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Steven Crear sued his lender and its loan servicer to prevent them from foreclosing on his property. After defendants removed the case to federal court, the parties filed cross-motions for summary judgment. The district court granted defendants’ motion and denied Crear’s. Crear now appeals.
We AFFIRM in Favor of Deutsche Bank Again.
SPS (MORTGAGE SERVICER) & DEUTSCHE BANK NATIONAL TRUST CO.
Crear sued SPS and Deutsche Bank in state court, arguing that the statute of limitations barred the foreclosure of his property. Defendants removed the case to federal court, asserting diversity jurisdiction. Crear concedes that he received the February 2009, letter informing him that Washington Mutual had accelerated the loan. But he argues that none of the subsequent letters were actually mailed to him, and defendants never abandoned the acceleration. Therefore, because more than four years had passed since the loan was accelerated, Crear contends that defendants could no longer foreclose on his property under Texas law. The district court granted defendants’ motion for summary judgment, concluding that there was no genuine fact issue as to whether defendants sent Crear notices of default on December 4, 2009, and July 15, 2010, thus abandoning the February 2009 acceleration of Crear’s debt. Crear appeals.
FIFTH LIMITS THE DISCUSSION VIA THE FOLLOWING DISCLAIMER
Crear’s argument on appeal is narrow. Crear concedes that he has not made a payment on the loan since 2007, and he agrees that he received Washington Mutual’s February 9, 2009, notice of acceleration. But he argues that he did not receive any of the subsequent letters abandoning the acceleration and, therefore, the defendants can no longer foreclose on his property because the limitations period expired on February 9, 2013. He does not argue that the letters would not have abandoned the acceleration had they been sent or that he actually needed to have received the letters. Nor does he argue that certified mail was an insufficient means of delivering the letters. Therefore, we limit our discussion accordingly.
FIFTH ALLOWS CREAR’S ARGUMENTS TO GO UP IN SMOKE
“Burns, an attorney who represented Washington Mutual in its attempts to seek payment from Crear. But Crear does not brief this argument and, therefore, we consider it waived. See United States v. Scroggins, 599 F.3d 433, 446-47 (5th Cir. 2010) (finding argument not adequately presented where brief did not discuss the issue “in any depth”)….”
SMITH CAN PROVIDE AFFIDAVITS OF PERSONAL KNOWLEDGE ABOUT SPS & CHASE DESPITE THE CHASE LETTERS DISCUSSED BEING FROM 2012, SOME 6+ YEARS EARLIER.
Melissa Smith, an SPS document control officer, (AKA foreclosure mill employee) submitted a declaration authenticating these letters based on her review of SPS’s loan records. Smith also authenticated Chase’s certified mail register, which lists four of the letters as having been sent by certified mail on November 5, 2012. In addition, Smith authenticated Chase’s USPS certificate of bulk mailing for its first-class mail sent on November 5, 2012. Therefore, defendants have also sufficiently established that the November 5, 2012, notices of default were put in the mail.
“Crear concedes that he has not made a payment on the loan since 2007, and he agrees that he received Washington Mutual’s February 9, 2009, notice of acceleration.”
