Smith v. Bank of America, N.A., et al

Filing 43

ORDER DISMISSING FRAUD ACTION AND GRANTING LEAVE TO AMEND. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
SANDY SMITH,
Plaintiff,
VS.
BANK OF AMERICA, N.A., et al,
Defendants.

November 30, 2015
David J. Bradley, Clerk

§
§
§
§ CIVIL ACTION NO. 2:14-CV-00479
§
§
§
§

ORDER DISMISSING FRAUD ACTION AND GRANTING LEAVE TO AMEND
On October 30, 2015, the Court heard the Defendants’ respective motions to
dismiss (D.E. 14, 18, 19, 23). After entering rulings on all of the other challenges to
Plaintiff’s causes of action, the Court took under advisement Defendants’ challenges to
Plaintiff’s action for fraud, requesting additional briefing on the limitations period of 11
U.S.C. § 549(d). Plaintiff submitted her Memorandum in Support of Plaintiff’s Response
to All Defendants’ Motions to Dismiss (D.E. 35) on November 9, 2015. Defendants did
not file a responsive memorandum and the time for doing so has passed.
Plaintiff argues that § 549 does not apply in this case, acknowledging that neither
the Trustee nor the Debtor sought to exercise any powers to avoid the transfer of which
Plaintiff complains. Plaintiff thus abandons her argument that any transfer occurring
during the TBW bankruptcy proceeding was void. Instead, Plaintiff now argues that she,
as a creditor of TBW, is entitled to damages for Defendants’ alleged violation of the
automatic stay pursuant to 11 U.S.C. § 362(k). The automatic stay provision does not
contain a statute of limitations of its own and courts sometimes borrow a limitations
1/2

period from other law applicable to analogous claims. Climer v. United States, 167 F.3d
537 (5th Cir. 1998); Price v. Rochford, 947 F.2d 829, 831 (7th Cir. 1991). By failing to
respond to Plaintiff’s memorandum, Defendants have not supplied the Court with any
argument that Plaintiff’s claim for their alleged automatic stay violation is barred by
limitations or any other legal principle.
After due consideration of Plaintiff’s memorandum, the Court DISMISSES
Plaintiff’s claim for fraud. The Court GRANTS Plaintiff’s request for leave to amend to
include her claim for damages for Defendants’ alleged violation of the bankruptcy
proceeding’s automatic stay under § 362.
ORDERED this 30th day of November, 2015.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

2/2