Ellis v. Carrington Mortgage Services, LLC

Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT August 13, 2021

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

JOAN C ELLIS, | §

Plaintiff,

VS. § CIVIL ACTION NO. 4:19-CV-4370

CARRINGTON MORTGAGE SERVICES, ;

LLC, et al, §

Defendants. ;

ORDER

Before the Court are Defendant Carrington Mortgage Services, LLC’s (“Carrington”)

Motion Summary Judgment (Doc. No. 28-1) and Defendants Ramsey and Lonita Weaver’s

(the “Weavers”) Motion for Summary Judgment (Doc. No. 37). Plaintiff Joan Ellis (“Ellis” or

“Plaintiff’) filed a combined response to both (Doc. No. 49), to which Carrington replied (Doc.

No. 50). Plaintiff also filed motions for summary judgment against Carrington (Doc. No. 41) and

against the Weavers (Doc. No. 40). Carrington responded (Doc. No. 44). Plaintiff filed three

supplemental responses to its response to Carrington’s Motion for Summary Judgment (Doc. Nos.

51, 51 & 53). After careful consideration, the Court GRANTS Carrington’s Motion for Summary

Judgment (Doc. No. 28-1) and DENIES Plaintiff’s cross-motion. (Doc. No. 41). The remaining

motions are hereby DENIED as moot (Doc. Nos. 37 & 40).

I. Background

On September 26, 2002, the Weavers executed a Texas Home Equity Security Instrument

(“Security Instrument”), which secured a note in the amount of $74,000 (the “Note”) in favor of

lender New Century Mortgage Corporation and encumbered residential property located at 14906

Sheffield Terrace, Channelview, Texas 77530 (the “Property’”’). (Doc. No. 28-1 at 30, 35). The

Security Instrument, or mortgage, was recorded in the real property records of Harris County,

Texas on October 19, 2002. U/d.). It was eventually assigned to Deutsche Bank National Trust

Company (“Deutsche Bank”), for whom Carrington is the servicer. (Id. at 27~28). This assignment

was also properly recorded. (/d. at 56-58).

Plaintiff purchased the Property from the Weavers in 2012 by executing a Contract for

Deed. (/d. at 161-166). Plaintiff did not order a title report or research the real property records of

Harris County prior to the sale. id at 74, 52:17-19; 92, 123:14-19). The Contract for Deed

stipulated that the “Seller asking price” was $75,000, and that Plaintiff would provide a $6,000

down payment and make monthly payments of $1,100 to the Weavers until 2034. (/d. at 167). It

also provided the option of prepayment for Plaintiff to pay the balance at any time. (/d. at 168). As

is typical in many contracts for deed, it also included the following caveat: “Buyer understands

and acknowledges that Buyer does not acquire legal title by this contract and Buyer will not acquire

legal title until Seller’s Deed is Delivered.” (/d.). A deed was never delivered, nor was the title

ever in Plaintiff's name. (Id. at 124, 252:23-254:10).

On September 4, 2015 and November 4, 2016, the Weavers provided prepayment figures

(referred to by the parties as a “payoff”) to Plaintiff, as permitted by the Contract for Deed. (/d. at

174-177; id. at 87, 104:9-105:5). Plaintiff apparently believed these payoff amounts were unfairly

inflated. (Doc. No. 28-1 at 159). Plaintiff stopped making her monthly payments on the Contract

for Deed between 2016 and 2017. (Doc. No. 1-6 at 147). Thereafter, Plaintiff and the Weavers

agreed to enter a “short sale” conveyance of the Property. (Doc. Nos. 28-1 at 78, 67:14-68:11 &

37-3). Carrington was not involved in the payoff calculations, the decision of Plaintiff to stop

making payments, or this “short sale” agreement. (Doc. Nos. 28-1 at 84, 90:1-92:19 & 37-3). The

Weavers and Plaintiff both signed and executed the contract (Doc. No. 37-3), but the parties did

not close the deal because Plaintiff never paid for the Property. (Doc. No. 28-1 at 78, 68:8-16).

Meanwhile, the mortgage was in default. On January 19, 2018, Carrington, acting in its

capacity as servicer of Deutsche Bank, instituted judicial foreclosure on the Property. (Doc. No.

28-1 at 183). That action resulted in a foreclosure order permitting Carrington to foreclose the

Property after January 1, 2019. Ud. at 187). Carrington provided timely notice of default and

foreclosure to the Weavers and the Property was foreclosed upon on February 5, 2019. (/d. at 191).

