Felder v. The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for The Certificateholders, CWABS, Inc., Asset Backed Certificates, Series 2007-2 et al

Filing 29

MEMORANDUM OPINION AND ORDER granting 23 MOTION for Summary Judgment , denying 14 First MOTION to Remand, granting 27 MOTION to Amend. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LARRY FELDER,

§
§
§
§
§

Plaintiff,

v.
COUNTRYWIDE HOME LOANS,
BANK OF AMERI CA LOAN
SERVICING, LP, AMERICA
WHOLESALE LENDER, BAC HOME
SERVICING LP, THE BANK OF NEW
YORK MELLON, and WEST &
ASSOCIATES LLP, AS SUBSTITUTE
TRUSTEE,
Defendants.

§
§
§
§
§
§
§
§
§
§
§

CIVIL ACTION NO. H-13-0282

MEMORANDUM OPINION AND ORDER

Plaintiff Larry Felder brought this action against defendants
Countrywide

Home

("Countrywide")

i

Loans

Inc.

d/b/a

America's

Wholesale

Lender

Bank of America, N. A., successor by merger to BAC

Home Loans Servicing LP ("Bank of America")

i

The Bank of New York

Mellon, as Trustee for the Certificateholders, CWABS, Inc., Asset
Backed Certificates, Series 2007-2
"Lender Defendants")

i

("BONY Mellon")

and West & Associates, LLP

(collectively,
("West")

in the

151st Judicial District Court of Harris County, Texas, where it was
filed under Cause No. 2011-38427.
to this court.l

BONY Mellon removed the action

Pending before the court are Plaintiff's Motion to

lDefendants Countrywide, Bank of America, and West consented
to the removal.
Consent to Removal, Exhibit C to Notice of
Removal, Docket Entry No. 1-5.

Remand Cause
Remand")

of Action Under

(Docket

Entry No.

U. S. C.

28

14)

§

1447 (c)

("Motion to

Lender Defendants

I

Summary Judgment (Docket Entry No. 23)

I

Motion

and Plaintiffls Motion for

I

Leave to File First Amended Complaint ("Motion to Amend")
Entry No. 27).

(Docket

For the reasons explained below l Felderls Motion to

Remand will be denied
and Lender Defendants

I

l

Felderls Motion to Amend will be granted l
Motion for Summary Judgment will be granted.

I .

A.

for

Background

Factual Allegations

In January of 2007 Felder financed the purchase of a home with
a mortgage loan. 2

Felder executed a $225 600 Adjustable Rate Note
1

in favor of Americals Wholesale Lender 3 and secured the Note with
a Deed of Trust on the property. 4
Lender as America s

Wholesale

I

Electronic Registration Systems

The Deed of Trust identified the
Lender and

stated that

Mortgage

("MERS") was "acting solely as a

nominee for Lender and Lenderls successors and assigns" and was "a

2Plaintiff l s Amended Original Petition l Application for
Temporary Restraining Order and Request for Temporary Injunction
("Amended Original Petition")
Exhibit A to Notice of Removal
Docket Entry No. 1-1 p. 35 ~ 15; Lender Defendants l Motion for
Summary Judgment l Docket Entry No. 23 p. 9 ~ 3; Plaintiffls First
Amended Complaint
attached to Motion to Amend
Docket Entry
No. 27-21 p. 5 ~ 15.
(Page citations are to the pagination
imprinted at the top of the page by the federal courtls electronic
filing system.)
I

I

1

1

I

I

3Adjustable Rate Note Exhibit B to Plaintiffls First Amended
Complaint attached to Motion to Amend Docket Entry No. 27-10.
l

I

I

4Deed of Trustl Exhibit L to
Complaint Docket Entry No. 27-20.
I

-2-

Plaintiffls

First

Amended

beneficiary under this Security Instrument. ,,5

Felder's mortgage

was assigned to BONY Mellon in August of 2010. 6
Between 2007 and 2010 Felder received numerous notices that he
was in default 7 and was offered at least three loan modifications. B
Felder's payment history and the effect of each proposed loan
modification are discussed in further detail in

§

IV.B.1 below.

West was appointed as Substitute Trustee in July of 2010. 9
West sent Felder a Notice of Acceleration and Sale on May 16,
2011. 10

BONY Mellon purchased the

property at

the

substitute

trustee's sale on June 7, 2011, for $229,500. 11

SId. at 2.

6Assignment of Mortgage, Exhibit A- 5 to Lender Defendants'
Motion for Summary Judgment, Docket Entry No. 23-6.
7Notices of Default, Exhibit A-6 to Lender Defendants' Motion
for Summary Judgment, Docket Entry No. 23-7.
BOctober 23, 2008, Correspondence from Countrywide to Felder
Re:
Loan
Modification
("October
2008
Loan
Modification
Correspondence"), Exhibit C to Plaintiff's First Amended Complaint,
attached to Motion to Amend, Docket Entry No. 27-11; April 3, 2009,
Correspondence from Countrywide to Felder Re: Proposed Loan
Modification ("April 2009 Loan Modification Correspondence"),
Exhibit D to Amended Original Petition (Exhibit A to Notice of
Removal), Docket Entry No. 1-2, pp. 7-10; November 16, 2009,
Correspondence from Bank of America to Felder Re: Loan Modification
("November 2009 Loan Modification Correspondence"), Exhibit A-5 to
Plaintiff's First Amended Complaint, Docket Entry No. 27-8.
9Appointment of Substitute Trustee, Exhibit A-12 to Lender
Defendants' Motion for Summary Judgment, Docket Entry No. 23-13.
lONotice of Acceleration and Sale, Exhibit I to Plaintiff's
First Amended Complaint, attached to Motion to Amend, Docket Entry
No. 27-17; Notice of Acceleration and Sale, Exhibit A-13 to Lender
Defendants' Motion for Summary Judgment, Docket Entry No. 23-14.
llSubstitute Trustee's Deed, Exhibit K to Plaintiff's First
Amended Complaint, attached to Motion to Amend, Docket Entry
(continued ... )
-3-

B.

Procedural History

Felder filed his First Original Petition in the 151st Judicial
District Court of Harris County, Texas, on June 28, 2011, naming
Countrywide, Bank of America, and West as defendants. 12

The state

court dismissed Felder's suit for want of prosecution on May 16,
2012. 13

Felder filed a

June 10, 2012.14

Motion to Reinstate

Case on Docket

on

The state court granted the motion on July 31,

2012. 15
On August 24, 2012, Felder filed his Amended Petition. 16

On

November 28, 2012, Countrywide and Bank of America filed a special

continued)
No. 27-19; Substitute Trustee's Deed, Exhibit A-14 to Lender
Defendants' Motion for Summary Judgment, Docket Entry No. 23-15.
11 ( • • •

12Plaintiff's First Original Petition, Exhibit A to Notice of
Removal, Docket Entry No. 1-3, p. 94; Plaintiff's First Original
Petition, Exhibit A to Lender Defendants' Opposition to Plaintiff's
Motion to Remand, Docket Entry No. 26-1.
13Final Order of Dismissal, Exhibit A to Notice of Removal,
Docket Entry No. 1-3, p. 60; Final Order of Dismissal, Exhibit B to
Lender Defendants' Opposition to Plaintiff's Motion to Remand,
Docket Entry No. 26-2.
14Motion to Reinstate Case on Docket, Exhibit A to Notice of
Removal, Docket Entry No. 1-3, p. 48.
p.

