Hicks v. Cenlar FSB
Yeah, lets get off the forged affidavit submitted with a photocopied signature by BDF’s sanctioned attorney. We can do so by requesting an indefinite stay. “Fabulous idea, it’s Granted”, sayeth Al Bennett.
District Court, S.D. Texas
SEP 21/22, 2021 | REPUBLISHED BY LIT: AUG 27, 2021
DEFENDANT’S MOTION TO STAY PRETRIAL ORDER DEADLINE, DOCKET CALL AND TRIAL DATE
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES, Defendant Cenlar, FSB (“Defendant”), its successors in interest or assigns, and files this Motion to Stay Pretrial Order Deadline, Docket Call and Trial Date per the court’s Amended Scheduling Order signed February 18, 2021. [Doc. 16]. In support thereof, Defendant would respectfully show the Court:
On March 2, 2020, Plaintiff Jeanie Hicks (“Plaintiff”) sued Defendant to stop foreclosure alleging violations of violations of the Texas Property Code, Texas Business & Commerce Code and Texas Finance Code. Plaintiff also seeks a declaratory judgment and injunctive Defendant filed its answer and affirmative defenses in the State Court proceeding on May 12, 2020 prior to removing the case to this Court. Defendant filed its counterclaim seeking an order allowing foreclosure on June 16, 2020 [Doc. 6].
Plaintiff did not appear at the Court ordered status conference held on July 16, [Doc. 24].
Defendant filed its Motion for Summary Judgment and Brief in Support on July 28, 2021 [Doc. 25]. Plaintiff has not yet filed a response to Defendant’s summary judgment motion.
The current scheduling order signed February 18, 2021 [Doc. 16] sets forth a deadline to file a joint pretrial order on October 4, 2021, a docket call on October 8, 2021, and a trial at 9:00 a.m. on October 11, 2021.
Defendant requests the Court stay the joint pretrial order deadline, docket call and bench trial pending a ruling on Defendant’s Motion for Summary Judgment.
This request for continuance is not for delay only, but so that justice may be done.
WHEREFORE, PREMISES CONSIDERED Defendant requests that this Court stay the joint pretrial order deadline set for October 4, 2021, the docket call set for October 8, 2021, and bench trial set October 11, 2021 until such time as the Court has an opportunity to review and rule on Defendant’s Motion for Summary Judgment.
By: /s/ Crystal G. Gibson
Crystal G. Gibson
State Bar No. 24027322
BARRETT DAFFIN FRAPPIER TURNER & ENGEL, LLP
4004 Belt Line Road, Ste. 100
Addison, Texas 75001
(972) 341-0734 (Facsimile)
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
Pursuant to Texas Rules of Civil Procedure, I certify that a true and correct copy of the foregoing has been sent on this the 21st day of September, 2021 to all parties of record the method indicated below.
4403 Ebbtide Drive
Houston, Texas 77045
/s/Crystal G. Gibson
Crystal G. Gibson
Hicks v. Cenlar FSB
MEMORANDUM AND RECOMMENDATION
NOV 29, 2021 | REPUBLISHED BY LIT: NOV 29, 2021
Defendant’s pending Motion for Summary Judgment (Document No. 25) has been referred to the undersigned Magistrate for a memorandum and recommendation. Having considered the motion, the absence of a response to the motion, the summary judgment evidence, and the applicable law, the Magistrate Judge RECOMMENDS, for the reasons set forth below, that Defendant’s Motion for Summary Judgment (Document No. 25) be GRANTED in PART.
I . Background
This is a mortgage/foreclosure case, filed by Plaintiff Jeanie Hicks (“Hicks”) pro se in state court on March 2, 2020, against Cenlar F.S.B.. the alleged servicer of Hicks’ mortgage on the property located at 4403 Ebbtide Drive, Houston, Texas 77045 (referred to hereafter as “the Property”). The case was timely removed to this Court on the basis of diversity.
In the state court petition, which has not been amended following the removal of this case, Hicks alleged four claims against Cenlar: for violations of the Texas Property Code; for violations of the Texas Business and Commerce Code; for violations of the Texas Finance Code; and for declaratory relief.1
Those claims are generally based on Hicks’ allegations that Cenlar has not shown itself to be the holder of the note, that the original note has not been produced by Cenlar, and that Cenlar did not provide her the with required notices prior to seeking to foreclose on the Property.
