Smith v. Bank of America, N.A.

Filing 52

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 14 Motion to Dismiss, filed by Deutsche Bank National Trust Company, as Trustee, Bank of America, N.A., 25 Motion for Summary Judgment, filed by Deutsche Bank National Trust Company, as Trustee, Bank of America, N.A., 48 Report and Recommendations. Signed by Judge Richard A. Schell on 9/30/13. (cm, )

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

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Plaintiff,
v.
BANK OF AMERICA, NA, et al.,
Defendants.

4:12-CV-724

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 28, 2013, the report of the Magistrate Judge was entered containing proposed
findings of fact and recommendations that Defendants’ Motion to Dismiss Plaintiff’s First Amended
Complaint (Dkt. 14) be GRANTED as to Plaintiff’s claims challenging the enforceability of the
negotiable instrument, Plaintiff’s TDCPA claims, and Plaintiff’s DTPA claims, that those claims be
dismissed for failure to state a claim, and that the motion to dismiss be DENIED as to Plaintiff’s
common law fraud and negligent misrepresentation claims.

The Magistrate Judge further

recommended that Defendants’ Motion for Summary Judgment on Plaintiff’s First Amended
Complaint (Dkt. 25) be GRANTED as to all remaining claims, that Plaintiff take nothing by her
claims here, and that final judgment be entered for Defendants awarding them their costs in this
matter.
The court has made a de novo review of the objections raised by Plaintiff and 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
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of this court.
Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint (Dkt. 14) is GRANTED
as to Plaintiff’s claims challenging the enforceability of the negotiable instrument, Plaintiff’s
TDCPA claims, and Plaintiff’s DTPA claims, and those claims are dismissed for failure to state a
claim. The motion to dismiss is DENIED as to Plaintiff’s common law fraud and negligent
misrepresentation claims.
Further, Defendants’ Motion for Summary Judgment on Plaintiff’s First Amended Complaint
(Dkt. 25) is GRANTED as to all remaining claims, Plaintiff shall take nothing by her claims here,
and final judgment shall be entered for Defendants awarding them their costs in this matter.
IT IS SO ORDERED.
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SIGNED this the 30th day of September, 2013.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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