Texas Appellate Justice Ken Molberg: Statute of Limitations Suspended During Litigation and Appeal

Editorial Opinion: The Erosion of Justice and the Rule of Law

The legal system, once heralded as the guardian of fairness and order, has long been marketed as a realm where “the rule of law,” “precedent,” and “law and orderliness” provide the foundation for justice.

However, what we have learned through years of observation is that this ideal is little more than a myth—an illusion carefully crafted to veil the harsh reality that justice is for sale.

At the heart of this troubling truth is the overwhelming influence of Wall Street banks and their vast network of financial service allies, who control the flow of capital necessary to sway the legal system in their favor.

In the cases we cover here at LIT, we regularly witness the manipulation of legal processes, where lawsuits are engineered to fit a desired narrative that ultimately serves the interests of the powerful few.

The ultimate goal is not the pursuit of justice but the siphoning of wealth from everyday citizens. And it is in the home—our most personal and prized asset—where this theft is most evident.

The banks know that the real money is in the homesteads of ordinary Americans, and they will stop at nothing to seize it.

Take, for example, the concerning case of Joanna Burke, which highlights the widespread manipulation of opinions by the judiciary.

In this particular case, a critical issue of legal “tolling”—the suspension of certain deadlines during appeals—was flagrantly disregarded.

Despite the general understanding that cases are tolled while under appeal, Joanna Burke found herself targeted by mortgage servicer PHH, along with its affiliated entities, including AVT, the appointed substitute trustee, and their bandit foreclosure mill counsel, Mark Cronenwett of Mackie Wolf, a law firm closely tied to AVT’s shell operations.

These entities initiated nonjudicial foreclosure proceedings against her homestead, in direct violation of the legal tolling protections, as well as other laws and rules that should have safeguarded her rights.

This took place while her case was still pending on appeal from the federal court, making the foreclosure proceedings not only a violation of legal tolling rules but also of numerous other laws that should have protected her.

This blatant abuse of the legal system is not an isolated incident.

It is a part of a broader pattern in which the judiciary, often complicit with powerful corporate interests, turns a blind eye to the rule of law.

In this instance, Justice Molberg’s acknowledgment that cases should be tolled until the appeal is final is correct, but such legal standards are meaningless if they can be ignored by banks and their legal enforcers with impunity.

The financial industry and its legal allies have the resources to overwhelm the system, and the courts seem all too willing to oblige.

The sad truth is that our courts, the very institutions that are supposed to uphold justice, have become a tool for exploitation.

The idea that “justice is blind” has been replaced with the reality that justice is for sale to the highest bidder.

The forces of corruption—whether through government, the judiciary, or the legal profession itself—have allowed powerful financial institutions to run roughshod over the rights of citizens.

The consequences of this systemic failure are dire.

For the everyday American, the dream of homeownership is increasingly slipping out of reach, and with the reduced housing stock stemming from the 2008 financial crisis and its aftermath, the cold reality is that many are now at risk of losing their homes to entities that operate above the law.

While the rules may state that cases are tolled during appeals, the financial behemoths that control the legal system have found ways to bypass those protections and force homeowners into unjust, illegal foreclosure proceedings.

This is not just an attack on individual homeowners; it is an assault on the very foundation of our legal system.

The unchecked power of Wall Street banks and their cronies has perverted the ideals of fairness and justice that we once held dear.

Until the American public demands meaningful reform to break the stranglehold of corporate influence over the courts, we can expect more of the same: a legal system where the rule of law is replaced by the rule of greed and financial power.

Before Justice Molberg and Justice Partida-Kipness

Opinion by Justice Molberg

The Honorable David Bridges, Justice, participated in the submission of this case. However, he did not participate in the issuance of this opinion due to his death on July 25, 2020.

William Henry Cloward, III (WHC) and Jeanne Claire Cloward (JCC) appeal the trial court’s summary judgment in favor of U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust (U.S. Bank Trust), and Caliber Home Loans, Inc. (Caliber).

On appeal, appellants contend the trial court erred by granting appellees’ traditional motion for summary judgment because there are genuine issues of material fact as to appellants’ claim for declaratory relief; and the trial court erred  by granting appellees’ no-evidence motion for summary judgment based on detrimental reliance because appellants did not plead or rely on detrimental reliance.