150rder, Exhibit A to Notice of Removal, Docket Entry No. 1-3,
46.

16Plaintiff's Amended Petition, Exhibit A to Notice of Removal,
Docket Entry No. 1-3, p. 39.
-4-

exception1 7 and their Original Answer. 18

The state court sustained

the Special Exception on December 17, 2012. 19
On

January

Petition. 20
petitions,

7,

Felder

2013,

In addition to
Felder

named

the

BONY

filed

his

defendants
Mellon

as

Amended

named
a

Original

in his prior

defendant.21

On

January 11, 2013, the state court issued a temporary restraining
order against all defendants restraining them from "selling real
property which is the subject matter of this lawsuit

as well

as from taking any legal action to evict the Plaintiff and any
other occupants from the aforementioned property or enforce a writ
of possession regarding the aforementioned property. "22

The Lender

Defendants were served with Felder's Amended Original Petition on

17Defendant's Special Exception to Plaintiff's Second Amended
Petition ("Special Exception"), Exhibit A to Notice of Removal,
Docket Entry No. 1-3, p. 15i Special Exception, Exhibit D to Lender
Defendants' Opposition to Plaintiff's Motion to Remand, Docket
Entry No. 26-4.
180riginal Answer of Defendants Countrywide Home Loans and BAC
Home Servicing LP, Exhibit A to Notice of Removal, Docket Entry
No. 1-3, p. 13.
190rder Sustaining Defendants' Special Exceptions, Exhibit A
to Notice of Removal, Docket Entry No. 1-3, p. 11i Order Sustaining
Defendants' Special Exceptions, Exhibit E to Lender Defendants'
Opposition to Plaintiff's Motion to Remand, Docket Entry No. 26-5.
2°Amended Original Petition, Exhibit A to Notice of Removal,
Docket Entry No. 1-1, p. 35.
21Id.

22Temporary Restraining Order and Order Setting Hearing for
Temporary Injunction, Exhibit A to Notice of Removal, Docket Entry
No. 1-1, p. 16.
-5-

January 22, 2013. 23

On January 31, 2013, West filed its Answer and

Verified Denial. 24
BONY Mellon filed its Notice of Removal on February 5, 2013. 25
On February 27,
Denial. 26

2013,

Felder filed a response to West's Verified

On March 7, 2013, Felder filed his Motion to Remand. 27

A settlement conference was held before the magistrate judge
on June 24, 2013. 28

On August 22, 2013, the Lender Defendants filed

their Motion for Summary Judgment. 29
October 23,

2013. 30

Felder filed his Response on

The Lender Defendants filed their Reply on

October 29, 2013. 31

23Services,
No. I-I, p. 4.

Exhibit

A to

Notice

of

Removal,

Docket

Entry

24Defendant West & Associates, LLP' s Answer and Verified Denial
("Verified Denial"), Supplemental to Document I, Exhibit A Part 3,
Docket Entry NO.2.
25Notice of Removal, Docket Entry No.1.
26Plaintiff's First Supplemental Petition Responding to
Original Answers and Verified Denials Pursuant to Texas Property
Code § 51.007 of Defendant West & Associates, LLP ("First
Supplemental Petition"), Docket Entry Nos. 9-10.
27Motion to Remand, Docket Entry No. 14.
28Minute Entry for Proceedings Held Before Magistrate Judge
Nancy K. Johnson, Docket Entry No. 22.
29Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23.
30Plaintiff's Memorandum in Response to Lender Defendant's
Motion for Summary Judgment Pursuant to Fed. R. Ci v. P. 56 (A)
("Felder's Response"), Docket Entry No. 24.
31Bank of America's Reply, Docket Entry No. 25.
-6-

On

November

11,

2013,

the

Lender

Defendants

Opposition to Plaintiff's Motion to Remand. 32
Felder filed his Motion to Amend. 33

filed

their

On December 3, 2013,

The Lender Defendants filed

their Opposition to Plaintiff's Motion to Amend on December 4,
2013. 34
II.

In

his

Motion

Felder's Motion to Remand

to

Remand,

Felder

argues

appropriate in this case for three reasons:
Notice of Removal was not timely filed;

that

remand

is

BONY Mellon's

(1)

(2) complete diversity is

lacking; and (3) the amount in controversy is less than $75,000. 35
For the reasons explained below, Felder's Motion to Remand will be
denied.
A.

BONY Mellon's Notice of Removal Was Timely Filed

Felder argues that removal was improper because BONY Mellon
filed its Notice of Removal more than thirty days after Bank of
America and Countrywide were served with process in the state court
proceedings. 36

Felder cites Brown v. Demco,

32Lender Defendants' Opposition
Remand, Docket Entry No. 26.

to

Inc.,

792 F.2d 478,

Plaintiff's

Motion

to

33Motion to Amend, Docket Entry No. 27.
34Lender Defendants' Opposition to Plaintiff's Motion to Amend,
Docket Entry No. 28.
~~

35Motion to Remand,
17-19.
36Id.

at 7

~~

Docket Entry No.

20-21.
-7-

14,

p.

3

~

8,

pp.

6-7

481-82

(5th Cir. 1986), for the proposition that "the failure of

the first-served defendant to file a notice of removal within 30
days of service prevents all later-served defendants from removing
the action. ,,37

However, as noted by the Lender Defendants, Congress

adopted the last-served-defendant rule for all actions commenced on
or after January 6, 2012. 38

Federal Courts Jurisdiction and Venue

Clarification Act of 2011,

Pub.

Stat. 758,

760,

764-65

L.

No.

112-63

(amending 28 U.S.C.

§

103,

§§

1446)

i

205,

125

Benavides v.

Sun Loan P'ship No.3, Ltd., No. 2:13-CV-00084, 2013 WL 2458625, at
*2-*4 (S.D. Tex. June 6, 2013).
Under Texas law the addition of a new party commences a new
action against that party.

See Benavides, 2013 WL 2458625, at *4

("[S]uit is 'commenced' at the time the original pleading is first
filed in a court of competent jurisdiction unless there are special
circumstances that prevent the relation-back, such as the addition
of

a

new party.

Under

those

circumstances,

the

new pleading

commences a new action as to that new defendant.") .
version of

§

The amended

1446 provides that "[e]ach defendant shall have 30

days after receipt by or service on that defendant of the initial
pleading or summons
U.S.C.

§

1446(b) (2) (B).

37Id. at 7

~

to file the notice of removal."

28

Furthermore, "[i]f defendants are served

21.

38Lender Defendants' Opposition to
Remand, Docket Entry No. 26, p. 6 ~ 22.
-8-

Plaintiff's

Motion

to

at different times, and a later-served defendant files a notice of
removal, any earlier-served defendant may consent to the removal
even

though

that

earlier-served

initiate or consent to removal."

defendant
Id.

§

did

not

previously

1446 (b) (2) (C) .

Felder first named BONY Mellon as a defendant in his Amended
Original Petition filed on January 7, 2013. 39

BONY Mellon received

service of process on January 22,

2013. 40

Notice of Removal on February 5,

2013,41 within thirty days of

BONY Mellon filed its

service, and all earlier-served defendants consented to removal. 42
Accordingly, BONY Mellon's Notice of Removal was timely filed.
B.

