Acceleration

Young’s ‘Pretty Good Deal’ is Another Baked Fifth Circuit Foreclosure Opinion by an Infamous 3-Panel

Compare, for example, the foreclosure case of Rob authored by Judge Stephen Higginson in 2018 which reversed and rendered for homeowners.

Young v. Select Portfolio (5th Cir., Dec 2021)

Note; The property was purchased at sale by TRANS AM SFE II LLC, which appears to be Amherst/Main Street Renewal out of Austin, a Wall St entity buying foreclosed homes, sprucin’ them up and renting for exorbitant rentals.

DEC 15, 2021 | REPUBLISHED BY LIT: DEC 16, 2021

Young is an unpublished opinion. On the other hand, Rob is published, meaning it is precedential and yet failed to even get a mention in this appeal. LIT knows the reason and it’s called judicial corruption.

HAYNES, CATHARINA

Judge Catharina Haynes

was born November 9, 1963 (Scorpio)

Age: 56

GRAVES, JAMES E. (JR)

Judge James E Graves Jr

was born November 19, 1953 (Scorpio)

Age: 66

STEWART, CARL E.

Judge Carl E Stewart

was born January 2, 1950 (Capricorn)

Age: 70

Before Stewart, Haynes, and Graves, Circuit Judges. Per Curiam:*

Plaintiff-Appellant Walter Young fell behind on his mortgage payments to his mortgagee, Defendant-Appellee U.S. Bank. Young’s loan servicer, Defendant-Appellee Select Portfolio Servicing, Inc. (“SPS”), approved him for a trial loan modification that, if accepted, would require him to timely make reduced payments for three months.

Young says he accepted the trial plan and complied with its terms, but U.S. Bank nonetheless foreclosed and sold his home to Defendant-Appellee Trans Am SFE II, LLC.

Allegedly, Young did not learn of that sale until two months after it occurred—when Trans Am sought to evict him.

Young sued U.S. Bank and SPS for breach of contract, to set aside the foreclosure sale, and for violations of the Real Estate Settlement Procedures Act of 1974 (“RESPA”) and the Texas Debt Collection Act (“TDCA”). He also sued Trans Am, asserting claims to quiet title and for trespass to try title.

Defendants each moved for summary judgment, which the district court granted, consistent with the magistrate judge’s recommendation.

Young appeals.

For the reasons that follow, 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* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

I. Facts & Procedural Background

In June 2005, Young executed two mortgages to purchase a home in Cedar Hill, Texas, where he still lives.

Through a series of assignments, U.S. Bank became the noteholder for the first mortgage. Young paid off his second mortgage in 2014. But in November 2015, after falling behind on his first mortgage, Young applied to SPS for a loan modification.

SPS approved Young for a “Trial Modification Plan.”

The approval letter explained that Young had until December 1, 2015, to accept the offer. It further advised that the “plan will be considered accepted if you make the first payment due according to the attached payment schedule.”

The payment schedule listed three payment dates—December 1, 2015; January 1, 2016; and February 1, 2016—that, if met, would convert the Trial Modification Plan into a permanent modification to Young’s mortgage.

The “Plan Acceptance” section of the letter provided that, “[t]o accept the Plan, you must make your First Payment by [December 1, 2015]. The Plan will become active only if SPS receives the First Payment by the scheduled date of your First Payment under the Plan.”

The “Plan Payments” section of the letter warned Young that if he did not “make each of the [three] payments by or before the listed due dates,” SPS would cancel the plan.

Young says he accepted SPS’s offer by mailing the first payment on November 27, 2015. Allegedly, Young also timely made the second and third payments. SPS’s loan records show, however, that SPS did not receive Young’s first payment by the deadline, December 1, 2015.

The loan records also reflect that SPS notified Young on January 4, 2016, that “his assistance request was considered withdrawn due to his failure to” timely accept its offer.

That notice also explained that Young had 30 days to appeal the decision. Two days later, SPS informed Young that he had defaulted on his mortgage and that he had one month to either cure or face acceleration.

Young says he did not receive any of this correspondence.

In August 2016, SPS informed Young that it had accelerated his loan and planned to auction his home at a foreclosure sale on October 4, 2016.

That sale was purportedly postponed the day of, however, and SPS sent Young another acceleration notice on October 11, 2016, which rescheduled the foreclosure sale for November 1, 2016.

On October 14, 2016, U.S. Bank, through its substitute trustee, executed a “Recission of Noticed Substitute Trustee’s Sale.”

Despite the purported postponement of the October sale, the Recission Notice explained that the substitute trustee sold Young’s home on October 4, 2016.

1 “A complete loss mitigation application means an application in connection with which a servicer has received all the information that the servicer requires from a borrower in evaluating applications for the loss mitigation options available to the borrower.” 12 C.F.R. § 1024.41(b)(1).

But because the substitute trustee’s deed could not be recorded, the sale was rescinded.

Under the Recission Notice, U.S. Bank stipulated that

(i) “all acts conducted with regard to the October 4, 2016 Foreclosure Sale of the Property are hereby rescinded”;

(ii) the purchaser, U.S. Bank, and Young are “returned to the status quo existing immediately prior to the foreclosure proceedings on October 4, 2016”;

and

(iii) “the Note and Deed of Trust are reinstated subject to the amount in arrears and total amount due, and are acknowledged as valid and enforceable in accordance with their original tenor and effect.”

SPS sent Young a copy of the Recission Notice on October 17, 2016. The Recission Notice was recorded the next day.

On November 1, 2016, consistent with the October 11 acceleration and foreclosure notice, the substitute trustee sold Young’s home to Trans Am.

Trans Am moved to evict Young in January 2017.

Young attests that he did not learn of the November foreclosure sale until he found Trans Am’s eviction notice attached to his door.

Young sued Defendants in state court, asserting claims for breach of contract, to set aside the foreclosure sale, to quiet title, and for RESPA and TDCA violations.

Defendants timely removed based on federal question jurisdiction.

The district court referred the case to the magistrate judge for pretrial management. Defendants each moved for summary judgment. In considering the motions, the magistrate judge distilled Young’s claims into the following “three central allegations”:

(1) that Plaintiff accepted the Trial Plan and timely made the three required monthly payments;

(2) that Defendants abandoned acceleration of the loan payments by virtue of the Rescission Notice; and

(3) that Plaintiff did not receive the required notices prior to the November Sale.

Because record evidence refuted each allegation, the magistrate judge recommended granting summary judgment. Over objections, the district court accepted that recommendation and dismissed Young’s claims with prejudice. After the district court denied Young’s motion to reconsider, Young timely appealed.

