Stokes v. OneWest Bank FSB
Filing
20
Memorandum Opinion and Order... The court ORDERS that defendants motion to dismiss be, and is hereby, granted, and that all claims and causes of action asserted in the above-captioned action by plaintiffs, Melinda Stokes and Mark stokes, against defendants, Onewest and Deutsche Bank, be, and are hereby, dismissed with prejudice. The court further ORDERS that plaintiffs' motion to stay be, and is hereby, denied. (Ordered by Judge John McBryde on 10/28/2014) (wxc)
i ·-f'~:;;.~;;_:xL~';~{i~~~;~;~~~:~Ex::!;·-1
IN THE UNITED STATES DISTRiqT COURT
NORTHERN DISTRICT OF TE AS
FORT WORTH DIVISION
.
FILED
\
OCT 2 8 2014
\
I
MELINDA STOKES, ET AL.,
Plaintiffs,
vs.
ONEWEST BANK, F.S.B., ET AL.,
Defendants.
CLERK, U.S. DISTRICT COVRT
§
§
§
§
§
I
. BY---::c--::-:----
§
§
§
§
I
L------D_c.:...pu_ry'------- . _,
NO. 4:14-CV-247-A
MEMORANDUM OPINION
and
ORDER
Before the court for decision is the motion to dismiss
pursuant to Rule 12(b) (6) of the Federal Rules of civil Procedure
and supporting appendix, filed in the above action by defendants,
OneWest Bank, F.S.B.
I
("OneWest"), and Deutsche Bank National
Trust Company as Trustee of the Home Equity Mortgage Loan AssetBacked Trust Series INABS 2007-A Under the Pooling and Servicing
Agreement Dated March 1, 2007 ("Deustche Bank").
Plaintiffs,
Melinda Stokes and Mark Stokes, filed a response that also
included a motion to stay, and defendants filed a reply.'
Having
considered all of the parties' filings, plaintiffs• first amended
complaint, and the applicable legal authorities, the court
concludes that the motion to dismiss should be granted, and that
'In their reply, defendants ask the court to disregard plaintiffs' response because it was untimely filed.
While defendants are correct, the court finds that dismissal is warranted on the merits, so it will consider
plaintiffs' untimely response.
the motion to stay should be denied.
I.
Background and Plaintiffs' Pleaded Claims
Plaintiffs initiated this removed action by the filing of
their original petition and requests for temporary and
declaratory relief in the District Court of Tarrant County,
Texas, 17th Judicial District.
Following removal, the court
ordered plaintiffs to file an amended complaint that complied
with the requirements of the Federal Rules of Civil Procedure, as
interpreted by the United States Supreme Court in Ashcroft v.
Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007).
Plaintiffs then filed their first amended
complaint, in which they alleged the following:
In February 2007, plaintiffs executed a home equity
promissory note, payable to Indy Mac Bank, for the purchase of
property in Colleyville, Texas. 2
of trust.
The note was secured by a deed
The deed of trust defined "lender" as any "holder of
the Note who is entitled to receive payments under the Note."
1st Am. Compl. at 2.
On March 11, 2013, Deutsche Bank obtained a foreclosure
2
Although the amended complaint stated that plaintiffs executed a note and deed oftrust for the
purchase of the property, the papers submitted in conjunction with the motion to dismiss show that the
transaction at issue was a home equity loan pursuant to Article XVI, Section 50(a)(6), of the Texas
Constitution. The distinction is irrelevant to the outcome of the motion to dismiss.
2
order.
However, plaintiffs contended that Deutsche Bank had no
ownership over the loan because the trust "never identified the
loan was in its corpus."
Id. at 3.
Plaintiffs alleged the following claims and causes of action
against defendants:
(1) quiet title;
(2) violations of the Texas
Debt Collection Act ("TDCA"), sections 392.301(8), 392.303, and
392.304 of the Texas Finance Code; and,
statutory fraud.
(3) common law and
Plaintiffs also sought a declaration to
establish "claims and interests" in their property, and sought an
"accounting of all transactions on" their loan.
Id. at 5.
II.
Standards Applicable to Motion to Dismiss
Rule 8(a) (2) of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. civ. P. 8(a) (2), "in order to give the defendant fair
notice of what the claim is and the grounds upon which it rests."
Twombly, 550 U.S. at 555 (internal quotation marks and ellipsis
omitted) .
