Rutherford v. U.S. Bank National Association et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
L INDA RUTHERFORD, 	§
Plaintiff, 	§
§
v. 	§ 	CIVIL A CTION N O. 4:24-CV-1297
§
U.S. BANK N ATIONAL A SSOCIATION 	§
AND SELECT PORTFOLIO SERVICES, 	§
Defendants. 	§
MEMORANDUM AND RECOMMENDATION
Before the Court is a Motion for Summary Judgment by Defendant U.S. Bank
National Association, as trustee on behalf of the holders of the Asset Backed Pass-
Through Certificates, Series NC 2005-HE4 (the “Trust”) and Defendant Select
Portfolio Servicing, Inc. (“SPS”).1 ECF 26. 	For the reasons discussed below, the
Court RECOMMENDS that Defendants’ Motion be GRANTED.
I. 	Factual and Procedural Background.
The record establishes the following undisputed facts.2 On January 22, 2005,
Plaintiff executed a note with a principal balance of $545,300 secured by a Deed of
1 The District Judge referred this case to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the Civil Justice Reform Act,
and Federal Rule of Civil Procedure 72. ECF 14.
2 Plaintiff failed to respond to Defendants’ Motion for Summary Judgment, so the Court “may find
as undisputed the statement of facts in the motion for summary judgment.” Morgan v. Fed. Exp.
Corp., 114 F. Supp. 3d 434, 440 (S.D. Tex. 2015) (collecting cases). Although Plaintiff did not
respond to the Motion, the Court considered the documents attached to the Amended Complaint
(ECF 18) in determining there was no genuine dispute of material fact. F ED. R. C IV. P. 56(c)(3)
United States District Court
Southern District of Texas
ENTERED
April 30, 2026
Nathan Ochsner, Clerk
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Trust in favor of New Century Mortgage Corporation granting a lien on the property
at 1302 Thompson Oil Field Rd., Thompsons, Texas. ECF 18 ¶ 12; ECF 26-2 at 27-
58. On September 18, 2018, New Century Mortgage Corporation assigned its rights
under the Deed of Trust to the Trust, with U.S. Bank as trustee. 	ECF 26-2 at 60.
The Trust is the current mortgagee and SPS services the loan. ECF 26-2 at 17, 60;
ECF 26-1.
Plaintiff defaulted on the loan in 2020. ECF 18 ¶¶ 18-21; ECF 26 ¶ 3. SPS,
on behalf of the Trust, noticed the property for non-judicial foreclosure on February
13, 2024, with the sale to be conducted on April 2, 2024. ECF 26 ¶ 6; ECF 18-2.
On 	April 	1, 	2024, 	Plaintiff’s 	counsel 	contacted 	SPS’ 	counsel 	to 	request 	a
reinstatement quote.3 ECF 18-4. On April 2, 2024, the 268th Judicial District Court
of Fort Bend County, Texas granted Plaintiff a restraining order that precluded
Defendants from foreclosing on the property. ECF 26 ¶ 6; ECF 1-2; ECF 1-3. The
loan was later modified on July 30, 2025. ECF 16-1 ¶ 8. Plaintiff has been deemed
to have admitted she failed to comply with the Deed of Trust’s reinstatement after
(explaining courts need only consider cited materials, but they may consider other materials in the
record); Jackson v. Oil-Dri Corp. of Am., No. 3:16-CV-189-DMB-RP, 2018 WL 1996474, at *4
n.8 (N.D. Miss. Apr. 27, 2018) (considering documents attached to a complaint and referenced in
the summary judgment papers as part of the summary judgment record), aff'd on other grounds
sub nom. Jackson v. Blue Mountain Prod. Co., 761 F. App'x 356 (5th Cir. 2019).
3 Defendants “do not concede” that Plaintiff requested a reinstatement quote but directly reference
Plaintiff’s assertion from the Amended Complaint, which attaches a copy of the letter, and provide
no evidence rebutting this fact. ECF 26 ¶ 3; ECF 18-4.
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acceleration obligations.4 ECF 26 ¶ 6; ECF 26-2 at 15 (Request ¶ 30), 42 (attaching
the Deed of Trust).
The present action is the second case Plaintiff has brought to prevent the Trust
from foreclosing on the property. 	See Rutherford v. U.S. Bank NA, No. 4:21-cv-
02961 (S.D. Tex. 	Jan. 14, 2022) (Eskridge, J.) (dismissing Plaintiff’s claims with
prejudice). In this suit, Plaintiff seeks to enjoin Defendants from foreclosing on the
property and also brings claims for declaratory judgment and breach of contract.
ECF 18 ¶¶ 32-40.
