Fifth Circuit

It’s Crear the Fifth Circuit will not Liberally Construe any Pro Se Arguments in Foreclosure Cases

Homeowner Crear sued his lender and its loan servicer to prevent them from foreclosing on his property. Motion denied in favor of Deutsche Bank. Affirmed on appeal to 5th Circuit.

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.

KING, CARLOYN DINEEN, (MRS. REAVLEY)

SOUTHWICK, LESLIE H.

ENGELHARDT, KURT E.

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

Fifth Circuit Opinion

OCWEN Facing it’s Own Eviction Case Seeks Accounting Puffery to Help Survive Being Delisted

Nothing good will come of the of $3 billion dollar admonished nonbank OCWEN’s current financial dilemma. They currently face eviction from the NYSE

OCWEN Press Release On COVID-19 As They Prepare to Attack Homeowners In Distress

OCWEN believes the disruption created by the measures being taken to drive social distancing may give rise to industry-wide elevated delinquency levels.

No Reyes of Hope as Fifth Circuit Manipulates Numbers to Ignore It’s Own Precedent FDCPA Case Law

Before recording a privilege, (aka, start foreclosure proceedings) Steeg Law’s practice is to transmit lien letters to unit owners. These letters relate to disputes concerning unpaid condominium assessments, violations of the condominium owner declarations, or any other basis permitting the association to record a privilege.

It’s Crear the Fifth Circuit will not Liberally Construe any Pro Se Arguments in Foreclosure Cases
Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

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