XAVIER RODRIGUEZ, District Judge
On this day came on to be considered Defendant Commerce Land Title, Inc.'s Motion for Summary Judgment (docket no. 56). The Court GRANTS the motion.
I. Factual Background
In 1967, Nola Grun acquired property located 217 Ridgemont Avenue, San Antonio, Texas. On April 24, 2001, a Uniform Residential Loan Application was completed wherein a $250,000 cash-out refinancing was sought. On June 19, 2001, documents regarding a refinanced home equity loan were placed before Nola Grun. The Defendant, Commerce Land Title, Inc., served as the title company. One of its employees, Laura Stuckey, served as the Escrow Officer for this loan. At the time of closing, Ms. Grun was a widow and almost ninety years of age. The request for the refinancing of the 1999 home equity loan apparently originated from her son Henry Jr. who was allegedly acting as her attorney.
Gregory Rubiola d/b/a Rubiola Mortgage Company ("Rubiola") assisted Henry Jr. in procuring the second home equity loan. Documents supporting the loan application claimed that Ms. Grun was a self-employed artist. Twelve months of bank statements were supplied by Henry Jr. in support of the loan application. Based on these bank statements, Rubiola's office calculated that Ms. Grun was earning in excess of $13,000 per month. Evidently, although Henry Jr. supplied bank statements identifying Nola Grun, Henry Jr. was actually utilizing his mother's bank account and the bank statements reflected his income from his then existing law practice. Although Ms. Grun's total monthly income was less than $2,000 per month, Ms. Grun would owe $2,817 per month for the principal, interest, tax and insurance payments.
The reality was Ms. Grun was a 90 year old widow living on social security benefits, who never was a professional artist, and who was already in arrears on her original home equity loan.
Notwithstanding that Henry Jr. drafted a statement indicating that the extra $119,276 was going to be used to establish a fund to pay insurance, taxes and have at least 12 months of mortgage payments available, Ms. Grun's last payment on the loan was in February 2002. Ms. Grun's property was sold to Defendant Federal National Mortgage Association on November 5, 2002 in a foreclosure sale.
$250,000 minus payment of the first lien and closing costs.
II. Analysis
Plaintiff alleges that Defendant Commerce Land Title, Inc. ("Commerce") and the co-defendants "conspired together to defraud the Plaintiff out of her property rights." To recover for fraud or misrepresentation, a plaintiff is required to prove: "(1) that a material misrepresentation was made; (2) that it was false; (3) that the speaker knew it was false when made or that the speaker made it recklessly without any knowledge of the truth and as a positive assertion; (4) that he made it with the intention that it be acted upon by the other party; (5) that the party acted in reliance upon it; and (6) damage." T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex. 1992). Specifically, Plaintiff alleges the following in her Third Amended Complaint:
• Commerce made no effort to ascertain that Ms. Grun had knowledge of what she was signing, nor was any effort made by them to explain the closing documents to Ms. Grun.
• It prepared some of the closing documents and without explanation or question presented the closing documents to Ms. Grun for her signature.
• Plaintiff's son, Rubiola Mortgage Company and Commerce "took Plaintiff under their control and influence and while she was in such condition had Plaintiff execute the note and mortgage agreements. . . ."
• It provided the place of settlement of the subject home equity loan.
• Laura Stuckey was the Escrow Officer and provided all documents for Ms. Grun's signature.
• It issued the Commitment for Title Insurance.
• Plaintiff's son, Rubiola Mortgage and Commerce Land Title "conspired together to defraud the Plaintiff out of her property rights."
Commerce seeks summary judgment arguing that no evidence exists to support any fraud claim. In support of it's contention, Commerce argues no evidence exists that it was involved in any manner with Henry Jr. or Rubiola's submission of the loan application to Defendant Countrywide Home Loan, Inc., the lender. It argues there is no evidence that Commerce was aware of any false documents being submitted to the lender. It argues there is no evidence that Commerce participated in any fashion with Countrywide's decision to foreclose on the property or that Commerce was involved in any fashion with Federal National Mortgage Association's purchase of the property. Further, Commerce presents evidence that Ms. Stuckey merely provided various closing documents to Ms. Grun for signature and that Ms. Grun actually signed them at Commerce's office.
In response, Plaintiff argues, without citation to his Appendix, that the mortgage broker, Rubiola, "does 80 percent of his business" with Ms. Stuckey. Assuming this fact is supported by the summary judgment evidence and that Rubiola has committed some fraud, this allegation does not raise any issue of material fact to defeat Defendant's motion for summary judgment. Because mere suspicion or conjecture does not constitute evidence, the fact that Ms. Stuckey and Rubiola have a working relationship does not implicate a conspiracy against Ms. Grun. Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex. 2001) (circumstantial evidence must transcend mere suspicion). Thus, Plaintiff's allegation that Commerce conspired with Henry Jr. and Rubiola fails.
Plaintiff next complains that Ms. Stuckey failed to insure that Henry Jr. had a power of attorney to act on Ms. Grun's behalf. This argument fails inasmuch as no power of attorney was necessary. Ms. Grun was actually signing all the documents herself in front of Ms. Stuckey. Further, Plaintiff complains that Ms. Stuckey failed to explain to Ms. Grun the significance of the documents before her yet Plaintiff fails to present any evidence that Ms. Stuckey had any such duty. In addition, Plaintiff complains that one of the loan documents is dated June 22, when the actual closing performed at Commerce Land Title's office was June 19. Plaintiff argues that this is some evidence that one of the documents "closed" at Plaintiff's home in violation of the Texas Constitution. Yet again, Plaintiff provides no evidence, other than speculation, that the document was signed at Plaintiff's home. These baseless allegations do not support a cause of action for fraudulent misrepresentation and as such, fail.
Finally, Plaintiff recounts her contention that the loan was secured fraudulently by Henry Jr., that the loan process was deficient, and that various notices were not given to her during the foreclosure process. However, as stated above, there is no evidence that this title company was involved in any fashion with the loan or foreclosure process or that it conspired with Ms. Grun's son. Because Plaintiff presents no evidence that Ms. Stuckey knew that Ms. Grun was not competent to sign the closing documents or that Commerce Land Title "exercised dominion and control" over Plaintiff during the closing, Defendant's Motion for summary judgment is GRANTED.
Conclusion
Defendant Commerce Land Title, Inc.'s motion for summary judgment (docket no. 56) is GRANTED.