Deutsche Bank National Trust Company v. Crear
(3:23-cv-00745)
District Court, N.D. Texas
APR 7, 2023 | REPUBLISHED BY LIT: JUL 29, 2023
JUL 29, NOV 13, 2023
Above is the date LIT Last updated this article.
ORDER granting 35 Unopposed Motion for Extension.
The deadline to respond to the first amended complaint is November 30, 2023.
(Ordered by Magistrate Judge David L. Horan on 11/1/2023) (mcrd) (Entered: 11/01/2023)
U.S. District Court
Northern District of Texas (Dallas)
CIVIL DOCKET FOR CASE #: 3:23-cv-00745-L-BN
| Deutsche Bank National Trust Company v. Crear et al Assigned to: Judge Sam A. Lindsay Referred to: Magistrate Judge David L. Horan Cause: 28:1332 Diversity-Torts to Land |
Date Filed: 04/07/2023 Jury Demand: None Nature of Suit: 240 Real Property: Torts to Land Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 10/18/2023 | 30 | Brief/Memorandum in Support filed by Deutsche Bank National Trust Company re 29 Response/Objection, 22 MOTION to Dismiss (Brown, Bryan) (Entered: 10/18/2023) |
| 10/18/2023 | 31 | Appendix in Support filed by Deutsche Bank National Trust Company re 29 Response/Objection, 22 MOTION to Dismiss (Attachments: # 1 Exhibit(s) 1 – 20) (Brown, Bryan) (Entered: 10/18/2023) |
| 10/19/2023 | 32 | Verified OBJECTION, Supplemental to Plaintiff’s Lack of Standing and Court’s Lack of Subject Matter Jurisdiction-Rooker-Feldman Doctrine re: 17 Amended Complaint filed by Steven Crear, Jr, Steven Crear, Sr. (cfk) (Entered: 10/20/2023) |
| 10/20/2023 | 33 | ADDITIONAL ATTACHMENTS to 32 Response/Objection by Defendants Steven Crear, Jr, Steven Crear, Sr. (cfk) (Entered: 10/23/2023) |
| 10/23/2023 | 34 | SUMMONS Returned Executed as to First National Bank of Texas; served on 10/10/2023. (agc) (Entered: 10/23/2023) |
| 10/31/2023 | 35 | Unopposed MOTION to Extend Time motion to dismiss or responsive pleading filed by First National Bank of Texas (Attachments: # 1 Proposed Order) (Huttenbach, William) (Entered: 10/31/2023) |
| 11/01/2023 | 36 | ORDER granting 35 Unopposed Motion for Extension. The deadline to respond to the first amended complaint is November 30, 2023. (Ordered by Magistrate Judge David L. Horan on 11/1/2023) (mcrd) (Entered: 11/01/2023) |
| PACER Service Center | |||
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| Transaction Receipt | |||
| 11/13/2023 19:13:11 |
Scheduling Order
ORDER: The Court authorizes service of the Summons and Complaint of Defendants STEVEN CREAR, SR., and STEVEN CREAR, JR. as follows. The deadline for Plaintiff to complete service of process on Defendants is hereby be extended to 10/6/2023, to ensure adequate time for the substituted service authorized herein, including publication and mailing and affixation at the real property. (Ordered by Judge Sam A. Lindsay on 7/17/2023) (sxf) (Entered: 07/18/2023)
U.S. District Court
Northern District of Texas (Dallas)
CIVIL DOCKET FOR CASE #: 3:23-cv-00745-L
| Deutsche Bank National Trust Company v. Crear et al Assigned to: Judge Sam A. Lindsay Cause: 28:1332 Diversity-Torts to Land |
Date Filed: 04/07/2023 Jury Demand: None Nature of Suit: 240 Real Property: Torts to Land Jurisdiction: Diversity |
| Plaintiff | ||
| Deutsche Bank National Trust Company as Trustee, in Trust for Registered Holders of Long Beach Mortgage Loan Trust 2005-WL2, Asset-Backed Certificates, Series 2005- WL2 |
represented by | Laurel I Handley Aldridge Pite LLP 701 N Post Oak Road Suite 205 Houston, TX 77024 619-326-2403 Fax: 619-590-1385 Email: lhandley@aldridgepite.com LEAD ATTORNEY ATTORNEY TO BE NOTICEDBryan Timothy Brown Hinshaw Culbertson LLP 1717 Main Street Suite 3625 Dallas, TX 75201 945-229-6377 Email: bbrown@hinshawlaw.com ATTORNEY TO BE NOTICEDRobert L Negrin McCarthy Holthus LLP 1255 W 15th St Suite 1060 Plano, TX 75075 713-408-8423 Email: rnegrin@mccarthyholthus.com ATTORNEY TO BE NOTICED |
