Acceleration

Perjured Affidavit by PHH Ocwen’s Juliana Thurab. It Could Not Be Based on Personal Knowledge

Juliana Thurab is a Contract Management Coordinator at Ocwen Financial based in West Palm Beach, Florida. She submitted a perjured affidavit.

US Bank National Association v. Mondragon

(3:18-cv-03126)

District Court, N.D. Texas

NOV 27, 2018 | REPUBLISHED BY LIT: JUL 31, 2022

In this case, the foreclosure mill, Mackie Wolf would ask to abate the judgment (temporarily), as the trial loan modification had been approved by the lender as detailed below.

That stated, the fact remains, the affidavit was patently false which led to the judgment, as it was not based on personal knowledge as Thurab wasn’t a custodian of the records in 2017 as she wasn’t even a PHH Ocwen employee at the time.

PLAINTIFF’S THIRD MOTION TO ABATE ACTION

Plaintiff U.S. Bank National Association, as Trustee under Securitization Servicing Agreement Dated as of July 1, 2005 Structured Asset Securities Corporation, Structured Asset Investment Loan Trust Mortgages Pass-Through Certificates, Series 2005-HE1 (“Plaintiff” or “U.S. Bank”) files this its Third Motion to Abate Action, and respectfully shows as follows:

I.

1. Plaintiff filed its Original Complaint on November 27, 2018 (the “Complaint”) alleging that Defendants Arturo A. Mondragon and Celia Mondragon (the “Defendants”), are in default of their obligations under the terms of a loan agreement and seeking authorization to foreclose upon the real property commonly known as 1403 Heather Run Drive, Texas 75137. (ECF Docket No. 1).

2. On January 8, 2020, Plaintiff filed its Motion for Default Judgment Against Defendants Arturo A. Mondragon and Celia Mondragon and its Request for Entry of Default as to Defendants because Defendants did not file a responsive pleading within 21 days after service of the Complaint. See FED. R. CIV. P. 12(a)(1)(A)(i) (ECF Document Nos. 12-13).

3. On July 1, 2020, the Court entered its Memorandum Opinion and Order, in which the Court required Plaintiff to prove it has authority to foreclose and that it sent the Notice of Default and Notice of Acceleration to Defendants. (ECF Document No. 15).

4. On July 31, 2021, Plaintiff filed its Second Motion for Default Judgment Against Defendants Arturo A. Mondragon and Celia Mondragon. (ECF Document No. 17.)

5. On December 8, 2021, the Court entered its Memorandum Opinion and Order granting Plaintiff’s Second Motion for Default Judgment and allowing Plaintiff to proceed with foreclosure of the subject property pursuant to the Deed of Trust. (ECF Document No. 24.) On the same day, the Court entered its Final Default Judgment allowing foreclosure. (ECF Document No. 25.)

6. On December 16, 2021, Plaintiff filed a Motion to Vacate Default Judgment Against Defendants and advised the Court that at the time that the Default Judgment was entered the subject loan was placed on hold due to active loss mitigation. Plaintiff requested the Court to vacate the Default Judgment since Plaintiff had a legal duty to take the reasonable steps to avoid foreclosure. (ECF Document No. 26.)

7. On December 21, 2021, the Court entered an Order and vacated the Memorandum and Opinion Order (Doc. 24) and the Default Judgment (Doc. 25). (ECF Document No. 27.) On February 17, 2022, Plaintiff filed its Motion to Reinstate the Case and advised the Court that Defendants failed to comply with the trial plan payments and that the loss mitigation application was formally denied on February 10, 2022. (ECF Document No. 28.) On February 25, 2022, the Court entered an Order reinstating the case. (ECF Document No. 29.)

8. After the reopening of the case, Defendants still failed to file an answer and/or otherwise appear to defend themselves from the allegations in the Complaint. Accordingly, on March 9, 2022, Plaintiff filed its Third Motion for Default Judgment. (ECF Document No. 30.) The Court is still pending to rule on such motion.

9. However, the undersigned has been recently informed that on March 9, 2022, Defendant Arturo A. Mondragon was approved for trial plan payment starting with a first payment due on April 1, 2022. The last payment under the trial period would be due on June 1, 2022. As a result, Plaintiff is prohibited from moving forward with judgment in this action, under current CFPB regulations. See 12 CFR §1024.41(g).

