In re Anderson

TONY V. ANDERSON, et al., Plaintiffs, v. WELLS FARGO BANK, N.A. d/b/a WELLS FARGO HOME MORTGAGE, Defendant.

Civil Action No. 3:16-CV-2514-N

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

July 13, 2018

MEMORANDUM OPINION AND ORDER

This Order addresses (1) Defendant Wells Fargo Bank, N.A. d/b/a Wells Fargo Home Mortgage's ("Wells Fargo") (a) motion for summary judgment [60], (b) motion to strike [63], and (c) motion for leave to file an appendix in support of its summary judgment reply [93] and (2) Plaintiffs Tony V. Anderson and Hanna J. Anderson's (the "Andersons") (a) motion for leave to file a second amended brief in opposition to Wells Fargo's summary judgment motion [94] and (b) motion for leave to file a surreply [96]. For the reasons set forth below, the Court (1) grants in part and denies in part Wells Fargo's summary judgment motion; (2) grants in part and denies in part Wells Fargo's motion to strike; (3) grants Wells Fargo's motion for leave to file an appendix in support of its summary judgment reply; (4) grants the Andersons' motion for leave to file a second amended brief in opposition to Wells Fargo's summary judgment motion; and (5) denies the Andersons' motion for leave to file a surreply.

I. ORIGINS OF THE DISPUTE

This case arises from Wells Fargo's handling of the Andersons' payments on their residential mortgage loan. On December 27, 2012, the Andersons executed a note in the amount of $289,230.00 (the "Note") made payable to Blue Star Residential Lending, Inc. with a maturity date of January 1, 2043. On the same day, the Andersons also executed a purchase money deed of trust (the "Deed of Trust," and together with the Note, the "Loan") that granted a security interest in the Andersons' homestead property to secure repayment of the Note. The Loan was assigned to Wells Fargo in March 2014. Wells Fargo is the current mortgage servicer of the Loan and assignee of the Deed of Trust.

On February 28, 2014, Tony V. Anderson ("Mr. Anderson") filed for Chapter 13 bankruptcy protection. The Andersons were not behind on their mortgage payments to Wells Fargo at that time. Mr. Anderson's Chapter 13 plan (the "Bankruptcy Plan") stated as follows:

Wells Fargo holds a first mortgage on the Debtor's homestead property located at 9401 Shoveler Trail, Fort Worth TX 76118. This is a joint debt with Debtor's non-filing spouse and the Debtors are current with their payments to this creditor. The Debtor shall make the regular monthly payment . . . directly to the creditor outside the plan. The Trustee shall make no payments to this creditor.

App. in Supp. of Mot. for Sum. J. ("Sum. J. App.") 11 [62]. The Bankruptcy Plan also stated that, upon confirmation of the plan, Wells Fargo would have a duty:

to apply the direct post-petition monthly mortgage payments paid by the Trustee or by the Debtor(s) to the month in which each payment was designated to be made under the plan or directly by the Debtor(s), whether or not such payments are immediately applied by the creditor to the outstandingloan balance or are placed into some type of suspense, forbearance, or similar account.

Id. at 12. The Bankruptcy Court confirmed the Bankruptcy Plan on June 17, 2014, and discharged Mr. Anderson from bankruptcy on April 8, 2015.

From December 2014 until April 2015, the Andersons made timely payments on the Loan. But instead of crediting the payments to the Loan, Wells Fargo placed them in an unapplied funds account and issued mortgage statements to the Andersons indicating that they were behind on payments. On May 10, 2015, in response to the Andersons' inquiries, Wells Fargo applied all of the payments placed in unapplied funds to the Loan as a single lump sum with an effective date of April 30, 2015, rather than applying the payments as of the actual dates on which Wells Fargo received them.

The Andersons assert that although Wells Fargo accepted their payments, it reported the Loan as delinquent to numerous credit reporting agencies ("CRAs"). Wells Fargo also reported that instead of making timely monthly payments, the Andersons made one large payment on April 30, 2015, to cure their default. The Andersons now assert claims against Wells Fargo under the U.S. Bankruptcy Code, the Fair Credit Reporting Act ("FCRA"), the Real Estate Settlement Procedures Act ("RESPA"), the Truth in Lending Act ("TILA"), and the Texas Debt Collection Act ("TDCA"), along with common law claims for defamation, breach of contract, negligence, and gross negligence.