2 Because the district court accepted the findings, conclusions, and recommendations of the magistrate judge, we refer to the magistrate judge’s findings as if issued by the district court.

II. Standard of Review

This court reviews orders granting summary judgment de novo. Shepherd ex rel. Est. of Shepherd v. City of Shreveport, 920 F.3d 278, 282 (5th Cir. 2019)

“Summary judgment is appropriate only when ‘the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”

Id. at 282–83 (quoting Fed. R. Civ. P. 56(a)).

“A material fact is one that might affect the outcome of the suit under governing law, and a fact issue is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party.”

Renwick v. PNK Lake Charles, L.L.C., 901 F.3d 605, 611 (5th Cir. 2018) (citation and quotation omitted).

“A party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.”

Lamb v. Ashford Place Apartments L.L.C., 914 F.3d 940, 946 (5th Cir. 2019) (quotation omitted).

However, the court “must view the evidence in the light most favorable to the non-moving party, drawing ‘all justifiable inferences . . . in the non-movant’s favor.’”

Renwick, 901 F.3d at 611 (quoting Env’t Conservation Org. v. City of Dallas, 529 F.3d 519, 524 (5th Cir. 2008)).

III. Discussion

Young challenges the district court’s dismissal of his claims under federal and Texas law, alleging that he proffered enough evidence to overcome summary judgment and that the district court misapplied the law. We address his arguments below.

(A) Young’s RESPA claim

Young asserts a claim against SPS and U.S. Bank for violating RESPA, 12 U.S.C. § 2601 et seq., which Congress enacted to “protect consumers from . . . abusive mortgage practices.” Moreno v. Summit Mortg. Corp., 364 F.3d 574, 576 (5th Cir. 2004). Allegedly, SPS and U.S. Bank engaged in “dual tracking,” a practice that RESPA prohibits through its enforcing regulations.

Dual tracking occurs when “the lender actively pursues foreclosure while simultaneously considering the borrower for loss mitigation options.”

Gresham v. Wells Fargo Bank, N.A., 642 F. App’x 355, 359 (5th Cir. 2016).

“Federal regulations restrict a mortgage servicer’s ability to engage in dual tracking.”

Wentzell v. JPMorgan Chase Bank, Nat’l Ass’n, 627 F. App’x 314, 319 n.4 (5th Cir. 2015) (citing 12 C.F.R. § 1024.41).

Under § 1024.41(g), lenders cannot foreclose if the “borrower submits a complete loss mitigation application after a servicer has made the first [default] notice or filing . . . but more than 37 days before a foreclosure sale.”1 12 C.F.R. § 1024.41(g).

Section 1024.41(g) contains an exception, however, for instances where “[t]he borrower fails to perform under an agreement on a loss mitigation option.” Id. § 1024.41(g)(3).

If a loan servicer denies a borrower for “any trial or permanent loan modification option,” it must notify the borrower in writing and provide specific reasons for the denial. Id. § 1024.41(d). The loan servicer must also provide the borrower with an opportunity to appeal. Id. § 1024.41(h)(1).

Finally, § 1024.41(a) provides a private right of action for the borrower to sue in federal court when the lender engages in dual tracking. Gresham, 642 F. App’x at 359.

3 Trans Am referentially incorporates SPS and U.S. Bank’s arguments on this and most other issues.

Young alleges that after he purportedly accepted the Trial Modification Plan, SPS and U.S. Bank violated § 1024.41(d) by failing to give him written notice that they had denied him a permanent modification.

He continues that SPS and U.S. Bank failed to give him an opportunity to appeal the denial, as § 1024.41(h) requires. Thus, when SPS and U.S. Bank initiated foreclosure proceedings while the Trial Modification Plan purportedly remained active, they allegedly dual tracked Young’s loan in violation of § 1024.41(g).

The district court granted summary judgment on this claim.

Although the parties disputed whether Young accepted the Trial Modification Plan by timely making the December payment, the district court found that issue immaterial.2

The district court instead focused on whether Young timely made the second payment, finding that he did not.

That was because Young conceded that “he mailed the payment due by January 1, 2016 on December 31, 2015, and SPS did not receive it until January 5.”

Young thus violated the Trial Modification Plan by failing to timely make his second payment.

For that reason, the district court concluded that SPS and U.S. Bank neither “denied” Young a loan modification or appeal, nor engaged in dual tracking in violation of RESPA.

On appeal, Young argues that the district court erroneously concluded that the Trial Modification Plan required him to ensure that SPS received his January payment by the due date. Although Young concedes that the Trial Modification Plan made his acceptance contingent on SPS’s timely receipt of the December payment, he asserts that the agreement’s “plain language” required that he “make” (read: mail) his subsequent payments by the due date.

Young says the contract was at least ambiguous as to when SPS needed to receive his subsequent payments, so the district court erroneously granted summary judgment.

In response, SPS and U.S. Bank contend that Young’s interpretation of the Trial Modification Plan distorts the agreement and that, even accepting Young’s interpretation, this claim fails because Young did not timely make all of the requisite payments.3 Trans Am adds that summary judgment was proper because SPS never received Young’s first payment by the due date. Young does not reply to any of these arguments.

The district court correctly concluded that because SPS and U.S. Bank did not deny Young a loan modification or appeal, they did not unlawfully dual track his loan. To begin with, the Trial Modification Plan is not ambiguous regarding when Young’s payments were due.

“A contract provision is ambiguous only where the terms are susceptible to differing reasonable interpretations.”

Hughes Training Inc. v. Cook, 254 F.3d 588, 593 (5th Cir. 2001) (citing Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 665 (Tex. 1987)).

To be sure, the “Plan Acceptance” section of the Trial Modification Plan stated that the plan would activate “only if SPS receive[d] the First Payment by the scheduled date” whereas the “Plan Payments” section merely required Young to “make each of the below-listed payments by or before the listed due dates.”

But the “below-listed payments” referenced in the Plan Payments section included the December payment that, if timely received, triggered acceptance. Young’s interpretation of the Trial Modification Plan would thus impose different payment procedures for the first and subsequent payments although the agreement lists them together and does not otherwise distinguish them.

Because that interpretation is unreasonable, the Trial Modification Plan is not ambiguous.

Language contained in the approval letter accompanying the Trial Modification Plan supports that conclusion.

As Young acknowledges, the approval letter explained that the “plan will be considered accepted if you make the first payment due according to the attached payment schedule.”