Panel consisted of: KING, SOUTHWICK, and ENGELHARDT
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U.S. District Court
Northern District of Texas (Dallas)
CIVIL DOCKET FOR CASE #: 3:19-cv-02255-M-BT
| Crear v. Long Beach Bank Mortgage et al Assigned to: Chief Judge Barbara M. G. Lynn Referred to: Magistrate Judge Rebecca Rutherford
Cause: 28:1331 Fed. Question |
Date Filed: 09/20/2019 Date Terminated: 09/30/2020 Jury Demand: Plaintiff Nature of Suit: 290 Real Property: All Other Real Property Jurisdiction: Federal Question |
| Plaintiff | ||
| Steven Crear | represented by | Steven Crear 1617 Gillarel Springs Dallas, TX 75241 PRO SE |
| V. | ||
| Defendant | ||
| Long Beach Bank Mortgage TERMINATED: 10/02/2019 |
||
| Defendant | ||
| Washington Mutual Bank Mortgage Securities TERMINATED: 10/02/2019 |
||
| Defendant | ||
| JP Morgan Chase Bank NA | represented by | Wm Lance Lewis Quilling Selander Lownds Winslett & Moser PC 2001 Bryan Street, Suite 1800 Dallas, TX 75201 214-871-2100 Fax: 214-871-2111 Email: llewis@qslwm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good StandingEric G Carlson Quilling Selander Lownds Winslett & Moser PC 2001 Bryan St Suite 1800 Dallas, TX 75201 214-880-1876 Fax: 214-871-2111 Email: ecarlson@qslwm.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing |
| Date Filed | # | Docket Text |
|---|---|---|
| 09/20/2019 | 1 | NOTICE OF REMOVAL from 116th Judicial District Court of Dallas County, Texas, case number DC-19-12778 filed by J. P. Morgan Chase Bank N.A.. (Filing fee $400; receipt number 0539-10279433) In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the Judges Copy Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms and Instructions found at www.txnd.uscourts.gov, or by clicking here: Attorney Information – Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C, # 4 Cover Sheet Civil Cover Sheet, # 5 Cover Sheet Supplement Supplemental Civil Cover Sheet) (Lewis, Wm) (Entered: 09/20/2019) |
| 09/20/2019 | 2 | CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by J. P. Morgan Chase Bank N.A. identifying Corporate Parent/Other Affiliate JPMorgan Chase & Co. for J. P. Morgan Chase Bank N.A.. (Carlson, Eric) (Entered: 09/20/2019) |
| 09/20/2019 | 3 | New Case Notes: A filing fee has been paid. CASREF case referral set and case referred to Magistrate Judge Rutherford (see Special Order 3). Case received over counter/electronically. No prior sanctions found. (For court use only – links to the national and circuit indexes.) Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge (Judge Rutherford). Clerk to provide copy to plaintiff if not received electronically. (sre) (Entered: 09/23/2019) |
| 09/20/2019 | 4 | Notice and Instruction to Pro Se Party. (sre) (Entered: 09/23/2019) |
| 09/23/2019 | ***Clerk’s Notice of delivery: (see NEF for details) Docket No:3,4. Mon Sep 23 11:18:15 CDT 2019 (crt) (Entered: 09/23/2019) | |
| 09/27/2019 | 5 | MOTION to Dismiss filed by JP Morgan Chase Bank NA (Attachments: # 1 Proposed Order granting Motion to Dismiss) (Carlson, Eric) (Entered: 09/27/2019) |
| 09/27/2019 | 6 | Brief/Memorandum in Support filed by JP Morgan Chase Bank NA re 5 MOTION to Dismiss (Carlson, Eric) (Entered: 09/27/2019) |
| 09/27/2019 | 7 | Appendix in Support filed by JP Morgan Chase Bank NA re 6 Brief/Memorandum in Support of Motion (Attachments: # 1 Exhibit(s) App. 001-191) (Carlson, Eric) (Entered: 09/27/2019) |
| 09/27/2019 | 8 | ANSWER to Complaint filed by JP Morgan Chase Bank NA. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms and Instructions found at www.txnd.uscourts.gov, or by clicking here: Attorney Information – Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Attachments: # 1 Exhibit(s) A) (Carlson, Eric) (Entered: 09/27/2019) |