West was Improperly Joined

BONY Mellon argues that complete diversity exists because West
was improperly joined. 43
Denial

pursuant

February 27,

to

2013,

On January 31, 2013, West filed a Verified

Texas

Property

Code

§

51.007(a) .44

On

Felder filed his First Supplemental Petition

39Amended Original Petition, Exhibit A to Notice of Removal,
Docket Entry No. I-I, p. 35.
4°Services,
No. I-I, p. 4.

Exhibit

A to

Notice

of

Removal,

Docket

Entry

41Notice of Removal, Docket Entry No.1.
42Consent to Removal, Exhibit C to Notice of Removal, Docket
Entry No. 1-5.
43Notice of Removal, Docket Entry No. I, pp. 3-4
44Verified Denial, Supplemental
Part 3, Docket Entry No.2.
-9-

------_._---.------_.

to

Document

I,

~~

5-10.
Exhibit

A

responding
§

to

West's

Verified

Denial. 45

See

Under the Texas Property Code,

51. 007 (b) .

Tex.

Prop.

Code

"[i]f a respondent

files a timely verified response to the trustee's verified denial,
the matter shall be set for hearing" and "[t]he court shall dismiss
the trustee from the suit or proceeding without prejudice if the
court determines that the trustee is not a necessary party."
§

51.007(d).

Because BONY Mellon does not rely on

51.007 for its

§

claim of improper joinder, however, a hearing is unnecessary.
Hearn v.

Deutsche Bank Nat.

6079460,

at

*3

(N.D.

Tex.

Trust Co.,

Nov.

18,

3:13-CV-2417-B,

2013)

Id.

See

2013 WL

("The Court need not

decide this verified denial issue in order to rule on Defendants'
claims

of

Defendants

improper

joinder,

are

dismissed

not

however,
under

because
§

even

51.007 (c),

if
there

Trustee
is

no

reasonable basis for predicting that Hearn will be able to recover
against Trustee Defendants."

(citing Smallwood v. Ill. Cent. R.R.

Co., 385 F.3d 568, 573 (5th Cir. 2004)

(en banc)).

For the reasons

explained below, Felder has failed to allege a plausible cause of
action against West and West, is therefore improperly joined.
1.

Applicable Law

"Under 28 U.S.C.

§

1441(a) any state court civil action over

which the federal courts would have original jurisdiction may be
removed from state to federal court."

Gasch v. Hartford Accident

Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007).

&

Federal courts have

45First Supplemental Petition, Docket Entry Nos. 9-10.
-10-

---------------

""--_.__._--_._--------

original jurisdiction over "all civil actions where the matter in
controversy exceeds the
interest and costs,
States."

28 U.S.C.

sum or value of

1332 (a) (1).

§

be

from

diverse

the

exclusive of

citizens of different

and is between

complete diversity -- that is,
must

$75,000,

Diversity jurisdiction requires

the citizenship of each plaintiff
citizenship

of

Caterpillar Inc. v. Lewis, 117 S. Ct. 467, 472

each

defendant.

(1996).

Removal jurisdiction depends on the plaintiff's state court
pleadings at

the time of removal.

S. Ct. 347, 349

(1939)

Co., 44 F.3d 256, 264

i

Pullman Co.

v.

Jenkins,

59

Cavallini v. State Farm Mutual Auto Ins.
The doctrine of improper

(5th Cir. 1995)

joinder ensures that the presence of an improperly joined, nondiverse defendant does not defeat
premised on diversity.

federal

removal

jurisdiction

Borden v. Allstate, 589 F.3d 168, 171 (5th

The court may ignore an improperly joined , non-diverse

Cir. 2009)

defendant in determining subject matter jurisdiction.

Smallwood,

385 F.3d at 572.
A removing party attempting to prove improper joinder carries
a heavy burden.
Witter,

Great Plains Trust Co. v.

313 F.3d 305,

312

(5th Cir. 2002).

Morgan Stanley Dean
To establish that a

non-diverse defendant has been improperly joined in order to defeat
diversity
"' (1)

jurisdiction

actual

fraud

the

removing

party

in the pleading of

must

prove

jurisdictional

either

facts

or

(2) an inability of the plaintiff to establish a cause of action
against the non-diverse party in state court.'"
-11-

Smallwood,

385

F.3d at 573 (quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir.
2003)).

Only the second method is at issue in this case.

Under this second type of improper joinder the court must
determine "whether the defendant has demonstrated that there is no
possibility of recovery by the plaintiff against an in-state [or
non-diverse] defendant, which stated differently means that there
is no reasonable basis for the district court to predict that the
plaintiff might be able to recover against an in-state
diverse]

defendant."

Smallwood, 385 F.3d at 573.

[or non-

A "reasonable

basis" requires more than a theoretical possibility of recovery.
Ross v. Citifinancial, Inc., 344 F.3d 458, 462

(5th Cir. 2003).

Whether the plaintiff has alleged a valid cause of action
"depends

upon

plaintiff [' s]
Griggs v.

is

tied

to

the

factual

fit

between

allegations and the pleaded theory of

State Farm Lloyds,

Accordingly,
defeat

and

181 F.3d 694,

701

the

recovery."

(5th Cir. 1999).

a defendant can establish diversity -- and thereby

remand

by showing

that

the

plaintiff's

state

court

petition fails to allege "specific actionable conduct" sufficient
to support a cause of action against a non-diverse defendant.

Id.

A mere formulaic recitation of the elements of a cause of action
asserted against a non-diverse defendant is not sufficient under
this

standard.

Moore

v.

State

Farm

Mut.

Auto.

Ins.

Co.,

No. H-12-1539, 2012 WL 3929930, at *4 (S.D. Tex. Sept. 6, 2012).
In

deciding

whether

a

party

was

improperly

joined

unchallenged factual allegations are taken into account
-12-

---------

all

in the

light most favorable to the plaintiff, Smallwood, 385 F.3d at 575;
and all contested factual issues and ambiguities of state law are
resolved in favor of the plaintiff.

Gasch, 491 F.3d at 281.

The

existence of a single valid cause of action against a non-diverse
defendant requires remand of the entire case to state court.

Gray

v. Beverly Enterprises-Mississippi,

(5th

Inc., 390 F.3d 400, 412

Cir. 2004).
2.

Analysis

The Lender Defendants argue that Felder cannot recover against
West

because

Felder

sued

West

"solely

in

[its]

capacity

substitute trustee under the deed of trust, and therefore,
is not a necessary party. 1/46
alleges

at

least

six

as

[West]

Felder's Amended Original Petition

substantive

declaratory and injunctive relief. 47

causes

of

However,

action

and

seeks

the only factual

allegations made against West have to do with its alleged failure
to provide proper notice prior to the substitute trustee's sale as
required by the Deed of Trust and the Texas Property Code. 48
A trustee's breach of its duties under the Deed of Trust and
the Texas Property Code, while not an independent tort under Texas

46Notice of Removal, Docket Entry No. I, p. 4 ~ 9; see also
Lender Defendants' Opposition to Plaintiff's Motion to Remand,
Docket Entry No. 26, pp. 12-15 ~~ 39-46.
47Amended Original Petition, Exhibit A to Notice of Removal,
Docket Entry No. I-I, p. 35; see also Motion to Remand, Docket
Entry No. 14, p. 2 ~ 3.
48Amended Original Petition, Exhibit A to Notice of Removal,
Docket Entry No. I-I, pp. 40-41 ~~ 26, 31.
-13-

law, may be stated as a claim for wrongful foreclosure.

