LIT UPDATE & COMMENTARY
Feb 15, May 14,
JUN 27, 2024
It’s all the Wolves together, in “Operation Cleanup” in their vain attempts to cover up fraud and malfeasance for the US and Texas Gov. by the legal profession and the most dangerous branch (with the exception of Wall St Bankers, their sponsors).
It’s okay y’all, LIT’s founder has all the relevant data on the Wolves to prove the “manifest errors of law” and the “injustices” asserted: if you haven’t already done so, scroll down this article and subscribe to our free newsletter for this legal blog, where you’ll receive all the latest facts and irrefutable data on our legal investigations, verifying our position direct to your inbox.
RESPONSE TO DEFENDANTS’ MOTION FOR NEW TRIAL
Plaintiff Wilmington Savings Fund Society, FSB, not in its Individual capacity but solely as Owner Trustee for Cascade Funding Mortgage Trust 2018-RM1 (“Plaintiff” or WSFS”), files this its Response to Defendants’ Motion for New Trial and Brief in Support, and respectfully states as follows:
I. PROCEDURAL HISTORY
1. On May 12, 2023, Plaintiff filed its Motion for Final Summary Judgment (“MSJ”) against Defendants B.B. Barr and Vinida Barr (“Defendants”). (ECF No. 27.)
2. On May 15, 2023, the Court entered a Supplement Scheduling Order requiring Defendants to file their written response to the MSJ by June 12, 2023. (ECF No. 30.) Defendants did not file a response in opposition to the MSJ.
3. On November 16, 2023, the United Magistrate Judge David L. Horan issued his Findings, Conclusions and Recommendation regarding Plaintiff’s MSJ (the “Recommendation”). In his Recommendation, the Magistrate Judge recommended that Plaintiff’s MSJ be granted.
Specifically, the Magistrate Judge concluded that Plaintiff’s summary judgment was not disputed by Defendants and that the evidence showed that Plaintiff is entitled to summary judgment on its foreclosure claim. (ECF No. 32.)
4. On December 11, 2023, Defendants filed their Objections to the Findings, Conclusions, and Recommendation of the United States Magistrate Judge (“Objection”). (ECF No. 33.) On December 18, 2023, Plaintiff filed its Response to Defendants’ Objection and argued that Defendants’ objections were generic, vague, and unsupported by the evidence. Further, Plaintiff argued that the summary judgment undisputedly showed that Plaintiff has standing to foreclose as the owner and holder of the subject Note and as beneficiary of the subject Security Instrument. (ECF No. 34.)
5. On January 11, 2024, the Court entered an Order Accepting Findings, Conclusions, and Recommendation of the United States Magistrate Judge. (ECF No. 35.) On January 12, 2024, the Court entered an Amended Judgment granting Plaintiff’s MSJ and allowing it to proceed with non-judicial foreclosure on the subject Property. (ECF No. 39.)
6. On February 6, 2024, Defendants filed a Motion for New Trial and Brief in Support (the “Motion”) seeking an order from the Court allowing them to file a response to the MSJ and denying it. (ECF No. 41.) In their Motion, Defendants reassert the same arguments they included in their Objection to the Recommendation. (ECF No. 33.)
7. The only “new” argument is that Defendants allegedly relied on “settlement negotiations”.
As further discussed below, under Rule 59(e), such an argument is insufficient for Defendants to prevail on their Motion.
Further, as Defendants are aware, their request for a short sale was denied due to their failure to timely comply with the requirements for a short sale.
Plaintiff acted in good faith and allowed them several opportunities, but Defendants failed to have a buyer with the ability to close the transaction by the prescribed deadline.
II. ARGUMENTS AND AUTHORITIES
A. Applicable Standard
A motion asking the Court to reconsider a prior ruling is therefore evaluated either as a motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e) or as a motion for relief from a final judgment, order, or proceeding under Federal Rule of Civil Procedure 60(b).
Tex. A&M Rsch. Found. v. Magna Transp., Inc., 338 F.3d 394, 400 (5th Cir. 2003).
The applicable rule depends on when the motion was filed—if the motion was filed within twenty-eight days after the entry of judgment, it is analyzed under Rule 59, and, if it was filed outside of that time, it is analyzed under Rule 60.
Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 n.2 (5th Cir. 2012).
Here, Defendants’ Motion, through which they seek “reconsideration” of the Court’s summary judgment ruling was filed on February 6, 2024, within twenty-eight (28) days of the Court’s entry of judgment.
Accordingly, Rule 59(e) applies here.
Mid-Am. Supply Corp. v. Truist Bank, Civil Action No. 4:21-CV-00841, 2023 U.S. Dist. LEXIS 98424, at *3 (E.D. Tex. June 6, 2023).
Rule 59(e) serves the “narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence.”
Templet v. HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004).
Thus, Rule 59(e) does not provide a vehicle “to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.”
Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5, 128 S. Ct. 2605, 171 L. Ed. 2d 570 (2008).
