Memorandum Opinion and Order - Page 1 

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DEBORAH L. LEGGETT, §

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Plaintiff, §

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v. § Civil Action No. 3:05-CV-1959-L

§

AMERICA’S SERVICING CO., et al., §

 §

Defendants. §

MEMORANDUM OPINION AND ORDER

Before the court are: (1) Defendants Wells Fargo Home Mortgage, Inc.’s, America’s

Servicing Company’s, Mortgage Electronic Registration Systems, Inc.’s, and SFJV 2004-1, LLC’s

Motion for Ultimate Sanctions, filed October 17, 2008; (2) Report and Recommendation of the

United States Magistrate Judge, filed November 24, 2008; and (3) Defendants Wells Fargo Home

Mortgage, Inc.’s, America’s Servicing Company’s, Mortgage Electronic Registration Systems,

Inc.’s, and SFJV 2004-1 LLC’s Motion for Summary Judgment, filed November 11, 2008. After

carefully considering the motions, report, briefs, record, and applicable law, the court denies

Defendants Wells Fargo Home Mortgage, Inc.’s, America’s Servicing Company’s, Mortgage

Electronic Registration Systems, Inc.’s, and SFJV 2004-1, LLC’s Motion for Ultimate Sanctions and

grants Defendants Wells Fargo Home Mortgage, Inc.’s, America’s Servicing Company’s, Mortgage

Electronic Registration Systems, Inc.’s, and SFJV 2004-1 LLC’s Motion for Summary Judgment

with respect to all claims asserted by Plaintiff Deborah L. Leggett against them. The court defers

ruling on SFJV 2004-1 LLC’s Motion for Summary Judgment with respect to its counterclaim

against Plaintiff Deborah L. Leggett.
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I. Factual and Procedural Background

Plaintiff Deborah L. Leggett (“Plaintiff” or “Leggett”) filed her First Amended Complaint

on March 27, 2007, alleging claims against Defendants America’s Servicing Company; MHI

Partnership, Ltd.; Loan Partners Mortgage, Ltd.; Wells Fargo Home Mortgage, Inc.; Mortgage

Electronic Registration Systems, Inc., as nominee for lender and lender’s successors and assigns;

Sterling Capital Mortgage Company; and SFJV 2004-1, LLC. Plaintiff’s claims arise from a

mortgage on property located at 4122 Orchid Lane, Mansfield, Texas, 76063. She brings the

following claims: breach of contract, wrongful foreclosure, violation of the Federal Truth-inLending Act (“TILA”), violation of the Texas Deceptive Trade Practices Act (“DTPA”), violation

of the Fair Debt Collection Practices Act (“FDCPA”), violation of the Texas Debt Collection Act

(“TDCA”), violation of the Real Estate Settlement Procedures Act (“RESPA”), and breach of

fiduciary duty. She also seeks injunctive and declaratory relief, damages, attorney’s fees and costs,

and interest.

On August 22, 2007, the court stayed Plaintiff’s claims against Defendant MHI Partnership,

Ltd. and directed Plaintiff to arbitrate her claims against that Defendant. Subsequently, due to

Plaintiff’s failure to comply with the court’s orders to file motions for default judgment against nonappearing Defendants, the court dismissed without prejudice Plaintiff’s claims against Defendants

Loan Partners Mortgage, Ltd. on August 1, 2008, and Sterling Capital Mortgage Company on

September 4, 2008. The remaining Defendants, Americas Servicing Company, Wells Fargo Home

Mortgage Inc., Mortgage Electronic Registration Systems Inc., and SFJV 2004-1 LLC (hereinafter,

“Defendants”) have now moved for sanctions against Plaintiff and for summary judgment.
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II. Motion for Sanctions

Defendants moved to dismiss Plaintiff’s case against them due to her repeated failure to

provide discovery, including her refusal to appear for her deposition and failure to provide answers

to interrogatories. On November 24, 2008, United States Magistrate Judge Wm. F. Sanderson, Jr.

filed his report on the motion and recommended that the court deny Defendants’ motion. He noted

that Plaintiff appeared for her deposition on October 22, 2008, and that she paid sanctions in the

amount of $600 as ordered by him on September 30, 2008. On the same day he signed the report,

the magistrate judge also ordered Plaintiff to pay an additional sanction of $600 for Defendants’

reasonable attorney’s fees and expenses for filing the motion for sanctions.