Marsh v.

Wells Fargo Bank, N.A., 760 F. Supp. 2d 701, 708 (N.D. Tex. 2011).
However,

"trustees

are

not

liable

\ for

any

good

faith

error

resulting from reliance on any information in law or fact provided
by the mortgagor or mortgagee or their respective attorney, agent,
or representative or other third party.'"
Bank,
Feb.

NA,
17,

No.

4:11-CV-832,

2012)

(quoting

2012

Tex.

WL

844520,

Prop.

Code

addressing the good faith element of
generally held that

51.007 (f)

§

Wegener v. Wells Fargo

§

at

(E.D.

Tex.

51.007(f)).

§

*3

In

51.007(f),

imposes a

courts have

substantive pleading

requirement on a plaintiff seeking to recover against a substitute
trustee.

See, e.g., Leal v. Bank of New York Mellon, No. C-12-265,

2012 WL 5465978,
provisions of
for
§

§

dismissing

at *5

(S.D.

Tex.

Oct.

22,

2012)

("Unlike the

51.007(a)-(e), which provide a procedural mechanism
claims

against

trustees

where

appropriate,

51.007 (f) imposes a substantive pleading requirement.

in order to satisfy

§

Therefore,

51.007(f), a plaintiff must allege bad faith

on the part of a substitute trustee named in the action." (internal
citations omitted)).

Even a generous reading of Felder's Amended

Original Petition does not reveal any factual
would suggest bad faith on the part of West.
Felder
Supplemental

supplements
Petition. 49

his

claims

However,

against
because

allegations that

See id.
West

in

his

First

"federal courts base

decisions about subject matter jurisdiction after removal on the

49First Supplemental Petition, Docket Entry Nos. 9-10.
-14-

plaintiff's complaint as it existed at the time that the defendant
filed

the

removal

petition,"

determination

Kidd v. Southwest Airlines, Co., 891 F.2d 540, 546 (5th
see also Cavallini,

of

the

Original

removal.

i

a

Amended

is

1990)

to

Felder's

Petition

Cir.

relevant

only

44 F.3d at 264

propriety

(" [A]

of

complaint

amended post-removal cannot divest a federal court of jurisdiction"
(citing Pullman, 59 S. Ct. at 348-49)).
considered

Felder's

First

Nonetheless, the court has

Supplemental

Petition

insofar

as

it

clarifies the basis on which Felder seeks to hold West liable in
his Amended Original Petition.
Felder argues that West had a duty to

"act with absolute

impartiali1::Y and . . . fairness to all concerned," but he pleads no
facts that would give rise to an inference of bad faith. 50

In

addition to his allegations that West failed to provide proper
notice in accordance with the Deed of Trust and the Texas Property
Code, Felder argues that West is an "indispensable" party because
the

state

court

enj oined

i t " in

the

midst

of

an

impending

foreclosure" and that a finding of improper joinder would allow
West to "post again for a subsequent sale or forcible detainer.,,51
However,

Felder offers no authority,

and the court is aware of

none, suggesting that West could take any adverse action against
Felder

on

behalf

of

the

Lender

Defendants

Defendants were enjoined from taking themselves.
50Id. at 7
51Id.

~

~

20.

19.
-15-

that

the

Lender

See Marsh, 760

F. Supp. 2d at 709.

Accordingly, the court concludes that Felder

has failed to state a plausible cause of action against West and
that West was therefore improperly joined.
C.

The Amount in Controversy Exceeds $75,000

Felder argues that the amount in controversy does not exceed
$75, 000 because he has negative equity in the property and is
seeking solely to enforce his right of possession. 52

The Lender

Defendants argue that the amount in controversy should be measured
by the value of the property. 53
1.

Applicable Law

Removal jurisdiction depends on the plaintiff's state court
pleadings at the time of removal.
Cavallini, 44 F.3d at 264.

Pullman Co., 59 S. Ct. at 349;

"When the plaintiff's complaint does

not allege a specific amount of damages,

the removing defendant

must prove by a preponderance of the evidence that the amount in
controversy exceeds

[the jurisdictional amount]."

Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993).
may meet its burden in two ways.

proper

if

'it

is

facially

The removing defendant

Garcia v. Koch Oil Co. of Texas

Inc., 351 F. 3d 636, 639 (5th Cir. 2 003).
be

De Aguilar v.

"First, jurisdiction will

apparent'

from

complaint that their 'claims are likely above

the

plaintiffs'

[$75, 000] .'"

52Motion to Remand, Docket Entry No. 14, pp. 12-14
53Lender Defendants' Opposition to Plaintiff's
Remand, Docket Entry No. 26, pp. 11-12 ~~ 36-38.
-16-

~~

Id.

37-39.

Motion

to

(quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir.
1995)).

However,

"[i]f the value of the claims is not apparent,

then the defendants 'may support federal jurisdiction by setting
forth

the

[either]

facts

in

the

removal

petition

[or]

by

affidavit -- that support a finding of the requisite amount."
(quoting Allen,

63

established,

a

by

F.3d at

1335)

preponderance,

Once
that

"[t] he

federal

Id.

defendant

has

jurisdiction

is

'[i]t must appear to a.legal certainty that the

warranted [, ]

claim is really for less than the jurisdictional amount to justify
dismissal.'"
Cir. 1995)

De Aguilar v. Boeing Co.,

47 F.3d 1404, 1412

(5th

(quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 58

S. Ct. 586,590 (1938)).
2.

Analysis

In his Amended Original Petition Felder alleges at least six
substantive causes of action in addition to seeking declaratory and
injunctive relief. 54
relief,

"In actions seeking declaratory or injunctive

it is well established that the amount in controversy is

measured by the value of the object of the litigation."

Hunt v.

Washington State Apple Adver. Comm'n, 97 S. Ct. 2434, 2443 (1977).
"To put it another way, the amount in controversy, in an action for
declaratory or injunctive relief, is the value of the right to be
protected or the extent of the injury to be prevented."

Leininger

54Amended Original Petition, Exhibit A to Notice of Removal,
Docket Entry No. 1-1, p. 35; see also Motion to Remand, Docket
Entry No. 14, p. 2 ~ 3.
-17-

v.

Leininger,

705 F.2d 727,

729

(5th Cir.

Accordingly,

1983).

whether the amount in controversy in this case exceeds $75,000
depends upon the "value of the right to be protected or the extent
of the injury to be prevented" by the relief requested in Felder's
Amended Original Petition.

Id.

"The amount in controversy is measured from the perspective of
the plaintiff."

Burr v. JPMorgan Chase Bank, N.A., No. 4:11-CV-

03519,2012 WL 1016121, at *2
Garcia,

(S.D. Tex. Mar.