Instead, to prevail on a Rule 59(e) motion, the movant must show:
(1) a manifest error of law or fact;
(2) an intervening change in controlling law;
(3) the availability of new evidence not previously available;
or
(4) that the motion is necessary to prevent manifest injustice.
Schiller v. Physicians Res. Grp., Inc., 342 F.3d 563, 567 (5th Cir. 2003).
In this context, a “manifest error of law” is an error “that is plain and indisputable, and that amounts to a complete disregard for controlling law.”
Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004). Relief under Rule 59(e) is an extraordinary remedy that should be used sparingly. Templet, 367 F.3d at 479.
When, as here, summary judgment has been granted, the disposed claims do not proceed to a formal trial, making a “new trial” a logical fallacy.
Burbridge v. Citimortgage, Inc., No. 4:19-CV-00647, 2021 U.S. Dist. LEXIS 109414, 2021 WL 2343256, at *1 (E.D. Tex. Mar. 17, 2021)
(“Because no trial was held in this case, Rule 59(a) does not apply.”).
Because Defendants’ Motion seeks reconsideration of the Court’s decision to grant summary judgment in favor of Plaintiff, it should be properly construed as a motion under Rule 59(e).
Burbridge, 2021 U.S. Dist. LEXIS 109414, 2021 WL 2343256, at *1.
Defendants’ motion is merely a rehashing of unsupported legal theories already asserted by them in their Objection to the Recommendation, considered and rejected by the Court.
Mid- Am. Supply Corp. v. Truist Bank, Civil Action No. 4:21-CV-00841, 2023 U.S. Dist. LEXIS 98424, at *5-6 (E.D. Tex. June 6, 2023).
B. Defendant failed to satisfy the Rule 59(e) standard.
Despite being informed by the Court that their deadline to file a response to the MSJ was June 12, 2023, Defendants ignored this Court’s order and did not file a response.
As to Defendants’ argument that they were “relying on settlement negotiations” that assertion is not correct. Plaintiff was willing to abate this matter, only upon Defendants’ compliance with all of the requirements and final approval for a short sale. However, Defendants failed to timely comply with requirements and their request for a short sale was denied on August 31, 2023.
As such, Defendants were aware that their request was denied and still failed to file a response to the MSJ or to request an extension.
Defendants’ Motion merely repeats the same arguments already asserted in their Objection to the Recommendation. (ECF No. 33.)
Defendants argue that there are “procedural defenses to Plaintiff’s claims including defects in the applications of credits and debits to the Texas Home Equity Loan at issue” and that Plaintiff allegedly “misapplied property tax debits and credits”.
These arguments were already considered and rejected by the Court when it accepted the Recommendation and entered final judgment. (ECF Nos. 33, 34, 35.)
Rosenzweig v. Azurix Corp., 332 F.3d 854, 863 (5th Cir. 2003)
(Rule 59 cannot be used to raise arguments which could, and should, have been made before the judgment was issued.).
Without establishing manifest error of law or fact, newly discovered evidence, or an intervening change in controlling law, Defendants’ Motion with recycled legal arguments that were already considered and rejected, cannot stand as basis for a new trial or alteration of the judgment.
Darbey v. Nurnberg, Civil Action No. 3:20-CV-01329-E, 2023 U.S. Dist. LEXIS 14051 at *11 (N.D. Tex. Jan. 27, 2023)
(denying plaintiff’s motion for new trial because it only rehashed old arguments).
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that the Court enters an order denying Defendants’ Motion for New Trial and Brief in Support.
Plaintiff further requests any other relief, whether at law or in equity, to which it is justly entitled.
Respectfully submitted,
By: /s/ Vivian N. Lopez
MARK D. CRONENWETT
Texas Bar No. 00787303 mcronenwett@mwzmlaw.com
VIVIAN N. LOPEZ
Texas Bar No. 24129029 vlopez@mwzmlaw.com
MACKIE WOLF ZIENTZ & MANN, P.C.
14160 North Dallas Parkway, Suite 900
Dallas, TX 75254
Telephone: 214-635-2650
Facsimile: 214-635-2686
ATTORNEYS FOR PLAINTIFF
NOTICE of Attorney Appearance by Crystal Gee Gibson on behalf of Wilmington Savings Fund Society, FSB. (Filer confirms contact info in ECF is current.) (Gibson, Crystal) (Entered: 06/05/2024)
U.S. District Court
Northern District of Texas (Dallas)
CIVIL DOCKET FOR CASE #: 3:22-cv-00735-S-BN
| Wilmington Savings Fund Society, FSB v. Barr et al Assigned to: Judge Karen Gren Scholer Referred to: Magistrate Judge David L. Horan Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 03/31/2022 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 06/05/2024 | 43 | NOTICE of Attorney Appearance by Crystal Gee Gibson on behalf of Wilmington Savings Fund Society, FSB. (Filer confirms contact info in ECF is current.) (Gibson, Crystal) (Entered: 06/05/2024) |
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| 06/27/2024 15:52:59 |
Of course, there’s probably a non judicial foreclosure being conducted in the background…
U.S. District Court
Northern District of Texas (Dallas)
CIVIL DOCKET FOR CASE #: 3:22-cv-00735-S-BN
| Wilmington Savings Fund Society, FSB v. Barr et al Assigned to: Judge Karen Gren Scholer Referred to: Magistrate Judge David L. Horan Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 03/31/2022 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 02/14/2024 | 42 |
RESPONSE filed by Wilmington Savings Fund Society, FSB re: 41 MOTION for New Trial (Lopez, Vivian) (Entered: 02/14/2024) |
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| 05/14/2024 18:59:47 |
The amended judgment entered, on Valentines Day, Feb 14, 2024 the Barr’s received a love letter from the Wolves objecting to their request for reconsideration of the judgment of foreclosure.