Defendants filed their Motion for Summary Judgment on March 6, 2026. ECF
26. 	Plaintiff failed to respond to the Motion. 	However, the Court cannot grant a
default summary judgment. 	See Morgan v. Fed. Exp. Corp., 114 F. Supp. 3d 434,
437 (S.D. Tex. 2015) (collecting cases). The Motion is ripe for adjudication.
II. 	Legal Standards.
Summary judgment is appropriate if no genuine issues of material fact exist,
and the moving party is entitled to judgment as a matter of law. 	F ED. R. CIV. P.
56(a). The party moving for summary judgment has the initial burden to prove there
are no genuine issues of material fact for trial. 	Provident Life & Accident Ins. Co.
4 Defendants’ counsel provided an affidavit stating Defendant served Plaintiff with Requests for
Admission on January 15, 2026, and as of March 6, 2026, Plaintiff had failed to respond or object
to them. ECF 26-2 at 2-3, 5-25. Therefore, the Requests for Admission (ECF 26-2 at 5-25) are
deemed admitted. FED. R. C IV. P. 36(a)(3); Romanowski v. Trans Union, LLC, No. 3:22-CV-0428-
E-BH, 2023 WL 5807863, at *3 (N.D. Tex. Aug. 17, 2023), report and recommendation adopted,
No. 3:22-CV-0428-E-BH, 2023 WL 5807845 (N.D. Tex. Sept. 7, 2023).
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v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). 	Dispute about a material fact is
“genuine” if the evidence could lead a reasonable jury to find for the nonmoving
party. Hyatt v. Thomas, 843 F.3d 172, 177 (5th Cir. 2016). “An issue is material if
its resolution could affect the outcome of the action.” 	Terrebonne Parish Sch. Bd.
v. Columbia Gulf Transmission Co., 290 F.3d 303, 310 (5th Cir. 2002). 	If the
moving party meets its initial burden, the nonmoving party must go beyond the
pleadings and must present evidence such as affidavits, depositions, answers to
interrogatories, and admissions on file to show “specific facts showing that there is
a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
The court construes the evidence in the light most favorable to the nonmoving
party and draws all reasonable inferences in that party’s favor. R.L. Inv. Prop., LLC
v. Hamm, 715 F.3d 145, 149 (5th Cir. 2013). 	In ruling on a motion for summary
judgment the Court does not “weigh evidence, assess credibility, or determine the
most reasonable inference to be drawn from the evidence.” Honore v. Douglas, 833
F.2d 565, 567 (5th Cir. 1987). 	However, “[c]onclus[ory] allegations and denials,
speculation, 	improbable 	inferences, 	unsubstantiated 	assertions, 	and 	legalistic
argumentation do not adequately substitute for specific facts showing a genuine
issue for trial.” U.S. ex rel. Farmer v. City of Houston, 523 F.3d 333, 337 (5th Cir.
2008) (citation omitted).
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III. 	Analysis.
A. Plaintiff’s breach of contract claim should be dismissed.
Texas law governs this contract claim per the Deed of Trust’s choice of law
provision.5 Under Texas law, the essential elements for a breach of contract claim
are: “(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 breach.” Mullins v. TestAmerica, Inc., 564
F.3d 386, 418 (5th Cir. 2009) (citing Aguiar v. Segal, 167 S.W.3d 443, 450 (Tex.
App.— Houston [14th Dist.] 2005, pet. denied)).
Plaintiff alleges Defendants breached the Deed of Trust when they noticed
foreclosure because: (1) Plaintiff had demanded her right of reinstatement and (2)
SPS did not have a proper interest in the Property. ECF 18 ¶ 37
1. Plaintiff has failed to demonstrate a breach occurred.
As a preliminary issue, Plaintiff’s allegations are insufficient because she
failed to identify a specific provision in the contract that was breached. Williams v.
5 Federal courts exercising diversity jurisdiction apply the choice of law rules of the forum state.
Bailey v. Shell W. E&P, Inc., 609 F.3d 710, 722 (5th Cir. 2010). “Texas choice of law principles
give effect to choice of law clauses if the law chosen by the parties has a reasonable relationship
with the parties and the chosen state, and the law of the chosen state is not contrary to a
fundamental policy of the state.” Caton v. Leach Corp., 896 F.2d 939, 942 (5th Cir. 1990). See
also DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 677–78 (Tex. 1990)). 	The Deed of Trust
provides that the law of the jurisdiction where the property is located (i.e., Texas) shall govern.
ECF 26-2 at 42. The Court gives effect to this provision because there is a reasonable relationship
to Texas as the location of the property and no public policy concerns exist.
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Wells Fargo Bank, N.A., 560 F. App'x 233, 238 (5th Cir. 2014). 	See also Johnson
v. Bloom Ret. Holdings Inc., No. 4:23-CV-2086, 2024 WL 4932724, at *5 (S.D. Tex.