351 F.3d at 640 n.4)).

amount

in

controversy when

Plaintiff's

complaint

possession."s5

is

23,

2012)

(citing

Felder argues that "there is no

injunctive
to

relief

preserve

[is]

sought

Plaintiff's

and

right

of

However, in each of the cases that Felder cites to

support his argument the plaintiff had brought a forcible detainer
action to evict a non-paying occupant.
Trust

Co.

v.

Kramer,

No.

(D. Ariz. Mar. 31, 2010)
No.

3-08-CV-0630-K,

i

See Deutsche Bank Nat.

CV-10-265-PHX-DGC,

2010

WL

1278867

Bank of New York Trust Co. N.A. v. aIds,

2008

WL 2246942

(N.D.

Tex.

May 30,

2008)

i

JPMorgan Chase Bank, N.A. v. Coleman, No. G-06-688, 2007 WL 655629
(S.D. Tex. Feb. 27, 2007).
non-paying

occupant,

possession

he

is

and

Here,

Felder alleges that he is the

he

is

seeking

much

more

seeking

the

entire

bundle

of

than

mere

rights

that

constitute ownership of property.
In

his

"Defendants

Amended
have

Original

jointly

and

Petition
severally

Felder

conspired

to

~

38.

55Motion to Remand, Docket Entry No. 14, p. 13
-18-

alleges

that

deprive

[Felder]

of

[his]

Homestead." 56

right,

title,

and

interest

He seeks declaratory relief

in

and

to

the

"[s] etting aside the

foreclosure" and" [i] njunctive relief against Defendants (temporary
and permanent)

prohibiting

interference with

title or occupancy of the Homestead.,,57

[his]

Therefore,

possession,

from Felder's

perspective, the rights to be protected are his rights as owner of
the property.

See, e.g., Martinez v. BAC Home Loans Servicing, LP,

777 F. Supp. 2d 1039, 1049 (W.D. Tex. 2010)
bundle

of

enforce

or

property rights
protect

that

through

[the

this

("At least one of the

plaintiff]

litigation

peacefully possess and enjoy his home. . . .

is

is

seeking

to

right

to

his

From [the plaintiff's]

perspective, then, it is the whole title and its 'bundle of rights'
at
No.

issue."

(quoting

3:08-CV-695-WKW,

Mapp

v.

Deutsche

2009 WL 3664118,

Bank

at *3

Nat.

Trust

(M.D. Ala. Oct.

Co.,
28,

2009))).
Felder's ownership interest in the property is most accurately
reflected by the property's fair market value.

See Farkas v. GMAC

Mortgage, L.L.C., No. 12-20668, 2013 WL 6231114, at *2
Dec.

2,

2013)

(5th Cir.

("In actions enjoining a lender from transferring

property and preserving an individual's ownership interest, it is
the property itself that is the object of the litigation; the value

56Amended Original Petition, Exhibit A to Notice of Removal,
Docket Entry No. 1-1, p. 42 ~ 33.
57Id. at 47

~~

62-64.
-19-

of

that

property

Nationstar Mortg.
2009)

represents
LLC v.

the

Knox,

amount

in

controversy.");

351 F. App'x 844,

848

(5th Cir.

("' [W]hen the validity of a contract or a right to property

is called into question in its entirety, the value of the property
controls

the

amount

Professional Ins.

in

Corp.,

controversy.'"
296 F.2d 545,

(quoting

547-48

Waller

(5th Cir.

v.

1961));

Morlock, L.L.C. v. JPMorgan Chase Bank, N.A., No. H-13-0734, 2013
WL

5781240,

at

*6

(S.D.

ownership

interest

exclusive

possession,

Property's
[Plaintiff]

fair

in

Tex.

the
is

market

could expect

Oct.

25,

Property,
most

value,
to

2013)

including

accurately
as

(" [Plaintiff]'s

that

receive

if

reflected

is
it

its

the
sold

right

of

by

the

amount
its

that

ownership

interest on the open market."); Martinez, 777 F. Supp. 2d at 1051
(holding

that

when

a

"plaintiff

seeks

both

a

preliminary and

permanent injunction to prevent the defendant from foreclosing on
his home

the fair market value of his home is the proper

measure of the amount in controversy"); M£pQ, 2009 WL 3664118, at
*3

("Ownership,

title

and possession,

thus,

are

not

only

the

objects of this lawsuit, but similarly represent the value of the
rights

sought

foreclosure.

to

be

protected by an

injunction enjoining

the

In monetary terms, these benefits, objects and rights

are best measured by the value of the home
citations omitted)).

-20-

itself."

(internal

It is undisputed that the fair market value of the property
exceeds $75,000. 58

Indeed, Felder asserts in his Amended Original

Petition that "the fair market value of the [] property is in excess
Accordingly,

of $250,000.00.,,59
protected"

by

Felder's

action

"the value of the right to be
for

declaratory

and

injunctive

relief, and thus the amount in controversy, exceeds $75,000; and
removal was proper.
III.

Felder
December 3,

Leininger, 705 F.2d at 729.

Felder's Motion for Leave to Amend

moved
2013,

to

file

in order

his

First

"to address

Amended

Complaint

on

issues and allegations

pointed out in this Court and in the previous state court petition
at the time of removal. ,,60

Felder's Motion to Amend asserts that

his First Amended Complaint "removes allegations and claims based
on

the

Home

streamlines

Affordable

allegations,

specificity of

facts

against Defendants.,,61

Modification
in

some

and evidence

Program

cases,
as

to

and
the

( "RAMP" )

offers

and

additional

remaining

claims

Thus, Felder has represented that his First

Amended Complaint neither asserts any new claims nor pleads any new

58Id. at 38 , 7; Harris County Appraisal District Real Property
Account Information, Exhibit B to Notice of Removal, Docket Entry
No. 1-4.
59Amended Original Petition, Exhibit A to Notice of Removal,
Docket Entry No.1-I, p. 38 , 7.
6°Motion to Amend, Docket Entry No. 27, p. 1.
61Id.
-21-

.-----.,-- - - - -

theory of recovery not already addressed in his Amended Original
Petition.
The Lender Defendants argue in their Opposition to Plaintiff's
Motion to Amend that

Felder has

"attempt [ed]

to avoid summary

judgment by moving to amend his petition some ten months after
removal and over three months after Lender Defendants filed their
motion for summary judgment.,,62

The Lender Defendants argue that

"Felder's proposed amended petition does not break any new legal
ground,

but merely seeks to cloud the water with -- among other

things -- new unsubstantiated allegations concerning his payment
history, securitization and un-related litigation involving Lender
Defendants. ,,63
A party may amend its pleading once as a matter of course
within twenty-one days

or twenty-one days

after

service of a motion under Rule 12(b), whichever is earlier.

Fed.

R. Civ. P. 15(a).

of

serving

it

In all other cases a party may only amend its

pleadings with the written consent of the opposing party or with
the

court's

leave.

Fed.

R.

Civ.

P.

15 (a) (2) .

Court s

"freely give leave [to amend] when justice so requires."
Civ. P. 15(a) (2).

shoul d
Fed. R.

However, "[w]hether such an amendment should be

granted is within the district judge's discretion."
S.A. P.A. v. United States, 911 F.2d 1146, 1150

Overseas Inns

(5th Cir. 1990).