Plaintiff was not part of the foreclosure auction or sale. (/d. at 111, 99:15—20).

On November 21, 2016, prior to the attempted short sale, Plaintiff filed her Verified First

Amended Petition in state court against the Weavers. She alleged breach of contract, fraud in real

estate transaction, specific performance, and sought injunctive relief. (Doc. No. 1-6 at 145).

Plaintiff has subsequently filed six supplements to the petition. There was no proof of service for

any of the pleadings on Carrington except as to the Sixth Supplement to Ellis’ Verified Amended

Petition on Carrington, which introduced claims against (Doc. No. 20). The Verified First

Amended Petition as supplemented is the operative pleading for purposes of this order (“the

Complaint”). The Complaint alleges several causes of action against Carrington, including:

conversion, intentional infliction of emotional distress, conspiracy to commit fraud, common law

fraud, fraud by non-disclosure, fraudulent inducement, deceptive trade practices under the Texas

Deceptive Trade Practices Act (DTPA), predatory lending claims under the Truth in Lending Act

(TILA), and claims under the Real Estate Settlement Procedures Act (RESPA). Carrington

removed the case to this Court. (Doc. No. 1). Carrington and the Weavers filed motions for

' Carrington was first added as a co-defendant to the action in the fourth of six supplements (incorrectly titled the

“Second Supplement”) in July 2019. The sixth supplement, properly served on Carrington, includes all the claims

alleged against Carrington from both the July 2019 supplement and the fifth supplement.

summary judgment (Doc. Nos. 28-1 & 37) and Plaintiff filed cross-motions for summary judgment

against both sets of defendants (Doc. Nos. 40 & 41). Plaintiff also filed a motion seeking leave to

amend her “petition,” which this Court denied. (Doc. No. 58).

II. Legal Standard

Summary judgment is warranted “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). “The movant bears the burden of identifying those portions of the record it believes

demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc.,

485 F.3d 253, 261 (Sth Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)).

Once a movant submits a properly supported motion, the burden shifts to the non-movant to show

that the Court should not grant the motion. Celotex, 477 U.S. at 321-25. The non-movant then

must provide specific facts showing that there is a genuine dispute. Jd. at 324; Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A dispute about a material fact is

genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson y. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must draw all

reasonable inferences in the light most favorable to the nonmoving party in deciding a summary

judgment motion. Jd. at 255. The key question on summary judgment is whether there is evidence

raising an issue of material fact upon which a hypothetical, reasonable factfinder could find in

favor of the nonmoving party. Jd. at 248.

A nonmovant’s failure to respond to a motion for summary judgment does not entitle the

movant to a default judgment; rather, the court may accept the movant’s evidence as undisputed

and may enter judgment in movant’s favor if the summary judgment evidence establishes a prima

facie showing of the movant’s entitlement thereto. Retzlaff'v. de la Vina, 606 F. Supp. 2d 654, 656

(W.D. Tex. 2009) (citing Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988).

Il. Analysis

A. Carrington’s Motion for Summary Judgment and Plaintiff's Cross-Motion

1. Conversion

The elements of conversion are: (1) the plaintiff owned or had possession of the property

or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and

exercised control over the property to the exclusion of, or inconsistent with, the plaintiff's rights

as an owner; (3) the plaintiff demanded return of the property; and (4) the defendant refused to

return the property. Tex. Integrated Conveyor Sys.,.Inc. v. Innovative Conveyor Concepts, Inc.,

300 S.W.3d 348, 366 (Tex. App.—Dallas 2009, pet. denied). Carrington argues that Plaintiff's

claim for conversion fails because real property is not subject to a conversion claim under Texas

law. (Doc. No. 28-1 at 21). Plaintiff has not responded to this argument.

Plaintiff complains that Carrington “effectively confiscated Ms. Ellis home which she has

in good faith purchased from the Weavers.” (Doc. No. 1-2 at 57). These allegations indisputably

concern real property. Texas does not recognize a cause of action for conversion of real property.