Wells Fargo now moves for summary judgment [60], to strike the Andersons' expert designation of Thomas A. Tarter [63], and for leave to file an appendix in support of its summary judgment reply [93]. The Andersons in turn move for leave to file an amendedresponse brief and surreply in opposition to Wells Fargo's summary judgment motion [94, 96]. The Court addresses each motion in turn.

II. THE COURT GRANTS IN PART AND DENIES IN PARTWELLS FARGO'S MOTION FOR SUMMARY JUDGMENT

Wells Fargo moves for summary judgment on each of the Andersons' claims [60]. The Court grants in part and denies in part Wells Fargo's motion.¹

A. The Summary Judgment Standard

Courts "shall grant summary judgment if 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." FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In making this determination, courts must view all evidence and draw all reasonable inferences in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The moving party bears the initial burden of informing the court of the basis for its belief that there is no genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

When a party bears the burden of proof on an issue, she "must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in [her] favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis omitted). When the nonmovant bears the burden of proof, the movant may demonstrate entitlement tosummary judgment by either (1) submitting evidence that negates the existence of an essential element of the nonmovant's claim or affirmative defense, or (2) arguing that there is no evidence to support an essential element of the nonmovant's claim or affirmative defense. Celotex, 477 U.S. at 322-25.

Once the movant has made the required showing, the burden shifts to the nonmovant to establish that there is a genuine issue of material fact such that a reasonable jury might return a verdict in its favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Moreover, "[c]onclusory allegations, speculation, and unsubstantiated assertions" will not suffice to satisfy the nonmovant's burden. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). Indeed, factual controversies are resolved in favor of the nonmoving party "'only when an actual controversy exists, that is, when both parties have submitted evidence of contradictory facts.'" Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999) (quoting McCallum Highlands, Ltd. v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995)).

B. The Court Sustains in Part and Overrules in Part Wells Fargo'sObjections to the Andersons' Summary Judgment Evidence

Wells Fargo objects to portions of the Andersons' summary judgment evidence on various evidentiary grounds. The Court sustains in part and overrules in part Wells Fargo's objections.

1. The Court Sustains in Part and Overrules in Part Wells Fargo's Objections to Statements in the Andersons' Declarations. - Wells Fargo objects to a number of statements contained in the Andersons' declarations in support of their opposition to Wells Fargo'ssummary judgment motion. First, Wells Fargo objects to the following statement by Mr. Anderson: "Accordingly, both before I filed bankruptcy and after I emerged from bankruptcy, Wells Fargo should have reported our loan status as in good standing, open, and paid as agreed." T. Anderson Dec. at ¶ 6, Pls.' App. 98 [79]. Wells Fargo argues that Mr. Anderson's declaration provides no factual predicate suggesting how he is qualified to offer any opinion regarding what "should have" been reported. The Court agrees and sustains Wells Fargo's objection to Mr. Anderson's statement.

Second, Wells Fargo objects to the Andersons' statements that "Wells Fargo sent us a statement . . . indicating that the payment received by Wells Fargo . . . was held as 'Unapplied,' rather than applied to principal, interest, and escrow as required by the underlying note and deed of trust." T. Anderson Dec. at ¶¶ 8, 10-12, Pls.' App. 98 [79]; H. Anderson Dec. at ¶ 4, Pls.' App. 81 [79]. Wells Fargo asserts that the statements are conclusory and impermissibly provide legal conclusions regarding the application of tendered legal payments. The Court agrees that the Andersons' legal conclusions are impermissible and sustains Wells Fargo's objection with respect to the words "as required by the underlying note and deed of trust."

Wells Fargo's third and fourth objections challenge the Andersons' statements regarding their "frustrating" interactions with Wells Fargo and their asserted credit damages as a result of Wells Fargo's actions. The Andersons' statements are relevant and admissible. The Court thus overrules Wells Fargo's objections.

Fifth, Wells Fargo objects to the Andersons' statements that Mrs. Anderson "had no adverse reporting on her credit report that would have resulted in denial of credit other than the incorrect negative reporting related to the home mortgage loan with Wells Fargo." T. Anderson Dec. at ¶ 58, Pls.' App. 112 [79]; H. Anderson Dec. at ¶ 51, Pls.' App. 93-94 [79]. Wells Fargo argues that the statements are unsubstantiated and that the Andersons...