62Lender Defendants' Opposition to Plaintiff's Motion to Amend,
Docket Entry No. 28, p. 1 ~ 1.
63Id.

-22-

- -------

------------

"In exercising its discretion, the district court may consider such
factors as 'undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, futility of amendment, etc."
1150-51 (quoting Foman v. Davis, 83 S. Ct. 227, 230

Id. at

(1962)).

The Lender Defendants are concerned that "requiring them to
reassert

new

summary

"duplication of effort

judgment
[and]

argument"

would

result

in

a

would also be a waste of judicial

resources" because " [a]nother dispositive motion would likely rely
on the

same

summary

facts

judgment

and

legal

mot ion. ,,64

analysis

employed

However,

the

in the pending

parties

agree

that

Felder's First Amended Complaint does not assert any new claims or
plead

a

theory of

recovery not

Amended Original Petition. 65

already

addressed

in

Felder's

Indeed, the Lender Defendants argue

that Felder's "claims cannot survive summary judgment for all of
the reasons stated in Lender Defendants' pending motion for summary
judgment. ,,66

In light of the foregoing,

Felder's Motion to Amend

will be granted, and the court will analyze the Lender Defendants'

64Id. at 4

~

7.

65See Motion to Amend, Docket Entry No. 27, p. 1; Lender
Defendants' Opposition to Plaintiff's Motion to Amend, Docket Entry
No. 28, p. 1 ~ 1, p. 4 ~~ 7-10.
66Lender Defendants' Opposition to Plaintiff's Motion to Amend,
Docket Entry No. 28, p. 4 ~ 9; see also id. at 1 ~ 1 ("[Felder's]
proposed amended petition fails to raise any claims that would
survive the pending motion for summary judgment.") .
-23-

pending Motion for Summary Judgment

in the context of Felder's

First Amended Complaint.
IV.

The Lender Defendants' Motion for Summary Judgment

Felder's

First

Amended

Complaint

alleges

six

substantive

causes of action in addition to seeking declaratory and injunctive
relief.

Felder formulates his substantive causes of action as

claims based on (1) breach of contract,
alleged lack of standing to foreclose,

(2) the Lender Defendants'
(3) fraud,

(4) interference

with existing contract, (5) quiet title, and (6) slander of title. 67
The Lender Defendants have moved for summary judgment on all of
Felder's claims. 68

67As noted in § III above, Felder has abandoned any claim based
on HAMP. Motion to Amend, Docket Entry No. 27, p. 1. In addition,
Felder repleads the factual allegations in his claims for wrongful
foreclosure due to improper notice as claims for breach of contract
and recasts his claims for wrongful foreclosure due to fraud as a
common-law fraud claim.
Compare Amended Original Petition,
Exhibit A to Notice of Removal, Docket Entry No. I-I, pp. 44-45
~~ 44-46, with Plaintiff's First Amended Complaint, attached to
Motion to Amend, Docket Entry No. 27-2, pp. 27-30 ~~ 87-98,
pp. 32-33 ~~ 111-19.
As noted in § III above, the court will
analyze the Lender Defendants' Motion for Summary Judgment in the
context of Felder's First Amended Complaint.
68Felder has objected to the Lender Defendants' Exhibits A-I
through A-12 on the basis that "they are hearsay and have not been
properly authenticated." Felder's Response, Docket Entry No. 24,
p. 3 ~ 6.
Felder argues that Jane Cashel's affidavit is insufficient to authenticate the documents because "Ms. Cashel fails to
describe herself as a custodian of records."
Id.
However, as
noted by the Lender Defendants, such business records may be
authenticated "by the testimony of the custodian or another
qualified witness."
Fed. R. Evid. 803.
The Lender Defendants
argue that Cashel is a qualified witness. Bank of America's Reply,
Docket Entry No. 25, pp. 5-6 ~~ 12-15. "A qualified witness is one
(continued ... )
-24-

A.

Standard of Review

Summary judgment is appropriate if the movant establishes that
there is no genuine dispute about any material fact and the movant
is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a).

Disputes about material facts are genuine "if the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party."

Anderson v. Liberty Lobby,

Inc.,

106 S. Ct.

2505,

2510

(1986) .

The moving party is entitled to judgment as a matter of

law if "the nonmoving party has failed to make a sufficient showing
on an essential element of her case with respect to which she has
the burden of proof."
2552

Celotex Corp. v. Catrett, 106 S. Ct. 2548,

(1986).

continued)
who can explain the system of record keeping and vouch that the
requirements of Rule 803(6) are met; the witness need not have
personal knowledge of the record keeping practice or the
circumstances under which the obj ected to records were kept."
United States v. Box, 50 F.3d 345, 356 (5th Cir. 1995) (citing
United States v. Iredia, 866 F.2d 114, 119-20 (5th Cir. 1989)).
Cashel's affidavit describes Bank of America's system of record
keeping and vouches that the requirements of Rule 803(6) are met.
Declaration of Jane Cashel, Exhibit A to Lender Defendants' Motion
for Summary Judgment, Docket Entry No. 23-1, pp. 1- 3 ~~ 1- 3,
p. 5 ~ 9. Accordingly, Cashel is a qualified witness, and Felder's
obj ection to Lender Defendants' Exhibits A-I through A-12 is
DENIED. Felder's other objections based on Cashel's "fail [ure] to
prove herself up as a custodian of records for Bank of America" and
her "interpretation of documents, which have not been properly
authenticated" are also DENIED.
Felder's Response, Docket Entry
No. 24, pp. 3-4 ~~ 7-8.
The Lender Defendants have objected to
Exhibits C and E of Felder's Response.
Bank of America's Reply,
Docket Entry No. 25, p. 11 ~ 27. Because the court does not rely
on either exhibit in reaching its conclusions,
the Lender
Defendants' objections are DENIED AS MOOT.
68 ( • • •

-25-

A party moving for summary judgment "must

\ demonstrate the

absence of a genuine issue of material fact,' but need not negate
the elements of the nonmovant' s case."
37 F.3d 1069, 1075 (5th Cir. 1994)

Little v. Liquid Air Corp. ,

(en banc)

(per curiam)

(quoting

"If the moving party fails to meet

Celotex, 106 S. Ct. at 2553).

this initial burden, the motion must be denied, regardless of the
nonmovant's response."
this burden,

Id.

If, however, the moving party meets

"the nonmovant must go beyond the pleadings"

and

produce evidence that specific facts exist over which there is a
genuine
2553-54)

issue

for

trial.

Id.

(citing Celotex,

106

S.

Ct.

at

The nonmovant "must do more than simply show that there

is some metaphysical doubt as to the material facts."

Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356
(1986) .
In reviewing the evidence "the court must draw all reasonable
inferences in favor of the nonmoving party,
credibility determinations

or weigh the

Sanderson Plumbing Prods.,

Inc.,

120 S.

and it may not make

evidence."
Ct.

2097,

Reeves v.
2110

(2000).

Factual controversies are to be resolved in favor of the nonmovant,
"but only when there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts."

Little,

37 F.3d at 1075.
B.

Felder's Claims for Breach of Contract

Felder advances two arguments in support of his breach of
contract claims.