Cenlar has filed a Counterclaim, seeking an Order allowing it to foreclose on the Property.
Cenlar filed a Motion for Summary Judgment on all of Hicks’ claims, and on its own Counterclaim. To this date, over four months after the motion was filed, no response has been filed by Hicks in opposition. As such, the Motion for Summary Judgment is ripe for ruling, and the summary judgment evidence submitted therewith is uncontroverted.
II. Summary Judgment Standard
Rule 56(a) provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
The moving party must initially “demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553 (1986).
Once the moving party meets its burden, the burden shifts to the nonmovant, “who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists” and that summary judgment should not be granted.
Norwegian Bulk Transport A/S v. International Marine Terminals Partnership, 520 F.3d 409, 412 (5th Cir. 2008); see also Morris v. Covan World Wide Moving, Inc.,
144 F.3d 377, 380 (5th Cir. 1998).2 A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials in a pleading, and unsubstantiated assertions that a fact issue exists will not suffice. Celotex, 106 S. Ct. at 2548.
Instead, “the nonmoving party must set forth specific facts showing the existence of a ‘genuine’ issue concerning every essential component of its case.” Morris, 144 F.3d at 380.
In considering a motion for summary judgment, all reasonable inferences to be drawn from both the evidence and undisputed facts are be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986). “If the record, viewed in this light, could not lead a rational trier of fact to find” for the nonmovant, then summary judgment is proper. Kelley v. Price- Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993) (citing Matsushita, 106 S. Ct. at 1351). On the other hand, if “the factfinder could reasonably find in [the nonmovant’s] favor, then summary judgment is improper.” Id.
Even if the standards of Rule 56 are met, a court has discretion to deny a motion for summary judgment if it believes that “the better course would be to proceed to a full trial.” Anderson, 106 S. Ct. at 2513.
The summary judgment evidence shows that Hicks, on March 14, 2006, obtained a home equity loan on the Property in the amount of $15,000.00 from Citicorp Trust Bank FSB, and executed in connection therewith a Texas Home Equity Security Instrument (Document Nos. 25-2
and 25-3). The loan note had a fifteen year term, requiring Hicks to make a monthly payment of $154.32 (Document No. 25-2 at 2-3). Hicks admits in her pleading that she fell behind in her payments after she “experienced a financial hardship, resulting in expenses and diminished income making mortgage payments burdensome.” State Court Petition (Document No. 1-2 at 5.).
Hicks has not made a payment on the loan since December 2011. Declaration of Diane McCormick ¶ 9 (Document No. 25-1 at 3-4).
On February 10, 2015, the Texas Home Equity Security Instrument on the Property was assigned by Citibank, N.A., the successor in interest to Citicorp Trust Bank FSB, to US Bank National Association as Trustee for CRMSI Series 2006-03 – REMIC Pass- Through Certificates Series 2006-03 (Document No. 25-4).
That assignment was recorded in the Harris County Public Records on February 16, 2016 (Document No. 25-4 at 4).
On May 13, 2020, Cenlar, as mortgage servicer for US Bank, sent Hicks, at the Property address, a Notice of Default and Intent to Accelerate (Document No. 25-5).
No foreclosure has taken place.
Each of Hicks’ claims is defeated by the absence of any supporting summary judgment evidence in the record. There is no summary judgment evidence to support Hicks’s claims, or her allegations, that she has not been provided with the required notices prior to the Property being posted for foreclosure or that Cenlar has somehow violated the Texas Business and Commerce Code or the Texas Finance Code.
In addition, the uncontroverted summary judgment evidence in the record is that Cenlar is the loan servicer for US Bank, which holds the note and Security Instrument pursuant to an assignment of such in 2015.
Because Hicks has not come forth with any summary judgment evidence to support any of her claims, Cenlar is entitled to summary judgment on those claims.
As for Cenlar’s Motion for Summary Judgment on its Counterclaim, Cenlar’s motion fails for essentially the same want of summary judgment evidence. As set forth by Cenlar in its Motion for Summary Judgment, to be entitled to an Order of foreclosure, it must demonstrate that:
“(1) a debt exists; (2) the debt is secured by a lien created under Art. 16, § 50(a)(6) of the Texas Constitution; (3) plaintiff is in default under the note and security instrument; and (4) plaintiff has been properly served notice of default and acceleration.”
