Reported / Citable
Background
Chalice Moreno and Jason N. Kosier executed a $155,200 Texas home-equity note and security instrument in 2013. MERS, acting as nominee for the original lender, later assigned the security instrument to PennyMac, which asserted it held the note and was entitled to enforce the lien.
PennyMac alleged that the borrowers stopped making payments beginning March 1, 2022. It sent default-and-cure notices in April 2022 and acceleration notices in September 2022, then sued for declarations and foreclosure authority. The borrowers counterclaimed, asserting, among other things, that they had satisfied the debt with an $82,000 “negotiable instrument,” that PennyMac lacked authority because Fannie Mae was the investor, and that they rescinded under TILA in October 2022.
The Court’s Holding
Magistrate Judge Dan N. MacLemore recommended granting PennyMac’s summary-judgment motion and denying the borrowers’ motions. The recommendation concluded that PennyMac’s evidence established the signed note and lien, assignment, payment default, and the required notices of default and acceleration—thereby satisfying the elements for foreclosure of a Texas home-equity lien.
The magistrate judge further concluded that the borrowers supplied no competent evidence creating a material factual dispute. Their purported tender did not discharge the debt; Fannie Mae’s status as investor did not establish that PennyMac lacked enforcement authority; and their TILA rescission notice came more than nine years after the 2013 loan closing, beyond TILA’s ordinary three-year rescission deadline. PennyMac was also not shown to be an FDCPA debt collector, and no wrongful-foreclosure claim could lie because no foreclosure sale had occurred.
Key Takeaways
- This is a report and recommendation, not a final district-court judgment.
- Documentary evidence of the note, lien assignment, default, and required notices supported foreclosure summary judgment.
- A borrower’s unsupported assertions and unilateral purported payment instrument did not create a triable dispute.
- TILA rescission was untimely when asserted more than three years after loan consummation.
Why It Matters
The recommendation illustrates the evidence a mortgagee may use to obtain foreclosure relief at summary judgment under Texas law. It also rejects common defenses based on an investor’s role, alleged self-effectuating debt discharge, and an untimely attempt to rescind under TILA.