LEWIS v. OCWEN LOAN SERVICING 2004 2004 (2019)

Kimberly and Stephen Lewis appeal from a summary judgment order dismissing their claims against Ocwen Loan Servicing, L.L.C., Et Al. (collectively, “Appellees”). The Lewises defaulted in 2014 on a home equity loan that they obtained from a predecessor of the Appellees in 2004. They now allege that the home equity loan is invalid because Appellees violated the following provisions of the Texas Constitution: (1) Art. XVI § 50(a)(6)(M)(ii), which requires lenders to provide a “final itemized disclosure of the actual fees, points, interest, costs, and charges that will be charged at closing” at least one day before closing (i.e., the “one-day violation”); (2) Art. XVI § 50(a)(6)(M)(i), which requires home equity loans to be closed at least twelve days after the submission of the loan application or the date that the lender provides a section 50(g) notice, whichever is later (i.e., the “twelve-day violation”); and (3) Art. XVI § 50(a)(6)(B), which states that the principal of a home equity loan cannot exceed 80% of the homestead’s fair market value (i.e., the “80% violation”).

The district court granted summary judgment for Appellees because the Lewises signed affidavits at the closing of their home equity loan that attested to Appellees’ compliance with these provisions, and the Lewises did not present contradictory evidence sufficient to create a genuine issue of material fact regarding those prior affidavits’ accuracy. The court reasoned: “The Lewises’ swearing to a fact one way and then the opposite way as it suited their changing interests does not create a fact question.” The district court further noted that Appellees were entitled to rely on the Lewises’ affidavit regarding the fair market value of their home under the circumstances. Art. XVI § 50(h).

This court agrees that summary judgment was appropriate. Although the Lewises now dispute the accuracy of their prior affidavits, this court has long held that a “nonmovant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony.” Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir. 1984); accord Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000) (collecting cases). The Lewises did not meaningfully explain the reason for their changed testimony. Nor do their other arguments raised in the briefing create a genuine issue of material fact.

Therefore, the judgment of the district court is AFFIRMED.

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PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.