Cenlar’s Motion for Summary Judgment at 17 (Document No. 25 at 17).
While there is uncontroverted summary judgment evidence in the record that a debt exists, that the debt is secured by a lien created under Art. 16, § 50(a)(6) of the Texas Constitution, and that Hicks is in default under the note and security instrument, there is no summary judgment evidence that Hicks was provided a “Notice of Acceleration.”
There is a Notice of Default and Intent to Accelerate, sent to Hicks on May 13, 2020 (Document No. 25-5), but there is no summary judgment evidence in the record that a separate Notice of Acceleration was sent to Hicks.
See Wilmington Tr., Nat’l Ass’n v. Rob, 891 F.3d 174, 177 (5th Cir. 2018) (“Unless a lender provides both forms of notice [a notice of intent to accelerate and a notice of acceleration], it may not foreclose.”); Suniverse, L.L.C. v. Encore Credit Corp., No. 21-20072, 2021 WL 4047462, at *2 (5th Cir. Sept. 3, 2021) (“Before lenders can foreclose, they must provide “clear and unequivocal” notices of intent to accelerate and notices of acceleration.”).
The exhibit Cenlar points to and relies upon as evidence that Hicks was sent a Notice of Acceleration is a Notice of Acceleration was sent to Bernice and Leroy Greer in 2017 – not to Hicks
(Document No. 25-7).
In the absence of evidence it sent Hicks a Notice of Acceleration, Cenlar is, on this record, not entitled to summary judgment on its Counterclaim seeking an Order of foreclosure.
Y’all see this. This is evidence. This is Depo Time.
The image quote below was by admitted Serial Liar Lawyer Mark Hopkins, of Austin, Texas before Hon. Stephen Wm. Smith and Titan @SupremeCourt_TX Lawyer Constance “Connie” Pfeiffer.
— LawsInTexas (@lawsintexasusa) November 20, 2021
IV. Conclusion and Recommendation
Based on the foregoing and the conclusion that Plaintiff Jeanie Hicks has not come forth with any summary judgment evidence that supports any of her claims, and that the record does not contain the requisite summary judgment evidence for Defendant Cenlar to prevail, in a summary judgment context, on its counterclaim, the Magistrate Judge
RECOMMENDS that Defendant’s Motion for Summary Judgment (Document No. 25) be GRANTED in PART, with summary judgment being granted to Defendant on all of Plaintiffs’ claims, and summary judgment being denied on Defendant’s counterclaim.
The Clerk shall file this instrument and provide a copy to all counsel and unrepresented parties of record. Within fourteen (14) days after being served with a copy, any party may file written objections pursuant to 28 U.S.C. § 636(b)(1)(C), FED. R. CIV. P. 72(b).
Failure to file objections within such period shall bar an aggrieved party from attacking factual findings on appeal.
Thomas v. Arn, 474 U.S. 140 (1985); Ware v. King, 694 F.2d 89 (5th Cir. 1982), cert. denied, 461 U.S. 930 (1983); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) (en banc).
Moreover, absent plain error, failure to file objections within the fourteen day period bars an aggrieved party from attacking conclusions of law on appeal.
Douglass v. United Services Automobile Association, 79 F.3d 1415, 1429 (5th Cir. 1996).
The original of any written objections shall be filed with the United States District Clerk.
Signed at Houston, Texas, this 29th day of November, 2021.
