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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JORDAN ZITOUN and

ERIN ZITOUN, §

§

Plaintiffs, §

§

v. § No. 3:22-cv-2192-N-BT

§

ALLY BANK and CENLAR FSB, §

as Loan Servicer, §

§

Defendants, §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court is Defendants Ally Bank and Cenlar FSB’s Motion for 

Summary Judgment Pursuant to Federal Rule of Civil Procedure 56 (ECF 

No. 12) and accompanying Brief in Support (ECF No. 13). For the following 

reasons, the District Court should GRANT Defendants’ Motion and 

DISMISS all of Plaintiffs’ claims with prejudice.

Background

This lawsuit arises from Defendants’ attempted foreclosure sale of 

Plaintiffs’ home located in Dallas, Texas (the “Property”). Notice Removal 1 

¶ 3 (ECF No. 1); Pls.’ Original Pet., Defs.’ Ex. E at 4, ¶ 12 (ECF No. 1-5). On 

June 25, 2018, Jordan Zitoun and his wife, Erin Zitoun (Plaintiffs) executed 

a Note payable to United Wholesale Mortgage. Pls.’ Original Pet., Defs.’ Ex. 

E ¶ 13 (ECF No. 1-5). The Note was secured by a deed of trust (the “DOT”) 

encumbering the Property. Id. at 5, ¶ 12-13 (ECF No. 1-5). Later, the DOT 

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was assigned to Defendant Ally Bank, with Defendant Cenlar FSB acting as 

the loan servicer. Id. Ally Bank is the current owner and holder of the Note.

Id.

The Note’s terms require Plaintiffs to make monthly principal and 

interest payments on the first day of each month, or else the couple is in 

default. Defs.’ Br., Ex. A-1 ¶¶ 3, 6 (ECF No. 13-1). Upon default, the maturity 

date of the Note accelerates, and the remaining unpaid balance becomes 

immediately due and payable in full. Id. at ¶ 6 (ECF No. 13-1). Ally Bank 

must send a written notice informing Plaintiffs of the acceleration and the 

ability to cure the default by paying the overdue amount by a certain date.

Id. at ¶ 3 (ECF No. 13-1). The DOT similarly provides for the payment of 

principal and interest and any late fees on the debt evidenced in the Note, as 

well as authorization for acceleration of the maturity date of the Note and 

foreclosure of the Property if Plaintiffs default. Id. at ¶¶ 1, 22 (ECF No. 13-

1).

Plaintiffs stopped making payments on the Note beginning March 

2020. Defs.’ Br., Ex. A-4 ¶ 1 (ECF No. 13-1); Pls.’ Original Pet., Defs.’ Ex. E ¶ 

14 (ECF No. 1-5). Plaintiffs allege that flooding caused extensive damage to 

the Property and they experienced financial hardship from the cost of 

repairs. Pls.’ Original Pet., Defs.’ Ex. E ¶ 14 (ECF No. 1-5). Consequently, 

Plaintiffs admit, “[b]y March 2020, [Plaintiffs] had exhausted their financial 

resources and therefore discontinued payments on the Property.” Id. (ECF 

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No. 1-5). Ally Bank gave Plaintiffs notice of the default and an opportunity 

to cure the default before September 27, 2021. Defs.’ Br., Ex. A-4 (ECF No. 

13-1) (Ally Bank’s Notice of Default). When Plaintiffs failed to bring their 

payments current, Ally Bank accelerated the debt and Cenlar FSB gave 

Plaintiffs notice of a foreclosure sale to occur on September 6, 2022. Defs.’ 

Br., Ex. A-5, A-6 (ECF No. 13-1) (Cenlar’s Notice of Acceleration and 

Enclosing Notice of Substitute Trustee’s Sale).