Because the approval letter stated that Young had to timely “make” the December payment, which indisputably required SPS’s timely receipt of that payment, it is unreasonable to conclude that the Trial Modification Plan’s use of “make” means “send” or “mail,” as Young suggests.

For this additional reason, we agree that the Trial Modification Plan was unambiguous, and the district court correctly considered whether SPS received Young’s second payment after the due date.

But even if this part of the Trial Modification Plan were ambiguous, that would not warrant reversal because record evidence establishes that Young never accepted the Trial Modification Plan.

Although the district court declined to consider whether Young accepted the Trial Modification Plan by timely making the December payment, this court “can affirm the district court’s grant of summary judgment on any ground supported by the record.”

Smith v. Reg’l Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016).

Young attested that he sent his first payment, due on December 1, 2015, to SPS on November 27, 2015.

He supported his statement with a copy of the money order receipt he obtained for the first payment. However, unrebutted evidence establishes that SPS did not receive Young’s first payment by the deadline. Accordingly, summary judgment was appropriate because Young did not timely accept the Trial Modification Plan.

At bottom, SPS and U.S. Bank did not engage in dual tracking because SPS never denied Young a loan modification. Instead, SPS offered Young a Trial Modification Plan, which Young failed to accept or comply with.

SPS thus had no obligation to notify Young of any denial. And to the extent it had such a duty, SPS notified Young that “his assistance request was considered withdrawn due to his failure to” timely accept its offer and advised Young that he had 30 days to appeal.

We therefore agree with the district court’s grant of summary judgment on Young’s RESPA claim.

(B) Young’s claims under Texas law

Young also sued SPS and U.S. Bank under Texas law for breach of contract, to set aside the foreclosure sale, and for TDCA violations. He sued Trans Am to quiet title and for trespass to try title. The district court considered these claims together because they all concern Young’s “contentions that (1) the rescission of the October Sale ‘unequivocally abandoned the acceleration’ of the payments due and reinstated the terms of the loan anew; and (2) as a result, he was not given the required legal notices prior to the November Sale.”

The district court found both assertions inconsistent with the record evidence and therefore granted summary judgment.

As the district court observed, each of Young’s remaining claims assume that the Recission Notice abandoned the acceleration of his loan and U.S. Bank therefore unlawfully foreclosed.

Young bases his breach of contract claim, for example, on alleged violations of the Deed of Trust.4 Allegedly, SPS and U.S. Bank “breached the Deed of Trust by failing to provide the required notices of default and intent to accelerate and opportunity to cure, notice of acceleration and right of reinstatement, and notice of trustee’s sale.”

Young concedes that SPS and U.S. Bank timely notified him of

(1) his default and risk of loan acceleration,

(2) his ultimate loan acceleration,

(3) the October foreclosure sale,

and

(4) the November foreclosure sale.

4 The elements of a breach of contract claim under Texas law are “(1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages to the plaintiff as a result of the defendant’s breach.” Williams v. Wells Fargo Bank, N.A., 884 F.3d 239, 244 (5th Cir. 2018) (quoting Caprock Inv. Corp. v. Montgomery, 321 S.W.3d 91, 99 (Tex. App.—Eastland 2010, pet. denied)).

Yet he maintains that those notices were invalid as to the November foreclosure sale because U.S. Bank allegedly abandoned its acceleration of his loan when it executed the Recission Notice.

The upshot, Young contends, is that SPS and U.S. Bank should have provided him additional notice.

Young has not raised a genuine issue of material fact as to whether, by executing the Recission Notice, SPS and U.S. Bank abandoned the acceleration of his loan.

“The acceleration of a note can be abandoned ‘by agreement or other action of the parties.’”

Boren v. U.S. Nat’l Bank Ass’n, 807 F.3d 99, 104 (5th Cir. 2015) (quoting Khan v. GBAK Props., 371 S.W.3d 347, 353 (Tex. Ct. App. 2012)).

But as Defendants point out, the parties did not agree to abandon the acceleration, and the Recission Notice was not an “other action” constituting abandonment.

In Boren, for example, this court held that a lender can unilaterally abandon an acceleration by notifying “the borrower that the lender is no longer seeking to collect the full balance of the loan and will permit the borrower to cure its default by providing sufficient payment to bring the note current under its original terms.” 807 F.3d at 105.

There, the abandonment took the form of a second notice of default informing the plaintiffs that, despite the lender’s previous acceleration of the loan, the plaintiffs could either cure their arrearage or face acceleration. Id. at 106.

“This notice unequivocally manifested an intent to abandon the previous acceleration[.]” Id.

The Recission Notice here, in contrast, was not unequivocal.

Although Young cites language from the Recission Notice stipulating that the October sale was rescinded, the parties were returned to the status quo existing before the October sale, and the Note and Deed of Trust were reinstated, this language does not help him.

First, as the district court recognized, U.S. Bank only “request[ed] recission of the October 4, 2016 sale[.]”

Per its plain language, the Recission Notice did not purport to affect the acceleration of Young’s loan or the then-upcoming November foreclosure sale.

I am message box. Click edit button to change this text.

Second, Young says the district court erroneously failed to address his argument that the Recission Notice abandoned the acceleration by returning the parties to “the status quo” existing immediately before the October foreclosure sale.

But to the contrary, the district court expressly rejected that argument, noting that “immediately prior to the October Sale, Plaintiff’s loan was accelerated.”

SPS and U.S. Bank first gave Young notice of his loan’s acceleration on August 29, 2016.

At the same time, they informed him that his home would be sold on October 4, 2016.

But after that sale was postponed, SPS and U.S. Bank sent Young a second acceleration notice on October 11, 2016.

That notice was nearly identical to the first, except it rescheduled the foreclosure sale to November 1, 2016.

Young does not argue that the subsequent acceleration notice nullified the earlier one.

So, assuming arguendo the Recission Notice’s reference to the status quo existing before the October sale affected the second acceleration notice, the first acceleration notice remained in effect.

Finally, Young emphasizes language from the Recission Notice stating that “the Note and Deed of Trust are reinstated.”

But this language also noted that the reinstatement was “subject to the amount in arrears and total amount due,” which does not manifest an intent to either disavow collection or allow Young to cure. See Boren, 807 F.3d at 105.

For these reasons, Young’s argument that the Recission Notice abandoned the acceleration is meritless.

So too is his contention that he lacked notice of the November foreclosure sale, which Young admits is also based on his assumption that “the acceleration was abandoned.”

Because the acceleration remained in effect despite the Recission Notice and Young was therefore not entitled to additional notice, Young’s breach of contract claim fails.

Young’s other claims are similarly deficient.

