Smith v. CitiMortgage, Inc. et al

Filing 59

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 37 Defendants' Motion to Dismiss Plaintiff's Second Amended Original Complaint, filed by CitiMortgage, Inc., Federal National Mortgage Association, 52 R eport and Recommendations. Defendants Motion to Dismiss Plaintiff's Second Amended Original Complaint (Dkt. 37) is GRANTED as to Plaintiffs breach of contract claims regarding the waiver of the right to accelerate and foreclose, the breach of d uty of good faith and fair dealing, and breach of unilateral contract, Plaintiff's claims of breach of common law tort of unreasonable collection efforts, Plaintiff's TDPCA claim under Sections 392.301(a)(8) and 392.303(a)(2), any claims as serted under the DTPA, Plaintiff's accounting claims, and Plaintiff's gross negligence claims. Defendants' Motion to Dismiss Plaintiff's Second Amended Original Complaint (Dkt. 37) is DENIED as to Plaintiff's breach of contra ct claims regarding notice of default and demand for past due installments prior to acceleration and violations of the Texas Property Code, Plaintiffs' TDCA claims under Sections 392.304(a)(8) and (a)(19), Plaintiff's claim for negligent misrepresentation, Plaintiff's claim for declaratory judgment, and Plaintiffs suit to quiet title and trespass to try title, and those claims shall remain pending at this time. Signed by Judge Richard A. Schell on 3/30/2012. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
TANIKIA D. SMITH
Plaintiff,

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VS.
CITIMORTGAGE, INC.
and FEDERAL NATIONAL
MORTGAGE ASSOCIATION
Defendants.

CASE NO. 4:10CV693

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action, this
matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C.
§ 636. On February 27, 2012, the report of the Magistrate Judge was entered containing proposed
findings of fact and recommendations that Defendants’ Motion to Dismiss Plaintiff’s Second
Amended Original Complaint (Dkt. 37) be GRANTED as to Plaintiff’s breach of contract claims
regarding the waiver of the right to accelerate and foreclose, the breach of duty of good faith and fair
dealing, and breach of unilateral contract, Plaintiff’s claims of breach of common law tort of
unreasonable collection efforts, Plaintiff’s TDPCA claim under Sections 392.301(a)(8) and
392.303(a)(2), any claims asserted under the DTPA, Plaintiff’s accounting claims, and Plaintiff’s
gross negligence claims and DENIED as to Plaintiff’s breach of contract claims regarding notice of
default and demand for past due installments prior to acceleration and violations of the Texas
Property Code, Plaintiffs’ TDCA claims under Sections 392.304(a)(8) and (a)(19), Plaintiff’s claim
for negligent misrepresentation, Plaintiff’s claim for declaratory judgment, and Plaintiff’s suit to
quiet title and trespass to try title.

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The court, having made a de novo review of the objections raised by Defendant, is of the
opinion that the findings and conclusions of the Magistrate Judge are correct, and that, given the
disfavor with which motions to dismiss are treated, Defendant’s objections are more appropriate for
summary judgment proceedings. Therefore, the court hereby adopts the findings and conclusions
of the Magistrate Judge regarding the motion to dismiss as the findings and conclusions of this court.
Defendants’ Motion to Dismiss Plaintiff’s Second Amended Original Complaint (Dkt. 37)
is GRANTED as to Plaintiff’s breach of contract claims regarding the waiver of the right to
accelerate and foreclose, the breach of duty of good faith and fair dealing, and breach of unilateral
contract, Plaintiff’s claims of breach of common law tort of unreasonable collection efforts,
Plaintiff’s TDPCA claim under Sections 392.301(a)(8) and 392.303(a)(2), any claims asserted under
the DTPA, Plaintiff’s accounting claims, and Plaintiff’s gross negligence claims. Defendants’
Motion to Dismiss Plaintiff’s Second Amended Original Complaint (Dkt. 37) is DENIED as to
Plaintiff’s breach of contract claims regarding notice of default and demand for past due installments
prior to acceleration and violations of the Texas Property Code, Plaintiffs’ TDCA claims under
Sections 392.304(a)(8) and (a)(19), Plaintiff’s claim for negligent misrepresentation, Plaintiff’s claim
for declaratory judgment, and Plaintiff’s suit to quiet title and trespass to try title, and those claims
shall remain pending at this time.
IT IS SO ORDERED.

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SIGNED this the 30th day of March, 2012.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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