Nov. 26, 2024) (applying the Williams specificity requirement). 	Even construing
the allegations to assert breaches under section 19 of the Deed of Trust (Borrower’s
Right to Reinstatement After Acceleration), Plaintiff still cannot make out a breach,
as explained below.
a. Defendants complied with their reinstatement obligations
under the Deed of Trust.
The Deed of Trust entitles Plaintiff to reinstatement after acceleration only if
she does the following:
(a) pays Lender all sums which then would be due under this Security
Instrument and the Note as if no acceleration had occurred: (b) cures
any default of any other covenants or agreements; (c) pays all expenses
incurred in enforcing this Security Instrument, including, but not
limited to, reasonable attorneys' fees, property inspection and valuation
fees, and other fees incurred for the purpose of protecting Lender's
interest in the Property and rights under this Security Instrument; and
(d) takes such action as Lender may reasonably require to assure that
Lender's 	interest 	in 	the 	Property 	and 	rights 	under 	this 	Security
Instrument, and Borrower's obligation to pay the sums secured by this
Security Instrument, shall continue unchanged.
ECF 26-2 at 42. Under the Deed of Trust’s reinstatement provision,6 Defendant was
only required to cease enforcement of foreclosure if Plaintiff complied with the
6 The Deed of Trust provides in full:
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above conditions more than five days before the sale. 	Id. 	Although Plaintiff
requested a reinstatement quote, she has been deemed to have admitted that she
failed to complete any of the Deed of Trust’s reinstatement requirements. ECF 18-
4 at 1; ECF 26-2 at 15 (Request ¶ 30). Furthermore, nothing in the Deed of Trust
required Defendants to provide Plaintiff a reinstatement quote. 	See Bejjani v.
Wilmington Tr. Co., No. CIV.A. H-10-2727, 2011 WL 3667569, at *3 (S.D. Tex.
Aug. 22, 2011) (finding no breach of contract because defendants had no obligation,
contractual or otherwise, to provide reinstatement quote); Wicker v. Seterus, Inc.,
If Borrower meets certain conditions, Borrower shall have the right to enforcement
of this Security Instrument discontinued at any time prior to the earliest of: (a) five
days before sale of the Property pursuant to any power of sale contained in this
Security Instrument; (b) such other period as Applicable Law might specify for the
termination of Borrower’s right to reinstate; or (c) entry of a judgment enforcing
this Security Instrument. Those conditions are that Borrower: (a) pays Lender all
sums which then would be due under this Security Instrument and the Note as if no
acceleration had occurred: (b) cures any default of any other covenants or
agreements; (c) pays all expenses incurred in enforcing this Security Instrument,
including, but not limited to, reasonable attorneys' fees, property inspection and
valuation fees, and other fees incurred for the purpose of protecting Lender's
interest in the Property and rights under this Security Instrument; and (d) takes such
action as Lender may reasonably require to assure that Lender's interest in the
Property and rights under this Security Instrument, and Borrower's obligation to
pay the sums secured by this Security Instrument, shall continue unchanged.
Lender may require that Borrower pay such reinstatement sums and expenses in
one or more of the following forms, as selected by Lender: (a) cash; (b) money
order; (c) certified check, bank check, treasurer’s check or cashier’s check,
provided any such check is drawn upon an institution whose deposits are insured
by a federal agency, instrumentality or entity; or (d) Electronic Funds Transfer.
Upon reinstatement by Borrower, this Security Instrument and obligations secured
hereby shall remain fully effective as if no acceleration occurred. 	However, this
right to reinstate shall not apply in the case of acceleration under Section 18
[Transfer of the Property or a Beneficial Interest in Borrower].
ECF 26-2 at 42.
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No. EP-17-CV-99-DB, 2018 WL 4856771, at *14 (W.D. Tex. Oct. 4, 2018)
(similarly finding no breach due to lack of contractual requirement to calculate
reinstatement amount), aff'd, 764 F. App'x 423 (5th Cir. 2019). Assuming arguendo
that the letter from Plaintiff’s counsel properly invoked reinstatement, the request
was untimely because Plaintiff sent it within five days of the scheduled sale. ECF
18-4; ECF 26-2 at 42.
b. The Trust may foreclose through servicer SPS.
Plaintiff additionally alleges that Defendants breached the Deed of Trust by
noticing foreclosure when SPS “did not have a proper interest in the home since
MERS [Merscorp, Inc.] did not have sufficient interest in the underlying contract to
convey the Lenders rights.” ECF 18 ¶ 37. Essentially, Plaintiff claims SPS lacks a
proper interest in the Deed of Trust and thus is unable to enforce it.