Cage Bros. v. Whiteman, 163 S.W.2d 638, 641 (1942); see also Lucio v. John G. & Marie Stella

Kenedy Mem’l Found., 298 8.W.3d 663, 667 (Tex. App.—Corpus Christi 2009, pet. denied)

(observing that Texas law does not recognize cause of action for conversion of real property);

Bacon Tomsons, Ltd. v. Chrisjo Energy, Inc., 2016 WL 4217254, at *7 (Tex. App.—Houston [Ist

Dist.] Aug. 9, 2016, no pet.) (same). Neither Plaintiff’s response to the motion (Doc. No. 49) nor

Plaintiff's own motion for summary judgment (Doc. No. 41) addresses this argument. The Court

therefore grants Carrington’s motion for summary judgment as to the claim for conversion, and,

to the extent that Plaintiff moved for summary judgment on this claim, that motion is denied.

2. Intentional Infliction of Emotional Distress

To establish a claim for intentional infliction of emotional distress, a plaintiff must prove

(1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous;

(3) the actions of the defendant caused the plaintiff emotional distress; and (4) the resulting

emotional distress was severe. GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999). “To be

extreme and outrageous, conduct must be so outrageous in character, and so extreme in degree, as

to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable

in a civilized community.” Jd. (citing Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994)).

Carrington argues that Plaintiffs claim for emotional distress fails as a matter of law because

Plaintiff has not demonstrated any evidence that Carrington’s conduct was extreme or outrageous.

(Doc. No, 28-1 at 22), Plaintiff has not responded to Carrington’s arguments.

According to the Complaint, Carrington’s conduct was “extreme, hysterical and outrageous

and proximately caused Plaintiff?s severe emotional distress.” (Doc. No. 1-2 at 58). Without

identifying specific conduct, Plaintiff alleges that she deserves compensation for emotional

distress “because on numerous occasions Ms. Ellis reached out to Carrington to work with them

and/or mediate this matter outside of court, and Carrington should have allowed her to do so,

particularly after she sat on the frontline up in Afghanistan and came back with PTSD.” (/d. at 56).

Clearly, an inability to resolve a case outside of court does not “go beyond all possible bounds of

decency, as to be regarded as atrocious, and utterly intolerable in a civilized community.” Bruce,

998 S.W.2d at 611.

The Court also considers whether Carrington’s action of foreclosing was extreme and

outrageous. The summary judgment evidence shows that by foreclosing, Carrington was

exercising its rights under the Note and Security Instrument. First, Carrington points the Court to

the Assignment of Note and Deed to Deutsche Bank, which is serviced by Carrington. (Doc. No.

28-1 at 56). Carrington also cites to the Judicial Foreclosure Order, which entitled Carrington to

foreclose the Property after January 1, 2019. (/d. at 187). Furthermore, it submits the Substitute

Trustee’s Deed, providing notice of default and foreclosure to the Weavers. (/d. at 191). Under

Texas law, conduct associated with asserting a legal right cannot be extreme or outrageous. Garza

v. Deutsche Bank Tr. Co. Americas for Residential Accredit Loans, Inc. 2006-QS9, 2012 WL

13029409, at *6 (W.D. Tex. Oct. 24, 2012), report and recommendation adopted, 2013 WL

12293489 (W.D. Tex. Jan. 23, 2013); see also Klein & Assocs. Political Relations v. Port Arthur

Indep. Sch. Dist., 92 S.W.3d 889, 898 (Tex. App.—Beaumont 2002, pet. denied) (as matter of law,

lawsuit did not constitute extreme and outrageous conduct sufficient to support cause of action for

intentional infliction of emotional distress even though suit had no merit). Accordingly, courts

have rejected claims asserting intentional infliction of emotional distress where defendants simply

exercised rights owed under mortgage loan documents. See Wieler United Savings Ass'n of Tex.,

FSB, 887 S.W.2d 155, 159 (Tex. App.—Texarkana 1994, writ denied); Baskett v. Pleasant,

1996 WL 135680, at *3 (Tex. App.—Dallas Mar. 27, 1996, writ denied); Naddour v. Nationstar

Mortg., LLC, 2012 WL 4473127, at *7 (N.D. Tex. Sep. 27, 2012).

Plaintiff did not respond in any fashion to Carrington’s arguments for summary judgment

on this claim. Since Carrington successfully carried its burden on summary judgment, the burden

shifted to Plaintiff to provide specific facts that show a genuine dispute of fact. Celotex, 477 U.S

at 324; see also Anderson vy. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (“Rule 56(e) itself

provides that a party opposing a properly supported motion for summary judgment may not rest

upon mere allegation or denials of his pleading, but must set forth specific facts showing that there

is a genuine issue for trial.”). Having failed to present the Court with any evidence that

Carrington’s conduct was extreme or outrageous, she failed to meet that burden. Therefore, the

Court grants Carrington’s motion for summary judgment as to the claim for intentional infliction

of emotional distress, and, to the extent that Plaintiff moved for summary judgment on this claim,

that motion is denied. See Oporto v. City of El Paso Tex., 2011 WL 13196177, at *5 (W.D. Tex.