First, Felder argues that the Lender Defendants
-26-

"fail [ed]

to follow Plaintiff's Deed of Trust requirements for

acceleration of note,

notice of default

notice of foreclosure sale."69

cure

remedies and for

Second, Felder argues "that there

was a contract between the parties under HAMP and BAC 70 breached the
contract .

. by refusing to accept further monthly payments and

instead elected to foreclose on Plaintiff's Homestead on June 7,
2011."71
The Lender Defendants argue that Felder cannot maintain a
cause of action for breach of contract because he was in default.72
Felder

argues

in

his

Response

that

the

"Lender

Defendant's

mischaracterization of Plaintiff's mortgage defaults at inception
in 2007 and erroneous payment records, which led to perpetual addon of fees is a breach of Plaintiff's contract and is a direct
cause of

Plaintiff's

initial default

which was never cured or

69Plaintiff's First Amended Complaint, attached to Motion to
Amend, Docket Entry No. 27-2, p. 27 ~ 87.
70BAC Home Loans Servicing LP. BAC was the mortgage servicer
for Felder's mortgage at the time of foreclosure.
See, e. g. ,
May 17, 2010, Notice of Default, Exhibit A-7 to Lender Defendants'
Motion for Summary Judgment, Docket Entry No. 23-8; Plaintiff's
First Amended Complaint, attached to Motion to Amend, Docket Entry
No. 27-2, pp. 30-31 ~~ 101-102. Defendant Bank of America is the
successor by merger to BAC Home Loans Servicing LP.
Lender
Defendants' Corporate Disclosure Statement and Certificate of
Interested Parties, Docket Entry No.4.
71Plaintiff's First Amended Complaint, attached to Motion to
Amend, Docket Entry No. 27-2, pp. 29-30 ~ 95.
72Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23, pp. 21-22 ~~ 33-34.
-27-

corrected.

If

73

The Lender Defendants argue

in their Reply that

regardless of whether Felder was in default in 2007, he "did not
make his April 1, 2009 payment until May 13, 2010, and has not made
a payment since. 74
If

1.

Factual Allegations

Felder argues that he did not breach his obligations under
either the original Note or subsequent loan modifications. 75

The

court has reviewed the relevant evidence produced by the parties
pertaining to Felder's payment history and modifications to the
parties' obligations under the original Note.
transaction history reports
payment history.76
chart

2007

and 2009

to evidence his

The Lender Defendants have produced a similar

detailing payments

account

for

Felder has produced

and

between January of

adjustments

2007

to

Felder's

and December of

mortgage

2012.77

payment entry in the produced reports contains two dates:

Each

the date

the payment was received and the scheduled monthly payment to which

73Felder's Response, Docket Entry No. 24, p. 11

~

26.

74Bank of America's Reply, Docket Entry No. 25, p. 9
75Felder's Response,
pp. 10-11 ~~ 23-26.

Docket

Entry

No.

24,

pp.

~

2-3

20.
~

3;

76Acti ve Loan Mortgage Interest Statement, Exhibit A-1 to
Plaintiff's First Amended Complaint, attached to Motion to Amend,
Docket Entry No. 27-4, p. 2; Active Loan Mortgage Interest
Statement, Exhibit A-4 to Plaintiff's First Amended Complaint,
attached to Motion to Amend, Docket Entry No. 27-7.
77Loan History Statement, Exhibit A-3 to Lender Defendants'
Motion for Summary Judgment, Docket Entry No. 23-4.
-28-

it was applied. 78

The Lender Defendants argue that Felder defaulted

on the original Note in 2007 and on a subsequent loan modification
in 2009. 79
(a)
The

Felder's Alleged Default In 2007

Lender

Defendants

allege

that

Felder

"immediately

defaulted on The Loan[] by failing to make his first two payments
when due.,,80
any

Felder argues that he did not default in 2007 and that

appearance

that

he

was

in

default

is

due

to

the

Lender

Defendants' faulty recordkeeping and the Lender Defendants' failure
to draft his account when his payment was due. 81
The Note states that Felder "will make [his] monthly payment
on the first day of each month beginning on March 01,

2007" and

that his "initial monthly payments will be in the amount of
$2,222.32.,,82

u.s.

Felder has produced evidence that he was enrolled in

78Id.; Active Loan Mortgage Interest Statement, Exhibit A-I to
Plaintiff's First Amended Complaint, attached to Motion to Amend,
Docket Entry No. 27-4, p. 2; Active Loan Mortgage Interest
Statement, Exhibit A-4 to Plaintiff's First Amended Complaint,
attached to Motion to Amend, Docket Entry No. 27-7.
79Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23, pp. 21-22 ~~ 33-35, p. 28 ~ 1.b, p. 29 ~ I.e; Bank of
America's Reply, Docket Entry No. 25, pp. 1-2 ~ I, pp. 8-10
~~ 19-22.
8°Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23, p. 21 ~ 34.
81Plaintiff's First Amended Complaint, attached to Motion to
Amend, Docket Entry No. 27-2, p. 6 ~ 18; Felder's Response, Docket
Entry No. 24, pp. 10-11 ~ 25.
82Adjustable Rate Note, Exhibit B to Plaintiff's First Amended
Complaint, attached to Motion to Amend, Docket Entry No. 27-10, p. 1.
-29-

----------,-----"

Countrywide's

PayPlan/24

February 15, 2007. 83

automated

payment

service

prior

to

Felder alleges that BAC drafted his personal

bank account in February of 2007, prior to the date that his first
payment was due under the Note. 84
In fact,

the evidence produced by both parties appears to

indicate that Felder made two payments prior to his March 1, 2007,
due date. 85

The first,

entirely to interest. 86
was

applied entirely

$900.38 on January 22,

2007, was applied

The second, $1,111.16 on February 22, 2007,
to

principal. 87

It

appears

that

neither

payment was applied against Felder's upcoming March 1 scheduled
payment, but instead applied to February 2007. 88
produced

any

evidence

to

explain

the

Neither party has

significance

of

these

payments. 89

83February 15, 2007, Correspondence from Countrywide to Felder,
Exhibit A-2 to Plaintiff's First Amended Complaint, attached to
Motion to Amend, Docket Entry No. 27-5.
84Plaintiff's First Amended Complaint, attached to Motion to
Amend, Docket Entry No. 27-2, pp. 5-6 ~ 16.
85Active Loan Mortgage Interest Statement, Exhibit A-1 to
Plaintiff's First Amended Complaint, attached to Motion to Amend,
Docket Entry No. 27-4, p. 2; Loan History Statement, Exhibit A-3 to
Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23-4, p. 2.
86Id.