U.S. District Court
Northern District of Texas (Dallas)
CIVIL DOCKET FOR CASE #: 3:22-cv-00735-S-BN
| Wilmington Savings Fund Society, FSB v. Barr et al Assigned to: Judge Karen Gren Scholer Referred to: Magistrate Judge David L. Horan Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 03/31/2022 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 01/11/2024 | 36 | JUDGMENT: This case is DISMISSED WITH PREJUDICE. (Ordered by Judge Karen Gren Scholer on 1/11/2024) (axm) (Entered: 01/11/2024) |
| 01/12/2024 | 37 | MOTION to Modify Final Judgment filed by Wilmington Savings Fund Society, FSB (Attachments: # 1 Proposed Amendment) (Lopez, Vivian) (Entered: 01/12/2024) |
| 01/12/2024 | 38 | ELECTRONIC ORDER: The Court GRANTS 37 Plaintiff’s Motion to Modify Final Judgment. The Court will enter an amended final judgment by separate order. (Ordered by Judge Karen Gren Scholer on 1/12/2024) (chmb) (Entered: 01/12/2024) |
| 01/12/2024 | 39 | AMENDED JUDGMENT: It is ORDERED, ADJUDGED, and DECREED that Plaintiff Wilmington Savings Fund Society, FSB, not in its individual capacity but solely as Owner Trustee for Cascade Funding Mortgage Trust 2018-RMl ‘s Motion for Summary Judgment [ECF No. 27] is GRANTED. The Clerk shall transmit to the parties a true copy of this Judgment, of the Court’s Order Accepting the Findings, Conclusions, and Recommendation of the United States Magistrate Judge, and of the Findings, Conclusions, and Recommendation of the United States Magistrate Judge dated 11/16/2023. (Ordered by Judge Karen Gren Scholer on 1/12/2024) (kaf) (Entered: 01/16/2024) |
| 01/31/2024 | 40 | MOTION for Attorney Fees filed by Wilmington Savings Fund Society, FSB (Attachments: # 1 Exhibit(s), # 2 Proposed Order) (Lopez, Vivian) (Entered: 01/31/2024) |
| 02/06/2024 | 41 | MOTION for New Trial with brief and support filed by B.B. Barr, Vinida Barr. with Brief/Memorandum in Support. (kaf) (Entered: 02/07/2024) |
| 02/14/2024 | 42 | RESPONSE filed by Wilmington Savings Fund Society, FSB re: 41 MOTION for New Trial (Lopez, Vivian) (Entered: 02/14/2024) |
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| 02/15/2024 07:58:10 |
LIT UPDATES
Apr 26, 2023, Sep 22, 2023
Waiting for final order.
Dispositive Motions due by 6/2/2023.
NOTICE OF NO OBJECTION TO PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
Plaintiff Wilmington Savings Fund Society, FSB, not in its Individual capacity but solely as Owner Trustee for Cascade Funding Mortgage Trust 2018-RM1 (“Plaintiff” or WSFS”), files this Notice of No Objection to Plaintiff’s Motion for Final Summary Judgment and respectfully states:
1. On May 12, 2023, Plaintiff filed its Motion for Final Summary Judgment (“MSJ”) against Defendants B.B. Barr and Vinida Barr (“Defendants”). (ECF No. 27.)
2. On May 15, 2023, the Court entered Supplement Scheduling Order requiring Defendants to file their written response to the MSJ by June 12, 2023. (ECF No. 30.)
3. No objections were filed by Defendants within the prescribed time. Accordingly, at this point the Court can grant Plaintiff’s MSJ as unopposed.
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that the Court enters an order granting Plaintiff’s Motion for Final Summary Judgment and grant it any other relief, whether at law or in equity, to which it is justly entitled.