Jan. 9, 2011) (collecting cases) (recognizing a plaintiff waives claims she fails to brief in a response

to a motion for summary judgment),

3. Common Law Fraud, Fraud by Non-Disclosure, Fraudulent Inducement

All of Plaintiff's claims against Carrington pertaining to fraud appear to arise from

allegations that the Weavers relayed an “inflated” payoff price to Plaintiff to pay their own

mortgage and failed to disclose that they had a lien on their house before entering the Contract for

Deed. (Doc. No. 1-2 at 58-61). Carrington contends that all of Plaintiff's claims for fraud fail

because they have not been pled with particularity and fail to identify any misrepresentations of

material fact that she justifiably relied on to her detriment. Moreover, with respect to the claim for

fraudulent inducement, Carrington argues that there is no underlying contract between her and

Carrington. (Doc. No. 28-1 at 18-20). Plaintiff did not respond to any of Carrington’s arguments.

In her response and her own motion, she addresses only fraud in a real estate transaction, a cause

of action not alleged against Carrington, and the response only concerns the Weavers. (Doc. Nos.

41 & 49 at 6).

To state a claim for fraud, a plaintiff must show (1) the defendant made a false material

representation; (2) knowingly or recklessly; (3) that was intended to induce plaintiff to act upon

the representation; and 4) plaintiff actually and justifiably relied upon the representation and —

suffered injury. Ernst & Young, LLP v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001).

To establish fraud by non-disclosure, a subset of fraud, the plaintiff must show (1) the defendant

deliberately failed to disclose material facts; (2) the defendant had a duty to disclose such facts to

the plaintiff; (3) the plaintiff was ignorant of the facts and did not have an equal opportunity to

discover them; (4) the defendant intended the plaintiff to act or refrain from acting based on the

nondisclosure; and (5) the plaintiff relied on the non-disclosure, which resulted in injury.

Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC, 572 S.W.3d 213, 219-20 (Tex.

2019).

Fraudulent inducement is another subset of fraud, whereby “the elements of fraud must be

established as they relate to an agreement between the parties.” Bohnsack v. Varco, L.P., 668 F.3d

262, 277 (Sth Cir. 2012) (cleaned up). Under Texas law, the elements of fraudulent inducement

are “a misrepresentation; that defendant knew the representation was false and intended to induce

plaintiff to enter into the contract through that misrepresentation; that plaintiff actually relied on

the misrepresentation in entering into the contract; and that plaintiff's reliance led to plaintiff to

suffer an injury through entering into the contract.” Jd.

Plaintiff's allegations of fraud are all subject to Federal Rule of Civil Procedure

9(b)'s heightened pleading standard, which requires Plaintiffs claims to specify the statements

contended to be fraudulent, identify the speaker, state when and where the statements were made,

and explain why the statements were fraudulent. Hoffman v. L & M Arts, 838 F.3d 568, 576 (Sth

Cir. 2016).

The Court finds that Plaintiff has failed to allege a misrepresentation of material fact that

was purportedly made by Carrington to her, or when, where, and by whom such representation

was made. The closest pleadings that approach this standard concern the apparently inflated payoff

amounts that the Weavers prepared for Plaintiff, and the fact that they allegedly never told Plaintiff

there was a lien on the property. Plaintiff alleges that “Carrington’s actions demonstrate that they

had full knowledge of this fraud and their actions were ratification of the fraud because they saw

that the Weaver’s illegal agreement was a way to get their lien paid... . They did nothing. They

said nothing.” (Doc. No. 1-2 at 60). These allegations clearly do not meet the heightened pleading

standard for fraud. See Hoffman, 838 F.3d at 576.

