It would appear that Windsor is owned by U.S. Bank.
RoundPoint is now a wholly-owned subsidiary of Freedom Mortgage, one of the nation’s largest full-service mortgage companies and a leader in VA and government-insured lending.
This case by Julie Green is on appeal from Judge O’Connor, N.D. Tex. O’Connor’s reputation precedes him as striking down Obamacare for Indicted AG Ken Paxton, which was reversed by the US Supreme Court this week.
JUN 18, 2021 | REPUBLISHED BY LIT: JUN 18, 2021
Before Haynes, Willett, and Ho, Circuit Judges. Per Curiam:*
Julie Green appeals the district court’s grant of summary judgment to Windsor Park Asset Holding Trust and RoundPoint Mortgage Servicing Corporation (collectively, “Defendants”) and consequent dismissal of all of Green’s claims with prejudice.
We AFFIRM.
* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.
New post: Rewind: The FCIC Report of 2011 Records the Greed of Bankers and the Criminal Theft of Citizens Homes https://t.co/7L28TKjFMp
— LawsInTexas (@lawsintexasusa) June 12, 2021
Background
Defendants attempted to foreclose on Green’s house by sending a notice of foreclosure to both her last known mailing address and her house address. Green’s last known mailing address was P.O. Box 2162, Hurst, Texas 76053 (the “Hurst address”). Green’s house address, as listed on the loan and on the deed of trust on her house, was 613 Blue Ridge, Fort Worth, Texas 76179 (the “Fort Worth address”).
Despite stating in her complaint that her house address was the Fort Worth address, Green later contended that her house address actually was 613 Blue Ridge Trail, Saginaw, Texas 76179 (the “Saginaw address”).1
After Defendants sent the notice of foreclosure to the Hurst and Fort Worth addresses, Green submitted a completed borrower assistance application for her house in an attempt to postpone the foreclosure.
Consequently, RoundPoint notified Green at her Hurst address that, although it would make every effort to expedite review of her application, it could not guarantee postponement of the foreclosure sale.
A few days before the date of the foreclosure sale, RoundPoint informed Green at her Hurst address that she did not qualify for borrower assistance.
Green then sought a temporary restraining order and injunction against Defendants to prohibit the scheduled foreclosure in state court.
She alleged that Defendants failed to strictly comply with the timing requirement for foreclosure and brought, among other claims, a breach-of-contract claim.
The state court entered a temporary restraining order, enjoining the foreclosure.
1 We note that we use these terms—the “Saginaw address” and the “Fort Worth address”—only for purposes of discussion. Green points to nothing that proves that these addresses represent two different houses rather than the same house with two different addresses.
New post: Lender Application Fraud Prosecuted by DOJ in 2020 But Homeowners Are Still Being Unlawfully Denied Same https://t.co/LpyYUypVxC
— LawsInTexas (@lawsintexasusa) June 17, 2021
Defendants then timely removed the case to federal court and moved for summary judgment.
In response, Green asserted for the first time that Defendants breached their obligations in the deed of trust because the foreclosure notice was not sent to her Saginaw address, and she thereby never received the notice at that address.
The district court concluded that the summary judgment evidence belied Green’s argument, as the loan and deed of trust both listed the Fort Worth address as the house’s address.
It therefore granted summary judgment to Defendants, and dismissed Green’s claims with prejudice.
Green timely appealed.
Y’all see this @crosscountrymtg? Fancy new offices by thievin’ homes using escrow servicing tricks and lies to homeowners on phone calls that should have been outlawed by @CFPBDirector and @ewarren 10 yrs ago. We’ll see y’all in a @TheJusticeDept case soon https://t.co/ZLt1PHCT9G https://t.co/Vtmjnc61yf
— LawsInTexas (@lawsintexasusa) June 16, 2021
Discussion
The sole issue on appeal is whether Defendants’ failure to send the foreclosure notice to the Saginaw address establishes a genuine material fact issue as to Green’s breach-of-contract claim.2
We review the district court’s grant of summary judgment de novo and “view all facts and evidence in the light most favorable to the non-moving party,” Ferraro v. Liberty Mut. Fire Ins. Co., 796 F.3d 529, 531 (5th Cir. 2015), to determine whether the district court properly concluded that “there is no genuine dispute of material fact,” FED. R. CIV. P. 56(a).
“We may affirm for reasons other than those relied upon by the district court.”
LLEH, Inc. v. Wichita Cnty., 289 F.3d 358, 364 (5th Cir. 2002) (internal alterations and quotation omitted).
We affirm for three reasons.