To stop the foreclosure sale, Plaintiffs, represented by counsel, filed 

this lawsuit in state court on September 1, 2022. They assert two causes of 

action: (1) breach of contract; and (2) wrongful foreclosure. They obtained a 

temporary restraining order from the state court preventing the scheduled 

foreclosure sale from going forward. Defs.’ Br. ¶ 8 (ECF No. 13). They further 

seek injunctive relief, damages between $200,000 and $1,000,000, and

attorney’s fees. Pls.’ Original Pet., Defs.’ Ex. E ¶ 7 (ECF No. 1-5).

Defendants timely removed the suit to federal court asserting 

diversity jurisdiction. Notice Removal 2, ¶ 6 (ECF No. 1). On June 26, 2023, 

the Court granted an agreed motion for Plaintiffs’ counsel to withdraw, and 

the couple has since proceeded pro se. See Order (ECF No. 7). Defendants 

now move for summary judgment as to all of Plaintiffs’ claims. Defs.’ Mot. 

Summ. J. (ECF No. 12). Defendants argue Plaintiffs’ breach of contract claim 

fails because (i) they do not identify the provision of Note or Deed of Trust 

allegedly breached by Defendants, (ii) Plaintiffs themselves are in breach of 

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the loan, (iii) Defendants complied with the loan and all notice requirements 

of the Note, Deed of Trust, and the Texas Property Code, (iv) and Plaintiffs 

have no damages attributable to Defendants’ alleged breach. Defs.’ Br. ¶¶ 15-

20 (ECF No. 13). Defendants further contend that Plaintiffs cannot prevail 

on their wrongful foreclosure claim because no foreclosure has taken place. 

Id. at ¶¶ 21-23 (ECF No. 13). Plaintiffs did not file a response to the Motion, 

and their time for doing so has expired. See N.D. Tex. L. Civ. R. 7.1(e); see 

also Notice Non-Response (ECF No. 14).

Legal Standards

Summary judgment is proper when “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). A party seeking summary judgment bears the initial 

burden of showing the absence of a genuine issue for trial. Duffy v. Leading 

Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995) (citation omitted). The 

movant’s burden can be satisfied by demonstrating that there is an absence 

of evidence to support the nonmoving party’s case, which the nonmovant 

bears the burden of proving at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 

323 (1986). The movant’s burden can also be satisfied by submitting 

evidence into the record that affirmatively disproves an element of the 

nonmoving party’s case. Adickes v. S. H. Kress & Co., 398 U.S. 144, 153 

(1970). Once the movant meets its initial burden, the nonmovant must show 

that summary judgment is not proper. Duckett v. City of Cedar Park, 950 

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F.2d 272, 276 (5th Cir. 1992) (citation omitted). The parties may satisfy their 

respective burdens “by tendering depositions, affidavits, and other 

competent evidence.” Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 

1992) (first citing Int’l Shortstop, Inc. v. Rally’s, 939 F.2d 1257, 1263 (5th 

Cir. 1991); and then citing Fed. R. Civ. P. 56(e)). 

The party opposing the summary judgment motion must identify 

specific evidence in the record and state the precise manner in which that 

evidence supports the party’s claim. Esquivel v. McCarthy, 2016 WL 

6093327, at *2 (N.D. Tex. Oct. 18, 2016) (Lindsay, J.) (citing Ragas v. Tenn. 

Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1988)). “Rule 56 does not 

impose a duty on the court to ‘sift through the record in search of evidence’ 

to support the nonmovant’s opposition to the motion for summary

judgment.” Id. (first citing Ragas, 136 F.3d at 458; and then citing Skotak v. 

Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992)). All 

evidence must be viewed in the light most favorable to the party opposing 

the summary judgment motion. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 

1993) (citing Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th 

Cir. 1986)). The fact that a litigant is proceeding pro se in a particular case 

does not alter these principles. See Davis v. Fernandez, 798 F.3d 290, 293 

(5th Cir. 2015) (“[T]his is not to say that pro se plaintiffs don’t have to 

submit competent evidence to avoid summary judgment, because they do.”).