Frances H. Stacy
US Magistrate Judge
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:20-cv-01661
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|Hicks v. Cenlar FSB
Assigned to: Judge Alfred H Bennett
Cause: 28:1441 Notice of Removal
|Date Filed: 05/12/2020
Jury Demand: None
Nature of Suit: 220 Real Property: Foreclosure
|Jeanie Hicks||represented by||Jeanie Hicks
4403 Ebbtide Drive
Houston, TX 77045
|Cenlar FSB||represented by||Shelley L. Hopkins
Hopkins Law, PLLC
3 Lakeway Centre Ct.
Austin, TX 78734
ATTORNEY TO BE NOTICEDCrystal G Gibson
Barrett Daffin et al
4004 Belt Line Road
Addison, TX 75001
ATTORNEY TO BE NOTICED
|Cenlar FSB||represented by||Crystal G Gibson
(See above for address)
ATTORNEY TO BE NOTICED
|Date Filed||#||Docket Text|
|05/12/2020||1||NOTICE OF REMOVAL from 190th District of Harris County, case number 2020-13548 (Filing fee $ 400 receipt number 0541-24653828) filed by Cenlar FSB. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A-State Court Pleadings, # 3 Exhibit B-Notice to State Court of Removal, # 4 Exhibit C-List of All Counsel, # 5 Exhibit D-Harris Co. CAD)(Gibson, Crystal) (Entered: 05/12/2020)|
|05/12/2020||2||First CORPORATE DISCLOSURE STATEMENT by Cenlar FSB, filed.(Gibson, Crystal) (Entered: 05/12/2020)|
|05/12/2020||3||NOTICE OF SERVICE of Mandatory Initial Discovery Responses by Cenlar FSB, filed. (Gibson, Crystal) (Entered: 05/12/2020)|
|05/13/2020||4||ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 8/14/2020 at 09:30 AM in Courtroom 8C before Judge Alfred H Bennett. (Signed by Judge Alfred H Bennett) Parties notified.(ChristopherSarratadi, 4) (Entered: 05/13/2020)|
|05/13/2020||5||NOTICE to Pro Se Litigant of Case Opening. Party notified, filed. (ChristopherSarratadi, 4) (Entered: 05/13/2020)|
|06/16/2020||6||ANSWER to 1 State Court Petition/Notice of Removal, COUNTERCLAIM against Jeanie Hicks by Cenlar FSB, filed. (Attachments: # 1 Exhibit A-Note, # 2 Exhibit B-Deed of Trust, # 3 Exhibit C-Assignment, # 4 Exhibit D-Notice of Default)(Gibson, Crystal) (Entered: 06/16/2020)|
|08/05/2020||7||JOINT DISCOVERY/CASE MANAGEMENT PLAN by Cenlar FSB, filed. (Attachments: # 1 Proposed Order)(Gibson, Crystal) (Entered: 08/05/2020)|
|08/06/2020||8||MOTION for Continuance of Initial Pretrial Conference by Jeanie Hicks, filed. Motion Docket Date 8/27/2020. (EdnitaPonce, 1) (Entered: 08/06/2020)|
|08/07/2020||9||NOTICE of Resetting. Parties notified. Initial Conference set for 10/2/2020 at 09:00 AM in Courtroom 8C before Judge Alfred H Bennett, filed. (ledwards, 4) (Entered: 08/07/2020)|
|10/02/2020||10||SCHEDULING ORDER. Amended Pleadings due by 10/9/2020. Pltf Expert Report due by 12/4/2020. Deft Expert Report due by 12/18/2020. Discovery due by 11/6/2020. Dispositive Motion Filing due by 1/15/2021. Non-Dispositive Motion Filing due by 1/15/2021. Joint Pretrial Order due by 3/8/2021. Pretrial Conference set for 3/26/2021 at 01:30 PM in Courtroom 8C before Judge Alfred H Bennett Docket Call set for 3/29/2021 at 09:00 AM in Courtroom 8C before Judge Alfred H Bennett(Signed by Judge Alfred H Bennett) Parties notified.(ledwards, 4) (Entered: 10/02/2020)|
|10/02/2020||11||NOTICE of Setting. Parties notified. Status Conference set for 1/8/2021 at 10:00 AM in Courtroom 8C before Judge Alfred H Bennett, filed. (ledwards, 4) (Entered: 10/02/2020)|
|11/30/2020||12||CLERKS NOTICE of Status Hearing. A status hearing is scheduled in this case January 8, 2021 at 10:00 a.m. via Zoom. Parties will receive connection instructions the day before the hearing. Parties notified, filed. (ledwards, 4) (Entered: 11/30/2020)|
