Gipson v. Deutsche Bank National Trust Company et al

Filing 92

ORDER: The court prospectively denies any motion by Plaintiff to proceed in forma pauperis on appeal and certifies, pursuant to Fed. R. App. P. 24(a)(3) and 28 U.S.C. § 1915(a)(3), that any such appeal is not taken in good faith. Plaintiff , however, may challenge the denial by filing a separate motion to proceed in forma pauperis on appeal with the Clerk of Court, United States Court of Appeals for the Fifth Circuit, within thirty days after service of the notice required by Fed. R. App. P. 24(a)(4). See Fed. R. App. P. 24(a)(5). (Ordered by Judge Sam A Lindsay on 1/25/2016) (aaa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
THOMAS K. GIPSON,
Plaintiff,
v.
DEUTSCHE BANK NATIONAL
TRUST COMPANY as Trustee for
Stanley Ixis Real Estate Capital Trust
Morgan 2006-I, Mortgage Pass Through
Certificates, Series 2006-1, et al.,
Defendants.

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Civil Action No. 3:13-CV-4820-L

ORDER
Before the court is Plaintiff’s Motion for Summary Judgment and Request for Hearing (Doc.
63), filed April 3, 2015; and Moving Defendants’ First Amended Motion to Dismiss Plaintiff’s Third
Amended Petition (Doc. 68), filed April 13, 2015.* This mortgage foreclosure case was brought by
pro se Plaintiff Thomas K. Gipson (“Plaintiff”) in state court on November 27, 2013, against several
Defendants. The case was removed to federal court on December 10, 2013. Plaintiff’s claims
against a majority of Defendants were dismissed on May 4, 2015, and August 25, 2015. Moving
Defendants’ First Amended Motion to Dismiss Plaintiff’s Third Amended Petition addresses the
claims against the remaining Defendants.
On October 27, 2015, Magistrate Judge Irma Carrillo Ramirez entered the Findings,
Conclusions and Recommendation of the United States Magistrate Judge (“Report”) (Doc. 88)

*

The motion to dismiss was filed by Defendants Deutsche Bank National Trust Company, as Trustee for
Morgan Stanley Ixis Real Estate Capital Trust 2006-1, Mortgage Pass Through Certificates, Series 2006-1; Wells Fargo
Bank, N.A. (“Wells Fargo”); and Mortgage Electronic Registration Systems, Inc. (“MERS”) (collectively, “Moving
Defendants”).
Order – Page 1

recommending that the court grant Moving Defendants’ First Amended Motion to Dismiss
Plaintiff’s Third Amended Petition (Doc. 68) and deny as moot is Plaintiff’s Motion for Summary
Judgment and Request for Hearing (Doc. 63). The magistrate judge also recommended that Plaintiff
not be allowed to further amend his pleadings. Plaintiff filed objections to the Report, to which
Moving Defendants responded.
Having reviewed the motions, briefs, file, record in this case, the thorough and detailed
Report addressing Plaintiff’s numerous claims, and having conducting a de novo review of that
portion of the Report to which objection was made, the court determines that the findings and
conclusions of the magistrate judge are correct, and accepts them as those of the court. Accordingly,
the court concludes that Plaintiff has failed to state claims upon which relief can be granted against
Moving Defendants or lacks standing to assert certain claims, and dismissal of all of Plaintiff’s
claims and requests for relief against Moving Defendants is appropriate. The court further concludes
that Plaintiff has pleaded his “best case” and that further attempts to amend would be futile and
unnecessarily delay the resolution of this case. Accordingly, the court will not allow Plaintiff an
opportunity to further amend his pleadings. See Schiller v. Physicians Res. Grp., Inc., 342 F.3d 563,
567 (5th Cir. 2003).
The court, therefore, overrules Plaintiff’s objections; grants Moving Defendants’ First
Amended Motion to Dismiss Plaintiff’s Third Amended Petition (Doc. 68); and denies as moot
Plaintiff’s Motion for Summary Judgment and Request for Hearing (Doc. 63). Plaintiff’s claims
against Moving Defendants challenging the assignment of his mortgage are dismissed without
prejudice for lack of standing. All remaining claims by Plaintiff against Moving Defendants are
dismissed with prejudice under Federal Rule of Civil Procedure 12(b)(6), including: claims based

Order – Page 2

on the “show me the note” theory and failure to record the transfer of the note; claims for alleged
violations of the Texas Debt Collection Practices Act, Federal Debt Collection Practices Act, Truth
in Lending Act, Home Ownership and Equity Protection Act, Equal Credit Opportunity Act,
Racketeer Influenced and Corrupt Organizations Act; harassment and unreasonable collection
efforts; common law fraud; breach of contract; unjust enrichment; wrongful foreclosure; predatory
lending and perjury; conspiracy; mail fraud; securities fraud; income tax evasion; slander of title;
defamation; and malicious prosecution. The court also denies and dismisses with prejudice
Plaintiff’s request for a declaratory judgment, injunctive relief, an accounting, and attorney’s fees.
As previously noted, Plaintiff’s claims against the remaining Defendants were previously dismissed
on May 4, 2015, and August 25, 2015. Accordingly, judgment will issue by separate document as
required by Federal Rule of Civil Procedure 58.
The court prospectively denies any motion by Plaintiff to proceed in forma pauperis on
appeal and certifies, pursuant to Fed. R. App. P. 24(a)(3) and 28 U.S.C. § 1915(a)(3), that any such
appeal is not taken in good faith. Plaintiff, however, may challenge the denial by filing a separate
motion to proceed in forma pauperis on appeal with the Clerk of Court, United States Court of
Appeals for the Fifth Circuit, within thirty days after service of the notice required by Fed. R. App.
P. 24(a)(4). See Fed. R. App. P. 24(a)(5).
It is so ordered this 25th day of January, 2016.

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Sam A. Lindsay
United States District Judge

Order – Page 3