| V. | ||
| Defendant | ||
| Steven Crear, Sr | ||
| Defendant | ||
| Steven Crear, Jr | ||
| Date Filed | # | Docket Text |
|---|---|---|
| 04/07/2023 | 1 | COMPLAINT against Steven Crear, Jr, Steven Crear filed by Deutsche Bank National Trust Company. (Filing fee $402; Receipt number ATXNDC-13649113) Clerk to issue summons(es). In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the Judges Copy Requirements and Judge Specific 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, # 2 Exhibit(s) Ex. A – Deed of trust, # 3 Exhibit(s) Ex. B – Substitute Trustee’s Deed, # 4 Exhibit(s) Ex. C – Notice to Vacate, # 5 Exhibit(s) Ex. D – fraudulent Foreclosure Rescission, # 6 Exhibit(s) Ex. E – GWD from Crear Sr. to Crear Jr., # 7 Exhibit(s) Ex. F – Home Equity Loan) (Negrin, Robert) (Attachment 1 replaced to flatten PDF on 4/10/2023) (acm). (Entered: 04/07/2023) |
| 04/07/2023 | 2 | 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 Horan). Clerk to provide copy to plaintiff if not received electronically. (acm) (Entered: 04/10/2023) |
| 04/10/2023 | 3 | Summons Issued as to Steven Crear, Jr, Steven Crear, Sr. (acm) (Entered: 04/10/2023) |
| 06/28/2023 | 4 | NOTICE of Attorney Appearance by Laurel I Handley on behalf of Deutsche Bank National Trust Company. (Filer confirms contact info in ECF is current.) (Handley, Laurel) (Entered: 06/28/2023) |
| 07/05/2023 | 5 | MOTION to Extend Time filed by Deutsche Bank National Trust Company (Attachments: # 1 Affidavit(s) Declaration in Support of Motion to Extend Deadline to Serve and for Substituted Service, # 2 Exhibit(s) Exhibit A – Accurint Report for Steven Crear, Sr., # 3 Exhibit(s) Exhibit B – Accurint Report for Steven Crear, Jr., # 4 Exhibit(s) Exhibit C – Due Diligence Report for Steven Crear, Sr., # 5 Exhibit(s) Exhibit D – Due Diligence Report for Steven Crear, Jr., # 6 Exhibit(s) Exhibit E – Provest Summary Report, # 7 Exhibit(s) Exhibit F – Envelopes and USPS Tracking Report, # 8 Proposed Order Proposed Order Extending Deadline to Serve and For Substitute Service) (Handley, Laurel) (Entered: 07/05/2023) |
| 07/11/2023 | 6 | NOTICE of Attorney Appearance by Bryan Timothy Brown on behalf of Deutsche Bank National Trust Company. (Filer confirms contact info in ECF is current.) (Brown, Bryan) (Entered: 07/11/2023) |
| 07/17/2023 | 7 | ORDER: The Court authorizes service of the Summons and Complaint of Defendants STEVEN CREAR, SR., and STEVEN CREAR, JR. as follows. The deadline for Plaintiff to complete service of process on Defendants is hereby be extended to 10/6/2023, to ensure adequate time for the substituted service authorized herein, including publication and mailing and affixation at the real property. (Ordered by Judge Sam A. Lindsay on 7/17/2023) (sxf) (Entered: 07/18/2023) |
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| Transaction Receipt | |||
| 07/29/2023 18:52:39 |
2008: The Indymac fraud continues to cast a long shadow over the lives of countless American homeowners. The unprecedented theft of citizens homes orchestrated by Wall St. stands as a dark stain on the nation’s history. The search for justice is ongoing.https://t.co/0nB5FoGgIh
— lawsinusa (@lawsinusa) July 29, 2023
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.
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
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