Even if Plaintiff had met the heightened pleading standard, fraud by non-disclosure

requires that the defendant have a duty to disclose. See Bombardier, 572 S.W.3d at 219-220. Under

Texas law, silence or failure to disclose information is not actionable unless there is a duty to

speak. Holland v. Thompson, 338 S.W.3d 586, 598 (Tex. App.—El Paso 2010, pet. denied). The

duty arises in four circumstances: “(1) a fiduciary or other special relationship between the parties

gives rise to a duty to disclose; (2) new information makes a defendant’s earlier representation

misleading or untrue; (3) a defendant conveys a false impression by making a partial disclosure;

and (4) a defendant who voluntarily discloses information has a duty to disclose the whole truth.”

see also Inre Houston Reg'l Sports Network, L.P., 547 B.R. 717, 749 (Bankr. S.D. Tex. 2016).

The summary judgment evidence shows that Carrington had no fiduciary or other special

relationship with Plaintiff. Plaintiff testified that she made 52 monthly payments on her home to

the Weavers, not Carrington. She also testified that she had no communication with Carrington

regarding the payments. (See Doc. No. 28-1 at 95, 134:7-16; 68, 29:25—30:6). She even testified

that she was trying to stop paying the Weavers and “start a contract with the people that actually

owned my house.” (/d. at 74, 50:3-6). There is no evidence, let alone allegation, that she was ever

party to a contract with Carrington. Plaintiff also failed to allege or support with evidence any facts

to trigger the other three circumstances that can give rise to a duty to speak. The Court finds that

Carrington’s silence cannot constitute a fraudulent misrepresentation or fraud by nondisclosure.

That same summary judgement evidence also demonstrates that there is no underlying contract

between Plaintiff and Carrington. (See also Doc. Nos. 37-3 & No. 28-1 at 161). In the absence of

evidence of a contract between Carrington and Plaintiff, there could be no fraudulent inducement

cause of action. See Dardenne, 345 S.W.3d at 126; Bohnsack, 668 F.3d at 277.

Plaintiff has not responded to any of Carrington’s arguments concerning fraud, fraud by

non-disclosure, or fraudulent inducement. As a result, she has not met her burden on summary

judgment to show a genuine dispute of material fact. Celotex, 477 U.S. at 324. The Court grants

Carrington’s motion for summary judgment as to all fraud claims, and, to the extent that Plaintiff

moved for summary judgment on this claim, that motion is denied.

4. Conspiracy to Commit Fraud

To establish a civil conspiracy to commit fraud, the plaintiff must establish: (1) a

combination of two or more persons; (2) seeking to accomplish an unlawful purpose or a lawful

purpose by unlawful means; (3) having a meeting of minds on the object or course of action; (4)

who commit one or more unlawful, overt acts; (5) proximately resulting in damages. See Van

Duzer v. U.S. Bank. N.A., 995 F. Supp. 2d 673, 697 (S.D. Tex. 2014). Carrington argues that

Plaintiff's claim for conspiracy to commit fraud fails because she has not submitted any evidence

to establish that the Weavers and Carrington sought to accomplish an unlawful purpose or a lawful

purpose by unlawful means. (Doc. No. 28-1 at 24). Plaintiff has not responded to Carrington’s

arguments.

As previously stated, Plaintiff alleges the Weavers attempted to defraud her by not telling

her there was a lien on the Property prior to signing the Contract for Deed and providing an inflated

payoff statement to pay off their mortgage. (Doc. No. 1-2 at 60). She also alleges that Carrington

“had full knowledge of this fraud and their actions were ratification of the fraud because they saw

that the Weaver’s illegal agreement were a way to get their lien paid.” (/d.),. This allegation appears

to summarize her conspiracy claim.

The summary judgment record has no evidence that Carrington and the Weavers conspired.

Carrington cites to Plaintiff's deposition, during which Plaintiff testified that the difference

between the foreclosure sale price of $95,611 and the potential short sale price of $72,000

establishes that Carrington and the Weavers were conspiring. (Doc. No. 28-1 at 104, 172:16-

173:16). As Plaintiff admitted, however, she has no evidence to raise a fact issue as to any

conspiracy, and the entire claim appears to be built upon an unsupported assumption that

Carrington counseled the Weavers to maximize their own profit. She testified:

If you have a chance to get more money on a property than when you were

originally going to get, wouldn’t you go for it? And that’s what I thought. So that’s

how I—I came to that conclusion that as Jong as [Carrington] advised and they—

and I can’t prove that they did or they didn’t, but as long as they advised the

Weavers... not to do anything and let this foreclosure go through and as long as

they convinced me to take them off the lawsuit where they can foreclosure on it,

they’re making money.