No objections to the magistrate judge’s report were filed. Having reviewed the pleadings,

file and record in this case, and the findings and conclusions of the magistrate judge, the court

determines that they are correct and therefore accepts the findings, conclusions and

recommendation of the magistrate judge. Accordingly, the court denies Defendants Wells Fargo

Home Mortgage, Inc.’s, America’s Servicing Company’s, Mortgage Electronic Registration

Systems, Inc.’s, and SFJV 2004-1, LLC’s Motion for Ultimate Sanctions.

III. Motion for Summary Judgment

Summary judgment shall be rendered when the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v.

Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact

is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the
Memorandum Opinion and Order - Page 4 

nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a

motion for summary judgment, the court is required to view all inferences drawn from the factual

record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith

Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458. Further, a court “may not make

credibility determinations or weigh the evidence” in ruling on motion for summary judgment.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-

55.

Once the moving party has made an initial showing that there is no evidence to support the

nonmoving party’s case, the party opposing the motion must come forward with competent summary

judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere

conclusory allegations are not competent summary judgment evidence, and thus are insufficient to

defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).

Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent

summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513

U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence

in the record and to articulate the precise manner in which that evidence supports his claim. Ragas,

136 F.3d at 458. 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.; see

also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir.), cert. denied, 506 U.S.

832 (1992). “Only disputes over facts that might affect the outcome of the suit under the governing

laws will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed

fact issues which are “irrelevant and unnecessary” will not be considered by a court in ruling on a
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summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to

establish the existence of an element essential to its case and on which it will bear the burden of

proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

Plaintiff filed no response to the summary judgment motion. This failure, of course, does

not permit the court to enter a “default” summary judgment. Eversley v. MBank Dallas, 843 F.2d

172, 174 (5th Cir. 1988). It does, however, allow the court to accept as “undisputed” any evidence

presented by Defendants that is not rebutted by Plaintiff with competent summary judgment

evidence. 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) (citing Solo Serve Corp. v.

Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)). In this case, there is testimony presented by

way of Leggett’s deposition excerpts that the court must consider because it is part of the record.

SFJV asks the court to grant judgment in its favor on its counterclaim against Leggett

seeking the fair market rental value of the property from October 4, 2005 until July 23, 2008.

Defendants also ask the court to dismiss Plaintiff’s claims against them. The court has carefully

reviewed Defendants’ motion and evidence, Leggett’s testimony, the record, and applicable law.

SFJV “seeks to recover the fair market rental value of Plaintiff’s home since October 4, 2005

to the present, which is the time the Plaintiff has resided in the home since its foreclosure.”

Countercl. ¶ 5. No specific claim is pleaded or cited in the counterclaim or in SFJV’s motion for

summary judgment, and no legal basis, statute, or case law is cited by Defendant. SFJV has attached

the affidavit of Brett Biskamp to support its claim for damages in the amount of $48,175. This
Memorandum Opinion and Order - Page 6 

figure is based on a fair market rental value of $1375 for fifteen months (October 2005 through

December 2006), and $1450 per month for nineteen months (January 2007 through July 2008). 