We affirm the trial court’s judgment.

BACKGROUND

In August 2005, JCC executed a Texas Home Equity Note for $275,900 (Note) payable to PrimeLending, a PlainsCapital Company (PrimeLending), and appellants executed a Texas Home Equity Security Instrument (Security Instrument) to secure payment of the Note with a lien on their homestead property (collectively, the Loan).

U.S. Bank Trust is the current owner of the Note and assignee of the Security Instrument. Caliber is the current mortgage servicer.

In their brief on appeal and in their petition for declaratory relief, appellants state they both executed the Note and Security Instrument.

The record on appeal indicates JCC executed the Note and both appellants executed the Security Instrument, which names appellants as “Borrower.”

In the Security Instrument, WHC and JCC covenant and agree to pay when due the principal of, and interest on, the debt evidenced by the Note, and related charges.

After appellants defaulted on the Note in March 2010 and failed to cure the default, the Loan was accelerated.

PrimeLending sent notice of acceleration to appellants on April 21, 2010.

On May 17, 2010, Aurora Loan Servicing, LLC (Aurora), a prior mortgage servicer, filed a Texas Rule of Civil Procedure 736 application for an order of foreclosure in the 199th District Court of Collin County (the first Rule 736 proceeding).

See TEX. R. CIV. P. 736.1.

To prevent the attempted foreclosure sale of the property, appellants filed suit against Aurora and others in the 296th District Court of Collin County on June 30, 2010 (appellants’ 2010 lawsuit).

The filing of appellants’ 2010 lawsuit resulted in the automatic abatement and subsequent dismissal of the first Rule 736 proceeding on June 2, 2012.

See In re Casterline, 476 S.W.3d 38, 42-43 (Tex. App.—Corpus Christi 2014, orig. proceeding).

On June 5, 2012, appellants’ 2010 lawsuit was removed to the Sherman Division of the United States District Court for the Eastern District of Texas.

Meanwhile, on July 1, 2012, Aurora transferred servicing of the Loan to Nationstar Mortgage, LLC (Nationstar).

On February 20, 2013, Nationstar sent appellants a mortgage loan statement notifying them the amount past due on the Note was $101,201.57, and payment was due on March 1, 2013.

The mortgage loan statement provided the principal balance and the escrow balance as of February 20, 2013 ($260,137.26 and -$29,258.80, respectively), but it did not request or demand payment of those amounts.

If the amount past due was not paid before March 17, 2013, the mortgage loan statement provided the amount due would increase from $101,201.57 to $101,284.28.

On November 8, 2013 following a jury trial, the U.S. District Court for the Eastern District of Texas entered final judgment against appellants on the jury’s verdict.

Appellants filed notice of appeal to the United States Court of Appeals for the Fifth Circuit.

The appeal was dismissed on February 11, 2015.

On July 21, 2015, Nationstar sent appellants notice of default and intent to accelerate, stating they had thirty days to cure the default by paying the amount past  due. The notice stated, “Unless we receive full payment of all past-due amounts by the date above, we will accelerate the entire sum of both principal and interest due and payable, and invoke any remedies provided for in the Note and Security Instrument, including but not limited to the foreclosure sale of the property.”

Nationstar transferred servicing of the Loan to Caliber on July 1, 2016.

On October 6, 2017, U.S. Bank filed a Rule 736 application (second Rule 736 application) in state court in Collin County, seeking an expedited order allowing it to proceed with foreclosure.

On November 15, 2017, appellants filed this action seeking a declaratory judgment that enforcement of the lien and power of sale in the Security Instrument was barred by the applicable four-year statute of limitations because the Loan initially was accelerated in 2010.

Appellees filed a traditional and no-evidence motion for summary judgment arguing the evidence established, as a matter of law, that the statute of limitations to foreclose had not expired on the grounds

(1) the relevant limitations period was tolled during appellants’ 2010 lawsuit and its subsequent appeal because appellees were prevented from obtaining the requisite order under Rule 736 allowing them to foreclose under the power of sale granted by the Security Instrument,

and

(2) Nationstar abandoned any 2010 acceleration before the limitations period expired—thereby restoring the Loan to its original condition—by manifesting clear intent to accept less than the full amount of the entire debt.