(Doc. No. 28-1 at 104, 173:6-16) (emphasis added). In addition to this admission, Plaintiff also

testified that the allegedly fraudulent payoff statements appeared to have been prepared only by

the Weavers, and she never saw any evidence of a payoff statement prepared by Carrington. (/d.

at 87, 104:9-14). Plaintiff even testified that Carrington was not a party to the short sale and did

not sign any of the short sale contracts. (/d. at 84, 90:5-93:22). Accordingly, the Court finds that

Carrington has carried its burden on summary judgment.

Plaintiff did not respond to Carrington’s arguments in her response or in her own motion.

and as such, has presented no evidence to indicate a genuine dispute of material fact. Celotex, 477

at 324. The Court grants Carrington’s motion for summary judgment as to the claim for

conspiracy to commit fraud, and, to the extent that Plaintiff moved for summary judgment on this

claim, that motion is denied.

5. DTPA

To establish a DTPA claim, the plaintiff must show that: “(1) she is a consumer; (2) the

defendant engaged in false, misleading, or deceptive acts, and (3) these acts constituted a

producing cause of the consumer's damages.” Payne v. Wells Fargo Bank Nat. Ass'n, 637 Fed.

Appx. 833, 837 (Sth Cir. 2016) (citing Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472,

478 (Tex.1995)). The DTPA defines “consumer” as “‘an individual, partnership, [or] corporation

... who seeks or acquires by purchase or lease, any goods or services.” Tex. Bus. & Comm. Code

§ 17.45(4). Generally, a loan transaction lies outside the DTPA because money is considered to be

neither a good nor a service. Miller v. BAC Home Loans Servicing, L.P., 726 F.3d 717, 725 (5th

Cir. 2013). Nevertheless, “a mortgagor qualifies as a consumer under the DTPA if his or her

primary objective in obtaining the loan was to acquire a good or service, and that good or service

forms the basis of the complaint.” Jd. Carrington argues Plaintiff's DTPA claim fails as a matter

of law because plaintiff is not a consumer under the statute. Plaintiff's response quotes various

provisions of the Texas Property Code but does not respond to this argument. (Doc. No. 49 at 10).

Carrington has demonstrated that Plaintiff was not a party to the mortgage between the

Weavers and Carrington: She entered a separate and unrelated Contract for Deed with the Weavers,

who are a party to the mortgage. (Doc. No. 28-1 at 161). She is therefore unable to qualify as a

“mortgagor [whose] primary objective in obtaining the loan was to acquire a good.” Miller, 726

F.3d at 725. Plaintiff did not meaningfully respond to Carrington’s argument, citing only various

provisions of the Texas Property Code verbatim, and has not raised a dispute about a material fact.

Celotex, 477 U.S. at 324. The Court grants Carrington’s motion for summary judgment as to the

DTPA claim, and, to the extent that Plaintiff moved for summary judgment on this claim, that

motion is denied.

6. RESPA

RESPA protects real estate consumers during the settlement process, See Snow v. First Am.

Title Ins. Co., 332 F.3d 356, 358 (Sth Cir. 2003). Plaintiff's RESPA claim appears to be based

upon the unsubstantiated allegations that Carrington aided the Weavers in their alleged wrongs

against Plaintiff. (Doc. No. 1-2 at 50-56). Carrington argues that the RESPA claim fails because

she did not identify which section of RESPA Carrington allegedly violated, and because she does

not qualify for protection under the act. (Doc. No. 28-1 at 16). Plaintiff did not respond to this

argument.

Plaintiff has failed to state a claim under RESPA. She failed to identify the RESPA

provisions violated, the procedures not followed, or the precise manner in which Carrington

allegedly violated the Act. See Wilson v. Wells Fargo Bank, Nat. Ass'n, 2014 WL 815352, at *10

(N.D. Tex. Mar. 3, 2014); Green v. Carrington Mortgage Services, L.L.C., 2014 WL 12874056,

at *3 (W.D. Tex. Dec. 15, 2014), report and recommendation adopted, 1:14-CV-999-LY, 2014

WL 12874066 (W.D. Tex. Dec. 31, 2014).