For starters, Young says SPS and U.S. Bank violated the TDCA, codified at Texas Finance Code § 392.001 et seq.5

On appeal, Young limits this claim to alleged violations of §§ 392.301(a)(8) and 392.304(a)(8). Section 392.301(a)(8) bars debt collectors from using “threats, coercion, or attempts to coerce that” involve “threatening to take an action prohibited by law.” TEX. FIN. CODE ANN. § 392.301(a)(8).

Section 392.304(a)(8) prohibits debt collectors from making “a fraudulent, deceptive, or misleading representation that” misrepresents “the character, extent, or amount of a consumer debt, or misrepresent[s] the consumer debt’s status in a judicial or governmental proceeding[.]” Id. § 392.304(a)(8).

Young claims SPS and U.S. Bank violated § 392.301(a)(8) by unlawfully conducting the November foreclosure sale.

He again asserts that SPS and U.S. Bank dual tracked his loan, rendering the November foreclosure sale invalid.

Similarly, Youngs says SPS and U.S. Bank violated § 392.304(a)(8) by dual tracking his loan and by selling his home at the November foreclosure sale despite allegedly rescinding his acceleration and reinstating his loan.

These arguments are unavailing. As discussed above, SPS and U.S. Bank did not dual track Young’s loan, and Young proffers no evidence raising a genuine issue of material fact as to whether the Recission Notice rescinded the acceleration.

Summary judgment was thus appropriate as to Young’s TDCA claim.

5 “The elements of a TDCA claim are: (1) the debt is consumer debt; (2) the defendant is a debt collector, as defined by the TDCA; (3) the defendant committed a wrongful act in violation of the TDCA; (4) the wrongful act was committed against the plaintiff; and (5) the plaintiff was injured as a result of the defendant’s wrongful act.” Putty v. Fed. Nat’l Mortg. Ass’n, No. 3:16-CV-2562-D, 2017 WL 5070423, at *3 (N.D. Tex. Nov. 3, 2017) (quotation omitted), aff’d, 736 F. App’x 484 (5th Cir. 2018).

The district court also properly granted summary judgment on Young’s claims to set aside the foreclosure sale against SPS and U.S. Bank and to quiet title against Trans Am. As an initial matter, a cause of action to set aside a foreclosure sale arises only if the foreclosure was improper or wrongful.

See UMLIC VP LLC v. T & M Sales & Env’t Sys., Inc., 176 S.W.3d 595, 610 (Tex. App. 2005); Wells Fargo Bank, N.A. v. Robinson, 391 S.W.3d 590, 593 (Tex. App. 2012).

Young alleged a claim for wrongful foreclosure, but he voluntarily dismissed it at summary judgment. He therefore lacks a cause of action to have the foreclosure sale set aside.

But even if Young had not dismissed his claim for wrongful foreclosure, that claim (and the underlying cause of action to set aside the foreclosure sale) would fail because he has not proffered evidence of either “a defect in the foreclosure sale proceedings” or “a grossly inadequate selling price,” which are among the elements for such a claim.

Foster v. Deutsche Bank Nat’l Tr. Co., 848 F.3d 403, 406 (5th Cir. 2017) (quoting Sauceda v. GMAC Mortg. Corp., 268 S.W.3d
135, 139 (Tex. App. 2008)).

Similarly, Young’s claim for quiet title against Trans Am fails because he has not shown that Trans Am’s title “is invalid or unenforceable,” as that claim requires.

Lassberg v. Bank of Am., N.A., 660 F. App’x 262, 269 (5th Cir. 2016) (quoting U.S. Nat’l Bank Ass’n v. Johnson, No. 01–10–00837–CV, 2011 WL 6938507, at *3 (Tex. App.—Houston [1st Dist.] Dec. 30, 2011, no pet.)).

We therefore agree with the district court’s grant of summary judgment on all of Young’s claims under Texas law.

V. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the district court.

Acceleration Fails, the Homeowner Wins Dismissal at Fifth Circuit

MAY 21, 2018 | REPUBLISHED BY LIT: DEC 16, 2021

The lower court Judge Pitman’s arguments, including the excerpt below, were rejected on appeal by the Fifth Circuit:

“Defendants’ argument fails to consider the allegations in, and attachments to, Plaintiff’s complaint. Plaintiff has alleged notice of default and intent to accelerate, which included affording Defendants an opportunity to cure their default, was mailed to Defendants on March 5, 2012.

(Id. ¶ 11 & Ex. E).

Admittedly, Plaintiff later provided Defendants with a written notice of rescission of the subsequent acceleration.

(Id. & Ex. F).

But, Defendants were clearly provided with the notice required under the terms of the Security Instrument. And they point to nothing which indicates that a rescission by Plaintiff of the acceleration of the debt would act as a rescission of the previously provided notice. Accordingly, the Court declines to find this action should be dismissed for lack of ripeness.”

Doc 15, Wilmington v. Rob, WDTX – Judge Robert Pitman

SMITH, JERRY E.

Judge Jerry Edwin Smith

was born November 7, 1946 (Scorpio)

Age: 73

HIGGINSON, STEPHEN A.

Judge Stephen Andrew Higginson

was born April 12, 1961 (Aries)

Age: 59

BARKSDALE, RHESA H.

Judge Rhesa Hawkins Barksdale

was born August 8, 1944 (Leo)

Age: 76

Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges. STEPHEN A. HIGGINSON, Circuit Judge:

Kcevin and Angel Rob defaulted on a home equity loan.

The Robs’ lender, Wilmington Trust, sued for a judgment permitting foreclosure. The district court granted summary judgment in Wilmington Trust’s favor.

The Robs appeal, arguing that Wilmington Trust is not entitled to foreclosure because the company failed to prove that it provided adequate notice of intent to accelerate. Agreeing, we reverse the summary judgment and render a judgment of dismissal.1

1 The Robs also argue the loan documents do not meet the requirements for foreclosure-eligibility contained in Article XVI, Section 50(a)(6) of the Texas Constitution. We do not reach this issue.

On July 26, 2007, appellant Kcevin Rob executed a note in the principal amount of $113,600.

On the same day, Kcevin and his wife Angel executed a Texas Home Equity Security Instrument, which secured payment of the note with a lien on the Robs’ home in Austin, Texas.

In 2014, following a series of assignments, Wilmington Trust, as trustee for ARLP Securitization Trust, Series 2014-2, came into possession of the Robs’ loan.

By the time Wilmington Trust acquired it, the Robs’ loan had a tumultuous history.

