In his Response to Defendant’s Motion for Summary Judgment, Plaintiff asserts new arguments unrelated to his Complaint.

The Response relies heavily on Plaintiff’s Proposed Amended Complaint, introduced in Plaintiff’s Motion for Leave to Amend Pleadings (“Motion for Leave”)

(Doc. 18).

Plaintiff’s Motion for Leave was filed after Trustee Bank’s Motion for Summary Judgment (the “Motion”) in an attempt to save Plaintiff’s case by asserting a new and unsupported theory involving an acceleration that allegedly occurred on June 03, 2008.

(Doc. No. 17 p. 2).

This new theory is not properly before the Court and should not be considered as the Court evaluates the Motion for Summary Judgment.

Plaintiff’s attempt to amend his pleadings through the Response and reinvent his theory of this case after Trustee Bank dedicated significant time and resources drafting the Motion should be denied.

For the reasons set forth in more detail below and in the Motion, the Court should grant summary judgment in Defendant’s favor.

I.            ARGUMENT

A.                 Plaintiff has not pled his statute of limitations theory

Plaintiff argues, for the first time, that the loan was accelerated in 2008.1 He references his Proposed Amended Complaint, which is not a live pleading, and alleges that the underlying mortgage loan debt is void because the statute of limitations has expired. Plaintiff’s new acceleration theory is outside the Complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 698–99 (2009) (holding that a properly pleaded complaint must give “fair notice of what the claim is and the grounds upon which it rests”).

Therefore, Plaintiff’s argument that the loan was accelerated in 2008 is not properly before the Court and the Court need not address it.

See Cutrera v. Bd. of Sup’rs of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005)

(“A claim which is not raised in the complaint but, rather, is raised only in response to a motion for summary judgment is not properly before the court.”);

Sims v. City of Madisonville, 894 F.3d 632, 643 (5th Cir. 2018)

(affirming district court’s refusal to consider unpled factual theory of liability raised for the first time in a summary judgment response).

B.                 Plaintiff’s Response Fails To Address The Fatal Defects In His Claim For Declaratory Judgment

Plaintiff’s Response does not address the declaratory judgment claim relating to the foreclosure notices pled in the live Complaint.

Moreover, Plaintiff implicitly admits his claim for declaratory judgment is defective by abandoning the original claim and incorporating a new statute of limitations theory while attempting to save his case via amendment.

Because there is no fact issue as to this claim, Trustee Bank is entitled to summary judgment.

1Notably, Plaintiff does not attach evidence of notice of default, notice of intent to accelerate, and notice of acceleration to establish an actual acceleration in 2008. And, Trustee Bank previously explained how any 2007 acceleration was abandoned. (See Doc. 16 at p. 6-8).

C.                 Plaintiff’s Tort Claims Are Barred by the Economic Loss Rule

Plaintiff offers no support for his argument that his fraud in the inducement and fraud by nondisclosure claims are not barred by the economic loss rule.

He fails to explain how his alleged injury does not arise solely from his mortgage loan agreement.

Additionally, he fails to rebut the argument that any alleged oral representation on which Plaintiff claims he relied is expressly contradicted by the Deed of Trust.

See DRC Parts & Accessories, L.L.C. v. VM Motori, S.P.A., 112 S.W.3d 854, 858-59 (Tex. App.—Houston [14th Dist.] 2003, pet denied).

The economic loss rule precludes recovery on either claim.

D.                 Plaintiff’s Breach Of Contract Claim Fails

Plaintiff’s claim that his breach of contract claim should survive summary judgment because he was in “good standing” on his loan contradicts the summary judgment evidence.

Regardless, Plaintiff fails to address the missing causation and damages elements of his breach of contract claim.

Nor does Plaintiff dispute that the statute of frauds is fatal to this claim.

As such, Plaintiff’s breach of contract claim fails for the reasons stated in the Motion for Summary Judgment.

E.                 Plaintiff’s Promissory Estoppel Claim Fails

Plaintiff fails to address Trustee Bank’s argument that promissory estoppel would only be available here if the promise involved was a promise to sign an existing, written agreement.