|12/16/2020||13||Expert Report of Crystal Gee Gibson by Cenlar FSB, filed.(Gibson, Crystal) (Entered: 12/16/2020)|
|01/08/2021||14||CLERKS NOTICE of Status Conference. A status conference is scheduled April 30, 2021 at 10:00 a.m. via Zoom. Parties will receive connection instructions the day before the setting. Parties notified, filed. (ledwards, 4) (Entered: 01/08/2021)|
|01/20/2021||15||Opposed MOTION to Modify as to 10 Scheduling Order,, by Cenlar FSB, filed. Motion Docket Date 2/10/2021. (Gibson, Crystal) (Entered: 01/20/2021)|
|02/18/2021||16||SCHEDULING ORDER Granting 15 Opposed MOTION to Modify as to 10 Scheduling Order,,. ( Amended Pleadings due by 5/3/2021., Pltf Expert Report due by 6/28/2021., Deft Expert Report due by 7/12/2021., Discovery due by 7/28/2021., Dispositive Motion Filing due by 8/4/2021., Non-Dispositive Motion Filing due by 8/4/2021., Joint Pretrial Order due by 9/20/2021., Docket Call set for 10/8/2021 at 01:30 PM in Courtroom 8C before Judge Alfred H Bennett, Jury Trial set for 10/12/2021 at 09:00 AM in Courtroom 8C before Judge Alfred H Bennett)(Signed by Judge Alfred H Bennett) Parties notified.(ledwards, 4) (Entered: 02/18/2021)|
|04/23/2021||17||ORDER Status Conference reset for 5/7/2021 at 10:00 AM in by video before Judge Alfred H Bennett(Signed by Judge Alfred H Bennett) Parties notified.(ledwards, 4) (Entered: 04/23/2021)|
|05/06/2021||18||STRICKEN FROM THE RECORD per Doc (#22) (Entered: 05/06/2021)|
|05/06/2021||19||BRIEF in support re: 18 MOTION for Summary Judgment by Cenlar FSB, filed. (Attachments: # 1 Affidavit Rushmore, # 2 Exhibit A-1 Note, # 3 Exhibit A-2 Deed of Trust, # 4 Exhibit A-3 Assignments, # 5 Exhibit A-4 – 5-13-20 NOD, # 6 Exhibit A-5- 7-21-11 NOD, # 7 Exhibit A-6 – payoff, # 8 Exhibit B, Afd and B-1, and B-2, # 9 Exhibit C-Declaration Atty Fees)(Gibson, Crystal) (Entered: 05/06/2021)|
|05/07/2021||20||NOTICE of Setting. Parties notified. Status Conference reset for 6/5/2021 at 10:00 AM in Courtroom 8C before Judge Alfred H Bennett, filed. (ledwards, 4) (Entered: 05/07/2021)|
|05/07/2021||21||CORRECTED NOTICE of Resetting. Parties notified. Status Conference set for 7/16/2021 at 10:00 AM in Courtroom 8C before Judge Alfred H Bennett, filed. (ledwards, 4) (Entered: 05/07/2021)|
|05/10/2021||22||ORDER striking 18 Motion for Summary Judgment.(Signed by Judge Alfred H Bennett) Parties notified.(ledwards, 4) (Entered: 05/10/2021)|
|05/10/2021||23||NOTICE of Appearance by Shelley L. Hopkins on behalf of Cenlar FSB, filed. (Hopkins, Shelley) (Entered: 05/10/2021)|
|07/16/2021||24||Minute Entry for proceedings held before Judge Alfred H Bennett. STATUS CONFERENCE held on 7/16/2021. Ms. Hopkins council for Cenlar FSB gave the Court a status update. Ms. Jeanie Hicks was not present but was aware of the status conference. She was provided with copies of the setting via email and by U.S. postal mail. Appearances: Shelley L. Hopkins.(Court Reporter: Miller), filed.(jguajardo, 4) (Entered: 07/17/2021)|
|07/28/2021||25||Corrected MOTION for Summary Judgment by Cenlar FSB, filed. Motion Docket Date 8/18/2021. (Attachments: # 1 Affidavit A-Declaration of Cenlar, # 2 Exhibit A-1-Note, # 3 Exhibit A-2-Deed of Trust, # 4 Exhibit A-3-Assignment, # 5 Exhibit A-4-NOD 5-13-20, # 6 Exhibit A-5-payoff, # 7 Exhibit A-6-NOD 7-12-11, # 8 Affidavit B-Declaration of BDFTE, # 9 Affidavit C-Attorney’s Fee Declaration, # 10 Proposed Order)(Gibson, Crystal) (Entered: 07/28/2021)|