United States District Court, W.D. Arkansas, El Dorado Division
JOHNNY HENNINGTON and VIKKI M. HENNINGTON PLAINTIFFS
FIRST NATIONAL BANK OF CROSSETT and WELLS FARGO BANK, N.A. DEFENDANTS
O. Hickey Chief United States District Judge
the Court is the Motion for Summary Judgment filed by
Separate Defendant Wells Fargo Bank, N.A. (“Wells
Fargo”). (ECF No. 16). Separate Defendant First
National Bank of Crossett (“First National”) has
adopted and joined in the motion. (ECF No. 19). Plaintiffs
Johnny Hennington and Vikki M. Hennington (“Mr.
Hennington” and “Mrs. Hennington” or,
collectively, “the Henningtons”) have responded.
(ECF No. 24). Wells Fargo has replied. (ECF No. 27).
before the Court is the Henningtons' Countermotion for
Summary Judgment. (ECF No. 24). Wells Fargo has
responded. (ECF No. 28). The Henningtons have
replied. (ECF No. 33). The Court finds that these matters are
ripe for consideration.
August 24, 2012, Mr. Hennington traveled to a law office in
Hamburg, Arkansas, and signed a mortgage and note in
connection with a loan, putting up as collateral his property
located at 140 Timberbend Drive, Crossett, Arkansas, 71635
(the “collateral property”). Afterwards, Mr.
Hennington received a call from the law office and was
informed that his wife, Mrs. Hennington, must also sign the
loan documents pursuant to state law. Mr. Hennington returned
to the law office with Mrs. Hennington, and she signed the
mortgage and note without reading the documents, despite
having the opportunity to do so.
9, 2015, the mortgage and note were assigned to Wells Fargo.
On June 29, 2015, Mr. Hennington filed a Chapter 7 Voluntary
Petition in the United States Bankruptcy Court for the
Western District of Arkansas. On October 7, 2015, the
bankruptcy court entered a debtor-discharge order in Mr.
Hennington's bankruptcy case. Mr. Hennington did not
reaffirm or redeem his mortgage debt with Wells Fargo in the
bankruptcy filings. Wells Fargo filed a motion for relief from
stay and motion to abandon in the bankruptcy case and, on
October 19, 2015, the bankruptcy court granted Wells
Fargo's motion for abandonment of the collateral
property. In doing so, the bankruptcy court stated that the
collateral property was abandoned from Mr. Hennington's
bankruptcy estate and that Wells Fargo was free to pursue
state-law remedies against the collateral property.
September 5, 2017, Wells Fargo hired Wilson & Associates,
P.L.L.C. (“Wilson & Associates”) as its
attorney-in-fact to foreclose on the collateral property due
to the Henningtons' continued default. On December 6,
2017, the collateral property was sold at a foreclosure sale
and was purchased by Separate Defendant First National Bank
of Crossett for $140, 218.97. On December 14, 2017, the
mortgagee's deed was recorded with the Circuit Clerk for
Ashley County, Arkansas. To date, the Henningtons continue to
reside in the collateral property despite the foreclosure.
December 28, 2017, the Henningtons filed this case in the
Circuit Court of Ashley County, Arkansas, seeking to vacate
the foreclosure sale and quiet title as to the collateral
property on two bases: (1) because Mrs. Hennington was not
provided with proper notice and disclosures under the Truth
in Lending Act (“TILA”) when she signed the
mortgage documents on August 24, 2012, and (2) because the
foreclosure sale of the collateral property did not strictly
comply with the provisions of Arkansas' foreclosure
statutes, codified at Ark. Code Ann. § 18-50-101, et
seq. On January 30, 2018, Wells Fargo removed the case
to this Court pursuant to 28 U.S.C. § 1441, asserting
that the Court possesses original, federal question
jurisdiction over the Henningtons' TILA claim and
supplemental jurisdiction over their state-law claim.
Fargo now moves for summary judgment, contending that the
Henningtons' state-law claim fails because it was not
brought before the foreclosure sale and, alternatively,
because the Henningtons cannot show that Wells Fargo failed
to comply with Arkansas' applicable foreclosure statutes.
Wells Fargo also argues that the Henningtons' TILA claim
fails for various reasons. The Henningtons oppose the motion
and have filed a countermotion for summary judgment,
asserting that Wells Fargo failed to strictly comply with
Arkansas' foreclosure statutes.
standard for summary judgment is well established. When a
party moves for summary judgment, “[t]he 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.” Fed.R.Civ.P.
56(a); Krenik v. Cnty. of LeSueur, 47 F.3d 953, 957
(8th Cir. 1995). This is a “threshold inquiry of . . .
whether there is a need for trial-whether, in other words,
there are genuine factual issues that properly can be
resolved only by a finder of fact because they reasonably may
be resolved in favor of either party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is
material only when its resolution affects the outcome of the
case. Id. at 248. A dispute is genuine if the
evidence is such that it could cause a reasonable jury to
return a verdict for either party. Id. at 252.
deciding a motion for summary judgment, the Court must
consider all the evidence and all reasonable inferences that
arise from the evidence in a light most favorable to the
nonmoving party. Nitsche v. CEO of Osage Valley Elec.
Co-Op, 446 F.3d 841, 845 (8th Cir. 2006). The moving
party bears the burden of showing that there is no genuine
issue of material fact and that it is entitled to judgment as
a matter of law. See Enter. Bank v. Magna Bank, 92
F.3d 743, 747 (8th Cir. 1996). The nonmoving party must then
demonstrate the existence of specific facts in the record
that create a genuine issue for trial. Krenik, 47
F.3d at 957. However, a party opposing a properly supported
summary judgment motion “may not rest upon mere
allegations or denials . . . but must set forth specific
facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 256.
preliminary matter, the Court must address the
Henningtons' statement of disputed facts, filed as part
of their opposition papers to Wells Fargo's summary
judgment motion. Federal Rule of Civil Procedure 56(e) states
that a court may deem undisputed a moving party's
assertion of fact if it is not properly controverted by the
nonmoving party pursuant to Rule 56(c). Similarly, Local Rule
56.1(c) states that all material facts asserted in the moving
party's statement of facts shall be deemed admitted if
they are not controverted by the nonmoving party's own
statement of facts. Federal Rule of Civil Procedure 56(c)(1)
provides that a party asserting a genuine dispute of ...