10. Plaintiff therefore respectfully requests that this suit and all upcoming deadlines, settings and rulings be abated for a period of, at least, ninety (90) days to allow sufficient time for Plaintiff to allow Defendants to comply with the requirements of a Trial Period Plan (if the offer is accepted). In the event Defendants default and the Trial Period Plan is not completed, Plaintiff shall immediately reinstate the case in order for the Court to rule on the pending Third Motion for Default Judgment which would dispose the entire case.

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that this Court abate this action and all upcoming settings, deadlines and rulings for at least, ninety (90) days and for such other relief to which it may be justly entitled.

Respectfully submitted,

By: /s/ Vivian N. Lopez

MARK D. CRONENWETT
Attorney-in-Charge
Texas Bar No. 00787303
mcronenwett@mwzmlaw.com

VIVIAN N. LOPEZ
PR State Bar PR20818
vlopez@mwzmlaw.com

MACKIE WOLF ZIENTZ & MANN, P.C.
14160 N. Dallas Parkway, Suite 900
Dallas, Texas 75254
214-635-2685 (Phone)
214-635-2686 (Fax)

ATTORNEYS FOR PLAINTIFF CERTIFICATE OF CONFERENCE

I hereby certify that I have been unable to conference with the Defendants in this matter, as they have failed to appear in this case.

/s/ Vivian N. Lopez
VIVIAN N. LOPEZ

CERTIFICATE OF SERVICE

The undersigned certifies that on March 16, 2022, a true and correct copy of the foregoing document was delivered to the following in the manner indicated:

Via Regular U.S. Mail
Arturo A. Mondragon
1403 Heather Run Drive
Duncanville, Texas 75137

Via Regular U.S. Mail
Celia Mondragon
1403 Heather Run Drive
Duncanville, Texas 75137

/s/ Vivian N. Lopez
VIVIAN N. LOPEZ

U.S. District Court
Northern District of Texas (Dallas)
CIVIL DOCKET FOR CASE #: 3:18-cv-03126-L

US Bank National Association v. Mondragon et al
Assigned to: Judge Sam A Lindsay
Cause: 28:1332 Diversity-Breach of Contract
Date Filed: 11/27/2018
Date Terminated: 03/17/2022
Jury Demand: None
Nature of Suit: 290 Real Property: All Other Real Property
Jurisdiction: Diversity
Plaintiff
US Bank National Association
as Trustee under Securitization Servicing Agreement Dated as of July 1, 2005 Structured Asset Securities Corporation, Structured Asset Investment Loan Trust Mortgages Pass-Through Certificates, Series 2005-HE1
represented by Philip William Danaher
833 SW Lemans Lane, Suite 116
Lee’s Summit, MO 64082
817-791-4892
Fax: 816-622-1293
Email: philip@danaherlawfirm.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingGordon Welborne Green
Higier Allen & Lautin PC
2711 N Haskell Avenue, Suite 2400
Dallas, TX 75204
972-716-1888
Fax: 469-375-3231
Email: ggreen@higierallen.com
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingJonathan Caleb Smith
Padgett Law Group
5501 East LBJ Frwy, Suite 925
Dallas, TX 75240
850-422-2520
Fax: 850-422-2567
Email: jonathan.smith@padgettlawgroup.com
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingMark D Cronenwett
Mackie Wolf Zientz & Mann PC
14160 N Dallas Parkway, Suite 900
Dallas, TX 75254
214-635-2650
Fax: 214-635-2686
Email: mcronenwett@mwzmlaw.com
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingVivian Nahir Lopez
Tittle Law Group, LLC
5550 Granite Parkway
Suite 290
Plano, TX 75024
972-987-5139
Email: vlopez@tittlelawgroup.com
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good Standing
V.
Defendant
Arturo A Mondragon
Defendant
Celia Mondragon

 