The Robs stopped making payments on the loan in March 2011. On April 15, 2011, one of Wilmington Trust’s predecessors mailed Kcevin a notice of default and intent to accelerate.2

On June 22, 2011, Kcevin was sent a notice of acceleration. On March 6, 2012, the predecessor sent a second notice of default and intent to accelerate, followed by a second notice of acceleration on May 22, 2013.

On November 3, 2014, Wilmington Trust, having taken assignment of the loan, sent the Robs a “NOTICE OF RESCISSION OF ACCELERATION.”

That document stated that the lender “hereby rescinds Acceleration of the debt and maturity of the Note” and that the “Note and Security Instrument are now in effect in accordance with their original terms and conditions, as though no acceleration took place.”

On June 25, 2015, Wilmington Trust sued the Robs in the Western District of Texas seeking a judgment for foreclosure or, alternatively, a judgment of equitable subrogation.

In August 2015, Wilmington Trust filed an Amended Complaint, which alleged that the total debt owed on the note was $159,949.07.

2 Acceleration is “[t]he advancing of a loan agreement’s maturity date so that payment of the entire debt is due immediately.” Acceleration, Black’s Law Dictionary (10th ed. 2014).

The Amended Complaint also stated that Wilmington Trust “accelerates the maturity of the debt and provides notice of this acceleration through the service of this Amended Complaint.”

On August 26, 2016, Wilmington Trust moved for summary judgment. The district court granted Wilmington Trust’s motion, and entered judgment permitting Wilmington Trust to foreclose on the Robs’ home.

This appeal followed.

II.

We review a grant of summary judgment de novo, applying the same standard as the district court. Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 402 (5th Cir. 2001).

“Where, as here, the proper resolution of the case turns on the interpretation of Texas law, we are bound to apply Texas law as interpreted by the state’s highest court.”

Boren v. U.S. Nat. Bank Ass’n, 807 F.3d 99, 104–05 (5th Cir. 2015) (quoting Am. Int’l Specialty Lines Ins. Co. v. Rentech Steel LLC, 620 F.3d 558, 564 (5th Cir. 2010)).

On issues the Texas Supreme Court has not yet decided, “we must make an ‘Erie guess’ as to how the Court would resolve [the] issue.”

Id (quoting Am. Int’l Specialty Lines Ins. Co., 620 F.3d at 564).

III.

“[W]hether a holder has accelerated a note is a fact question.”

Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001).

Wilmington Trust’s lien includes an optional acceleration clause, under which the “Lender at its option may require immediate payment in full of all sums secured by this Security Instrument ”

In its First Amended Complaint, Wilmington Trust alleges that it has accelerated the Robs’ debt, that the Robs are in default of the full $159,949.07 owed under the note, and that Wilmington Trust should therefore be permitted to foreclose.

3 See Smither v. Ditech Fin., L.L.C., 681 F. App’x. 347, 352 (5th Cir. 2017) (“Once the requisite notice of intent is provided, notice of acceleration may take the form of the filing of a foreclosure action.”); Burney v. Citigroup Glob. Markets Realty Corp., 244 S.W.3d 900, 904 (Tex. App.—Dallas 2008, no pet.) (“[N]otice of filing an expedited application for foreclosure after the requisite notice of intent to accelerate is sufficient to constitute notice of acceleration.”).

4 A borrower may waive its right to notice of intent to accelerate, but the waiver must be unequivocal. Shumway v. Horizon Credit Corp., 801 S.W.2d 890, 893–94 (Tex. 1991).

“Texas courts disfavor acceleration because it imposes a severe burden on the mortgagor.” Schuhardt Consulting Profit Sharing Plan v. Double Knobs Mountain Ranch, Inc., 468 S.W.3d 557, 569 (Tex. App.—San Antonio 2014, pet. denied); see also Mastin v. Mastin, 70 S.W.3d 148, 154 (Tex. App.—San Antonio 2001, no pet.) (“Acceleration is a harsh remedy with draconian consequences for the debtor and Texas courts look with disfavor upon the exercise of this power because great inequity may result.”). Further, a lender may lose the right to accelerate if its conduct is “inconsistent or inequitable.” William J. Schnabel Revocable Living Tr. v. Loredo, No. 13-13-00297, 2014 WL 4049862, at *5 (Tex. App.—Corpus Christi Aug. 14, 2014, no pet.) (quoting McGowan v. Pasol, 605 S.W.2d 728, 732 (Tex. App.—Corpus Christi 1980, no writ)).

Consistent with this caution, Texas common law imposes notice requirements before acceleration.

In Texas, “[e]ffective acceleration requires two acts: (1) notice of intent to accelerate, and (2) notice of acceleration.”

Wolf, 44 S.W.3d at 566.

“Both notices must be ‘clear and unequivocal.’”

Id. (quoting Shumway v. Horizon Credit Corp., 801 S.W.2d 890, 893 (Tex. 1991)).

Here, Wilmington Trust’s complaint could serve as adequate notice of acceleration,3 but only if it was preceded by valid notice of intent to accelerate.

See Jasper Fed. Sav. & Loan Ass’n v. Reddell, 730 S.W.2d 672, 674 (Tex. 1987) (“In Texas, notice that the debt has been accelerated is ineffective unless preceded by proper notice of intent to accelerate.”).

Unless a lender provides both forms of notice, it may not foreclose.4

The Robs waived presentment, but this waiver does not extend to notice of intent to accelerate. See Shumway, 801 S.W.2d at 895.

See Bodiford v. Parker, 651 S.W.2d 338, 339 (Tex. App.—Fort Worth 1983, no writ) (en banc) (affirming grant of temporary injunction prohibiting foreclosure where “there was no notice of intent to accelerate given[ and] therefore the beneficiary could not accelerate”);

see also Ogden v. Gibraltar Sav. Ass’n, 640 S.W.2d 232, 234 (Tex. 1982) (rendering judgment for borrower in wrongful foreclosure suit where lender “did not give proper notice of its intent to accelerate the debt” and therefore “any attempted acceleration was ineffective”).

Texas courts require pre-acceleration notice to be “clear and unequivocal.” Wolf, 44 S.W.3d 562 at 566.

For instance, in Ogden, the Texas Supreme Court held that a letter stating that the borrower’s default “may result in acceleration” was ineffective because “[t]he letter gave no clear and unequivocal notice that [the lender] would exercise the option.”

Ogden, 640 S.W.2d at 233–34 (second emphasis added).

The court explained that, to be effective, notice of intent to accelerate must “bring home to the mortgager that failure to cure will result in acceleration.”

Id. at 233.