U.S. District Court
Northern District of Texas (Dallas)
CIVIL DOCKET FOR CASE #: 3:22-cv-00735-S-BN
| Wilmington Savings Fund Society, FSB v. Barr et al Assigned to: Judge Karen Gren Scholer Referred to: Magistrate Judge David L. Horan Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 03/31/2022 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 05/15/2023 | 30 | SUPPLEMENTAL SCHEDULING ORDER: Plaintiff Wilmington Savings Fund Society, FSB, not in its individual capacity but solely in its capacity as Owner Trustee for Cascade Funding RM1 Acquisitions Grantor Trust, has filed a motion for summary judgment. See Dkt. No. 27 . Defendants B.B. Barr and Vinida Barr must file a written response to the motion by June 12, 2023. Plaintiff Wilmington may file a reply brief, but no additional evidence, by June 27, 2023. (Ordered by Magistrate Judge David L. Horan on 5/15/2023) (mcrd) (Entered: 05/15/2023) |
| 08/10/2023 | 31 | NOTICE of No Objection to Plaintiffs Motion for Final Summary Judgment filed by Wilmington Savings Fund Society, FSB. (Lopez, Vivian) Modified text on 8/10/2023 (sxf). (Entered: 08/10/2023) |
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| 09/22/2023 16:52:06 |
MEMORANDUM OPINION AND ORDER
Plaintiff Wilmington Savings Fund Society, FSB, not in its individual capacity but solely in its capacity as Owner Trustee for Cascade Funding RM1 Acquisitions Grantor Trust (“Wilmington”) has filed an unopposed Motion to Substitute Party Plaintiff. See Dkt. No. 21.
For the reasons and to the extent explained below, the Court grants the Motion to Substitute Party Plaintiff.
Background
This case concerns Wilmington’s attempt to foreclose on the Barrs’ property in Dallas, Texas (the “Property”). The Barrs executed a Note and a Deed of Trust securing it on June 27, 2008 (collectively the “Loan Agreement”). See Dkt. No. 1-1 at 12, 28. Through a series of assignments and transfers, Wilmington became the assignee of the Loan Agreement on June 19, 2018. See Dkt. No. 1-1 at 49-56.
On September 1, 2022, Wilmington assigned and transferred the Loan Agreement to Wilmington Savings Fund Society, FSB, not in its Individual capacity but solely as Owner Trustee for Cascade Funding Mortgage Trust 2018-RM1 (“Wilmington as Trustee for Cascade 2018-RM1”). See Dkt. No. 21 at 1.
Wilmington then filed this Motion to Substitute Party Plaintiff to substitute Wilmington as Trustee for Cascade 2018-RM1 for Wilmington as Plaintiff. See Dkt. No. 21.
Legal Standard and Analysis
Federal Rule of Civil Procedure 25(c) states that, “[i]f an interest is transferred, the action may be continued by or against the original party unless the court, on motion, orders the transferee to be substituted in the action or joined with the original party.” FED. R. CIV. P. 25(c). “Under Rule 25(c), the court may direct that the person to whom the interest has been transferred be substituted.” Matter of Covington Grain Co., Inc., 638 F.2d 1357, 1361 (5th Cir. 1981). “Rule 25(c) is not designed to create new relationships among parties to a suit but is designed to allow the action to continue unabated when an interest in the lawsuit changes hands.” Matter of Covington Grain Co., Inc., 638 F.2d 1362, 1364 (5th Cir. 1981).
“Rule 25(c) includes permissive language, and does not require transferees to substitute in an action.” F.D.I.C. v. SLE, Inc., 722 F.3d 264, 268 (5th Cir. 2013). “[T]he district court has broad discretion to order substitution, deny substitution, or direct that the transferee be joined as an additional party.” Finova Capital Corp. v. Lawrence, No. 399CV2552-M, 2000 WL 1808276 at *1 (N.D. Tex. Dec. 8, 2000).
Whether the substitution will simplify the case is a primary consideration in deciding a motion to substitute. See Virginia Innovation Scis., Inc. v. Amazon.com, Inc., No. 4:18-CV-474, 2019 WL 3082314 at *4 (E.D. Tex. July 15, 2019).
The United States Supreme Court has “consistently held that if jurisdiction exists at the time an action is commenced, such jurisdiction may not be divested by subsequent events.” Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428 (1991). The United States Court of Appeals for the Fifth Circuit explained its understanding of Freeport-McMoRan in Cobb v. Delta Exports, Inc.: “[D]iversity jurisdiction is not defeated by the substitution of a non-diverse party. The Court limited its holding to dispensable parties, noting that if the party that was added had been indispensable when suit was filed, the addition of the non-diverse party would have defeated diversity jurisdiction.” 186 F.3d 675, 679 (5th Cir. 1999).
Federal Rule of Civil Procedure 19 “lists four factors for courts to consider in deciding whether a party is indispensable: 1) prejudice to an absent party or others in the lawsuit from a judgment; 2) whether the shaping of relief can lessen prejudice to absent parties; 3) whether adequate relief can be given without participation of the party; and 4) whether the plaintiff has another effective forum if the suit is dismissed.” Cornhill Ins. PLC v. Valsamis, Inc., 106 F.3d 80 (5th Cir. 1997).
Here, Wilmington does not allege the citizenship of Wilmington as Trustee for Cascade 2018-RM1. But, at the time of filing, the litigants could have been given adequate relief without the participation of Wilmington as Trustee for Cascade 2018- RM1. It had no interest in the Loan Agreement at that time. And so it was not an indispensable party. Because it was not an indispensable party, diversity jurisdiction will not be defeated by substituting Wilmington as Trustee for Cascade 2018-RM1, whether or not it is a non-diverse party.
