Andrade et al v. Countrywide KB Home Loans et al

Filing 28

ORDER ACCEPTING 18 FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: For the reasons stated in the Findings, Conclusions, and Recommendation, Bank Defendants' Motion to Dismiss Plaintiffs' Complaint and Brief in Support, filed 11/17/2014 (doc. 5 ) is GRANTED in part. Trustee Defendant's Motion to Dismiss, filed 12/15/2014 (doc. 11 ) is GRANTED. According to TEX. PROP. CODE § 51.007(c), the Court DISMISSES Trustee Bastian without prejudice from this lawsuit. (Ordered by Judge Ed Kinkeade on 9/1/2015) (bdb)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CLAUDIO D. & DALINDA ANDRADE, §
§
Plaintiffs,
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§
v.
§
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COUNTRYWIDE KB HOME LOANS, §
MORTGAGE ELECTRONIC
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REGISTRATION SERVICES, INC.,
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G. TOMMY BASTIAN, et al.,
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RECONTRUST COMPANY, NA, BANK §
OF AMERICA, NA, COUNTRYWIDE §
HOME LOANS, INC., THE BANK OF §
NEW YORK MELLON, COLFIN AI§
TX 1, LLC, and DOES 1-X,
§
§
Defendants.
§

Civil Action No. 3:14-CV-3969-K

ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
After reviewing all relevant matters of record in this case, including the
Findings, Conclusions, and Recommendation of the United States Magistrate Judge
and any objections thereto, in accordance with 28 U.S.C. § 636(b)(1), the
undersigned District Judge is of the opinion that the Findings and Conclusions of the
Magistrate Judge are correct in part and they are accepted in part as the Findings and
Conclusions of the Court.
For the reasons stated in the Findings, Conclusions, and Recommendation,
Bank Defendants’ Motion to Dismiss Plaintiffs’ Complaint and Brief in Support,

filed November 17, 2014 (doc. 5) is GRANTED in part. Plaintiffs’ claims regarding
the assignment of the deed of trust against Countrywide KB Home Loans, Mortgage
Electronic Registration Systems, Inc., ReconTrust Company, N.A., Bank of America,
N.A, Countrywide Home Loans, Inc., The Bank of New York Mellon f/k/a the Bank
of New York, as Trustee for the Certificateholders CWALT Inc., Alternative Loan
Trust 2006-28CB, Mortgage Pass-Through Series 2006-28CB, and CWALT Inc.,
Alternative Loan Trust 2006-28CB, Mortgage Pass-Through Series 2006-28CB, as
they relate to Plaintiffs individually, are DISMISSED with prejudice for failure to
state a claim upon which relief can be granted.
Since the bankruptcy trustee declined to intervene in the action as allowed by
Fed. R. Civ. P. 17(a)(3), Plaintiffs’ claims against the above-referenced defendants
regarding the assignment of the deed of trust, as they relate to the bankruptcy estate,
are also DISMISSED with prejudice for failure to prosecute.
Since Plaintiffs have timely filed an amended complaint as allowed by the
recommendation, the above-referenced defendants’ motion to dismiss as to Plaintiffs’
wrongful foreclosure claim is DENIED as moot. The action will now proceed against
those defendants on the first amended complaint.
Trustee Defendant’s Motion to Dismiss, filed December 15, 2014 (doc. 11) is
GRANTED. The Court finds the Trustee filed his verified denial in accordance with
TEX. PROP. CODE § 51.007(a), containing a proper assertion that, in his reasonable
belief, he was named solely in his capacity as substitute trustee. Furthermore,

Plaintiffs failed to file a timely verified response to the Trustee’s verified denial giving
the Court reason why the Trustee is a necessary party. See TEX. PROP. CODE §
51.007(b). Therefore, according to TEX. PROP. CODE § 51.007(c), the Court
DISMISSES Trustee Bastian without prejudice from this lawsuit.
SO ORDERED.
SIGNED September 1st, 2015.

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ED KINKEADE
UNITED STATES DISTRICT JUDGE