Texas courts have not squarely confronted whether a borrower is entitled to a new round of notice when a borrower re-accelerates following an earlier rescission.

Forced to make an Erie guess, we hold that the Texas Supreme Court would require such notice, and that Wilmington Trust has therefore failed to meet its summary judgment burden.

Abandonment of acceleration “restor[es] the contract to its original condition.”

Boren, 807 F.3d at 104 (quoting Khan v. GBAK Props., Inc., 371 S.W.3d 347, 353 (Tex. App.—Hous. [1st Dist.] 2012)).

The Texas Supreme Court would likely conclude that Wilmington Trust acted “inconsistently” by rescinding acceleration and then re-accelerating without notice.

Karam v. Brown, 407 S.W.3d 464, 473 (Tex.App.—El Paso 2013, no pet.).

Once notice of acceleration had been rescinded, the Robs did not have “clear and unequivocal notice that [Wilmington Trust] would exercise the option.”

Ogden, 640 S.W.2d at 233–34 (emphasis added).

This holding is consistent with observations by intermediate Texas appellate courts that re-notice is required after acceleration is rescinded.

See Karam, 407 S.W.3d at 468 (affirming trial court entry of decision in wrongful foreclosure claim, where trial court held that after the lender abandoned his earlier acceleration he was required to provide the borrower with a new demand and notice of default);

Herrera v. Emmis Mortgage, No. 04-95-00006, 1995 WL 654561, at *4 (Tex. App.—San Antonio 1995, writ denied) (“absent evidence that the Note was reinstated, appellee was not required to re-accelerate by serving new notices, demands, and accelerations.” (emphasis added)).

Because Wilmington Trust failed to meet its burden to show clear and unequivocal notice of intent to accelerate prior to filing suit, it is not entitled to a foreclosure judgment. Accordingly, we hold that Wilmington Trust has not met its burden and reverse the district court’s grant of summary judgment.

IV.

The summary judgment is REVERSED, and a judgment of dismissal is RENDERED.

Eight Reasons Why You Cannot Trust a Federal Judge to Follow Their Oath nor The Rule of Law

Self-dealing caused Judge Bennett to enter judgment against Plaintiffs and equity will not enforce judgments procured by fraud.

A Federal Notice of Appeal is Not Limited to 30 Days, that’s a Judicial Rule Subordinate to Statute

Re: timeliness of appeals in federal civil cases: Section 2107 of Title 28 of the U.S. Code (a federal statute) v FRAP 4 (a court-made rule).

Pro Se Randall Rollins Allowed to Amend his Federal Complaint Four Times in SDTX, Houston Div’n

Judge Eskridge: Rollins has filed four complaints in federal court. Even so, he fails to state claims that can survive jurisdictional attack.

U.S. District Court
Northern District of Texas (Dallas)
CIVIL DOCKET FOR CASE #: 3:19-cv-00717-S-BK

Young v Select Portfolio Servicing Inc et al
Assigned to: Judge Karen Gren Scholer
Referred to: Magistrate Judge Renee Harris Toliver

Case in other court:  USCA5, 20-11236
County Court at Law No. 3, Dallas County, CC-19-01158-C

Cause: 28:1331 Fed. Question

Date Filed: 03/22/2019
Date Terminated: 09/14/2020
Jury Demand: Plaintiff
Nature of Suit: 290 Real Property: All Other Real Property
Jurisdiction: Federal Question
Plaintiff
Walter Young represented by Jack B Peacock , Jr
Gagnon Peacock & Vereeke PC
1349 Empire Central Drive
Suite 500 Lock Box 56
Dallas, TX 75247
214-824-1414
Fax: 214-824-5490
Email: attorneys@gapslaw.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingDavid M Vereeke
Gagnon Peacock & Vereeke PC
1349 Empire Central Drive
Suite 500 Lock Box 56
Dallas, TX 75247
214-824-1414
Fax: 214-824-5490
Email: David@GapsLaw.com
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingHeliane Fabian
Gagnon Peacock & Vereeke PC
1349 Empire Central Drive
Suite 500, Lock Box 56
Dallas, TX 75247
214-824-1414
Fax: 214-824-5490
Email: heliane@gapslaw.com
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good Standing
V.
Defendant
Select Portfolio Servicing Inc represented by R Dwayne Danner
McGlinchey Stafford PLLC
6688 North Central Expressway
Suite 400
Dallas, TX 75206
214-445-2408
Fax: 214-445-2450
Email: ddanner@mcglinchey.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingAaron B Gottlieb
Munck Wilson Mandala, LLP
12700 Coit Road
Suite 600
Dallas, TX 75251
972-628-3600
Fax: 972-628-3616
Email: agottlieb@munckwilson.com
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingMatthew A Knox
McGlinchey Stafford PLLC
1001 McKinney Street, Suite 1500
Houston, TX 77002
713-335-2138
Fax: 713-520-1025
Email: mknox@mcglinchey.com
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingMurad Salim
McGlinchey Stafford
6688 N Central Expressway
Suite 400
Dallas, TX 75206
214-445-2407
Fax: 214-247-0855
Email: msalim@mcglinchey.com
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good Standing
Defendant
US Bank NA
as Trustee, on Behalf of the Holders of the J.P.Morgan Mortgage Acquisition Corp. 2005-WMC1 Asset Backed Pass-Through Certificates Series 2005-WMC1
represented by R Dwayne Danner
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingAaron B Gottlieb
(See above for address)
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingMatthew A Knox
(See above for address)
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingMurad Salim
(See above for address)
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good Standing
Defendant
TRANS AM SFE II LLC represented by Arthur F Selander
Quilling Selander Cummiskey & Lownds
2001 Bryan Street
Suite 1800
Dallas, TX 75201
214-871-2100
Fax: 214-871-2111
Email: aselander@qslwm.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingDavid S Vassar
Nesbitt Vassar & McCown LLP
15851 Dallas Parkway, Suite 800
Addison, TX 75001
972-371-2411
Fax: 972-371-2410
Email: dvassar@nvmlaw.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingJames M McCown
Vassar, McCown, Dear & Sicotte, LLP
15851 Dallas Parkway, Suite 800
Addison, TX 75001
972-371-2411
Fax: 972-371-2410
Email: jmccown@vmdslaw.com
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingPatrick Paul Sicotte
Nesbit Vassar & McCown LLP
15851 Dallas Parkway, Suite 800
Addison, TX 75001
972-371-2411
Fax: 972-371-2410
Email: psicotte@vmdslaw.com
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good Standing
Cross Claimant
TRANS AM SFE II LLC represented by David S Vassar
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingJames M McCown
(See above for address)
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingPatrick Paul Sicotte
(See above for address)
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good Standing
V.
Cross Defendant
Select Portfolio Servicing Inc represented by R Dwayne Danner
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingAaron B Gottlieb
(See above for address)
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingMurad Salim
(See above for address)
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good Standing
Cross Defendant
US Bank NA represented by R Dwayne Danner
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingAaron B Gottlieb
(See above for address)
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingMurad Salim
(See above for address)
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good Standing
Counter Claimant
TRANS AM SFE II LLC represented by David S Vassar
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingJames M McCown
(See above for address)
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingPatrick Paul Sicotte
(See above for address)
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good Standing
V.
Counter Defendant
Walter Young represented by Jack B Peacock , Jr
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingDavid M Vereeke
(See above for address)
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good StandingHeliane Fabian
(See above for address)
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good Standing