The trial court granted summary judgment in favor of appellees  without stating the grounds therefore. Appellants filed a motion for reconsideration, which the trial court denied.

STANDARD OF REVIEW

We review an order granting or denying a motion for summary judgment de novo.

Lujan v. Navistar, 555 S.W.3d 79, 84 (Tex. 2018);

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

Under the traditional summary judgment standard, the movant has the burden of showing no genuine issue of material fact exists and he is entitled to summary judgment as a matter of law.

TEX. R. CIV. P. 166a(c).

We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict.

TEX. R. CIV. P. 166a(i).

To defeat a no-evidence summary judgment, the nonmovant is required to produce evidence that raises a genuine issue of material fact on each challenged element of its claim.

See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).

In reviewing both a traditional and no-evidence summary judgment, we consider the evidence in the light most favorable to the nonmovant.

Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009).

We credit evidence favorable to the nonmovant if reasonable jurors could, and we disregard evidence contrary to the nonmovant unless reasonable jurors could not.

Fielding, 289 S.W.3d at 848.

If the trial court’s order does not specify the grounds for its summary judgment ruling, we affirm the summary judgment if any of the theories presented to the trial court and  preserved for appellate review are meritorious.

Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

ANALYSIS

Appellants argue the trial court improperly granted summary judgment because there were genuine issues of material fact. They contend:

Specifically, (1) the Deed of Trust and power of sale are void under the four-year statute of limitations; (2) the 2010 acceleration was not abandoned; and (3) Appellants’ 2010 lawsuit did not toll the four-year statute of limitations.

Appellants further maintain the trial court erred in granting no-evidence summary judgment based on detrimental reliance because appellants did not plead or rely on detrimental reliance.

Applicable Law

A note and a deed of trust lien afford disparate remedies on independent obligations—the note against the borrower and the lien against the real property.

Thus, a lawsuit to enforce a creditor’s right to repayment of a note is separate and distinct from a lawsuit by the holder of a security instrument to pursue foreclosure of a lien on real property under the power of sale conferred by a deed of trust.

See Stephens v. LLP Mortgage, Ltd., 316 S.W.3d 742, 747 (Tex. App.—Austin 2010, pet. denied).

The Texas Constitution requires lenders to obtain a court order allowing them to foreclose on a home equity loan.

TEX. CONST. art. 16 § 50(a)(6)(D).

When, as here, the security instrument as part of a home equity loan contains a power of sale provision, the creditor may file a claim for judicial  foreclosure or an application under Rule 736 to obtain an order allowing it to proceed with non-judicial foreclosure.

TEX. R. CIV. P. 735.1(a)

(Rule 736 provides procedure for obtaining court order to allow foreclosure of home equity loan containing power of sale in security instrument);

TEX. R. CIV. P. 735.3

(Rule 736 order is not a substitute for judgment for judicial foreclosure).

Section 16.035 of the civil practice and remedies code includes separate four-year limitations provisions for both types of foreclosure—a judicial foreclosure and a foreclosure under a power of sale granted in a security instrument.

Section 16.035(a) pertains to judicial foreclosures and requires a secured lender to bring suit for the “recovery of real property under a real property lien or the foreclosure of a real property lien not later than four years after the day the cause of action accrues.”

TEX. CIV. PRAC. & REM. CODE § 16.035(a).

A “real property lien” includes a deed of trust. Id.

§ 16.035(g)(2).

Section 16.035(b) pertains to non-judicial foreclosures governed by Chapter 51 of the property code, i.e., the foreclosure and sale of real property securing a mortgage or deed of trust exercised under the terms of the security instrument.

TEX. CIV. PRAC. & REM. CODE § 16.035(b);

TEX. PROP. CODE § 51.001.

Under section 16.035(b), foreclosure may be conducted outside the judicial system, and the “power in a mortgage or deed of trust that creates a real property lien” must occur no later than four years after the day the claim accrues.

TEX. CIV. PRAC. & REM. CODE § 16.035(b).

When a “note or obligation payable in installments is secured by a real property lien, the four-year limitations period does  not begin to run until the maturity date of the last note, obligation, or installment.”

Id. § 16.035(e).

If, as is the case here, the note or deed of trust includes an acceleration clause, the cause of action accrues and the limitations period begins to run when the holder exercises its option to accelerate.

Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001).

The Statute of Limitations Was Tolled

According to appellants, section 16.035(b)’s statute of limitations began to run when the Loan was accelerated on April 21, 2010, and the deed of trust lien and power of sale became void four years later, on April 21, 2014.

They argue the limitations period was not tolled for a Rule 736 proceeding since appellees could have pursued a judicial foreclosure sale.

Appellees, however, maintain the pertinent statute of limitations was tolled during appellants’ 2010 lawsuit and its subsequent appeal because they were prevented during the pendency of that lawsuit from obtaining the requisite order under Rule 736 allowing them to foreclose under the power of sale granted by the Security Instrument—a contractual right appellants may not deprive them of.

On that basis, they contend the evidence conclusively established the relevant limitations period did not expire and they were entitled to summary judgment dismissing appellants’ declaratory judgment action.

We agree with appellees.

“[T]he power of sale in a deed of trust is a valuable contract right which ‘cannot be impaired by any subsequent act of the mortgagor.'”

Kaspar v. Keller,  466 S.W.2d 326, 329 (Tex. App.—Waco 1971, writ ref’d n.r.e.)

(quoting Hampshire v. Greeves, 104 Tex. 620, 626, 143 S.W. 147, 160 (1912)).

In Kaspar, Henry Kasper executed an installment deed of trust note to Ridgell Keller as part consideration for real property purchased under a contract of sale.

Kasper later sued Keller alleging the sale was induced by fraud and sought relief to rescind the contract of sale, recover the down payment, and cancel the note.

Keller did not file a counterclaim on the note, but he expressed his intent to foreclose under the power of sale in the deed of trust.

In response, Kasper obtained a temporary injunction restraining the foreclosure.

Keller prevailed at trial, obtaining a take-nothing judgment against Kaspar.

Keller completed the foreclosure under the power of sale provision in the deed of trust.

After the proceeds from the non-judicial foreclosure sale of the property were applied to the note, Keller sued Kaspar to recover the remaining deficiency on the note.

The trial court rendered summary judgement in Keller’s favor.

Kasper appealed, arguing Keller’s deficiency claim should have been asserted in his earlier fraud lawsuit as a compulsory counterclaim under Texas Rule of Civil Procedure 97(a).

Recognizing that Keller’s deficiency claim met the literal requirements of Rule 97(a), the court nevertheless concluded the doctrine of res judicata does not apply to a lender’s choice of remedies under a deed of trust.

Kaspar, 466 S.W.2d at 328-29. In affirming the summary judgment in favor of Keller, the court held:

[T]he mortgagor [Kasper] should not be permitted to destroy or impair the mortgagee’s [Keller’s] contractual right to foreclosure under the power of sale by the simple expedient of instituting a suit, whether groundless or meritorious, thereby compelling the mortgagee to abandon the extra-judicial foreclosure which he had the right to elect, nullifying his election, and permitting the mortgagor to control the option as to remedies.

Id. at 329.

The Kaspar rule has been extended to home equity liens.

See Steptoe v. JPMorgan Chase Bank, N.A., 464 S.W.3d 429, 434 (Tex. App.—Houston [1st Dist.] 2015, no pet.).

In Steptoe, the court held the Kaspar rule applies when, as in this case, a home equity lien allows for alternate remedies on the mortgagor’s default because a borrower should not be allowed to deprive the lender its choice of remedies.

Id. at 433-44.

The Steptoe court explained that only one issue is decided in a Rule 736 proceeding: the right of the applicant to obtain an order to proceed with foreclosure under the security instrument and section 51.002 of the Texas Property Code.

Steptoe, 464 S.W.3d at 433.

Consequently, a Rule 736 proceeding cannot be brought as a counterclaim in a borrower’s suit against the lender. Id.

(Rule 736 proceeding “is a special, expedited proceeding with a unique procedural mechanism that is not compatible with the administration of a suit brought by a borrower to challenge the propriety of a loan agreement”).

If the Kaspar rule did not apply to a home equity lien which includes a bargained-for power-of-sale  provision, the lender would be required to assert a counterclaim to preserve its foreclosure rights, eliminating the lender’s contractual right to pursue a non-judicial foreclosure under Rule 736.