Although a complaint need not contain detailed factual
allegations, the "showing" contemplated by Rule 8 requires the
plaintiff to do more than simply allege legal conclusions or
recite the elements of a cause of action.
3
Id. at 555 & n.3.
Thus, while a court must accept all of the factual allegations in
the complaint as true, it need not credit bare legal conclusions
that are unsupported by any factual underpinnings.
v. Iqbal, 556 U.S. 662, 679 (2009)
See Ashcroft
("While legal conclusions can
provide the framework of a complaint, they must be supported by
factual allegations.").
Moreover, to survive a motion to dismiss for failure to
state a claim under Rule 12(b) (6), the facts pleaded must allow
the court to infer that the plaintiff's right to relief is
plausible.
Id. at 678.
To allege a plausible right to relief,
the facts pleaded must suggest liability; allegations that are
merely consistent with unlawful conduct are insufficient.
Twombly, 550 U.S. at 566-69.
"Determining whether a complaint
states a plausible claim for relief . . . [is] a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.•
Iqbal, 556 U.S. at 679.
The court generally is not to look beyond the pleadings in
deciding a motion to dismiss.
774 (5th Cir. 1999).
Spivey v. Robertson, 197 F.3d 772,
"Pleadings" for purposes of a Rule 12 (b) (6)
motion include the complaint, its attachments, and documents that
are referred to in the complaint and central to the plaintiff's
claims.
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,
498-99 (5th Cir. 2000).
Additionally, "it is clearly proper in
4
deciding a 12(b) (6) motion to take judicial notice of matters of
public record."
(5th Cir. 2007).
Norris v. Hearst Trust, 500 F.3d 454, 461 n.9
Because the documents in the appendix submitted
with the motion to dismiss are considered part of the pleadings
and are matters of public record, the court may consider such
documents in its resolution of the motion to dismiss.
Id.
III.
Application of Law to Facts
A.
The Complaint Makes Only "Global" Allegations
Rule B(a) requires that a complaint give the defendant fair
notice of what the plaintiff's claim is and the grounds upon
which it rests.
Twombly, 550 U.S. at 555.
Defendants argue that
plaintiffs• claims should be dismissed for failure to meet this
standard because the complaint makes only generalized allegations
as to all defendants globally, such that neither OneWest nor
Deutsche Bank can tell with certainty what claims are alleged
against them.
The undersigned has previously dismissed claims based, in
part, on a plaintiff's failure to distinguish between the
defendants in the complaint's allegation, noting it was "not
possible for the court to discern from the Complaint which
allegations are directed at which defendant."
Bittick v.
JPMorgan Chase Bank, NA, No. 4:11-CV-812-A, 2012 WL 1372126, at
5
*7 (N.D. Tex. Apr. 18, 2012).
The Fifth Circuit has also
affirmed the dismissal of a complaint where one of the reasons
for dismissal was the failure to identify which defendant
committed which acts.
Chyba v. EMC Mortg. Corp., 450 F. App'x
404, 406 (5th Cir. 2011)
(per curiam).
Other courts have also
dismissed claims where a plaintiff made generalized allegations
without distinguishing between the acts alleged to have been
committed by each defendant.
See,
~'
Washington v. U.S. Dep't
of Hous. & Urban Dev., 953 F. Supp. 762, 770 (N.D. Tex. 1996)
(pleadings insufficient where plaintiff made "global allegations
that Defendants, as a group, committed such acts or omissions.").
The same result is warranted here.
The only signs of
specificity in the amended complaint are two sentences stating
that Deutsche Bank obtained a foreclosure order and participated
in a state court hearing concerning ownership of the loan.
The
remainder of the factual allegations and the claims and causes of
action refer to "defendant" or "defendants," with no indication
as to which defendant did what.
Hence, plaintiffs' failure to
distinguish and specify the acts purportedly committed by each
defendant warrants dismissal of the amended complaint.
Each of
the claims also fails for additional reasons set forth below.
6
B.
Defendants• Authority to Foreclose
1.
Assignment of the Deed of Trust
All of plaintiffs' claims are predicated, to some extent, on
their contention that defendants were without authority to
foreclose on their property.
The basis of this contention, as
alleged in the amended complaint, is that the deed of trust
permits only the "Lender, defined as the holder of the note
entitled to receive payment, to foreclose."
