Rosas v. America's Servicing Co. (In re Rosas)

520 B.R. 534, 2014 U.S. Dist. LEXIS 146002, 2014 WL 5149418
CourtDistrict Court, W.D. Texas
DecidedOctober 14, 2014
DocketCivil Action No. SA-14-CV-601-XR; Bankruptcy No. SA-13-05080
StatusPublished
Cited by4 cases

This text of 520 B.R. 534 (Rosas v. America's Servicing Co. (In re Rosas)) is published on Counsel Stack Legal Research, covering District Court, W.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rosas v. America's Servicing Co. (In re Rosas), 520 B.R. 534, 2014 U.S. Dist. LEXIS 146002, 2014 WL 5149418 (W.D. Tex. 2014).

Opinion

ORDER

XAVIER RODRIGUEZ, District Judge.

On this day the Court considered Appellant Gene R. Rosas’ appeal of the Bankruptcy Judge’s summary judgment order relating to the mortgage and foreclosure of his home. For the following reasons, the Court AFFIRMS the judgment of the Bankruptcy Court.

I. BACKGROUND

Appellant Gene R. Rosas filed for Chapter 13 bankruptcy on September 2, 2013. Appellant then filed an adversarial proceeding to determine the validity of a lien against a property located at 6706 Berg-Boulevard, San Antonio, Texas (the “Property”), and to quiet title against Appellees America’s Servicing Company (“ASC”) and Deutsche National Trust Company, as trustee, on October 2, 2013.

To purchase the Property Appellant executed a note for $275,000 (the “Note”), secured with a deed of trust for the Property (“Deed of Trust”) (collectively the “Loan”) on June 23, 2006. Appellant defaulted on the Loan in December 2007, and Appellees sent a Notice of Default and Intent to Accelerate on August 6, 2007. Appellees then sent a Notice of Foreclosure Sale on September 24, 2007, scheduling a foreclosure sale of the Property for November 6, 2007. Though Appellees submitted no document officially called a notice of intent to accelerate to Appellant, Appellees properly accelerated the Note by at least September 24, 2007.1

In order to stop the foreclosure sale, Appellant filed his first2 lawsuit in state court and was granted his first3 temporary restraining order on November 5, 2007. After Appellant nonsuited two weeks later, Appellees rescheduled the foreclosure sale for February 5,-2008. Appellant’s wife filed a lawsuit and received a restraining order in state court the day before the scheduled foreclosure sale. The second case was dismissed with prejudice after the parties reached a Rule 11 agreement providing: 1) dismissal of the [537]*537suit with prejudice, 2) the Loan would be fully reinstated or paid off, or otherwise Appellees would foreclose in April 2008, and 3) Appellant would inform Appellees prior to seeking any further injunctive relief against them.

Appellant failed to reinstate or pay off the Loan. But he did file a third state court lawsuit and receive his third temporary restraining order without giving Ap-pellees prior notice on March 31, 2008. This third case was dismissed with prejudice and the temporary restraining order was vacated after another agreed order.

Appellees scheduled a fourth foreclosure sale for July 1, 2008. Appellant responded by filing a fourth lawsuit in state court, to which Appellees responded and filed a counterclaim. No TRO was granted in the fourth lawsuit, but the July 1, 2008 foreclosure sale never occurred.4 Appellant then filed his first5 bankruptcy in the Bankruptcy Court for the Western District of Texas-San Antonio Division on November 3, 2008, which stayed the state court proceedings. The Bankruptcy Court dismissed that case on December 17, 2008. After the bankruptcy stay lifted, the state court dismissed the fourth lawsuit with prejudice on January 15, 2009. Appellees again scheduled a foreclosure sale of the Property for February 1, 2009, but that sale never occurred.6 Appellees then scheduled a foreclosure sale for May 5, 2009, which Appellant stopped by filing for his second bankruptcy. The Bankruptcy Court dismissed the second bankruptcy qn July 13, 2009. Appellees again scheduled a foreclosure sale of the Property, this time for September 1, 2009, but Appellant’s wife blocked that sale by filing the couple’s third bankruptcy on that same day. The Bankruptcy Court dismissed the third bankruptcy case on October 19, 2009.

Following this series of cases, Appellant submitted several loan modification applications to Appellees. Eventually, on May 20, 2010, Appellees sent Appellant a “Special Forbearance Agreement” (the “Forbearance Agreement”), which he signed. The Forbearance Agreement provided that: 1) Appellant currently owed for 38 months, 2) Appellant would make seven payments, totaling $26,427, over approximately six months in exchange for Appel-lees not foreclosing the Property, and 3) Appellant was to continue discussing a loan modification with Appellees during this payment period. Additionally, the Forbearance Agreement included provisions stating that: 1) the forbearance “shall not constitute a waiver of [Appel-lee’s] rights to insist upon strict performance in the future;” 2) “the provisions of the [Note and Deed of Trust] ... shall remain in full force and effect” except as provided in the Agreement; 3) if any of the seven payments was late, the Forbearance Agreement would “be void and the total delinquency, including fees, will be due immediately;” 4) “in consideration of extending forbearance for a period of time;” and 5) if any part of any payment was not received on time, the Forbearance Agreement “will be rendered null and void.” Appellant signed the Forbearance Agreement on June 2, 2010. No representative from Appellees ever signed the Forbearance Agreement.

The first payment under the Forbearance Agreement was due on June 15, 2014. Appellant was unable to successfully make the payment due to an error, but he attempted to make the payment. Appellee [538]*538then sent Appellant a monthly mortgage statement declaring that Appellant must pay $114,889.42 by July 1, 2010. This amount was less than the $261,807,000 unpaid amount on the Loan at the time.

Appellant filed for Chapter 13 bankruptcy for the fourth time on July 6, 2010. Appellees sent another Notice of Default and Intent to Accelerate on July 7, 2010. After the Bankruptcy Court dismissed Appellant’s fourth bankruptcy case on August 30, 2010, Appellant began - making payments.7 Appellant made five payments of $3,554.46 from September 2, 2010 to January 5, 2010, totaling $17,772.30. From October 2010 to February 2011, Appellees sent Appellant three monthly mortgage statements detailing the amount Appellant currently owed, all of which showed a balance of less than the total outstanding balance on the Loan. Appellees eventually sent Appellant a Notice of Rescission of Acceleration on May 4, 2011, which reserved their rights to “accelerate and collect” the Loan in the future.

The parties continued to discuss loan modification, but Appellees ultimately rejected Appellant’s loan modification applications. They sent a new Notice of Default and Intent to Accelerate on January 13, 2012, and then a Notice of Acceleration and Notice of Sale on February 13, 2012, which scheduled the foreclosure sale for March 6, 2012.

Appellant filed his fifth and final state court lawsuit on February 24, 2012 to stop the March 6, 2012 foreclosure sale, arguing Texas’ four-year statute of limitations to foreclose after acceleration had elapsed and Appellees no longer had the right to foreclose the property. Appellees removed the fifth state court lawsuit to federal court. Appellees re-started foreclosure proceedings again on August 8, 2013, sending yet another Notice of Acceleration and Notice of Sale and scheduling the foreclosure for September 3, 2013. With the fifth lawsuit still pending in federal court, Appellant moved for a temporary restraining order to stop the foreclosure sale. Judge Biery denied the temporary restraining order because Appellant “failed to show a substantial likelihood of success on the merits based on the statute of limitations.” Rosas v.

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Bluebook (online)
520 B.R. 534, 2014 U.S. Dist. LEXIS 146002, 2014 WL 5149418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosas-v-americas-servicing-co-in-re-rosas-txwd-2014.