See Gordon v. JPMorgan Chase Bank, N.A., 2013 WL 49587, at *4 (5th Cir. Jan. 3, 2013)

(“Where, as here, an oral promise is barred by the statute of frauds, to show promissory estoppel the promisor must have promised to sign a written document that would satisfy the statute of frauds.”).

In his attempt to explain why his promissory estoppel claim should survive, Plaintiff actually confirms that the representations at issue are barred by the statute of frauds.

Plaintiff argues that he can assert a promissory estoppel claim despite the contract between the parties because “the topic is a separate stand-alone agreement” to “defer Plaintiff’s mortgage payment obligations as a result of Covid-19 and to restructure the mortgage loan … not a modification of the existing written mortgage loan agreement”.

Response at ¶27-28.

In other words, Plaintiff argues that the parties entered an oral agreement to modify the loan documents or orally created a new contract related to the Property—placing the promissory estoppel claim squarely within the statute of frauds and dooming Plaintiff’s claim.

Plaintiff does not contend that Trustee Bank reneged on a promise to sign a loan modification agreement that was already in existence at the time of the promise. (See generally the Complaint.).

Therefore, Plaintiff’s claim fails.

II.             CONCLUSION

Plaintiff’s live pleading has no viable claims against Trustee Bank.

Accordingly, Trustee Bank is entitled to summary judgment that Plaintiff take nothing against it.

Trustee Bank respectfully requests that the Court grant its Motion and grant Trustee Bank all other relief to which it is entitled.

Respectfully submitted,

TO THE HONORABLE JUDGE ANDREW S. HANEN:

Robert Strange hereby files his First Amended Complaint complaining of U.S. Bank Trust Company, N.A. and for causes of action shows the Court as follows:

PARTIES

1.                  Robert Strange is an individual who resides in Harris County, Texas and may be served with process on the undersigned legal counsel.

2.                  U.S. Bank Trust Company, N.A. has already been served in this matter and filed an answer.

JURISDICTION AND VENUE

3.                  The parties do not dispute that this Court has jurisdiction and venue in this matter.

RELEVANT FACTS

4.                  The subject matter of this lawsuit is the real property and the improvements thereon located at 1310 Riverview Circle, Houston, TX 77077 (the “Property”). The Property is utilized as an assisted care living facility.

5.                  Robert Strange (“Plaintiff”) and his wife Lana Strange purchased the Property on or about December 29, 2005.

During the process of purchasing the Property, Plaintiff executed a Promissory Note (“Note”) in the amount of $539,910 as well as a Deed of Trust in which Fremont Investment & Loan is listed as the Lender.

A true and correct copy of the Deed of Trust is attached hereto as Exhibit “1” and incorporated herein for all purposes.

6.                  The Note and related Deed of Trust were subsequently transferred to U.S. Bank Trust Company, N.A. (“Defendant”) for which Wells Fargo Bank, N.A. (“Wells Fargo”) acts as the loan servicer.

7.                  As Plaintiff was starting to face financial difficulties due to the COVID-19 pandemic, he contacted Wells Fargo to pursue loss mitigation options – Defendant granted him a Covid-19 Forbearance and promised him that the debt would be restructured once the forbearance period expired.

After the forbearance period expired, Plaintiff contacted Wells Fargo to see when his payment was going to resume. Defendant then informed him that they no longer were able to approve loan modifications resulting from Covid-19 forbearances so he was required to pay the total amount of the arrearages in one lump sum or face foreclosure.

8.      Instead of following proper procedure pursuant to the Texas Property Code as well as the related Deed of Trust, Defendant failed to send proper notices.

Instead, Defendant violated Plaintiff’s due process rights by simply posting the Property for foreclosure sale.

As such, the foreclosure scheduled to be conducted by Defendant should be void as a matter of law because Defendant did not provide Plaintiff with the statutory notices pursuant to Sections 15 and 22 of the Deed of Trust. Defendant’s failure to provide Plaintiff with the statutory notices deprives Plaintiff of his due process rights and the opportunity to cure pursuant to Sections 19 and 22 of the Deed of Trust.