1st Am. Compl. at 5.
In plaintiffs' view, defendants are not holders of the note, and
thus had no authority under the deed of trust to take any action
pertaining to the property, including foreclosure.
Plaintiffs' deed of trust recites that Mortgage Electronic
Registration Systems, Inc.
("MERS") was the beneficiary and
nominee for the benefit of the lender and its assigns.
Included
in the appendix in support of the motion to dismiss is a copy of
the assignment of the deed of trust from MERS to Deutsche Bank,
recorded in the public records of Tarrant County, Texas.'
The
court must assume that when the deed of trust was assigned, the
note was also assigned, as the deed of trust would be useless
without ownership of the note.
MERS had authority under Texas law to foreclose.
'The court takes judicial notice of the assignment as a public record.
7
After MERS
assigned the deed of trust, Deutsche Bank had the same
foreclosure authority.
The court thus concludes that, to the
extent plaintiffs' claims are grounded on their contention that
defendants lacked authority to foreclose, they have failed to
state a claim for relief.
2.
Plaintiffs' Claims Regarding the Trust
The amended complaint also appears to contend that
defendants lacked authority to foreclose because plaintiffs
believed their loan was not transferred into the trust.
The
court finds this argument to be nothing more than a red herring
and considers this issue resolved against plaintiffs for the same
reasons discussed in section B.l., supra.
Plaintiffs' contention fails for the additional reason that
it appears to be a variation of an argument frequently made in
similar cases, urging that a foreclosure is invalid due to
purported violations of the applicable pooling and servicing
agreement ("PSA").
It is well settled that plaintiffs cannot
challenge defendants' authority to foreclose based on purported
violations of the PSA unless plaintiffs are third-party
beneficiaries of the PSA.
Reinagel v. Deutsche Bank Nat'l Trust
Co., 735 F.3d 220, 228 (5th cir. 2013); Svoboda v. Bank of Am.,
8
N.A., 571 F. App'x 270, 272 (5th Cir. 2014).
made no such allegations.
Plaintiffs have
Hence, they have no standing to
contest purported violations of the PSA.
In their response, plaintiffs cited to two New York statecourt opinions that deal with issues of New York law.
Plaintiffs
do not explain the relevance of these cases to the issues now
before the court.
Absent from the response is any binding
authority that would persuade the court to find that plaintiffs
have stated a claim for relief based on any purported violation
or failure to comply with the PSA.
Accordingly, the court concludes that to the extent
plaintiffs' claims rely on purported defects in, or failure to
comply with, the PSA, they have failed to state a claim for
relief.
See Reinagel, 735 F.3d at 228; Svoboda, 571 F. App'x at
272-73.
C.
Dismissal of All Claims is Warranted
All of plaintiffs• claims, including their request for
declaratory relief, are premised on the grounds that defendants
lacked authority to foreclose.
As the court has resolved that
issue against plaintiffs, they have failed to state a claim for
relief as to any of their claims.
9
In the motion to dismiss, defendants argued for dismissal of
plaintiffs' claims on other grounds as well.
While it appears
these grounds have merit and would likely result in the dismissal
of plaintiffs' claims, the court need not address those arguments
here.
D.
Accounting
"An action for accounting may be a suit,in equity, or it may
be a particular remedy sought in conjunction with another cause
of action."
Michael v. Dyke, 41 S.W.3d 746, 754 (Tex. App.--
Corpus Christie, 2001), abrogated on other grounds as recognized
in Buck v. Palmer, 379 S.W.3d 309, 322-32 (Tex. App.--Corpus
Christi 2010, reversed, 381 S.W.3d 525 (Tex. 2012)).
Plaintiffs'
complaint appears to seek accounting as a remedy, and therefore
its availability depends on a viable of cause of action.
As the
court has dismissed all of plaintiffs' claims in this action,
plaintiffs are not entitled to an accounting.
IV.
Order
Therefore,
The court ORDERS that defendants• motion to dismiss be, and
is hereby, granted, and that all claims and causes of action
10
asserted in the above-captioned action by plaintiffs, Melinda
Stokes and Mark stokes, against defendants, Onewest and Deutsche
Bank, be, and are hereby, dismissed with prejudice.
The court further ORDERS that plaintiffs' motion to stay be,
and is hereby, denied.
SIGNED October 28, 2014.
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?