Stallings et al v. CitiMortgage, Inc. et al

Filing 36

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE - GRANTING IN PART AND DENYING IN PART 12 Motion to Dismiss filed by CitiMortgage, Inc., Federal Home Loan Mortgage Corp., 28 Report and Recommendations. Signed by Judge Richard A. Schell on 9/27/2013. (baf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
JACKSON STALLINGS and wife,
SHEILA STALLINGS,
Plaintiffs,
VS.
CITIMORTGAGE, INC., FEDERAL HOME
LOAN MORTGAGE CORP., and
UNKNOWN PARTIES,
Defendants.

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Case No. 4:12-cv-00632

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 August 14, 2013, the report of the Magistrate Judge was entered containing proposed
findings of fact and recommendations that Defendants’ Motion to Dismiss Plaintiffs’ First Amended
Complaint (Dkt. 12) should be GRANTED in part and DENIED in part.
The court has made a de novo review of the objections raised by Plaintiffs, as well as
Defendants’ response, 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 Plaintiffs’ First Amended Complaint (Dkt. 12)
is GRANTED as to (1) Plaintiffs’ claims of RESPA violations; (2) Plaintiffs’ claims of breach of
contract and anticipatory breach of contract; (3) Plaintiffs’ unreasonable collection efforts claims;
(4) Plaintiffs’ claims of violations of the Deceptive Trade Practices Act and Texas Debt Collection

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Practices Act Sections 392.301(a)(8) and 392.303(a)(2); and (5) Plaintiffs’ suit to quiet title and
trespass to try title against all Defendants, and those claims are dismissed with prejudice for failure
to state a claim.
Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint (Dkt. 12) is DENIED
as to (1) Plaintiffs’ TDCPA claims against Defendants CitiMortgage and Freddie Mac under
Sections 392.304(a)(8) and (a)(19) of the Texas Finance Code; (2) Plaintiffs’ claims of negligent
misrepresentation against Defendants CitiMortgage and Freddie Mac; and (3) Plaintiffs’ claims for
declaratory judgment, an accounting of all transactions on their mortgage loan, and attorneys’ fees
against Defendants CitiMortgage and Freddie Mac, and those claims shall proceed herein.
Plaintiffs’ negligent misrepresentation claim and Plaintiffs’ TDCPA claims under Sections
392.304(a)(8) and (a)(19) of the Texas Finance Code, as well as any equitable claims, against the
Unknown Defendants are dismissed without prejudice.
IT IS SO ORDERED.

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SIGNED this the 27th day of September, 2013.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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