And substituting Wilmington as Trustee for Cascade 2018-RM1 will simplify the case. It will make the assignee of the Loan Agreement the plaintiff, allowing the litigation to proceed between the parties with an interest in the Loan Agreement: Wilmington as Trustee for Cascade 2018-RM1 and the Barrs.
Conclusion
For the reasons stated above, the Court GRANTS Plaintiff’s Motion to Substitute Party Plaintiff. See Dkt. No. 21.
The Court ORDERS that Wilmington Savings Fund Society, FSB, not in its Individual capacity but solely as Owner Trustee for Cascade Funding Mortgage Trust 2018-RM1 is substituted under Federal Rule of Civil Procedure 25(c) for Wilmington Savings Fund Society, FSB, not in its individual capacity but solely in its capacity as Owner Trustee for Cascade Funding RM1 Acquisitions Grantor Trust for all purposes of this litigation, including as named plaintiff.
DATED: February 1, 2023
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
U.S. District Court
Northern District of Texas (Dallas)
CIVIL DOCKET FOR CASE #: 3:22-cv-00735-S-BN
| Wilmington Savings Fund Society, FSB v. Barr et al Assigned to: Judge Karen Gren Scholer Referred to: Magistrate Judge David L. Horan Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 03/31/2022 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 02/27/2023 | 26 | ORDER granting 25 Unopposed Second Motion to Extend Dispositive Motion Deadline. Dispositive Motions due by 6/2/2023. (Ordered by Magistrate Judge David L. Horan on 2/27/2023) (mcrd) (Entered: 02/28/2023) |
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| 04/26/2023 01:33:28 |
Magistrate Judge David L. Horan tryin’ to get a hold of the docket….
U.S. District Court
Northern District of Texas (Dallas)
CIVIL DOCKET FOR CASE #: 3:22-cv-00735-S-BN
| Wilmington Savings Fund Society, FSB v. Barr et al Assigned to: Judge Karen Gren Scholer Referred to: Magistrate Judge David L. Horan Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 03/31/2022 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 05/18/2022 | 11 | NOTICE of Service of its Initial Rule 26 Disclosures, filed by Wilmington Savings Fund Society, FSB (Lopez, Vivian) (Entered: 05/18/2022) |
| 05/20/2022 | 12 | AMENDED STANDING ORDER ON DISCOVERY AND OTHER NON-DISPOSITIVE MOTIONS: This order VACATES and SUPERSEDES the April 27, 2022 Standing Order on Discovery and Other Non-Dispositive Motions [Dkt. No. 9 ]. (Ordered by Magistrate Judge David L. Horan on 5/20/2022) (mcrd) (Entered: 05/20/2022) |
| 05/25/2022 | 13 | Joint STATUS REPORT Joint 26(f) Report, filed by Wilmington Savings Fund Society, FSB. (Lopez, Vivian) (Entered: 05/25/2022) |
| 05/26/2022 | 14 | INITIAL SCHEDULING ORDER: Amended Pleadings due by 7/22/2022. Discovery due by 11/11/2022. Joinder of Parties due by 7/22/2022. Deadline for mediation is on or before 1/9/2023. Motions due by 1/2/2023. (Ordered by Magistrate Judge David L. Horan on 5/26/2022) (oyh) (Entered: 05/26/2022) |
| 07/21/2022 | 15 | MOTION for Leave to File First Supplement to its Complaint, filed by Wilmington Savings Fund Society, FSB (Attachments: # 1 Proposed Order) (Cronenwett, Mark) (Entered: 07/21/2022) |
| 07/21/2022 | 16 | Supplemental Document by Wilmington Savings Fund Society, FSB as to 1 Complaint. (Cronenwett, Mark) Modified text on 7/22/2022 (ygl). (Entered: 07/21/2022) |
| 07/25/2022 | 17 | ***VACATED PER 18 ORDER*** ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST SUPPLEMENT TO ITS ORIGINAL COMPLAINT. (Unless the document has already been filed, clerk to enter the document as of the date of this order.) (Ordered by Magistrate Judge David L. Horan on 7/25/2022) (mcrd) Modified on 7/25/2022 (mcrd). (Entered: 07/25/2022) |
| 07/25/2022 | 18 | ORDER VACATING COURT’S PREVIOUS ORDER AND ORDERING DEFENDANTS’ RESPONSE: The Court VACATES its previous Order Granting Plaintiffs Motion for Leave to File First Supplement to Plaintiffs Original Complaint [Dkt. No. 17 ] and ORDERS that Defendants file their response to Plaintiff’s Motion, if any, by August 5, 2022. (Ordered by Magistrate Judge David L. Horan on 7/25/2022) (mcrd) (Entered: 07/25/2022) |
| 08/08/2022 | 19 | Designation of Experts by Wilmington Savings Fund Society, FSB. (Attachments: # 1 Exhibit(s)) (Cronenwett, Mark) (Entered: 08/08/2022) |
| 08/12/2022 | 20 | ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST SUPPLEMENT TO ITS ORIGINAL COMPLAINT: MOTION for Leave to File First Supplement to its Complaint, filed by Wilmington Savings Fund Society, FSB is, GRANTED. Accordingly, it is therefore ORDERED that First Supplement to Plaintiffs Original Complaint be accepted for filing. (Ordered by Magistrate Judge David L. Horan on 8/12/2022) (svc) (Entered: 08/15/2022) |
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| 09/25/2022 21:42:08 |
No movement since May 26.
