![]() As such, the motion will be addressed only as one for summary judgment. The parties here cite to evidence outside the pleadings. Miller, Federal Practice and Procedure § 1371 (West 3d ed June 2021 update) see also Van Duzer v United States Bank NA, 995 F Supp 2d 673, 684 (SD Tex 2014) (citing same), affd, 582 F Appx 279 (5th Cir 2014, per curiam). A respected treatise on federal procedure notes that it's "well-settled that it is within the district court's discretion whether to accept extra-pleading matter on a motion for judgment on the pleadings and treat it as one for summary judgment or to reject it and maintain the character of the motion as one under Rule 12(c)." Charles Alan Wright and Arthur R. The motion purports to seek relief under both of Rules 12(c) and Rule 56(a) of the Federal Rules of Civil Procedure. Defendants moved for judgment on the pleadings and summary judgment in November 2020. Plaintiffs requested to amend their complaint at the initial conference and leave was granted to make such filing by April 15, 2020. They then removed the action on Janubased on both federal-question and diversity jurisdiction under 28 USC §§ 1331, 1332, and 1441. The state court issued a TRO on Janupreventing the foreclosure, while also setting the temporary injunction for hearing on January 22, 2020. Id at 6-7, citing Tex Civ Prac & Rem Code § 65.011. They also initially sought an ex parte temporary restraining order and temporary injunction. They seek a permanent injunction, declaratory relief, and attorney fees. Plaintiffs brought action in Texas state court on January 6, 2020, claiming that Defendants violated the regulatory prohibition against what's known as dual tracking, as explained below. They provide no evidence of any application materials submitted in this regard. But they allege that they "were under consideration for a loan modification with Selene" when they received the notices of foreclosure. Plaintiffs concede that the mortgage loan is in default. The notices stated that Plaintiffs' home was to be sold at auction to the highest bidder on January 7, 2020. Selene then sent notices of foreclosure and acceleration to both Plaintiffs on November 12, 2019. They attach a notice of default sent to Mr. Dkt 9-1 at ¶ 6 (declaration of Selene litigation specialist). ![]() Dkt 9-1 at 1.ĭefendants assert that no installment payments have been made since October 1, 2016. Selene services the mortgage loan for VRMTG. It was later assigned to VRMTG Asset Trust, the current mortgagee. That deed of trust is recorded in the real property records of Fort Bend County, Texas. Konrad and his wife, Plaintiff Marnie Konrad, in favor of Bank of America. The debt was simultaneously secured by a deed of trust executed by Mr. The note required him to pay Everett $263,700.00 plus an annual interest rate of 3.625% in monthly installments of $1,201.61. Konrad executed and delivered a promissory note made payable to Everett in exchange for the loan. The original lender was Everett Financial, Inc, doing business as Supreme Lending. Plaintiff Christopher Konrad obtained a mortgage loan in October 2012. The motion in the alternative for judgment on the pleadings is denied as moot. The motion for summary judgment by Defendants Selene Finance, LP and United States Bank Trust National Association, as owner trustee for VRMTG Asset Trust, is granted. JUDGE CHARLES ESKRIDGE OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
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