Sutherlin v. Countrywide Home Loans, Inc. et al

Filing 18

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 8 MOTION to Dismiss filed by MERSCORP, Inc., Bank of America, National Association, f/k/a BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing, LP, The Bank of New York M ellon f/k/a The Bank of New York, As Trustee for the Certificateholders CWABS, Inc., Asset-Backed Certificates Series 2007-6;, Countrywide Home Loans, Inc., Mortgage Electronic Registration Systems, Inc.;, 12 MOTION to Dismiss filed by Greg Bertran d, Individually, 11 MOTION to Dismiss Pursuant to Rule 12(b)(6) filed by Stephen C. Porter, Individually, National Default Exchange, LP, Toni Lynn Stephens, Individually. Defendants Countrywide Home Loans, Inc., Bank of America, N.A., succ essor by merger to BAC Home Loans Servicing, L.P. f/k/a Countrywide Home Loans Servicing, LP, The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the Certificateholders CWABS, Inc., Asset-Backed Certificates Series 2007-6, Mortgage Electronic Registration Systems,Inc., and MERSCORP, Inc.'s Motion to Dismiss (Dkt. 8), National Default Exchange, LP, StephenC. Porter and Toni Lynn Stephens' Rule 12(b)(6) Motion to Dismiss (Dkt. 11), and Defendant Greg Bertrand's Motion to Dismiss (Dkt. 12) should be GRANTED in part and that case should be dismissed for want of prosecution. Signed by Magistrate Judge Don D. Bush on 12/5/2012. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
EMELINDA D. SUTHERLIN,
Plaintiff,
VS.
COUNTRYWIDE HOME LOANS, INC.;
BANK OF AMERICA, NATIONAL
ASSOCIATION, F/K/A BAC HOME LOANS
SERVICING, LP F/K/A COUNTRYWIDE HOME
LOANS SERVICING, LP; THE BANK OF NEW
YORK MELLON F/K/A THE BANK OF NEW
YORK, AS TRUSTEE FOR THE
CERTIFICATEHOLDERS CWABS, INC.,
ASSETBACKEDCERTIFICATES SERIES 2007-6;
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC.; MERSCORP, INC., NATIONAL
DEFAULT EXCHANGE, LP; GREG BERTRAND,
INDIVIDUALLY; AND STEPHEN C. PORTER,
INDIVIDUALLY; AND TONI LYNN STEPHENS,
INDIVIDUALLY; AND DOES 1-20,
INCLUSIVELY,
Defendants.

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Case No. 4:12CV434

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Now before the Court is Defendants Countrywide Home Loans, Inc. (“CHL”); Bank of
America, N.A., successor by merger to BAC Home Loans Servicing, L.P. f/k/a Countrywide Home
Loans Servicing, LP (“BAC”); The Bank of New York Mellon f/k/a The Bank of New York, as
Trustee for the Certificateholders CWABS, Inc., Asset-Backed Certificates Series 2007-6 (“BNY
Mellon”); Mortgage Electronic Registration Systems, Inc. (“MERS”); and MERSCORP, Inc.
(MERSCORP)’s Motion to Dismiss (Dkt. 8), National Default Exchange, LP, Stephen C. Porter and

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Toni Lynn Stephens’ Rule 12(b)(6) Motion to Dismiss (Dkt. 11), and Defendant Greg Bertrand’s
Motion to Dismiss (Dkt. 12). As set forth below, the Court finds that the motions should be
GRANTED in part and that Plaintiff’s claims here should be dismissed for want of prosecution.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On or about February 9, 2007, pro se Plaintiff Emelinda Sutherlin purchased a single family
residence at 881 Saint James Court, Fairview, Texas 75069 (“the Property”). See Dkt. 7-1 at ¶ 23.
Plaintiff purchased the Property by obtaining a mortgage note secured by a Deed of Trust for the
Property in favor of Defendant Countrywide Home Loans as the lender and Defendant Recontrust
Company as the Trustee. Id. According to Plaintiff, for months prior to May 4, 2010, she requested
accountings and other information from the Defendants, was informed that she had been approved
for the federal home loan modification program, and was assured that no foreclosure actions would
occur until after she was given an opportunity to make application and be considered for a
modification of the existing loans on the Property. Id. at ¶ 34. On or about May 4, 2010, a nonjudicial foreclosure auction was conducted on the Property, and subsequently, on or about June 17,
2010, Defendants attempted to evict Plaintiff from the Property. Id. at ¶¶ 36-7.
On or about October 19, 2011, Plaintiff filed suit in the 366th Judicial District in Collin
County, Texas. See Dkt. 4. On June 19, 2012, Plaintiff filed her First Amended Petition and
Request for Disclosure in state court. See Dkt. 7-1 at 11. The case was removed to this Court on
July 13, 2012. See Dkt. 1.
Plaintiff’s amended complaint, filed prior to removal, asserts the following causes of action
against Defendants: (1) slander of title and impairment of vendibility; (2) violation of §12.002 of the