| 10/02/2019 | 9 | MOTION to Non-Suit filed by Steven Crear. (axm) (Entered: 10/03/2019) |
| 10/03/2019 | 10 | Notice of Option to Consent to Proceed Before the Magistrate Judge. If appropriate, party(ies) should return the signed consent form to the clerk. Plaintiff must file a written response to JPMC’s motion on or before 10/25/2019. JPMC’s reply is due by 11/8/2019 re: 5 MOTION to Dismiss. (Ordered by Magistrate Judge Rebecca Rutherford on 10/3/2019) (ykp) (Entered: 10/03/2019) |
| 10/03/2019 | ***Clerk’s Notice of delivery: (see NEF for details) Docket No:10. Thu Oct 3 15:19:36 CDT 2019 (crt) (Entered: 10/03/2019) | |
| 10/03/2019 | 11 | RESPONSE filed by JP Morgan Chase Bank NA re: 9 MOTION to Non-Suit (Carlson, Eric) (Entered: 10/03/2019) |
| 10/03/2019 | 12 | Brief/Memorandum in Support filed by JP Morgan Chase Bank NA re 11 Response/Objection (Carlson, Eric) (Entered: 10/03/2019) |
| 10/08/2019 | 13 | MOTION to Non-Suit filed by Steven Crear. (axm) (Entered: 10/09/2019) |
| 10/10/2019 | 14 | RESPONSE filed by JP Morgan Chase Bank NA re: 13 MOTION to Dismiss (Carlson, Eric) (Entered: 10/10/2019) |
| 10/10/2019 | 15 | Appendix in Support filed by JP Morgan Chase Bank NA re 14 Response/Objection (Attachments: # 1 Exhibit(s) App. 1-4) (Carlson, Eric) (Entered: 10/10/2019) |
| 10/23/2019 | 16 | MOTION to Label Plaintiff a Vexatious Litigant, MOTION for Sanctions filed by JP Morgan Chase Bank NA (Attachments: # 1 Proposed Order granting Motion to Label Plaintiff a Vexatious Litigant and for Sanctions) (Carlson, Eric) (Entered: 10/23/2019) |
| 10/23/2019 | 17 | Brief/Memorandum in Support filed by JP Morgan Chase Bank NA re 16 MOTION to Label Plaintiff a Vexatious Litigant MOTION for Sanctions (Carlson, Eric) (Entered: 10/23/2019) |
| 10/23/2019 | 18 | Appendix in Support filed by JP Morgan Chase Bank NA re 17 Brief/Memorandum in Support of Motion (Attachments: # 1 Exhibit(s) App. 1-104) (Carlson, Eric) (Entered: 10/23/2019) |
| 10/25/2019 | 19 | RESPONSE filed by Steven Crear re: 5 MOTION to Dismiss (ykp) (Entered: 10/28/2019) |
| 10/25/2019 | DEMAND for Trial by Jury per 19 Response by Steven Crear. (ykp) (Entered: 10/28/2019) | |
| 10/30/2019 | 20 | ORDER: On October 25, 2019, Plaintiff Steven Crear filed a response (ECF No. 19 ) to Defendant JPMorgan Chase Bank’s Rule 12(b)(6) Motion to Dismiss (ECF No. 5 ), filed September 27, 2019. This Court’s local civil rules provide that “[a] response and brief to an opposed motion must be filed within 21 days from the date the motion is filed.” N.D. Tex. L. Civ. R. 7.1(e). Therefore, Plaintiff’s response was untimely. Because Plaintiff is proceeding pro se, however, the Court exercises its discretion and does not strike Plaintiff’s response. See Newsome v. E.E.O.C., 301 F.3d 227, 233 (5th Cir. 2002) (per curiam) (“Normally, we recognize that a pro se plaintiff does not have the same training as an attorney, and accord a pro se plaintiff some measure of latitude in her complaint and in the errors she might make”). Defendant has 14 days from the date of this order to file a reply. (Ordered by Magistrate Judge Rebecca Rutherford on 10/30/2019) (ndt) (Entered: 10/31/2019) |
| 10/31/2019 | ***Clerk’s Notice of delivery: (see NEF for details) Docket No:20. Thu Oct 31 09:01:46 CDT 2019 (crt) (Entered: 10/31/2019) | |
| 10/31/2019 | 21 | REPLY filed by JP Morgan Chase Bank NA re: 5 MOTION to Dismiss (Carlson, Eric) (Entered: 10/31/2019) |
