Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Aguiluz v. Citibank, N.A.

United States District Court, E.D. Louisiana

October 11, 2019

GLORIA AGUILUZ
v.
CITIBANK, N.A., ETC., ET AL

         SECTION: "S" (4)

          ORDER AND REASONS

          MARY ANN VIAL LEMMON, UNITED STATES DISTRICT JUDGE

         IT IS HEREBY ORDERED that the Motion for Summary Judgment filed by Citibank, N.A. as Trustee for CMTLI Asset Trust ("Citibank") (Rec. Doc. 45) is GRANTED;

         IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by FCI Lender Services, Inc. ("FCI") (Rec. Doc. 42) is GRANTED in part and DENIED in part. Summary Judgment is granted as to plaintiff's claims against FCI for violations of the Fair Debt Collection Practices Act (Count 5) and the Truth in Lending Act (Count 6), and these claims are dismissed. Summary judgment is denied as to plaintiff's claims under the Real Estate Settlement Procedures Act (Count 7) and the Louisiana Unfair Trade Practices Act (Count 9).

         IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by the Law Office of Herschel C. Adcock, Jr., LLC ("Adcock") (Rec. Doc. 43) is GRANTED, and plaintiff's claims against Adcock are dismissed.

         I. BACKGROUND

         This matter arises out of a foreclosure on property owned by the plaintiff. Detailed facts have been set forth in the court's previous order. Rec. Doc. 22. In its prior order, the court granted judgment on the pleadings dismissing plaintiff's claims against Citibank for declaratory judgment (Counts 1 and 2), under the Fair Debt Collections Practices Act (Count 5), for unjust enrichment (Count 8), and for violation of "good faith" under the Louisiana Unfair Trade Practices Act (Count 9). The only remaining claims against Citibank are for breach of contract (Counts 3 and 4). Citibank now moves to dismiss the claims in Counts 3 and 4, arguing that no material fact issues exist which would preclude summary judgment.

         Plaintiff has also alleged claims against FCI for the following: violation of the Fair Debt Collection Practices Act (Count 5); violations of the Truth in Lending Act (Count 6); violation of the Real Estate Settlement Procedures Act (Count 7); and violations of good faith under the Louisiana Unfair Trade Practices Act (Count 9). FCI now moves to dismiss the claims against it, arguing that no material fact issues exist which would preclude summary judgment.

         Plaintiff has also alleged claims against Adcock for violation of the Fair Debt Collection Practices Act (Count 5) and the Louisiana Unfair Trade Practices Act (Count 9). Adcock now moves to dismiss the claims against it, arguing that no material fact issues exist which would preclude summary judgment.

         Plaintiff opposes the motions.

         II. LEGAL STANDARD

         Rule 56 of the Federal Rules of Civil Procedure provides that the "court 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." Granting a motion for summary judgment is proper if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits filed in support of the motion demonstrate that there is no genuine issue as to any material fact that the moving party 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). The court must find "[a] factual dispute . . . [to be] 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] 'material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson, 477 U.S. 242 (1986).

         If the moving party meets the initial burden of establishing that there is no genuine issue, the burden shifts to the non-moving party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The non-movant cannot satisfy the summary judgment burden with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).

         If the opposing party bears the burden of proof at trial, the moving party does not have to submit evidentiary documents properly to support its motion, but need only point out the absence of evidence supporting the essential elements of the opposing party's case. Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991).

         III. ANALYSIS

         A. Motion for Summary Judgment by Citibank

         Plaintiff's claims for breach of contract against Citibank are premised on two grounds: that Citibank did not provide plaintiff notice of default prior to accelerating the note and instituting foreclosure proceedings (Count 3); and that Citibank failed to apply her payments to her account as required by the contract, thus causing her account to be in default (Count 4). In moving for summary judgment, Citibank points to the August 15, 2016 letter from loan servicer Fay Servicing, stating that "This letter is formal notice by Fay Servicing, LLC. . ., on behalf of Citibank . . . that you are in default under the terms of the documents creating and securing your Loan . . .for failure to pay amounts due." Rec. Doc. 45-6. The letter goes on to advise plaintiff of her right to cure the default and all other legally required notices.

         This evidence establishes that there is no genuine issue as to any material fact on the question whether notice of default was sent to plaintiff. The burden, therefore, shifts to plaintiff to produce evidence of the existence of a genuine issue for trial. Plaintiff has not introduced any such evidence. Accordingly, Citibank is entitled ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.