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Texas Civil Practice and Remedies Code; (3) negligent misrepresentation/grossly negligent
misrepresentation; (4) negligent undertaking/ grossly negligent undertaking; (5) negligence per se/
gross negligence per se; (6) fraudulent misrepresentation; (7) invalidity of foreclosure sale for
improper notice of acceleration/ invalidity of foreclosure sale by party without possession of the
note; and (8) conspiracy. See Dkt. 7-1. Plaintiff also seeks a declaratory judgment, exemplary
damages (alleging that Defendants acted with malice), and a temporary restraining order. Id.
Defendants have filed motions to dismiss, seeking to dismiss Plaintiff’s claims.
First, Defendant Countrywide Home Loans, Inc. (“CHL”); Bank of America, N.A., successor
by merger to BAC Home Loans Servicing, L.P. f/k/a Countrywide Home Loans Servicing, LP
(“BAC”); The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the
Certificateholders CWABS, Inc., Asset-Backed Certificates Series 2007-6 (“BNY Mellon”);
Mortgage Electronic Registration Systems, Inc. (“MERS”); and MERSCORP, Inc. (MERSCORP)’s
Motion to Dismiss (Dkt. 8) argues: (1) Plaintiff’s challenge to the 2007 appointments of Substitute
Trustee are without merit and barred by the statute of limitations; (2) Plaintiff lacks standing to sue
based on an alleged breach of pooling and servicing agreement or defect in the assignments; (3)
Plaintiff’s lack of ownership allegations are without merit; (4) Plaintiff’s wrongful foreclosure claim
fails because Plaintiff is still in possession of the Property; (5) Plaintiff also fails to state a claim
under RESPA and fails to adequately allege a violation of federal securities law; and (6) Plaintiff’s
claim for violations of 192.007 of the Texas Local Government Code fails because the Texas
Property Code and Deed of Trust do not require recordation of the documents in the deed records.

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Next, National Default Exchange, LP , Stephen C. Porter and Toni Lynn Stephens’ Rule
12(b)(6) Motion to Dismiss (Dkt. 11) argues that Plaintiff’s complaint files to state a claim upon
which relief may be granted because attorney defendants are immune from suit and Porter is not
liable in his capacity as Assistant Secretary of MERS.
Finally, Defendant Greg Bertrand’s Motion to Dismiss (Dkt. 12) argues Plaintiffs failed to
timely file a verified response to Defendant Bertrand’s verified denial, and therefore requests that
the Court dismiss him from this lawsuit without prejudice.
ANALYSIS
Defendants CHL, BAC, BNY Mellon, MERS and MERSCORP’s motion was filed on July
20, 2012, and the other Defendants’ motions to dismiss were filed on August 30, 2012. See Dkts.
8, 11 and 12. On July 27, 2012, the Court entered an order providing Plaintiff with an opportunity
to amend her complaint to comport with federal pleading standards, if needed. See Dkt. 9. Also on
July 27, 2012, the Court entered an order directing the parties to confer as required by Federal Rule
of Civil Procedure 26(f) and to submit a Rule 26(f) report and proposed scheduling order by
September 10, 2012. See Dkt. 10.
Plaintiff did not amend her complaint, and no Rule 26(f) report was submitted. Plaintiff also
failed to file any responses to the motions to dismiss, failed to claim any of the Court’s certified mail
correspondence, and failed to take any action in the case whatsoever.
On October 1, 2012, the Court entered an order indicating that if Plaintiff failed to: (1)
confirm her current mailing address with the Clerk of Court; (2) submit the parties’ Rule 26(f)
report; and (3) file her responses to the motions to dismiss on or before October 24, 2012, the Court

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would assume that she was not opposed to the dismissal of her claims and would proceed
accordingly. See Dkt. 16. The Court also cautioned Plaintiff that continued return of undeliverable
or unaccepted correspondence from the Clerk of Court would also result in dismissal of her case.
More than a month after the Court’s deadline, Plaintiff has failed to take any action, and her
mail continues to go unclaimed. See Dkt. 17.
Having considered Plaintiff’s failure to comply with the Court’s orders, including her
obligation to keep her contact information current and to retrieve all court correspondence, the Court
finds that the matter should be dismissed for want of prosecution. See FED . R. CIV . P. 41(b).1 See
FED . R. CIV . P. 41(b); Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998) (“A district court sua
sponte may dismiss an action for failure to prosecute or to comply with any court order.”). Plaintiff
is simply not prosecuting any claims she may have.
RECOMMENDATION
Therefore, Defendants Countrywide Home Loans, Inc., Bank of America, N.A., successor
by merger to BAC Home Loans Servicing, L.P. f/k/a Countrywide Home Loans Servicing, LP, The
Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the Certificateholders
CWABS, Inc., Asset-Backed Certificates Series 2007-6, Mortgage Electronic Registration Systems,
Inc., and MERSCORP, Inc.’s Motion to Dismiss (Dkt. 8), National Default Exchange, LP, Stephen
C. Porter and Toni Lynn Stephens’ Rule 12(b)(6) Motion to Dismiss (Dkt. 11), and Defendant Greg
Bertrand’s Motion to Dismiss (Dkt. 12) should be GRANTED in part and that case should be
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Without hearing from Plaintiff and given that she is without counsel, the Court finds that
dismissal with prejudice for failure to state a claim, as some Defendants request, would be too
draconian a recommendation under the record before the Court.

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dismissed for want of prosecution.
Any pretrial deadlines are hereby ABATED pending the District Judge’s consideration of this
report and recommendations. Should the matter not be dismissed, the parties are directed to file an
amended proposed scheduling order within thirty (30) days of the District Judge’s disposition of the
motions to dismiss.
Within fourteen (14) days after service of the magistrate judge’s report, any party may serve
and file written objections to the findings and recommendations of the magistrate judge. 28
U.S.C.A. § 636(b)(1)(C).
Failure to timely file written objections to the proposed findings and recommendations

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contained in this report shall bar an aggrieved party from de novo review by the district court of the
proposed findings and recommendations and from appellate review of factual findings accepted or
adopted by the district court except on grounds of plain error or manifest injustice. Thomas v. Arn,
474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).

SIGNED this 5th day of December, 2012.
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____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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