| 12/13/2019 | 22 | REPLY in Support of it’s Motion to Dismiss or the alternative Remand or Non-Suit filed by Steven Crear re: 13 MOTION to Dismiss. (axm) (Entered: 12/16/2019) |
| 01/03/2020 | 23 | RESPONSE filed by JP Morgan Chase Bank NA re: 22 Reply (Carlson, Eric) (Entered: 01/03/2020) |
| 01/03/2020 | 24 | Brief/Memorandum in Support filed by JP Morgan Chase Bank NA re 23 Response/Objection (Attachments: # 1 Exhibit(s) A – Declaraton of JPMC) (Carlson, Eric) (Entered: 01/03/2020) |
| 01/10/2020 | 25 | Brief in Support to Defendant’s Reply in Support of its Motion to Dismiss or the Alternative Remand or Non-Suit filed by Steven Crear re 22 Reply. (axm) (Entered: 01/13/2020) |
| 02/13/2020 | 26 | MOTION for Summary Judgment Rule 56 filed by Steven Crear. (axm) (Entered: 02/14/2020) |
| 02/13/2020 | 27 | Brief/Memorandum in Support filed by Steven Crear re 26 MOTION for Summary Judgment. (Attachments: # 1 Additional Page(s), # 2 Additional Page(s)) (axm) (Entered: 02/14/2020) |
| 03/05/2020 | 28 | RESPONSE filed by JP Morgan Chase Bank NA re: 26 MOTION for Summary Judgment (Carlson, Eric) (Entered: 03/05/2020) |
| 03/05/2020 | 29 | Brief/Memorandum in Support filed by JP Morgan Chase Bank NA re 28 Response/Objection (Carlson, Eric) (Entered: 03/05/2020) |
| 03/05/2020 | 30 | Appendix in Support filed by JP Morgan Chase Bank NA re 29 Brief/Memorandum in Support of Motion (Attachments: # 1 Exhibit(s) App. 001-265) (Carlson, Eric) (Entered: 03/05/2020) |
| 03/16/2020 | 31 | RESPONSE filed by Steven Crear re: 28 Response/Objection. (hml) (Entered: 03/16/2020) |
| 03/23/2020 | 32 | MOTION to Strike 31 Response/Objection or in the Alternative (), MOTION for Leave to File Sur-Reply in Opposition to Plaintiff’s Motion for Summary Judgment filed by JP Morgan Chase Bank NA (Attachments: # 1 Proposed Order granting Motion to Strike, # 2 Proposed Order granting Motion for Leave) (Carlson, Eric) (Entered: 03/23/2020) |
| 03/23/2020 | 33 | Brief/Memorandum in Support filed by JP Morgan Chase Bank NA re 32 MOTION to Strike 31 Response/Objection or in the Alternative MOTION for Leave to File Sur-Reply in Opposition to Plaintiff’s Motion for Summary Judgment (Carlson, Eric) (Entered: 03/23/2020) |
| 03/26/2020 | 34 | ELECTRONIC ORDER: Defendant JPMorgan Chase Bank, N.A., filed a “Motion to Strike or in the Alternative for Leave to File Sur-Reply in Opposition to Plaintiff’s Motion for Summary Judgment and Submit Additional Evidence Rebutting Evidence Attached to Plaintiff’s Reply.” 32 . Plaintiff’s response to Defendant’s Motion is due on or before 4/13/2020. See N.D. Tex. L. Civ. R. 7.1(e). Defendant JPMorgan Chase Bank may file a reply within 14 days from the date Plaintiff files his response. See N.D. Tex. L. Civ. R. 7.1(f). JPMorgan Chase Bank should file its proposed sur-reply with any reply to Plaintiff’s response. (Ordered by Magistrate Judge Rebecca Rutherford on 3/26/2020) (chmb) (Entered: 03/26/2020) |
| 03/26/2020 | ***Clerk’s Notice of delivery: (see NEF for details) Docket No:34. Thu Mar 26 12:48:54 CDT 2020 (crt) (Entered: 03/26/2020) | |
| 04/09/2020 | 35 | RESPONSE filed by Steven Crear re: 32 MOTION to Strike 31 Response/Objection or in the Alternative MOTION for Leave to File Sur-Reply in Opposition to Plaintiff’s Motion for Summary Judgment. (hml) (Entered: 04/10/2020) |
| 04/14/2020 | 36 | REPLY filed by JP Morgan Chase Bank NA re: 32 MOTION to Strike 31 Response/Objection or in the Alternative MOTION for Leave to File Sur-Reply in Opposition to Plaintiff’s Motion for Summary Judgment (Attachments: # 1 Exhibit(s) 1 – Sur-reply in opposition to Plaintiff’s MSJ, # 2 Exhibit(s) 2 – Appendix to Sur-reply in opposition to Plaintiff’s MSJ) (Carlson, Eric) (Entered: 04/14/2020) |