“To abridge a creditor’s remedy, particularly one specifically crafted to provide a remedy under a special set of circumstances, would be antithetical to the underlying purpose of the Kaspar rule, which is to preserve the lender’s remedy choice and to curtail a debtor’s ability to control what remedy a creditor may pursue.” 

Id. at 434.

3. Steptoe involved the issue of res judicata and not a statute of limitations.

However, the same logic—that the mortgagor should not be allowed to eliminate the mortgagee’s contractual right to foreclosure under a power of sale simply by filing suit against the mortgagee—applies in both cases.

Appellants’ reliance on Pioneer Bldg. & Loan Ass’n v. Johnston, 117 S.W.2d 556, 559 (Tex. App.—Waco 1938, writ dism’d), and Landers v. Nationstar Mortgage, LLC, 461 S.W.3d 923 (Tex. App.—Tyler 2015, pet. denied), is misplaced.

Those cases do not support appellants’ argument that the availability of a judicial remedy for foreclosure precludes tolling of limitations for a Rule 736 proceeding in the circumstances present in this case.

Recognizing the right to seek judicial foreclosure and the right to exercise a power of sale granted in a mortgage or deed of trust are separate and distinct remedies, Pioneer and Landers simply stated an injunction against a non-judicial foreclosure does not toll the statute of limitations for judicial foreclosure.

In Pioneer, the debtors filed suit against the creditor to cancel notes and deeds of trust evidencing two separate loans and to restrain a sale of the mortgaged property under the powers given in the deeds of trust.

The trial court granted a temporary and a permanent injunction restraining the creditor from exercising its  legal right under the deeds of trust to sell the property at a non-judicial foreclosure sale.

On appeal, the debtors argued that since the creditor could have prevented the running of limitations on the debt by suing on the debt and seeking foreclosure through the courts, the creditor was not entitled to a tolling of limitations.

Holding the statute of limitations for non-judicial foreclosure was tolled during the time the creditor was prevented by the trial court’s injunction from exercising the power of sale in the deeds of trust, the court of appeals stated the debtor “had the contractual right to have the property sold under the powers given in the deeds of trust, and it was not required to abandon this right and resort to the alternative remedy of foreclosing through the courts.”

Pioneer, 117 S.W.2d at 559

(“[W]here a party has been prevented from the exercise of a lawful right by the pendency of legal proceedings, the time during which he is thus prevented should not be counted in determining whether limitation has barred such right.”).

Neither does Landers v. Nationstar Mortgage, LLC support appellants’ argument the 2010 lawsuit did not toll the statute of limitations for a Rule 736 proceeding.

In Landers, the court held the statute of limitations to obtain a judicial foreclosure order was not tolled by a temporary restraining order and a temporary injunction against a non-judicial foreclosure in a separate lawsuit.

461 S.W.3d at 926-27.

Landers is inapplicable to this case because it concerned a judicial foreclosure rather than a non-judicial foreclosure under Rule 736, and because the  restraining order and injunction in Landers did not preclude the defendant from obtaining the judicial foreclosure at issue there.

In this case, appellants’ argument that the holder of the Security Instrument was required to pursue a judicial remedy or none at all is not supported by Kaspar, Steptoe, Landers, or Pioneer.

To the contrary, those cases support a tolling of limitations for a non-judicial foreclosure during the pendency of appellants’ 2010 lawsuit.

Here, the first and second Rule 736 applications sought to enforce the Security Instrument holder’s right to foreclosure under the Security Instrument securing the Note.

Record evidence shows appellants’ 2010 lawsuit resulted in the statutorily required abatement and dismissal of the first Rule 736 proceeding.

A Rule 736 proceeding cannot be brought as a counterclaim in a borrower’s suit against the lender.

Steptoe, 464 S.W.3d at 433.

Thus, appellees and their predecessors were prevented from obtaining the constitutionally required court order they needed to foreclose on the property.

TEX. R. CIV. P. 735.1.

Because appellees and their predecessors were legally impeded from exercising their contractual right to sell the property at a non-judicial foreclosure sale, a tolling of limitations during the pendency and appeal of the 2010 lawsuit is warranted.

Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636.