Scheduling Order
Wilmington Savings Fund Society, FSB v. Barr
(3:22-cv-00735)
District Court, N.D. Texas
MAR 31, 2022 | REPUBLISHED BY LIT: APR 2, 2022
Wilmington Savings Fund FSB v Byron Burke Barr and Vinida Barr before Judge Karen Scholer
It appears to LIT from reading the complaint, this is a Steve Mnuchin, Freedom ‘Reverse’ Mortgage from his IndyMac Bank days. The now-former Treasury Sec (to Past President Donald Trump) and former Goldman Sachs banker purchased Indymac along with other investors (like Dell) for cent on the dollar after the 2008 Financial Crisis. His past interest in this mortgage – he was called the ‘Foreclosure King’ for a reason – raises red flags immediately.
In short, it has been proven in the recent litigation in Federal court that the Indymac predatory loan is void; See; Deutsche Bank v. Burke who defeated wrongful foreclosure of a HELOC Indymac mortgage not once, but twice in Texas Federal Court.
PLAINTIFF’S ORIGINAL COMPLAINT
Plaintiff Wilmington Savings Fund Society, FSB, not in its individual capacity but solely in its capacity as Owner Trustee for Cascade Funding RM1 Acquisitions Grantor Trust (“Wilmington” or “Plaintiff”), complains of B.B. Barr and Vinida Barr, Defendants, files this Original Complaint, and states as follows:
I. PARTIES
1. Plaintiff is appearing through the undersigned counsel.
2. Defendant B.B. Bar is an obligor and mortgagor under the subject loan agreement and may be served with process at 6638 Williamson Road, Dallas, Texas 75214, or such other place where he may be found. Summons is requested.
3. Defendant Vinida Barr is a co-mortgagor under the subject loan agreement and may be served with process at 6638 Williamson Road, Dallas, Texas 75214, or such other place where she may be found. Summons is requested.
II. PROPERTY
4. This proceeding concerns the following real property and improvements commonly known as 6638 Williamson Road, Dallas, Texas 75214, more particularly described as:
BEING ESTATE “F” IN BLOCK 18/2970 IN BOB-O-LINKS DOWNS NO. FOUR, AN ADDITION TO THE CITY OF DALLAS, TEXAS, ACCORDING TO THE MAP THEREOF RECORDED IN VOLUME 17, PAGE 391, MAP RECORDS, DALLAS COUNTY, TEXAS. (The “Property”).
III. DIVERSITY JURISDICTION AND VENUE
5. This Court has jurisdiction over the controversy because there is complete diversity between Plaintiff and Defendants, and the amount in controversy exceeds $75,000.00. See 28 U.S.C. § 1332.
6. Plaintiff is the trustee for a mortgage securitized trust. When determining the citizenship of the real parties in interest for purposes of diversity jurisdiction, it is the citizenship of the trustee which controls, not the citizenship of the beneficiaries of the trust. Navarro Sav. Assoc. v. Lee, 446 F. Supp. 2d 261, 263 (S.D.N.Y. 2008). Wilmington is a national banking association organized under the laws of the United States. A national banking association organized under the laws of the United States is considered a citizen of the state in which it is “located.” See 28 U.S.C. § 1348. A national bank is located only in the state of its main office as established in the bank’s article of association. See Wachovia Bank, N.A. v. Schmidt, 546 U.S. 303, 318 (2006). According to its articles of association, Wilmington’s main office is located in Wilmington, Delaware and, thus, Wilmington is a citizen of Delaware.
7. Defendants are individuals and citizens of the state of Texas.
8. In this suit, Plaintiff seeks a declaratory judgment to foreclose on real property.
Because the lien interest is valued at more than $75,000.00, the minimum amount-in-controversy requirement has been met.
9. When a party seeks declaratory relief, the amount in controversy is measured by the value of the object of the litigation, and the value of that right is measured by the losses that will follow. Webb v. Investacorp, Inc., 89 F.3d 252, 256 (5th Cir. 1996). Stated differently, the amount in controversy is “the value of the right to be protected or the extent of the injury to be prevented.”
Hartford Ins. Grp. v. Lou-Con, Inc., 293 F.3d 908, 910 (5th Cir. 2002) (quoting Leininger v. Leininger, 705 F.2d 727, 729 (5th Cir. 1983)); see also Farkas, 737 F.3d at 341.
