Stapp et al v. Federal National Mortgage Association f/k/a Fannie Mae et al

Filing 56

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE GRANTING 26 Motion to Dismiss, filed by BAC Home Loans Servicing LP, Bank of America, N.A., Federal National Mortgage Association f/k/a Fannie Mae. Signed by Judge Richard A. Schell on 9/27/2012. (baf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

WILLIAM STUART STAPP
and ELIZABETH STAPP
Plaintiffs,

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VS.
BANK OF AMERICA, N.A.,
BAC HOME LOANS SERVICING, L.P.,
FEDERAL NATIONAL MORTGAGE
ASSOCIATION, and BARRETT DAFFIN
FRAPPIER TURNER & ENGEL, L.L.P.
Defendants.

Case No. 4:11CV203

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 September 5, 2012, the report of the Magistrate Judge was entered containing proposed
findings of fact and recommendations that Defendants’ Motion to Dismiss (Dkt. 26) be GRANTED
as to Plaintiffs’ claim of breach of contract based on breach of oral loan modification, waiver,
anticipatory breach, breach of duty of good faith and fair dealing, and any breach of contract claim
against Fannie Mae, Plaintiffs’ claim of breach of common law tort of unreasonable collection
efforts; Plaintiffs’ negligent misrepresentation claim against Fannie Mae and BAC, Plaintiffs’ TDCA

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claim under Sections 392.301(a)(8), 392.302(4) and 392.303(a)(2), and Plaintiffs’ claim of tortious
interference with a contract, DENIED as to Plaintiffs’ breach of contract claim based on a breach of
the mortgage documents that they were not given adequate notice and an opportunity to cure,
Plaintiffs’ negligent misrepresentation claim against Bank of America, Plaintiffs’ TDCA claims
under Sections 392.304(a)(8) and (a)(19), Plaintiffs’ suit to quiet title and trespass to try title, and
Plaintiffs’ request for declaratory judgment and accounting and DENIED as MOOT as to Plaintiffs’
allegations of malice.
The court has made a de novo review of the objections raised by Plaintiffs and is of the
opinion that the findings and conclusions of the Magistrate Judge are correct, and the objections are
without merit as to the ultimate findings of the Magistrate Judge. The court hereby adopts the
findings and conclusions of the Magistrate Judge as the findings and conclusions of this court.
Therefore, Defendants’ Motion to Dismiss (Dkt. 26) is GRANTED as to Plaintiffs’ claim of
breach of contract based on breach of oral loan modification, waiver, anticipatory breach, breach of
duty of good faith and fair dealing, and any breach of contract claim against Fannie Mae, Plaintiffs’
claim of breach of common law tort of unreasonable collection efforts; Plaintiffs’ negligent
misrepresentation claim against Fannie Mae and BAC, Plaintiffs’ TDCA claim under Sections
392.301(a)(8), 392.302(4) and 392.303(a)(2), and Plaintiffs’ claim of tortious interference with a
contract, DENIED as to Plaintiffs’ breach of contract claim based on a breach of the mortgage
documents that they were not given adequate notice and an opportunity to cure, Plaintiffs’ negligent
misrepresentation claim against Bank of America, Plaintiffs’ TDCA claims under Sections

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392.304(a)(8) and (a)(19), Plaintiffs’ suit to quiet title and trespass to try title, and Plaintiffs’ request
for declaratory judgment and accounting and DENIED as MOOT as to Plaintiffs’ allegations of
malice.
IT IS SO ORDERED.

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SIGNED this the 27th day of September, 2012.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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