| 04/16/2020 | 37 | ORDER: Before the Court is Defendant JPMorgan Chase Bank, N.A.’s “Motion to Strike or in the Alternative for Leave to File Sur-Reply in Opposition to Plaintiff’s Motion for Summary Judgment and Submit Additional Evidence Rebutting Evidence Attached to Plaintiff’s Reply.” Mot. (ECF No. 32 ). Defendant’s motion is GRANTED in part: the Court DENIES Defendant’s request to strike Plaintiff’s additional evidence but GRANTS Defendant leave to file a surreply and present evidence in support of its surreply. (Unless the document has already been filed, clerk to enter the document as of the date of this order.) (Ordered by Magistrate Judge Rebecca Rutherford on 4/16/2020) (ndt) (Entered: 04/17/2020) |
| 04/16/2020 | 38 | Sur-reply filed by JP Morgan Chase Bank NA re: 26 MOTION for Summary Judgment. (ndt) (Entered: 04/17/2020) |
| 04/16/2020 | 39 | Appendix in Support filed by JP Morgan Chase Bank NA re 38 Sur-reply. (ndt) (Entered: 04/17/2020) |
| 04/20/2020 | ***Clerk’s Notice of delivery: (see NEF for details) Docket No:37. Mon Apr 20 13:22:50 CDT 2020 (crt) (Entered: 04/20/2020) | |
| 04/23/2020 | 40 | REPLY filed by Steven Crear re: 32 MOTION to Strike 31 Response/Objection or in the Alternative MOTION for Leave to File Sur-Reply in Opposition to Plaintiff’s Motion for Summary Judgment. (hml) (Entered: 04/24/2020) |
| 05/01/2020 | 41 | RESPONSE filed by JP Morgan Chase Bank NA re: 40 Reply (Carlson, Eric) (Entered: 05/01/2020) |
| 05/01/2020 | 42 | Brief/Memorandum in Support filed by JP Morgan Chase Bank NA re 41 Response/Objection (Carlson, Eric) (Entered: 05/01/2020) |
| 05/11/2020 | 43 | Sur-reply filed by Steven Crear re: 32 MOTION to Strike 31 Response/Objection or in the Alternative MOTION for Leave to File Sur-Reply in Opposition to Plaintiff’s Motion for Summary Judgment. (hml) (Entered: 05/12/2020) |
| 09/03/2020 | 44 | FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: The District Court should GRANT Defendant’s motion to dismiss (ECF No. 5 ) on res judicata grounds and DISMISS Plaintiff’s claims against it with prejudice. Further, the District Court should DENY Plaintiff’s motion to non-suit (ECF No. 13 ) and Defendant’s motion for sanctions (ECF No. 16 ) and WARN Plaintiff that he could be subject to additional sanctions if he persists in filing duplicative and vexatious lawsuits. Last, because granting Defendant’s motion to dismiss disposes of all of Plaintiff’s claims with prejudice, the District Court should DENY as moot Plaintiff’s motion for summary judgment (ECF No. 26 ). (Ordered by Magistrate Judge Rebecca Rutherford on 9/3/2020) (ykp) (Entered: 09/04/2020) |
| 09/04/2020 | ***Clerk’s Notice of delivery: (see NEF for details) Docket No:44. Fri Sep 4 13:13:09 CDT 2020 (crt) (Entered: 09/04/2020) | |
| 09/30/2020 | 45 |
ORDER ACCEPTING 44 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE. (Ordered by Chief Judge Barbara M. G. Lynn on 9/30/2020) (oyh) (Entered: 10/01/2020) |
| 09/30/2020 | 46 | JUDGMENT: IT IS ORDERED that Defendant JPMorgan Chase Bank, N.A.’s Rule 12(b)(6) motion to dismiss (ECF No. 5 ) is GRANTED on res judicata grounds, and Plaintiff’s claims against Chase are DISMISSED with prejudice. Additionally, Plaintiff’s motion to non-suit (ECF No. 13 ) and Chase’s motion for sanctions (ECF No. 16 ) are DENIED, and Plaintiff’s motion for summary judgment (ECF No. 26 ) is DENIED as moot. (Ordered by Chief Judge Barbara M. G. Lynn on 9/30/2020) (oyh) (Entered: 10/01/2020) |
| 10/01/2020 | ***Clerk’s Notice of delivery: (see NEF for details) Docket No:45,46. Thu Oct 1 10:15:42 CDT 2020 (crt) (Entered: 10/01/2020) |