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Analysis

Plaintiffs did not respond to Defendants’ Motion for Summary 

Judgment. While such a failure does not permit the court to enter a “default” 

summary judgment, a court is permitted to accept the movant’s facts as 

undisputed when no response or opposition is filed. Eversley v. Mbank 

Dallas, 843 F.2d 172, 174 (5th Cir. 1988). Normally, “[a] summary judgment 

nonmovant who does not respond to the motion is relegated to her unsworn 

pleadings, which do not constitute summary judgment evidence.” Bookman 

v. Schubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.) (citing 

Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)). In 

this case, the only competent summary judgment evidence before the Court 

is Cenlar FSB’s Declaration, copies of the Note, the DOT, the assignment to 

Ally Bank, and Defendants’ Notices of Default and of Acceleration and Sale.

Defs.’ Br., Ex. A-1, A-2, A-3, A-4, & A-5 (ECF No. 13-1). The Court may 

consider this evidence as undisputed.

Plaintiffs’ pro se status does not excuse them from filing a response. 

“District courts can make appropriate allowances for pro se responses that 

may be somewhat less-artfully written than those of represented parties. 

This can be accomplished, however, without excusing them from the most 

basic requirement that they file a response.” Bookman, 945 F. Supp. at 1005. 

Plaintiffs, despite their pro se status, “[are] not, as the party with the burden 

of proof [at trial], excused from the requirement that [they] set forth specific 

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facts supporting [their] claim.” Id. at 1004 (citing Jones v. Sheehan, Young 

& Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996); Douglass v. United Servs. 

Auto Ass’n, 65 F.3d 452, 455 n.4. (5th Cir. 1995)). By failing to respond to 

the summary judgment motion, Plaintiffs have not met their burden to 

designate specific facts to show that there is a genuine issue for trial. See 

Bookman, 945 F. Supp. at 1004.

I. Defendants are entitled to summary judgment on Plaintiffs’ breach 

of contract claim.

Defendants move for summary judgment on Plaintiffs’ breach of 

contract claim. To prevail on a breach of contract claim under Texas law, a 

plaintiff must show “(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 sustained by the plaintiff as a result of the 

defendant’s breach.” Am. Gen. Life Ins. Co. v. Kirsh, 378 Fed. Appx. 379, 

383 (5th Cir. 2010); see also Hayes v. Bank of Am., N.A., 2020 WL 3065936, 

at *4 (N.D. Tex. May 15, 2020) (Rutherford, J.), report and recommendation 

adopted, 2020 WL 3065520 (N.D. Tex. June 9, 2020) (Fish, J.). Beyond 

these requirements, “a claim for a breach of a note and deed of trust must 

identify the specific provision in the contract that was breached.” Williams 

v. Wells Fargo Bank, N.A., 560 F. App’x. 233, 238 (5th Cir. 2014). Plaintiffs’ 

breach of contract claim fails for all the reasons advanced by Defendants.

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First, Plaintiffs fail to identify any specific provision of the Note or 

Deed of Trust that gives rise to their claim. In the absence of such evidence, 

Defendants are entitled to summary judgment on Plaintiffs’ breach of 

contract claim. Draehn v. Shellpoint Mortg. Servicing, 2018 WL 1157792, at 

*3 (N.D. Tex. Feb. 12, 2018) (Rutherford, J.), rec. adopted sub nom. Draehn 

v. Shell Point Mortg. Serving, 2018 WL 1122189 (N.D. Tex. Feb. 28, 2018) 

(granting summary judgment in favor of mortgage loan servicer where 

plaintiff failed to identify any specific provision in Deed of Trust that was 

breached); Meija v. BAC Home Loan Servicing, LP, 2011 WL 5252600, at *1 

(N.D. Tex. Jul. 6, 2011) (Kaplan, J.) (same).

Second, Plaintiffs’ admit they defaulted on their payment obligations. 