9.                  Accordingly, Plaintiff alleges that Defendant was about to wrongfully sell his Property at a foreclosure sale on February 07, 2023 in violation of the agreement between the parties.

A true and correct copy of the related Notice of Substitute Trustee Sale, which was provided to Plaintiff by the undersigned legal counsel, is attached hereto as Exhibit “2” and incorporated herein for all purposes.

10.              During the pendency of the instant lawsuit, Defendant issued a Notice of Rescission of Acceleration dated May 16, 2023 – a true and correct copy is attached hereto as Exhibit “3” and incorporated herein for all purposes.

CLAIMS

AGENCY & RESPONDEAT SUPERIOR

11.           Wherever it is alleged that Defendant did anything, or failed to do anything, it is meant that such conduct was done by Defendant’s employees, principals, agents, attorneys, and/or affiliated entities, in the normal or routine scope of their authority, or ratified by Defendant, or done with such apparent authority so as to cause Plaintiff to reasonably rely that such conduct was within the scope of their authority.

Plaintiff did rely to Plaintiff’s detriment on Defendant’s representatives being vested with authority for their conduct. Defendant is vicariously liable for the conduct of their employees, principals, agents, attorneys, affiliated entities, and representatives of Defendant’s affiliated entities by virtue of respondent superior, apparent authority, and estoppel doctrines.

FIRST CAUSE OF ACTION: DECLARATORY JUDGMENT

12.              To the extent not inconsistent herewith, Plaintiff incorporates by reference the allegations made in paragraphs 1 through 11 as if set forth fully herein.

13.              Plaintiff seeks a determination of the rights of the parties pursuant to Rule 57 of the Federal Rules of Civil Procedure. In particular, Plaintiff seeks a determination that the four year statute of limitation for Defendant to collect on the underlying mortgage loan debt has expired pursuant to Section 16.004 of the Texas Civil Practices and Remedies Code, that the underlying mortgage loan debt is deemed void, that Defendant’s lien rights are void, and that Defendant no longer has the legal right to foreclose on its lien rights to the Property.

SECOND CAUSE OF ACTION: COMMON LAW FRAUD FRAUD IN THE INDUCEMENT OR FRAUD BY NONDISCLOSURE

14.              To the extent not inconsistent herewith, Plaintiff incorporates by reference the allegations made in paragraphs 1 through 13 as if set forth fully herein.

15.              Plaintiff shows that Defendant made material, false representations to Plaintiff with the knowledge of their falsity or with reckless disregard of the truth with the intention that such representations be acted upon by Plaintiff and that Plaintiff relied on these representations to her detriment.

16.              Plaintiff would further show that Defendant concealed or failed to disclose material facts within the knowledge of Defendant, that Defendant knew that Plaintiff did not have knowledge of the same and did not have equal opportunity to discover the truth, and that Defendant intended to induce Plaintiff to enter into multiple transactions which made the basis of this suit by such concealment or failure to disclose.

17.              Defendant used deceit or trickery to induce Plaintiff to act to his disadvantage, by causing him to enter into a forbearance but failed to disclose that once the forbearance was up all months that had been part of the forbearance would need to be paid in one lump sum.

But for the deceit and trickery of Defendant, Plaintiff would not have entered into said forbearance agreement.

The deceit and trickery used by Defendant, when made, was known to contain false and misleading representations or were recklessly asserted by Defendant without any knowledge of truth.

Furthermore, Defendant was aware, or should have been aware, of Plaintiff’s lack of sophistication with financial and/or real estate transactions.

18.              A confidential or “informal fiduciary” relationship existed between the parties.

Defendant had a duty to disclose these facts to Plaintiff and was deliberately silent when Defendant had a duty to speak.

19.              Defendant used such trickery and deceit and false representations with the intent that Plaintiff would end up defaulting on the loan so that Defendant could eventually post the Property for a Foreclosure Sale.

20.              Plaintiff acted in reliance on the misrepresentations and the reliance on such misrepresentations were justifiable and reasonable.