On April 4, 2013, the report of the Magistrate Judge was entered containing proposed findings of fact and recommendations that defendant Aurora Loan Services, LLC’s Motion for Summary Judgment [Doc. #32], defendant Mortgage Electronic Registration Systems, Inc.’s Motion for Summary Judgment [Doc. #33], and defendant Federal Home Loan Mortgage Corporation’s Motion for Summary Judgment [Doc. #34] be denied except as to plaintiffs’ claim for violation of the Texas Deceptive Trade Practices Act (“DTPA”) [Doc. #51].

On April 18, 2013, defendants filed objections [Doc. #52].

On April 25, 2013, plaintiffs filed a response [Doc. #53].

The Magistrate Judge determined that defendants failed to offer summary judgment evidence to establish certain facts that defendants rely upon in support of their motions.

The Magistrate Judge determined as follows:

Defendants assert that PrimeLending provided notice to Plaintiffs that their loan had been transferred to Lehman Brothers Bank, the parent company of Aurora, shortly after the loan’s closing.

However, no evidence was offered to support this statement that such a transfer occurred.

Plaintiffs assert that MERS assigned Plaintiffs’ security instrument and Note to Freddie Mac.

No evidence is offered to support this statement.

Aurora did correspond with Plaintiffs via letter dated September 15, 2005, informing Plaintiffs that servicing of Plaintiffs’ loan was transferred to Aurora.

No evidence is offered to demonstrate how or when Aurora became the servicer of the loan.

[Doc. #51, p. 2].

The Magistrate Judge further found that defendants failed to offer clarity in their three separate motions on where each defendant stands in relation to the loan.

The Magistrate Judge also determined that defendants failed to demonstrate that any of them were the proper parties to foreclose on the property in question.

Defendants’ objections all relate to their assertion that there is clarity in the summary judgment record and that the Magistrate Judge should have granted all three motions for summary judgment.

As the learned Magistrate Judge correctly noted the court has granted motions for summary judgment in mortgage cases when proper, well-reasoned, and well- documented motions are presented.

The court agrees with the Magistrate Judge that although defendants have taken three shots at the merits, they missed the mark each time.

The simple fact is that defendants failed to present the court with a clear picture of what was happening to the loan in question.

The Magistrate Judge correctly noted that no evidence was offered to support the key issues related to who the proper parties to the loan were at the time of initiating foreclosure.

None of the defendants presents the court with evidence to show the proper chain of title to establish a right to foreclose.

The court acknowledges, and has held many times, that a mortgage servicer can properly foreclose.

The summary judgment record is not clear that the mortgage servicer is one of the defendants in this case.

The court understands the frustration by the Magistrate Judge in handling this matter.

Defendants failed to present proper motions that would allow the court to grant the motions.

Defendants ask the court to do the following:

(1) receive additional briefing so that defendants can provide additional evidence that will clarify the positions of the defendants relative to the loan;

(2) recommit the matter to the Magistrate Judge with instructions to obtain additional evidence and briefing;

(3) reject the findings and recommendations of the Magistrate Judge and grant the motions for summary judgment in whole or in part;

or

(4) modify the ruling to grant the motions on more than plaintiffs’ DTPA claim.

The court rejects all of defendants’ suggestions.

Defendants would like a second opportunity to provide clarification.

The court rejects defendants’ late attempt.

Defendants had the opportunity to address this in reply and seek leave from the Magistrate Judge to supplement the summary judgment record.

Defendants failed to do that and ignored the arguments being made by plaintiff.

The court finds that defendants had the opportunity to present a proper motion for summary judgment and failed in that effort.

The court will also not send the matter back to the Magistrate Judge for additional briefing.

Motions for summary judgment are submitted in revised drafts until finally granted.

This case will proceed to trial.

Having received the report of the United States Magistrate Judge, and considering the objections thereto filed by defendants, this court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge’s report as the findings and conclusions of the court.

It is, therefore, ORDERED that defendant Aurora Loan Services, LLC’s Motion for Summary Judgment [Doc. #32], defendant Mortgage Electronic Registration Systems, Inc.’s Motion for Summary Judgment [Doc. #33], and defendant Federal Home Loan Mortgage Corporation’s Motion for Summary Judgment [Doc. #34] are DENIED except as to plaintiffs’ claim for violation of the Texas Deceptive Trade Practices Act, which is dismissed.

So ORDERED and SIGNED this 23 day of May, 2013.

Ron Clark
United States District Judge