See Pls.’ Original Pet., Defs.’ Ex. E ¶ 14 (ECF No. 1-5) (“By March 2020, the 

Plaintiffs had exhausted their financial resources and therefore 

discontinued payments on the Property.”). Therefore, there is no genuine 

dispute that Plaintiffs performed or tendered performance under the 

contract. See Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763, 767 (5th 

Cir. 2016) (affirming dismissal of plaintiff’s breach of contract claim 

“[b]ecause [plaintiff] failed to allege any facts showing her own performance 

and did not refute the facts in documents referred to in her complaint [that 

revealed she was in default by over $7, 300]”); Williams, 560 F. App’x at 238

(“[I]f, as here, plaintiffs fail to allege they were current on their payments 

under the deed of trust, dismissal of their breach of contract claim is 

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proper.”); Vera v. Bank of Am., N.A., 569 F. App’x 349, 352 (5th Cir. 2014)

(borrower could not maintain a breach of contract claim against its lender 

after defaulting on its monthly mortgage payments without excuse).

Plaintiffs allege they performed their contractual obligations because 

they “are ready, willing, and able to make the necessary payment to forego 

the foreclosure of the Property, and the Defendants refuse to come to the 

table.” Pls.’ Original Pet., Defs.’ Ex. E ¶ 18 (ECF No. 1-5). They allege they 

are trying to secure financing to cure the default and resume payments. Pls.’ 

Original Pet., Defs.’ Ex. E ¶ 17 (ECF No. 1-5). But Plaintiffs’ allegations are 

not evidence. And Plaintiffs “ha[ve] not directed the Court to any provision 

in the deed of trust requiring Defendants to accept partial [or late] 

payments.” Narvaez v. Wilshire Credit Corp., 757 F. Supp. 2d 621, 630 (N.D. 

Tex. 2010) (Lynn, J.).

Third, the uncontroverted evidence establishes that Defendants 

complied with the loan and all requirements of the Note, Deed of Trust, and 

the Texas Property Code. Although Plaintiffs allege that Defendants failed to 

provide proper notices of default and notice of acceleration, the only 

evidence in the summary judgment record is to the contrary. Defendants 

sent proper notice of default to Plaintiffs on August 23, 2021. Defs.’ Br., Ex. 

A-4 (ECF No. 13-1). And when Plaintiffs failed to cure the default, 

Defendants sent them notice of acceleration and notice of a substitute 

trustee’s sale on August 10, 2022. Defs.’ Br., Ex. A-5 (ECF No. 13-1).

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Finally, Plaintiffs do not adduce any evidence that they have suffered 

damages as the result of any alleged breach. If a foreclosure has not 

occurred, there are no damages recoverable under a breach of contract 

claim. See Peoples v. BAC Home Loans Servicing, LP, 2011 WL 1107211, at 

*4 (N.D. Tex. Mar. 25, 2011) (holding plaintiff failed to allege damages for 

breach of contract where no foreclosure occurred, she remained in 

continuous possession and occupation, and title remained in her name); see 

also Jones v. NewRez LLC, 2022 WL 16579330, at *4 (N.D. Tex. Oct. 7, 

2022) (Rutherford, J.), report and recommendation adopted, 2022 WL 

16577861 (N.D. Tex. Oct. 31, 2022) (Lindsay, J.) (finding that plaintiff “fails 

to meet his burden to show that a genuine fact issue exists as to damages”

since “[t]here is no dispute . . . that [Defendant] has not yet foreclosed on 

the Property”). There is no dispute in this case that Defendants have not yet 

foreclosed on the Property. Consequently, Plaintiffs fail to meet their burden 

to show that a genuine fact issue exists as to damages.

In sum, the Court should grant Defendants summary judgment on 

Plaintiffs’ breach of contract claim because there is no genuine dispute that 

Plaintiffs performed under the contract or that they suffered any actual 

damages. Additionally, Plaintiffs fail to identify any specific provision of the 

Note or DOT that Defendants breached, and the only competent summary 

judgment evidence in the record establishes that Defendants complied with 

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their obligations under the loan documents and did not breach any contract 

with Plaintiffs.