21.              Furthermore, Defendant knew Plaintiff was ignorant of the nondisclosed facts and lacked opportunity to discover the truth.

22.              As a result of the unconscionable actions and intentional nondisclosure of Defendant set out above, Plaintiff was harmed, and should be allowed recovery of his actual damages.

In order to fully compensate Plaintiff, equitable relief in the form of rescission is also proper.

The actions of the Defendant also warrant exemplary damages to deter such conduct in the future.

THIRD CAUSE OF ACTION: BREACH OF CONTRACT

23.              To the extent not inconsistent herewith, Plaintiff incorporates by reference the allegations made in paragraphs 1 through 22 as if set forth fully herein.

24.              The actions committed by Defendant constitutes breach of contract because:

A.                There exists a valid, enforceable contract (in addition to the Deed of Trust) between Plaintiff and Defendant whereby Defendant agreed to provide a modification to the Note after the forbearance had ended;

B.                 Plaintiff has standing to sue for breach of contract;

C.                 Plaintiff performed his contractual obligations under the Deed of Trust;

D.                Defendant breached the parties’ agreement by not providing a modification to his loan; and

E.                 The breaches of contract by Defendant caused Plaintiff’s injury – actual damages which include, but are not limited to, loss of alternative loss mitigation options, violating Plaintiff’s due process rights, litigation cost, interest on the balance of unpaid mortgage payments since the filing of this lawsuit, damage to Plaintiff’s credit, and numerous erroneous expenses, overcharges, and penalties.

FOURTH CAUSE OF ACTION: PROMISSORY ESTOPPEL

25.              To the extent not inconsistent herewith, Plaintiff incorporates by reference the allegations made in paragraphs 1 through 24 as if set forth fully herein.

26.              The actions committed by Defendant constitute promissory estoppel because:

A.                Defendant made a promise to Plaintiff to modify his loan to move the arrearages from the Forbearance to the end of the note and extend the term;

B.                 Plaintiff reasonably and substantially relied on the promise to his detriment;

C.                 Plaintiff’s reliance was foreseeable by Defendant; and

D.                Injustice can be avoided only by enforcing Defendant’s promise.

DAMAGES: ACTUAL DAMAGES

27.              Plaintiff is entitled to recover his actual damages from Defendant for which Plaintiff pleads in an amount which does not exceed the jurisdictional limits of this Court.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

28.              Plaintiff endured stress, anxiety, and loss of sleep as a result of Defendant’s misconduct. Accordingly, Plaintiff is entitled to recover mental anguish damages from Defendant for which he pleads in an amount which does not exceed the jurisdictional limits of this Court.

EXEMPLARY DAMAGES

29.              Plaintiff is entitled to recover his exemplary damages from Defendant for which Plaintiff pleads in an amount which does not exceed the jurisdictional limits of this Court.

ATTORNEYS’ FEES

30.              Plaintiff was forced to employ the undersigned attorneys and has agreed to pay them reasonable attorneys’ fees for their services. Plaintiff is entitled to recover reasonable attorneys’ fees pursuant to Chapter 38 of the Texas Civil Practices & Remedies Code for which Plaintiff pleads in an amount which does not exceed the jurisdictional limits of this Court.

CONDITIONS PRECEDENT

31.              All conditions precedent to the Plaintiff’s right to bring these causes of action have been performed, have occurred, or have been waived.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that upon final hearing or trial hereof, the Court order a declaratory judgment that the four year statute of limitation for Defendant to collect on the underlying mortgage loan debt has expired pursuant to Section 16.004 of the Texas Civil Practices and Remedies Code, that the underlying mortgage loan debt is deemed void, that Defendant’s lien rights are void, and that Defendant no longer has the legal right to foreclose on its lien rights to the Property as well as a judgment in favor of Robert Strange against U.S. Bank Trust Company, N.A. for his actual damages, mental anguish, exemplary damages, reasonable attorneys’ fees, all costs of court, and such other and further relief, both general and special, at law or in equity, to which Plaintiff may be entitled.

Respectfully submitted,

VILT LAW, P.C.