McGee et al v. CitiMortgage Inc et al
Filing
28
Order Accepting 23 Findings and Recommendations. The court grants 9 Dismiss for Failure to State a Claim filed by CTX Mortgage Company LLC, and grents 5 Motion to Dismiss filed by Government National Mortgage Association, CitiMortgage Inc. and dismisses Plaintiffs claims with prejudice. (Ordered by Judge Sam A Lindsay on 11/16/2015) (mem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
HAROLD MCGEE and ROSETTA
MCGEE,
Plaintiffs,
v.
CTX MORTGAGE COMPANY, LLC;
et al.,
Defendants.
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Civil Action No. 3:15-CV-1746-L
ORDER
Before the court are Defendants CitiMortgage, Inc. (“CMI”) and Government National
Mortgage Association’s (“GNMA”) Motion to Dismiss Plaintiffs’ Complaint (Doc. 5), filed June
1, 2015; and Defendant CTX Mortgage Company, LLC’s (“CTX”) (collectively “Defendants”)
Motion to Dismiss (Doc. 9), filed June 11, 2015. For the reasons herein stated, the court grants
Defendants’ Motions to Dismiss.
Plaintiffs’ originally filed this action on May 4, 2015, in state court against Defendants.
The action was removed to federal court on May 20, 2015. Plaintiffs’ claims arise from the
initiation of foreclosure proceedings of their property located at 1028 Cavern Drive, Mesquite,
Texas 75181. Plaintiffs assert claims for breach of contract, slander of title, void assignment of
interest and assignment of the note, and fraud, and they seek declaratory relief.
On June 1, 2015, Defendants CMI and GNMA filed their Motion to Dismiss Plaintiffs’
Complaint pursuant to Federal Rule of Civil 12(b)(6), and on June 11, 2015, Defendant CTX filed
Order - Page 1
its Motion to Dismiss pursuant to Federal Rule of Civil 12(b)(6). The motions were referred to
Magistrate Judge David L. Horan, who entered Findings, Conclusions, and Recommendation of
the United States Magistrate Judge (“Report”) on September 16, 2015, recommending that the
court grant Defendants’ Motions to Dismiss. Plaintiffs filed two objections to the Report on
October 1, 2015. On October 14, 2015, Defendants filed their responses. The court overrules
both objections.
Plaintiffs’ first object to the finding that their action is barred by the statute of limitations.
Plaintiffs contend that the magistrate judge erred because he failed to consider the continuing tort
doctrine, and discovery rule defenses to the statute of limitations. The court agrees with the
magistrate judge that Plaintiffs’ slander of title, breach of contract, and fraud claims are barred by
the statute of limitations. Plaintiffs have not pleaded any defenses to the statute of limitations or
sufficient facts to toll the statute of limitations. Accordingly, this objection is overruled.
Plaintiffs’ next object to the finding that they do not have standing to challenge the
assignment between CTX and CMI because they are not a party to the assignment. The court
agrees with the magistrate judge that Plaintiffs do not have standing to challenge the assignment.
Plaintiffs contend that the assignment is void because it is fraudulent. As the magistrate judge
correctly finds, such an allegation would only render the deed voidable, not void. Report 7.
Plaintiffs’ objections actually point to case law that confirms the magistrate judge’s finding. See
Rivera v. CitiMortgage, Inc., 2013 WL 1294009, *2 (N.D. Tex. Apr. 1, 2013) (“A debtor has
standing to challenge an assignment on any ground [that] renders the assignment void, but may
not defend on any ground [that] renders the assignment voidable only.” (internal citations and
quotations omitted)). Accordingly, the court overrules this objection.
Order - Page 2
After careful consideration of the pleadings, file, Report, objections and responses, the
court determines that the magistrate judge’s findings and conclusions are correct, and accepts
them as those of the court. Accordingly, the court grants Defendants CMI and GNMA’s Motion
to Dismiss Plaintiff’s Complaint, and grants Defendant CTX Motion to Dismiss, and dismisses
Plaintiffs’ claims with prejudice. Pursuant to Rule 58(a) of the Federal Rules of Civil Procedure,
the court will enter judgment by separate document.
It is so ordered this 16th day of November, 2015.
_________________________________
Sam A. Lindsay
United States District Judge
Order - Page 3
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