Date Filed # Docket Text
11/27/2018 1 COMPLAINT against All Defendants filed by U.S. Bank National Association, as Trustee. (Filing fee $400; Receipt number 0539-9607899) Plaintiff will submit summons(es) for issuance. 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, instructions, and exemption information may be 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 Cover Sheet) (Cronenwett, Mark) (Entered: 11/27/2018)
11/27/2018 2 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by U.S. Bank National Association, as Trustee. (Cronenwett, Mark) (Entered: 11/27/2018)
11/27/2018 3 Request for Clerk to issue Summons filed by U.S. Bank National Association, as Trustee. (Attachments: # 1 Additional Page(s)) (Cronenwett, Mark) (Entered: 11/27/2018)
11/27/2018 4 New Case Notes: A filing fee has been paid. Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge (Judge Ramirez). Clerk to provide copy to plaintiff if not received electronically. (zkc) (Entered: 11/27/2018)
11/27/2018 5 Summons Issued as to Arturo A Mondragon, Celia Mondragon. (zkc) (Entered: 11/27/2018)
12/27/2018 6 SUMMONS Returned Executed as to Arturo A Mondragon; served on 12/22/2018, Celia Mondragon; served on 12/22/2018. (ykp) (Entered: 12/27/2018)
04/17/2019 7 ORDER: The court orders Plaintiff to move for entry of default and default judgment no later than 5/2/2019. (Ordered by Judge Sam A Lindsay on 4/17/2019) (mla) (Entered: 04/17/2019)
05/01/2019 8 MOTION To Abate Action filed by US Bank National Association (Attachments: # 1 Proposed Order)Attorney Gordon Welborne Green added to party US Bank National Association(pty:pla) (Green, Gordon) (Entered: 05/01/2019)
05/02/2019 9 Order: The court is not opposed to the relief sought by the parties; however, rather than abate the action, the court will administratively close it. (Ordered by Judge Sam A Lindsay on 5/2/2019) (svc) (Entered: 05/02/2019)
11/22/2019 10 MOTION to Reinstate and Entry of New Scheduling Order filed by US Bank National Association (Attachments: # 1 Proposed Order) (Green, Gordon) (Entered: 11/22/2019)
12/18/2019 11 ORDER granting 10 Motion Reinstate and Entry of New Scheduling Order (Ordered by Judge Sam A. Lindsay on 12/18/2019) (svc) (Entered: 12/18/2019)
01/08/2020 12 Request for Clerk to issue Clerk’s Entry of Default Against Defendants Arturo A. Mondragon and Celia Mondragon filed by US Bank National Association. (Attachments: # 1 Exhibit(s), # 2 Proposed Order) (Green, Gordon) (Entered: 01/08/2020)
01/08/2020 13 MOTION for Default Judgment against Arturo A Mondragon, Celia Mondragon filed by US Bank National Association (Attachments: # 1 Exhibit(s), # 2 Proposed Order) (Green, Gordon) (Entered: 01/08/2020)
01/09/2020 14 Clerk’s ENTRY OF DEFAULT as to Arturo A Mondragon, Celia Mondragon. (rekc) (Entered: 01/09/2020)
07/01/2020 15 MEMORANDUM OPINION AND ORDER denying without prejudice 13 Motion for Default Judgment. (Ordered by Judge Sam A. Lindsay on 7/1/2020) (axm) (Entered: 07/02/2020)
07/31/2020 16 NOTICE of Attorney Appearance by Jonathan C Smith on behalf of US Bank National Association. (Filer confirms contact info in ECF is current.) (Smith, Jonathan) (Entered: 07/31/2020)
07/31/2020 17 MOTION for Default Judgment against All Defendants filed by US Bank National Association (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Proposed Order) (Smith, Jonathan) (Entered: 07/31/2020)
08/27/2020 18 MOTION (Second) To Abate Action, filed by US Bank National Association (Attachments: # 1 Proposed Order) (Cronenwett, Mark) (Entered: 08/27/2020)
08/28/2020 19 ORDER: The court determines that this case is hereby, administratively closed. The parties shall provide the court with a status report each 90-day period following the date of this order. (Ordered by Judge Sam A. Lindsay on 8/28/2020) (svc) (Entered: 08/28/2020)
11/25/2020 20 STATUS REPORT filed by US Bank National Association. (Smith, Jonathan) (Entered: 11/25/2020)
12/22/2020 21 MOTION to Reopen Case filed by US Bank National Association (Attachments: # 1 Proposed Order) (Smith, Jonathan) (Entered: 12/22/2020)
06/15/2021 22 ORDER: 21 Motion to Reopen Case is Granted. The court further directs the clerk of court to amend the docket sheet to show that Plaintiffs 17 Second Motion for Default is pending with an adjusted file date of June 16, 2021. (Ordered by Judge Sam A. Lindsay on 6/15/2021) (svc) (Entered: 06/16/2021)
07/13/2021 23 NOTICE of Attorney Appearance by Vivian Nahir Lopez on behalf of US Bank National Association. (Filer confirms contact info in ECF is current.) (Lopez, Vivian) (Entered: 07/13/2021)
12/08/2021 24 ***VACATED PER 27 ORDER*** MEMORANDUM OPINION AND ORDER granting 17 Motion for Default Judgment. (Ordered by Judge Sam A. Lindsay on 12/8/2021) (jmg) Modified on 12/21/2021 (mla). (Entered: 12/08/2021)
12/08/2021 25 ***VACATED PER 27 ORDER*** DEFAULT JUDGMENT. (Ordered by Judge Sam A. Lindsay on 12/8/2021) (jmg) Modified on 12/21/2021 (mla). (Entered: 12/08/2021)
12/16/2021 26 MOTION to Vacate Default Judgment against Defendants, filed by US Bank National Association (Attachments: # 1 Proposed Order) (Lopez, Vivian) (Entered: 12/16/2021)
12/21/2021 27 ORDER: The court grants Plaintiff’s 26 Motion to Vacate Default Judgment Against Defendants; and vacates 24 Memorandum Opinion and Order and 25 Default Judgement, entered on 12/8/2021. The court determines that this case should be, and is hereby, administratively closed. (Ordered by Judge Sam A. Lindsay on 12/21/2021) (mla) (Entered: 12/21/2021)
02/17/2022 28 MOTION to Reinstate Case, filed by US Bank National Association (Attachments: # 1 Proposed Order) (Lopez, Vivian) (Entered: 02/17/2022)
02/25/2022 29 ORDER granting 28 Motion to Reinstate Case. (Ordered by Judge Sam A. Lindsay on 2/25/2022) (ndt) (Entered: 02/25/2022)
03/09/2022 30 Third MOTION for Default Judgment against Arturo A Mondragon, Celia Mondragon filed by US Bank National Association (Attachments: # 1 Exhibit(s), # 2 Proposed Order) (Lopez, Vivian) (Entered: 03/09/2022)
03/16/2022 31 Third MOTION To Abate Action filed by US Bank National Association. (Attachments: # 1 Proposed Order) (Lopez, Vivian) Modified text on 3/17/2022 (mjr). (Entered: 03/16/2022)
03/17/2022 32 ORDER re: 31 Third Motion to Abate Action. The court determines that the motion should be, and is hereby, granted as herein set forth and this case is administratively closed. Denied as Moot 30 Third MOTION for Default Judgment. (Ordered by Judge Sam A. Lindsay on 3/17/2022) (mjr) Modified docket text on 3/18/2022 (cea). (Entered: 03/17/2022)