Moreover, Plaintiff does not qualify for protection under RESPA because she was not a

signatory of the Note or the Assignment. (Doc. No, 28-1 at 30, 35, 56, 58), RESPA protections

apply only to borrowers or loan applicants. While RESPA does not define the term “borrower,”

courts have held that the term applies only to a borrower on the loan—that is a person who signed

the promissory note or assumed the loan. Lackie v. PHH Mortgage Corp., 2018 WL 4409799, at

*2 (N.D. Tex. Sept. 17, 2018) (collecting cases). Plaintiff was never a party to the loan and has not

co-signed any documents with Carrington or Deutsche Bank. Thus, even if she had alleged a

particular section of RESPA, she has not presented any summary judgment evidence to create a

genuine issue of disputed fact about whether she falls within the protections of RESPA. The Court

grants Carrington’s motion for summary judgment as to the RESPA claim, and, to the extent that

Plaintiff moved for summary judgment on this claim, that motion is denied.

7. TILA

Carrington also moves for summary judgment on Plaintiff’s predatory lending claim under

TILA on the basis that she is not a consumer for purposes of the Act. (Doc. No. 28-1 at 18). TILA

“promotes the informed use of consumer credit by requiring disclosures about its terms and cost.”

12 C.F.R. § 226.1. A person is a “consumer” under TILA if the “party to whom credit is offered

or extended is a natural person, and the money, property, or services which are the subject of the

transaction are primarily for personal family or household procedures.” See 15 U.S.C. § 1602(h).

Carrington has presented summary judgment evidence that establishes Carrington (and Deutsche

Bank) never extended credit to Plaintiff. She is not on any of the loan documents and has testified

that she did not have an agreement with Carrington. (Doc. No. 28-1 at 27, 28, 30, 35; see also id.

at 89, 112:22-113:24). The summary judgment evidence demonstrates that Carrington is in privity

only with the Weavers. Under these circumstances, Plaintiff does not qualify as a consumer under

TILA, and any such claims are dismissed. See Williams v. Countrywide Home Loans, Inc., 504 F.

Supp. 2d 176, 184 (S.D. Tex. 2007). Since Plaintiff failed to respond to this argument in any

fashion, the Court grants summary judgment in Carrington’s favor as to the TILA claims, and, to

the extent Plaintiff moved for summary judgment on this claim, that motion is denied. Celotex,

477 US. at 324.

8 Remainder of Plaintiff's Cross-Motion

The remaining portions of Plaintiffs cross-motion move for summary judgment on claims

that were not alleged against Carrington.” Plaintiff contends she is entitled to summary judgment

on claims for interference with contract and/or anticipatory breach of contract and conversion;

conspiracy to commit fraud in real estate transaction and/or ratification; trespass to try title and/or

suit to quiet title. (See Doc. No. 41) Insofar as those arguments are responses to Carrington’s

motion, they have been considered and rejected. To the degree that Plaintiff has moved for

summary judgment on those claims against Carrington, that motion is denied.

2. The Weavers’ Motion for Summary Judgment and Plaintiff's Cross-Motion

Having dismissed the claims against Carrington, the only claims remaining in this case are

state law claims against the Weavers. As alleged, these claims appear to include breach of contract,

fraud in a real estate transaction, specific performance, refund of all payments under the Texas

Property Code, fraud, fraudulent inducement, and violations of the Texas Deceptive Trade

Practices Act. (Doc. Nos. 1-6 at 145-153; 1-3 at 51-55). When federal law claims that serve as

the basis for subject matter jurisdiction are dismissed and only state law claims grounded on

supplemental jurisdiction remain, a district court has broad discretion to dismiss the state law

claims. See 28 U.S.C. § 1367(c); City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173; St.

Germain vy. Howard, 556 F.3d 261, 263-64 (Sth Cir. 2009). The Court finds that the factors of

judicial economy, convenience, fairness, and comity suggest that this Court should decline to

exercise jurisdiction over the remaining state law claims. See Carnegie-Mellon Univ. v. Cohill,

484 U.S. 343, 350 (1988).

2 Some of those claims were alleged as against the Weavers, and those are discussed in the following section.

IV. Conclusion

The Court hereby GRANTS Defendant Carrington’s Motion for Summary Judgment (Doc.

No. 28-1) and DENIES Plaintiff's Motion for Summary Judgment (Doc. No. 41). Plaintiff's

claims against the Weavers, being grounded in Texas law and solely involving Texas residents,

are remanded to the 189th Judicial District Court of Harris County, Texas. That being the case, the

Weavers’ Motion for Summary Judgment and the Plaintiffs cross-motion are denied without

prejudice as MOOT. (Doc. Nos. 37 & 40).

Signed at Houston, Texas, this 1S" cay of August 2021.

Wa

Andrew S. Hanen □

United States District Judge