion Docket Date 2/10/2021. (Gibson, Crystal) (Entered: 01/20/2021)
02/18/2021 16 SCHEDULING ORDER Granting 15 Opposed MOTION to Modify as to 10 Scheduling Order,,. ( Amended Pleadings due by 5/3/2021., Pltf Expert Report due by 6/28/2021., Deft Expert Report due by 7/12/2021., Discovery due by 7/28/2021., Dispositive Motion Filing due by 8/4/2021., Non-Dispositive Motion Filing due by 8/4/2021., Joint Pretrial Order due by 9/20/2021., Docket Call set for 10/8/2021 at 01:30 PM in Courtroom 8C before Judge Alfred H Bennett, Jury Trial set for 10/12/2021 at 09:00 AM in Courtroom 8C before Judge Alfred H Bennett)(Signed by Judge Alfred H Bennett) Parties notified.(ledwards, 4) (Entered: 02/18/2021)
04/23/2021 17 ORDER Status Conference reset for 5/7/2021 at 10:00 AM in by video before Judge Alfred H Bennett(Signed by Judge Alfred H Bennett) Parties notified.(ledwards, 4) (Entered: 04/23/2021)
05/06/2021 18 STRICKEN FROM THE RECORD per Doc (#22) (Entered: 05/06/2021)
05/06/2021 19 BRIEF in support re: 18 MOTION for Summary Judgment by Cenlar FSB, filed. (Attachments: # 1 Affidavit Rushmore, # 2 Exhibit A-1 Note, # 3 Exhibit A-2 Deed of Trust, # 4 Exhibit A-3 Assignments, # 5 Exhibit A-4 – 5-13-20 NOD, # 6 Exhibit A-5- 7-21-11 NOD, # 7 Exhibit A-6 – payoff, # 8 Exhibit B, Afd and B-1, and B-2, # 9 Exhibit C-Declaration Atty Fees)(Gibson, Crystal) (Entered: 05/06/2021)
05/07/2021 20 NOTICE of Setting. Parties notified. Status Conference reset for 6/5/2021 at 10:00 AM in Courtroom 8C before Judge Alfred H Bennett, filed. (ledwards, 4) (Entered: 05/07/2021)
05/07/2021 21 CORRECTED NOTICE of Resetting. Parties notified. Status Conference set for 7/16/2021 at 10:00 AM in Courtroom 8C before Judge Alfred H Bennett, filed. (ledwards, 4) (Entered: 05/07/2021)
05/10/2021 22 ORDER striking 18 Motion for Summary Judgment.(Signed by Judge Alfred H Bennett) Parties notified.(ledwards, 4) (Entered: 05/10/2021)
05/10/2021 23 NOTICE of Appearance by Shelley L. Hopkins on behalf of Cenlar FSB, filed. (Hopkins, Shelley) (Entered: 05/10/2021)
07/16/2021 24 Minute Entry for proceedings held before Judge Alfred H Bennett. STATUS CONFERENCE held on 7/16/2021. Ms. Hopkins council for Cenlar FSB gave the Court a status update. Ms. Jeanie Hicks was not present but was aware of the status conference. She was provided with copies of the setting via email and by U.S. postal mail. Appearances: Shelley L. Hopkins.(Court Reporter: Miller), filed.(jguajardo, 4) (Entered: 07/17/2021)
07/28/2021 25 Corrected MOTION for Summary Judgment by Cenlar FSB, filed. Motion Docket Date 8/18/2021. (Attachments: # 1 Affidavit A-Declaration of Cenlar, # 2 Exhibit A-1-Note, # 3 Exhibit A-2-Deed of Trust, # 4 Exhibit A-3-Assignment, # 5 Exhibit A-4-NOD 5-13-20, # 6 Exhibit A-5-payoff, # 7 Exhibit A-6-NOD 7-12-11, # 8 Affidavit B-Declaration of BDFTE, # 9 Affidavit C-Attorney’s Fee Declaration, # 10 Proposed Order)(Gibson, Crystal) (Entered: 07/28/2021)
It’s All About Rob-bin’ When it Comes to Foreclosures by BDF Hopkins
Click to comment

Leave a Reply

Your email address will not be published.

Laws In Texas is a blog about the Financial Crisis and how the banks and government are colluding against the citizens and homeowners of the State of Texas and relying on a system of #FakeDocs and post-crisis legal precedents, specially created by the Court of Appeals for the Fifth Circuit to foreclose on homeowners around this great State. We are not lawyers. We do not offer legal advice. We are citizens of the State of Texas who have spent a decade in the court system in Texas and have been party to during this period to the good, the bad and the very ugly.

Donate to LawsInTexas. Make a Difference.

Subscribe to Our Newsletter

We keep your data private and share your data only with third parties that make this service possible. See our Privacy Policy for more information.

© 2020-21 LawInTexas com is an online trading name which is wholly owned by Blogger Inc., a nonprofit 501(c)(3) registered in Delaware. | All Rights Reserved.

To Top