10. Here, the value of the right to be protected is enforcement of a mortgage lien through foreclosure. If Plaintiff were to foreclose on the Property, it would be entitled to either the full use and possession of it, or the proceeds of a foreclosure sale.
As of March 21, 2022, the total amount due was $2,393,824.17.
Therefore, the amount in controversy is more than $75,000.00.
11. Venue is proper in the Northern District of Texas, Dallas Division, because this suit concerns title to real property located in Dallas County, Texas. See 28 U.S.C. §§ 124, 1391(b)(2).
IV. FACTS
12. The foregoing paragraphs are incorporated by reference for all purposes.
12. On or about June 27, 2008, for value received, B.B. Barr executed that certain Texas Cash Account Advantage Adjustable-Rate Reverse Mortgage Loan Account Disclosure Statement, Note and Agreement (the “Note”) originally payable to Financial Freedom Senior Funding Corporation, a subsidiary of IndyMac Bank, F.S.B. (“Financial Freedom”), in the maximum principal amount of $2,290,400.00 bearing adjustable interest at the initial rate of 6.9300% per annum.
The Note was also signed by Borrower’s spouse, Vinida Barr, in her capacity of non-borrower spouse.
A true and correct copy of the Note is attached hereto as Exhibit A.
13. Concurrently with the Note, Borrower and his spouse, Vinida Barr, (“Borrowers”) executed that certain Texas Deed of Trust (the “Security Instrument” and together with the Note, the “Loan Agreement”), as grantors, granting a security interest in the Property.
The Security Instrument was recorded in the Official Public Records of Dallas County, Texas under Document Number 20080220214.
A true and correct copy of the Security Instrument is attached hereto as Exhibit B.
14. Financial Freedom then assigned and transferred the Loan Agreement to Mortgage Electronic Registration Systems, Inc. (“MERS”).
The Corporate Assignment of Deed of Trust was recorded in the Official Public Records of Dallas County, Texas under Document Number 200900280859.
A true and correct copy of the Corporate Assignment of Deed of Trust is attached hereto as Exhibit C.
15. MERS then assigned and transferred the Loan Agreement to Onewest Bank, N.A. (“Onewest”).
The Assignment of Deed of Trust was recorded in the Official Public Records of Dallas County, Texas under Document Number 201400262433. A true and correct copy of the Assignment of Deed of Trust is attached hereto as Exhibit D.
16. Onewest then assigned and transferred the Loan Agreement to Wilmington.
The Assignment of Deed of Trust was recorded in the Official Public Records of Dallas County, Texas under Document Number 201800197462. A true and correct copy of the Assignment of Deed of Trust is attached hereto as Exhibit E.
17. Under the terms of the Loan Agreement, the Borrowers were required to repair, maintain, pay taxes, and assessments on, and insure the Property.
The Loan Agreement further provides that should the Borrowers fail to timely pay the property taxes or maintain insurance on the Property or fail to comply with any or all of the covenants and conditions of the Loan Agreement, then the lender may require immediate payment in full of all outstanding principal and accrued interest owed on the Note.
The Loan Agreement further provides that the lender may enforce the Security Instrument by selling the Property according to law and in accordance with the provisions set out in the agreement.
18. Though Borrowers have had the use, benefit, and enjoyment of the Property, he had failed or refused to pay the outstanding balance of taxes and/or insurance on the Property.
Notice of Default and Intent to Accelerate was served on Borrowers in accordance with the Loan Agreement and the Texas Property Code on July 14, 2021.
In the Notice of Default, Borrowers were advised that due to the default under the Loan Agreement full payment of all sums secured by the Security Instrument were now outstanding. A true and correct copy of the Notice of Default and Intent to Accelerate is attached hereto as Exhibit F.
19. The default was not cured, and the maturity of the debt was accelerated. Notice of Acceleration of Loan Maturity was served on Borrowers in accordance with the Loan Agreement and the Texas Property Code on August 20, 2021.
A true and correct copy of the Notice of Acceleration of Loan Maturity is attached hereto as Exhibit G.
20. Wilmington is the current legal owner and holder of the blank endorsed Note.
Wilmington is also the beneficiary of the Security Instrument and a mortgagee as that term is defined in Section 51.002 of the Texas Property Code.
21. In accordance with Texas Rule of Civil Procedure 54, all conditions precedent have been performed or have occurred for Plaintiff to enforce its security interest against the Property.
Plaintiff brings this suit to obtain an order for foreclosure.
V. CAUSE OF ACTION: NON-JUDICIAL FORECLOSURE
22. The foregoing paragraphs are incorporated by reference for all purposes.
23. As the current mortgagee of record who has the right to enforce the Note and Security Instrument, Plaintiff asserts a cause of action for non-judicial foreclosure against defendants.
The Loan Agreement is a contract, and Plaintiff fully performed its obligations under it.
Borrowers, however, did not comply with the Loan Agreement by failing to substantially perform material obligations required under its terms.
Therefore, Plaintiff seeks a judgment allowing it to foreclose on the Property in accordance with the Security Instrument and Texas Property Code § 51.002.