 

Date Filed # Docket Text
03/22/2019 1 NOTICE OF REMOVAL from County Court at Law No 3, Dallas County, TX, case number CC-19-01158-C filed by US Bank NA, Select Portfolio Servicing Inc. (Filing fee $400; receipt number 0539-9867566) In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the Judges Copy 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 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. (Attachments: # 1 Exhibit A, # 2 Cover Sheet, # 3 Cover Sheet Supplement) (Danner, R) (Entered: 03/22/2019)
03/22/2019 2 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Select Portfolio Servicing Inc, US Bank NA identifying Corporate Parent/Other Affiliate US Bancorp for US Bank NA; Corporate Parent/Other Affiliate Credit Suisse (USA) Inc for Select Portfolio Servicing Inc. (Danner, R) (Entered: 03/22/2019)
03/22/2019 3 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 Toliver). Clerk to provide copy to plaintiff if not received electronically. (aaa) (Entered: 03/22/2019)
04/03/2019 4 ANSWER to Complaint filed by TRANS AM SFE II LLC. 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. Attorney David S Vassar added to party TRANS AM SFE II LLC(pty:dft) (Vassar, David) (Entered: 04/03/2019)
04/10/2019 5 ORDER Setting FRCP 16 Scheduling Conference for 4/25/2019 01:30 PM before Judge Karen Gren Scholer. (Ordered by Judge Karen Gren Scholer on 4/10/2019) (zkc) (Entered: 04/10/2019)
04/11/2019 6 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Walter Young. (Peacock, Jack) (Entered: 04/11/2019)
04/22/2019 7 Proposal for contents of scheduling and discovery order jointly submitted by Select Portfolio Servicing Inc, US Bank NA. (Salim, Murad) (Entered: 04/22/2019)
04/24/2019 8 ELECTRONIC ORDER: The scheduling conference scheduled for 4/25/19 is CANCELLED. (Ordered by Judge Karen Gren Scholer on 4/24/2019) (chmb) (Entered: 04/24/2019)
04/24/2019 9 ELECTRONIC ORDER REFERRING CASE to Magistrate Judge Renee Harris Toliver for pretrial management. (Ordered by Judge Karen Gren Scholer on 4/24/2019) (chmb) (Entered: 04/24/2019)
04/29/2019 10 Agreed SCHEDULING ORDER: Joinder of Parties due by 5/20/2019. Amended Pleadings due by 5/20/2019. Discovery due by 10/7/2019. Motions due by 2/7/2020. Jury Trial set on the Court’s three-week docket beginning 10/19/2020 before Judge Karen Gren Scholer. (Ordered by Magistrate Judge Renee Harris Toliver on 4/29/2019) (rekc) (Entered: 04/30/2019)
05/10/2019 11 STANDING ORDER ON ALL NON-DISPOSITIVE MATTERS. (Ordered by Magistrate Judge Renee Harris Toliver on 5/10/2019) (ndt) (Entered: 05/10/2019)
05/20/2019 12 COUNTERCLAIM against Walter Young filed by TRANS AM SFE II LLC. CROSSCLAIM against Select Portfolio Servicing Inc, US Bank NA filed by TRANS AM SFE II LLC. (Vassar, David) Modified to add crossclaim on 5/21/2019 (zkc). (Entered: 05/20/2019)
05/31/2019 13 ANSWER to Counterclaim filed by Select Portfolio Servicing Inc, US Bank NA. Related document: 12 Counterclaim (Salim, Murad) (Entered: 05/31/2019)
06/10/2019 14 ANSWER to Counterclaim filed by Walter Young. Related document: 12 Counterclaim (Peacock, Jack) (Entered: 06/10/2019)
08/05/2019 15 NOTICE of Certificate of Compliance filed by Walter Young (Peacock, Jack) (Entered: 08/05/2019)
08/12/2019 16 NOTICE of Compliance Re Rule 26(a)(2) Designation of Expert Witnesses filed by Select Portfolio Servicing Inc, US Bank NA (Salim, Murad) (Entered: 08/12/2019)
10/08/2019 17 Joint MOTION for Protective Order filed by Select Portfolio Servicing Inc, US Bank NA (Attachments: # 1 Proposed Agreed Protective Order, # 2 Exhibit A to Order – Confidentiality Agreement) (Danner, R) (Entered: 10/08/2019)
10/16/2019 18 AGREED PROTECTIVE ORDER. (Ordered by Magistrate Judge Renee Harris Toliver on 10/16/2019) (ndt) (Entered: 10/16/2019)
01/08/2020 19 MOTION for Summary Judgment filed by Select Portfolio Servicing Inc, US Bank NA (Attachments: # 1 Proposed Order) (Salim, Murad) (Entered: 01/08/2020)
01/08/2020 20 Brief/Memorandum in Support filed by Select Portfolio Servicing Inc, US Bank NA re 19 MOTION for Summary Judgment (Salim, Murad) (Entered: 01/08/2020)
01/08/2020 21 Appendix in Support filed by Select Portfolio Servicing Inc, US Bank NA re 19 MOTION for Summary Judgment (Attachments: # 1 “A” Exhibits, # 2 “B” Exhibits, # 3 “C” Exhibit, # 4 “D” Exhibit) (Salim, Murad) (Entered: 01/08/2020)
01/22/2020 22 MOTION for Summary Judgment filed by TRANS AM SFE II LLC (Vassar, David) (Entered: 01/22/2020)
01/22/2020 23 Brief/Memorandum in Support filed by TRANS AM SFE II LLC re 22 MOTION for Summary Judgment (Vassar, David) (Entered: 01/22/2020)
01/22/2020 24 Appendix in Support filed by TRANS AM SFE II LLC re 22 MOTION for Summary Judgment (Attachments: # 1 Exhibit(s), # 2 Proposed Order) (Vassar, David) (Entered: 01/22/2020)
01/29/2020 25 RESPONSE filed by Walter Young re: 19 MOTION for Summary Judgment (Peacock, Jack) (Entered: 01/29/2020)
01/29/2020 26 Brief/Memorandum in Support filed by Walter Young re 25 Response/Objection (Peacock, Jack) (Entered: 01/29/2020)