II. Defendants are entitled to summary judgment on Plaintiffs’

wrongful foreclosure claim.

Plaintiffs bring a claim for wrongful foreclosure, alleging that “[i]n 

conducting foreclosure sale of the Property, Defendants are in breach [of] 

the Deed of Trust with Plaintiffs.” Pls.’ Original Pet., Defs.’ Ex. E ¶ 23 (ECF 

No. 1-5). But it is undisputed that no foreclosure has occurred. “A claim of 

wrongful foreclosure cannot succeed[] . . . when no foreclosure has 

occurred.” Foster v. Deutsche Bank Nat'l Tr. Co., 848 F.3d 403, 406 (5th 

Cir. 2017) (citing Marsh v. Wells Fargo Bank, N.A., 760 F.Supp.2d 701, 708 

(N.D. Tex. 2011)); see also James v. Wells Fargo Bank, N.A., 533 F. App'x 

444, 447 (5th Cir. 2013) (“[C]ourts in Texas do not recognize an action for 

attempted wrongful foreclosure”). Consequently, Plaintiffs’ wrongful 

foreclosure claim fails as a matter of law.

III. Plaintiffs are not entitled to injunctive relief.

Plaintiffs do not have a plausible underlying legal claim, so they are 

not entitled to injunctive relief. Under Texas law, injunctive relief is an 

equitable remedy, not an independent cause of action. Cook v. Wells Fargo 

Bank, N.A., 2010 WL 2772445, at *4 (N.D. Tex. July 12, 2010) (Fitzwater, J.) 

(citing Brown v. Ke-Ping Xie, 260 S.W.3d 118, 122 (Tex. App.—Houston [1st 

Dist.] 2008, no pet.)).

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Here, Plaintiffs have failed to provide supporting evidence for any of 

their claims sufficient to create a genuine dispute of material fact. 

Accordingly, they are not entitled to relief on any of their substantive claims 

or on their claim for injunctive relief. See Anderson v. CitiMortgage, Inc., 

2011 WL 1113494, at *7 (E.D. Tex. March 24, 2011) (“As all of Plaintiffs’ 

causes of action should be dismissed, and Plaintiffs have failed to allege 

sufficient facts to support their claims, Plaintiffs are not entitled to 

injunctive relief.”).

IV. Plaintiffs are not entitled to attorney’s fees.

Similarly, Plaintiffs cannot recover attorney’s fees. In Texas, plaintiffs 

are not entitled to attorney’s fees unless they state a viable cause of 

action. See Avila v. Mortg. Elec. Reg. Sys., Inc., 2012 WL 6055298, at 

*7 (S.D. Tex. Dec. 5, 2012) (“[W]ithout a viable cause of action, [plaintiff] is 

not entitled to recover attorney’s fees.”); see also Jones, 2022 WL 16579330, 

at *10 (“Because the Court should grant summary judgment in favor of 

[defendant] and dismiss [plaintiff’s] claims, the Court also should grant 

[defendant] summary judgment on [plaintiff’s] claims for damages, other 

remedies, and fees.”). Because there is no genuine issue of any material fact, 

Plaintiffs are not entitled to attorney’s fees.

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RECOMMENDATION

For the reasons explained, the District Court should GRANT 

Defendants’ Motion for Summary Judgment (ECF No. 12) and DISMISS

Plaintiffs’ claims with prejudice.

SO RECOMMENDED.

January 5, 2024.

______________________________ 

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all 

parties in the manner provided by law. Any party who objects to any part of 

this report and recommendation must file specific written objections within 

14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. 

P. 72(b). To be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the 

objection, and specify the place in the magistrate judge’s report and 

recommendation where the disputed determination is found. An objection 

that merely incorporates by reference or refers to the briefing before the 

magistrate judge is not specific. Failure to file specific written objections will 

bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the 

district court, except upon grounds of plain error. See Douglass v. United 

Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

 

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