VI. CONDITIONS PRECEDENT
24. The foregoing paragraphs are incorporated by reference for all purposes.
25. All conditions precedent for foreclosure have been performed or have occurred, and any other action required under applicable law and the loan agreement, contract, or lien sought to be foreclosed has been performed.
VII. PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that Defendants be summoned to appear and answer, and that the Court enter judgment granting: a declaration that Plaintiff’s lien against the Property shall be enforced by non-judicial foreclosure under Security Instrument’s power-of-sale provision and the Texas Property Code or, alternatively, by judicial
foreclosure. Plaintiff further requests attorneys’ fees and costs of suit as a further obligation on the Note, and all other relief, in law and in equity, to which it is entitled.
Respectfully submitted,
By: /s/ Mark D. Cronenwett
MARK D. CRONENWETT
Texas Bar No. 00787303 mcronenwett@mwzmlaw.com
VIVIAN N. LOPEZ
State Bar No. 20818 vlopez@mwzmlaw.com
MACKIE WOLF ZIENTZ & MANN, P.C.
14160 North Dallas Parkway, Suite 900
Dallas, Texas 75254
Telephone: 214-635-2650
Facsimile: 214-635-2686
ATTORNEYS FOR PLAINTIFF
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U.S. District Court
Northern District of Texas (Dallas)
CIVIL DOCKET FOR CASE #: 3:22-cv-00735-S-BN
| Wilmington Savings Fund Society, FSB v. Barr et al Assigned to: Judge Karen Gren Scholer Referred to: Magistrate Judge David L. Horan Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 03/31/2022 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Plaintiff | ||
| Wilmington Savings Fund Society, FSB not in its individual capacity but solely in its capacity as Owner Trustee for Cascade Funding RM1 Acquisitions Grantor Trust |
represented by | Mark 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 LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good StandingVivian Nahir Lopez Mackie Wolf Zientz Mann PC 14160 N Dallas Parkway Suite 900 Dallas, TX 75254 214-635-2662 Fax: 214-635-2686 Email: vlopez@mwzmlaw.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing |
| V. | ||
| Defendant | ||
| B.B. Barr | ||
| Defendant | ||
| Vinida Barr | ||
| Date Filed | # | Docket Text |
|---|---|---|
| 03/31/2022 | 1 | COMPLAINT against B.B. Barr, Vinida Barr filed by Wilmington Savings Fund Society, FSB. (Filing fee $402; Receipt number 0539-12712932) 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 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 Exhibit(s), # 2 Cover Sheet) (Cronenwett, Mark) (Entered: 03/31/2022) |
| 03/31/2022 | 2 | Request for Clerk to issue Summons as to all Defendants, filed by Wilmington Savings Fund Society, FSB. (Cronenwett, Mark) (Entered: 03/31/2022) |
| 03/31/2022 | 3 | CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Wilmington Savings Fund Society, FSB. (Clerk QC note: No affiliate entered in ECF). (Lopez, Vivian) (Entered: 03/31/2022) |
| 03/31/2022 | 4 | New Case Notes: A filing fee has been paid. CASREF case referral set and case referred to Magistrate Judge Horan (see Special Order 3). 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. (ykp) (Entered: 03/31/2022) |
| 03/31/2022 | 5 | Summons Issued as to B.B. Barr, Vinida Barr. (ykp) (Entered: 03/31/2022) |
U.S. District Court
Northern District of Texas (Dallas)
CIVIL DOCKET FOR CASE #: 3:22-cv-00735-S-BN
| Wilmington Savings Fund Society, FSB v. Barr et al Assigned to: Judge Karen Gren Scholer Referred to: Magistrate Judge David L. Horan Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 03/31/2022 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 03/31/2022 | 5 | Summons Issued as to B.B. Barr, Vinida Barr. (ykp) (Entered: 03/31/2022) |
| 04/07/2022 | 6 | SUMMONS Returned Executed as to B.B. Barr, served on 4/5/2022. (Lopez, Vivian) (Entered: 04/07/2022) |
| 04/07/2022 | 7 | SUMMONS Returned Executed as to Vinida Barr, served on 4/5/2022. (Lopez, Vivian) (Entered: 04/07/2022) |
| 04/26/2022 | 8 | ANSWER to 1 Complaint, filed by B.B. Barr, Vinida Barr. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms and Instructions 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. (oyh) (Entered: 04/27/2022) |
| 04/27/2022 | 9 | STANDING ORDER ON DISCOVERY AND OTHER NON-DISPOSITIVE MOTIONS. (Ordered by Magistrate Judge David L. Horan on 4/27/2022) (jmg) (Entered: 04/28/2022) |
| 04/27/2022 | 10 | ORDER REQUIRING 26(F) REPORT: By 5/25/2022, the parties must submit a joint written Rule 26(f) report containing a proposed discovery plan. (Ordered by Magistrate Judge David L. Horan on 4/27/2022) (jmg) (Entered: 04/28/2022) |