First, Green’s breach-of-contract claim in her complaint alleged that Defendants violated conditions in the deed of trust, but she never explained which part of the deed was violated. It was only in response to Defendants’ summary judgment motion that Green identified the deed’s notice requirement as the specific violation.
Her failure to specify her breach-of-contract claim in her complaint warrants dismissal of that claim.
Sims v. City of Madisonville, 894 F.3d 632, 643 (5th Cir. 2018) (per curiam) (affirming a district court’s summary judgment dismissing a plaintiff’s vague constitutional claim that was only specified in response to the defendant’s motion for summary judgment);
see also De Franceschi v. BAC Home Loans Servicing, L.P., 477 F. App’x 200, 204 (5th Cir. 2012) (per curiam) (affirming a district court’s dismissal of the plaintiffs’ breach-of-contract claim because their complaint did not allege the breach with “any particularity” until their motion opposing summary judgment).
Second, even if Green properly raised a breach-of-contract claim, it fails on the merits. The relevant law provides that notice of foreclosure must be mailed to the borrower’s “last known address.” Tex. Prop. Code Ann. § 51.002(e).
The “last known address” for a “debt secured by the debtor’s residence” is the address for that residence unless the debtor provides the lender “a written change of address.” Id. § 51.0001(2)(A).
As the district court acknowledged, both the loan and the deed of trust list Green’s residence as the Fort Worth address.
The only reference to Saginaw in these documents is in the legal description of the property, which states that Green’s home is “located in . . . Lot 14, . . . an addition to the city of Saginaw.”
Further, Green never provided Defendants with a written change of address.
Accordingly, there is no genuine material fact dispute regarding Green’s breach-of-contract claim.3
2 Green does not raise any arguments with respect to her other claims that were dismissed with prejudice. Accordingly, we do not address them.
See Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 260 n.9 (5th Cir. 1995) (noting that “the failure to provide any legal or factual analysis of an issue results in waiver of that issue”).
3 In any event, Green implicitly acknowledges that she receives mail at her Hurst address—her last known mailing address—by arguing only that she did not receive foreclosure notices at the Fort Worth address.
If she had not received the notices at either address, presumably, she would have alleged as much in her complaint.
It therefore stands to reason that she received the foreclosure notices at her Hurst address; this implicit admission defeats her breach-of-contract claim.
See Choe v. Bank of Am., N.A., 605 F. App’x 316, 322 (5th Cir. 2015) (per curiam) (holding that “implicit admission of actual notice of the foreclosure precludes a . . . claim founded on a violation of § 51.002”).
Post Edited: Two Florida Foreclosure Lawyers Matt Fuqua and Clay Milton Commit the Most Abhorrent Act https://t.co/fkzM28KlK9
— LawsInTexas (@lawsintexasusa) June 15, 2021
Lastly, even if Defendants breached their notice obligations, summary judgment is proper because Green did not raise a genuine material fact issue regarding damages resulting from the breach.
See Caprock Inv. Corp. v. Montgomery, 321 S.W.3d 91, 99 (Tex. App.—Eastland 2010, pet. denied) (noting that a breach-of-contract claim requires establishing damages).
Green prevailed in obtaining a temporary restraining order on the foreclosure in state court, and no foreclosure occurred.
Although Green now seeks attorney’s fees, those are not damages.
In re Nalle Plastics Fam. Ltd. P’ship, 406 S.W.3d 168, 172–73 (Tex. 2013); see also Cross v. Bank of N.Y. Mellon as Tr. CWALT 2004-30B, 790 F. App’x 647, 648 (5th Cir. 2020) (per curiam)
(affirming a dismissal of a breach-of-contract claim because the plaintiff had not alleged any damages since no foreclosure had occurred).
Consequently, Green fails to establish a genuine material fact dispute regarding her breach-of-contract claim.
AFFIRMED.
Homeowner Nicholson Sues BDF Hopkins and BONYM Before Overworked NDTX Federal Judge Mark Pittman
The impropriety starts early in Nicholson’s federal filing as Judge Means transfers the case to Judge Pittman, contrary to the assignment.
Harriet takes Her Chariot to the Circled Wagons at Gumbo5 Seeking to Reverse a Miscarriage of Justice
Nicholson requests the Court reverse the district court’s judgment; render judgment and declare the Second Court of Appeals judgment is void.
It’s Louann versus Vivian and That German Bank. A Foreclosure Case With Judge Ada Brown Presiding
All the ladies in da house. Mackie Wolf are rejecting Magistrate Judges these days, so Judge Brown maybe will have to work on this one.
