Johnson et al v. The Bank of New York Mellon Corporation, et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE - re 9 Report and Recommendations, GRANTING 6 Motion to Dismiss, filed by The Bank of New York Mellon Corporation, JPMorgan Chase Bank, National Association. Signed by Judge Ron Clark on 10/18/2013. (baf, )

**NOT FOR PRINTED PUBLICATION**
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
MARK JOHNSON AND DEVON
JOHNSON,
Plaintiffs,
V.
THE BANK OF NEW YORK MELLON
CORPORATION AS TRUSTEE FOR
ASSET BACKED SECURITIES
CORPORATION EQUITY LOAN
TRUST 1999-LB1 and JPMORGAN
CHASE BANK, NATIONAL
ASSOCIATION,
Defendants.

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CASE NO. 4:13cv392
Judge Clark/Judge Mazzant

ORDER 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 11, 2013, the report of the Magistrate Judge was entered containing
proposed findings of fact and recommendations that Defendants’ Motion to Dismiss Plaintiffs’
Complaint [Doc. #6] be granted [Doc. #9]. On September 25, 2013, Plaintiffs filed their
Objections to the Report and Recommendation [Doc. #10]. On October 2, 2013, Defendants
filed a response [Doc. #11].
Plaintiffs commenced this lawsuit in state court against Defendants. On July 11, 2013,
Defendants removed this case to this court. On July 16, 2013, the court gave Plaintiffs an

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opportunity to file an amended complaint, but Plaintiffs did not file an amended pleading. On
August 23, 2013, Defendants filed a Motion to Dismiss, but no response was filed by Plaintiffs.
The Magistrate Judge then issued a report and recommendation that the motion should be
granted. The decision was based on Plaintiffs’ failure to file a response as required by the court’s
local rules. The decision was also based upon a review of the motion and the complaint and a
finding that none of the claims asserted were plausible.
Defendants in this case are JPMorgan Chase Bank, N.A. (“Chase”) and The Bank of New
York Mellon f/k/a The Bank of New York as successor in interest to JPMorgan Chase Bank,
National Association f/k/a The Chase Manhattan Bank, as Trustee for Asset Backed Securities
Corporation Equity Loan Trust 1999-LBl (“BONY”).
Plaintiffs did file objections. However, prior to the filing of Plaintiffs’ objections, they
have not been engaged in this lawsuit either by filing an amended pleading or by responding to
the motion to dismiss. The court would point out that Defendants assert that the court should
review the report and recommendation under a clearly erroneous or contrary to law standard.
However, the clearly erroneous standard does not apply to this matter; this standard only applies
to non-dispositive matters, not motions to dismiss or motions for summary judgment. Since
Plaintiffs filed objections, the court shall review the Magistrate Judge’s decision de novo.
Plaintiffs’ objections assert that they have standing to challenge void assignments and
transfer of the Note. Plaintiffs assert that the assignment of the Note and Deed of Trust to the
Trust was void and that Defendant BONY acquired no interest in the Note and/or Deed of Trust.
The court rejects these arguments because, based upon Plaintiffs’ complaint, these claims are not
plausible.

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Plaintiffs executed a Texas Home Equity Security Instrument on December 21, 1998. The
original lender and beneficiary of the security instrument was Long Beach Mortgage Company.
Long Beach Mortgage Company was wholly owned by Washington Mutual Bank, FA, as late as
October 2007. On September 25, 2008, Washington Mutual Bank was liquidated by the Federal
Deposit Insurance Corporation (“FDIC”). On September 25, 2008, Chase acquired all loans and
loan commitments of Washington Mutual from the FDIC, acting as receiver. Thus, Chase had
standing, as the mortgagee and servicer of the loan, to foreclose. Chase assigned the Deed of
Trust to BONY on February 12, 2013. The court takes judicial notice of documents that are part
of the public record and/or are central to Plaintiffs’ complaint. Thus, either BONY or Chase has
standing to foreclose, and Plaintiffs do not have a plausible declaratory judgment claim.
Plaintiffs also cannot contest the assignment into the Trust because Plaintiffs have no
authority to contest the Pooling and Servicing Agreement (“PSA”), nor can they assert that the
assignment is void based upon its acceptance date into the PSA Trust. Reinagel v. Deutsche
Bank Nat. Trust Co., 722 F.3d 700, 708 (5th Cir. 2013); Epstein v. US Bank Nat. Ass'n, No.
13–50047, 2013 WL 5340766, at *6 (5th Cir. Sept. 25, 2013); Svoboda v. Bank of America, N.A.,
No. SA–12–CV–00484–DAE, 2013 WL 4017904, at *6 (W.D. Tex. Aug. 6, 2013).
Even if the assignment were void, Chase, as mortgage servicer, would have authority to
initiate foreclosure proceedings under the Texas Property Code.
Having received the report of the United States Magistrate Judge, and considering the
objections thereto filed by Plaintiffs [Doc. #10], this court is of the opinion that the findings and
conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge’s report as the
findings and conclusions of the court.

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It is, therefore, ORDERED that Defendants’ Motion to Dismiss Plaintiffs’ Complaint
[Doc. #6] is GRANTED and Plaintiffs’ case is DISMISSED with prejudice.
All relief not previously granted is DENIED.
The Clerk is directed to CLOSE this civil action.
So ORDERED and SIGNED this 18 day of October, 2013.
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Ron Clark, United States District Judge

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