This argument fails. First, MERS was not a party to the original Deed of Trust
or the assignment to the Trust, with U.S. Bank as trustee, and Plaintiff has been
deemed to have admitted as much. 	ECF 26-2 at 24-25 (Requests ¶¶ 67-68). 	The
Trust is the assignee of the original lender’s interest in the Deed of Trust, which
makes it the mortgagee. T EX. PROP. CODE § 51.0001(4)(C). As the mortgagee, the
Trust is entitled under Texas law to enforce the Deed of Trust by non-judicial
foreclosure, either directly or through servicer SPS. 	T EX. PROP. CODE §§ 51.002,
51.0025 (permitting a mortgagee to foreclose through a servicer).
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2. Plaintiff has presented no evidence that she suffered damages.
Plaintiff’s breach of contract claim also fails because the record lacks any
evidence she was damaged. 	By failing to respond to Requests for Admission,
Plaintiff has 	been 	deemed to have admitted 	she has not been 	damaged by
Defendants. 	ECF 26-2 at 9 (Requests ¶¶ 1-2). 	Additionally, the “legal expenses”
Plaintiff claims (ECF 18 ¶ 38) are not cognizable breach of contract damages in this
context. 	See Richardson v. Wells Fargo Bank, N.A., 740 F.3d 1035, 1037–38 (5th
Cir. 2014) (explaining that under Texas law fees incurred in the prosecution or
defense of a claim are not damages) (citing In re Nalle Plastics Fam. Ltd. P'ship,
406 S.W.3d 168, 172 (Tex. 2013))
B. Plaintiff’s declaratory judgment claim should be dismissed.
Plaintiff seeks relief under the Texas Declaratory Judgment Act. ECF 18 ¶¶
35-36; T EX. CIV. PRAC. & REM . CODE §§ 37.001-37.0055. 	However, Defendants
properly removed this case to federal court (see ECF 1), so the Court analyzes the
claim under the federal Declaratory Judgment Act. Collins v. Nat'l Football League,
566 F. Supp. 3d 586, 602 (E.D. Tex. 2021).
The federal Declaratory Judgment Act does not create an independent cause
of action. 	Harris County Texas v. MERSCORP Inc., 791 F.3d 545, 552 (5th Cir.
2015). “Rather, the viability of a party’s request for declaratory relief is dependent
on that party’s ability to assert a viable substantive cause of action.” Mid-Am. Supply
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Corp. v. Truist Bank, 660 F. Supp. 3d 594, 601–02 (E.D. Tex. 2023) (citing Collin
Cty. v. Homeowners Ass'n for Values Essential to Neighborhoods, 915 F.2d 167, 171
(5th Cir. 1990)). If a plaintiff’s underlying cause of action fails as a matter of law,
its claim for declaratory relief fails as well.
Plaintiff’s substantive cause of action is one for breach of contract. As
discussed above, that claim fails as a matter of law. Without a substantive cause of
action underlying her request for declaratory judgment, Plaintiff cannot, as a matter
of law, maintain her request for declaratory relief. 	See Payne v. Wells Fargo Bank
Nat. Ass'n, 637 F. App'x 833, 838 (5th Cir. 2016) (affirming grant of summary
judgment on plaintiff’s claim for declaratory judgment because the district court
properly granted summary judgment on underlying causes of action).
C. Plaintiff is not entitled to injunctive relief.
Plaintiff also seeks a temporary restraining order and temporary injunction.
ECF 18 ¶¶ 32-34. 	Like declaratory relief, injunctive relief is a procedural device
that must be supported by an independent, private cause of action. 	Emeka v. Wells
Fargo Bank N.A., No. CV H-24-2321, 2025 WL 2462975, at *8 (S.D. Tex. Aug. 26,
2025) (collecting cases). Because the Court concludes that Defendants are entitled
to summary judgment on Plaintiff’s claim for breach of the Deed of Trust,
Defendants are also entitled to summary judgment on Plaintiff’s claim for injunctive
relief. Id. (granting summary judgment on injunctive relief because defendants were
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entitled to summary judgment on substantive claims); Bernal v. The Bank of New
York Mellon, No. 4:14-CV-03436, 2015 WL 8207498, at *5 (S.D. Tex. Dec. 7, 2015)
(same).
IV. 	Conclusion and Recommendation.
For the reasons stated above, the Court RECOMMENDS that Defendants’
Motion for Summary Judgment (ECF 26) be GRANTED.
The 	Clerk 	of 	the 	Court 	shall 	send 	copies 	of 	the 	memorandum 	and
recommendation to the respective parties, who will then have fourteen days to file
written objections, pursuant to 28 U.S.C. § 636(b)(1)(C). 	Failure to file written
objections within the time period provided will bar an aggrieved party from attacking
the factual findings and legal conclusions on appeal. Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on
other grounds.
Christina A. Bryan
United States Magistrate Judge
Signed on April 30, 2026, at Houston, Texas.
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