 


 

PACER Service Center
Transaction Receipt
07/31/2022 15:08:42

MS. THURAB WASN’T EVEN AN OCWEN/PHH EMPLOYEE IN 2017

….THAT AIN’T “PERSONAL KNOWLEDGE” JUDGE

With its Motion, Plaintiff includes the Declaration of Juliana Thurab (“Ms. Thurab”), a Contract Management Coordinator at PHH Mortgage Corporation, U.S. Bank’s servicer.

Pl.’s Mot., Ex. A.

In pertinent part, Ms. Thurab’s Declaration states that

(1) this declaration is based on her “personal knowledge of the facts contained [t]herein;”

(2) “[a] Notice of Default (“Notice of Default”) was served on [Defendants] at their last known address by certified mail on or about July 5, 2017;”

and

(3) “On November 3, 2017, Mackie Wolf Zientz, & Mann, P.C…., attorneys for service at the time, Ocwen Loan Servicing, LLC, sent [Defendants] a Notice of Acceleration of Loan Maturity (“Notice of Acceleration”) via certified mail at their last known address.”

Id. ¶¶ 2, 6-7 (emphasis in original).

Pursuant to section 51.002(e) of the Texas Property Code, this declaration serves as prima facie evidence of service.

Stated differently, Ms. Thurab’s Declaration is sufficient evidence that Defendants received notice of default and acceleration, the fourth and final element required for initiating a foreclosure proceeding.

Plaintiff, therefore, has adequately set forth the elements required for initiating a foreclosure proceeding on the Property under Texas Rule of Civil Procedure 736.

Plaintiff, however, must still properly allege or set forth sufficient facts to demonstrate that it has the authority to foreclose on the Property.

US Bank v. Mondragon, Civil Action 3:18-CV-3126-L, at *4-5 (N.D. Tex. Dec. 8, 2021)

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Perjured Affidavit by PHH Ocwen’s Juliana Thurab. It Could Not Be Based on Personal Knowledge
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