01/29/2020 27 Appendix in Support filed by Walter Young re 25 Response/Objection, 26 Brief/Memorandum in Support of Motion (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s)) (Peacock, Jack) (Entered: 01/29/2020)
01/29/2020 28 NOTICE of Attorney Appearance by Aaron B Gottlieb on behalf of Select Portfolio Servicing Inc, Select Portfolio Servicing Inc, US Bank NA, US Bank NA. (Filer confirms contact info in ECF is current.) (Gottlieb, Aaron) (Entered: 01/29/2020)
02/12/2020 29 REPLY filed by Select Portfolio Servicing Inc, Select Portfolio Servicing Inc, US Bank NA, US Bank NA re: 19 MOTION for Summary Judgment (Gottlieb, Aaron) (Entered: 02/12/2020)
02/12/2020 30 RESPONSE filed by Walter Young re: 22 MOTION for Summary Judgment (Peacock, Jack) (Entered: 02/12/2020)
02/12/2020 31 Brief/Memorandum in Support filed by Walter Young re 30 Response/Objection (Peacock, Jack) (Entered: 02/12/2020)
02/12/2020 32 Appendix in Support filed by Walter Young re 30 Response/Objection, 31 Brief/Memorandum in Support of Motion (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 2, # 3 Exhibit(s) 3, # 4 Exhibit(s) 4) (Peacock, Jack) (Entered: 02/12/2020)
02/26/2020 33 RESPONSE filed by Walter Young re: 30 Response/Objection, 31 Brief/Memorandum in Support of Motion, 32 Appendix in Support (Peacock, Jack) (Entered: 02/26/2020)
06/30/2020 34 MOTION to Attend Mediation Telephonically (Agreed to by all Parties) filed by Select Portfolio Servicing Inc, US Bank NA (Attachments: # 1 Proposed Order) (Gottlieb, Aaron) (Entered: 06/30/2020)
07/02/2020 35 ELECTRONIC ORDER: Defendants’ Agreed Motion to Attend Mediation Telephonically, Doc. 34 , is GRANTED. (Ordered by Magistrate Judge Renee Harris Toliver on 7/2/2020) (chmb) (Entered: 07/02/2020)
08/18/2020 36 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: Defendants’ 19 Motion for Final Summary Judgment and Defendant Trans Am SFE II, LLC’s 22 Motion for Summary Judgment should be GRANTED and this case should be DISMISSED WITH PREJUDICE. (Ordered by Magistrate Judge Renee Harris Toliver on 8/18/2020) (twd) (Entered: 08/19/2020)
08/28/2020 37 OBJECTION to 36 Findings and Recommendations by Walter Young (Peacock, Jack) (Entered: 08/28/2020)
09/11/2020 38 RESPONSE filed by Select Portfolio Servicing Inc, US Bank NA re: 37 Objection to Findings and Recommendations (Gottlieb, Aaron) (Entered: 09/11/2020)
09/14/2020 39 ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: Accordingly, Plaintiff’s case is DISMISSED WITH PREJUDICE. (Ordered by Judge Karen Gren Scholer on 9/14/2020) (ctf) (Entered: 09/15/2020)
09/14/2020 40 JUDGMENT: It is therefore ORDERED, ADJUDGED AND DECREED that Plaintiff’s case is DISMISSED WITH PREJUDICE. (Ordered by Judge Karen Gren Scholer on 9/14/2020) (ctf) (Entered: 09/15/2020)
10/09/2020 41 MOTION for Reconsideration re 39 Order Accepting/Adopting Findings and Recommendations, 40 Judgment filed by Walter Young with Brief/Memorandum in Support. (Peacock, Jack) (Entered: 10/09/2020)
10/23/2020 42 NOTICE of Attorney Appearance by Matthew A Knox on behalf of Select Portfolio Servicing Inc, US Bank NA. (Filer confirms contact info in ECF is current.) (Knox, Matthew) (Entered: 10/23/2020)
10/23/2020 43 RESPONSE filed by Select Portfolio Servicing Inc, US Bank NA re: 41 MOTION for Reconsideration re 39 Order Accepting/Adopting Findings and Recommendations, 40 Judgment (Knox, Matthew) (Entered: 10/23/2020)
10/30/2020 44 REPLY filed by Walter Young re: 41 MOTION for Reconsideration re 39 Order Accepting/Adopting Findings and Recommendations, 40 Judgment (Peacock, Jack) (Entered: 10/30/2020)
11/18/2020 45 ORDER denying Plaintiff’s 41 Motion to Reconsider. (Ordered by Judge Karen Gren Scholer on 11/18/2020) (twd) (Entered: 11/18/2020)
12/17/2020 46 NOTICE OF APPEAL as to 39 Order Accepting/Adopting Findings and Recommendations, 45 Order on Motion for Reconsideration, 40 Judgment to the Fifth Circuit by Walter Young. Filing fee $505, receipt number 0539-11452942. T.O. form to appellant electronically at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed. IMPORTANT ACTION REQUIRED: Provide an electronic copy of any exhibit you offered during a hearing or trial that was admitted into evidence to the clerk of the district court within 14 days of the date of this notice. Copies must be transmitted as PDF attachments through ECF by all ECF Users or delivered to the clerk on a CD by all non-ECF Users. See detailed instructions here. (Exception: This requirement does not apply to a pro se prisoner litigant.) Please note that if original exhibits are in your possession, you must maintain them through final disposition of the case. (Peacock, Jack) (Entered: 12/17/2020)
12/21/2020 47 NOTICE of Attorney Appearance by Arthur F Selander on behalf of TRANS AM SFE II LLC. (Filer confirms contact info in ECF is current.) (Selander, Arthur) (Entered: 12/21/2020)
01/05/2021 48 Transcript Order Form: re 46 Notice of Appeal,,,, transcript not requested Reminder to appellant: this document must also be filed with the appeals court. (Peacock, Jack) (Entered: 01/05/2021)
Young’s ‘Pretty Good Deal’ is Another Baked Fifth Circuit Foreclosure Opinion by an Infamous 3-Panel
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