While there are several possible theories of recovery SFJV is asserting, the court will not

speculate as to the basis for Defendant’s claim that it is entitled to past rent. Because SFJV has not

advanced a theory of recovery, the court cannot determine whether all of the elements of such a

claim have been met. Moreover, regardless of what theory of recovery SFJV is to assert, the court

determines that SFJV’s evidence of its damages is too conclusory. Biskamp states that he is a real

estate appraiser and appraises residential properties to determine the fair market or fair market rental

value. He did not inspect the interior of the property, and there is no indication of the condition of

the home after the foreclosure while Plaintiff was residing there. The rents included in his affidavit

are higher than the mortgage payment Plaintiff was paying, and the affidavit does not acknowledge

or consider the downturn in the housing market over the past two years. To determine the fair

market rental value of the property, specific comparable rental information should be provided. By

way of example, there is no specific information on comparable rents in Plaintiff’s neighborhood

or similar residential areas to reflect what comparable homes were renting for at the time Plaintiff

occupied the home after the foreclosure. The court is unwilling to rely on this “after the fact”

conclusory evidence.

The court therefore determines that summary judgment on SFJV’s counterclaim is

inappropriate at this time; however, additional briefing and evidence could demonstrate that there

is no genuine issue of material fact with respect to the claim and that summary judgment is

appropriate. Accordingly, the court will allow SFJV the opportunity to provide a supplemental brief

and additional evidence to explain precisely the basis of its claim and to provide additional evidence

of its damages. SFJV may file a supplemental brief, not to exceed seven pages, and additional
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evidence of damages no later than January 8, 2009. Plaintiff may respond by filing a brief, not to

exceed seven pages, and evidence no later than January 28, 2009.

With respect to Plaintiff’s claims against Defendants, the court determines that these claims

should be dismissed as a matter of law. With respect to the breach of contract claim, Plaintiff has

failed to establish the breach of any contract by Defendants. Plaintiff’s claim for wrongful

foreclosure fails because the evidence establishes that the foreclosure was proper. Plaintiff’s DTPA

claim fails because she is not a “consumer” within the meaning of the DTPA with respect to her

purchase of the property. Her claims for violation of the FDCPA and TDCA fail because Wells

Fargo is not a debt collector and there is no evidence that the foreclosure of the property was

unlawful. Finally, Plaintiff’s claims for violation of TILA and RESPA fail because they are barred

by the applicable statutes of limitations. Accordingly, there is no genuine issue of material fact with

respect to any of Plaintiff’s claims, and Defendants are entitled to summary judgment on all of

Plaintiff’s claims against them.

IV. Conclusion

For the foregoing reasons, the court denies Defendants Wells Fargo Home Mortgage, Inc.’s,

America’s Servicing Company’s, Mortgage Electronic Registration Systems, Inc.’s, and SFJV 2004-

1, LLC’s Motion for Ultimate Sanctions and grants Defendants Wells Fargo Home Mortgage, Inc.’s

America’s Servicing Company’s, Mortgage Electronic Registration Systems, Inc.’s, and SFJV 2004-

1 LLC’s Motion for Summary Judgment with respect to all claims asserted by Plaintiff Deborah L.

Leggett against them. The court dismisses with prejudice Plaintiff’s claims against Defendants

Wells Fargo Home Mortgage, Inc., America’s Servicing Company, Mortgage Electronic

Registration Systems, Inc., and SFJV 2004-1, LLC. The court will consider SFJV’s motion for

summary judgment on its counterclaim after it has received the supplemental briefs and evidence.
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The only remaining claims are Plaintiff’s claims against Defendant MHI Partnership, Ltd.

On August 22, 2007, the court ordered Plaintiff and Defendant MHI to arbitrate Plaintiff’s claims

against that Defendant and stayed Plaintiff’s claims against MHI. The court vacates its August 22,

2007 order to the extent that it stayed Plaintiff’s claims against MHI rather than dismiss them. The

court now determines that all issues in controversy between Plaintiff and MHI must be submitted

to arbitration. As all of the claims between Plaintiff and MHI must be submitted to arbitration, there

is no reason for the court to maintain jurisdiction over the claims between them. These claims

should be, and are hereby, dismissed with prejudice. Alford v. Dean Witter Reynolds, Inc., 975

F.2d 1161, 1164 (5th Cir. 1992). 

It is so ordered this 19th day of December, 2008.

_________________________________

Sam A. Lindsay

United States District Judge