89For instance, neither party has explained why the payments
were drafted prior to the March 1, 2007, due date; why the total of
the two payments ($2,011.54) does not equal a full monthly payment;
(continued ... )
-30-

----_.. _._._-----_._-------------

On

April

2,

2007,

Felder

received

a

Notice

of

Default

declaring that he had failed to make his March 1 and April

1

scheduled monthly payments and that he could cure his default by
paying $4,555.76 before May 2,
"asked

BAC

for

an

internal

2007. 90

Felder alleges that he

investigation"

of

the

matter

and

"continu [ed] to make his $2,222.32 monthly mortgage payment. ,,91 The
evidence produced by both parties indicates that Felder made a
$2,333.44 payment on April 2, 2007, which included a $111.12 late
fee. 92

The payment was applied to March 2007 rather than April

2007. 93

Similarly, Felder made payments of $2,222.32 at the end of

April, May, and June of 2007. 94

Each payment was applied to the

prior month rather than the upcoming month. 95

In addition to these

89 ( ... continued)
why the allocation of principal and interest is inconsistent with
other regular payment entries; or why the payments were applied to
February 2007 rather than against Felder's upcoming scheduled
monthly payment.
90Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23, p. 21 ~ 34; April 2, 2007, Notice of Default, Exhibit A-6
to Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23-7.
91Plaintiff's First Amended Complaint, attached to Motion to
Amend, Docket Entry No. 27-2, p. 6 ~ 19.
92Acti ve Loan Mortgage Interest Statement, Exhibit A-I to
Plaintiff's First Amended Complaint, attached to Motion to Amend,
Docket Entry No. 27-4, p. 2; Loan History Statement, Exhibit A-3 to
Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23-4, p. 2.

94Id.

-31-

payments, Felder made seven more payments during 2007 and received
three more Notices of Default. 96
(b)

Felder's October 2008 Loan Modification

In the affidavit attached to his Response Felder admits that
" [i] n 2008, I became unemployed and Countrywide changed my payments
to $2,841.41.,,97
a

The parties have produced the first two pages of

five-page letter stating that Felder was approved for a

loan

modification and that "[i]n order for the modification to be valid,
the enclosed documents need to be signed and returned." 98
page of

the

letter states

that

Felder's

The first

"new modified monthly

payment will be $2,841.42, effective with [his] November 1, 2008
96Acti ve Loan Mortgage Interest Statement, Exhibit A-I to
Plaintiff's First Amended Complaint, attached to Motion to Amend,
Docket Entry No. 27-4, p. 2; Loan History Statement, Exhibit A-3 to
Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23-4, pp. 2-3; August 2, 2007, Notice of Default, Exhibit A-6
to Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23-7, p. 3; September 4, 2007, Notice of Default, Exhibit A-6
to Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23-7, p. 5; October 3, 2007, Notice of Default, Exhibit A-6 to
Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23-7, p. 7.
97Affidavit of Larry D. Felder, Exhibit A to Felder's Response,
Docket Entry No. 24-1, p. 2 ~ 4; see also Affidavit of Larry D.
Felder, Exhibit M to Amended Original Petition (Exhibit A to Notice
of Removal), Docket Entry No. 1-3, p. 2 ~ 3 ("I requested a loan
modification to remedy debt, due to a medical hardship resulting
economic decline in my finances and a dramatically increased
mortgage payment.") .
980ctober 2008 Loan Modification Correspondence, Exhibit C to
Plaintiff's First Amended Complaint, attached to Motion to Amend,
Docket
Entry
No.
27-11;
October
2008
Loan
Modification
Correspondence, Exhibit A-9 to Lender Defendants' Motion for
Summary Judgment, Docket Entry No. 23-10, p. 1; October 2008 Loan
Modification Correspondence, Exhibit C to Amended Original Petition
(Exhibit A to Notice of Removal), Docket Entry No. 1-2, p. 1.
-32-

payment" and that a total of $23,332.27,

including $14,205.78 of

interest, $185 of fees, and $8,941.49 of Escrow, would "be added to
[Felder's]

current principal balance." 99

The letter also states

that "[t]his Agreement will bring your loan current; however, you
are still required to pay back the entire unpaid principal by the
maturi ty date for your loan." 100

The second page of the letter

states:
The following documents have been enclosed:
Modification Agreement-Must be signed in the presence of
a Notary.
The notary acknowledgment must be in
recordable form. All parties who own an interest in the
property must sign the modification agreement as their
name appears. 101
There is no indication that any other documentation, such as proof
of income, was required. 102
Neither
agreement. 103

party

has

However,

produced

a

copy

of

the

modification

the evidence produced indicates that both

99rd.
loord.

1010c tober 2008 Loan Modification Correspondence, Exhibit A-9
to Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23-10, p. 2; October 2008 Loan Modification Correspondence,
Exhibit C to Amended Original Petition (Exhibit A to Notice of
Removal), Docket Entry No. 1-2, p. 2.
102S ee id.
103The parties have also failed to produce the last three pages
of the October 2008 Loan Modification Correspondence. Although the
Lender Defendants include three additional pages in Exhibit A-9 to
their Motion for Summary Judgment, they are actually excerpts of a
letter dated April 3, 2009. Compare October 2008 Loan Modification
Correspondence, Exhibit A- 9 to Lender Defendants' Motion for
Summary Judgment, Docket Entry No. 23-10, with April 2009 Loan
Modification Correspondence, Exhibit D to Amended Original Petition
(Exhibit A to Notice of Removal), Docket Entry No. 1-2, p. 7.
-33-

parties

conformed

to

the

agreement

as

represented

in

the

On November 28, 2008, Felder made his

October 23, 2008, letter.
first $2,841.42 payment. 104

On December 17,

2008,

$9,126.49 was

added to Felder's principal balance, $8,941.49 was subtracted from
his Escrow balance,
Total. ,,105

and $185 was subtracted from his "Unapplied

A "PRINCIPAL ADJUST [MENT]" was also made on December 17,

2008, that increased Felder's principal balance by $14,205.78 -exactly the amount of interest to be capitalized when the loan
modification took effect per the October 23, 2008, letter. 106
On January 7,

2009,

Felder made a payment of $2,842. 107

On

January 16, 2009, Felder received a Notice of Default stating that
he owed $12,074.10 in "Monthly Charges" as of November 1, 2008. 108
This figure appears to represent exactly three monthly payments of
$4,024.70.

Although neither party has

explained how Felder's

104Loan History Statement, Exhibit A-3 to Lender Defendants'
Motion for Summary Judgment, Docket Entry No. 23-4, p. 4.
105rd.
106rd. ;
October
2008
Loan
Modification
Correspondence,
Exhibit C to Plaintiff's First Amended Complaint, attached to
Motion to Amend, Docket Entry No. 27-11; October 2008 Loan
Modification Correspondence, Exhibit A-9 to Lender Defendants'
Motion for Summary Judgment, Docket Entry No. 23-10, p. 1;
October 23, 2008, Loan Modification Correspondence, Exhibit C to
Amended Original Petition (Exhibit A to Notice of Removal), Docket
Entry No. 1-2, p. 1.
l07Loan History Statement, Exhibit A-3 to Lender Defendants'
Motion for Summary Judgment, Docket Entry No. 23-4, p. 4.
108January 16, 2009, Notice of Default, Exhibit A-6 to Lender
Defendants' Motion for Summary Judgment, Docket Entry No. 23-7,
p. 13.
-34-

---------..

_-_.__

.

-_._---_._-------------

monthly payment was calculated during this time period, a review of
the evidence produced by both parties

reveals

that

the

Lender

Defendants considered Felder's scheduled monthly payment amount to
be $4,024.70.

Between November of 2008 and October of Q009 each of

Felder's payments was applied to "Partial Balance" or "Unapplied
Total until they reached an amount in excess of $4,024.70, at which
time

an adjustment

was

made

to apply the

funds

to principal,

interest, and escrow. 109
The January 16,
$5,868.42

in

his

2009,

"Partial

Notice of Default credits Felder for
Payment

Balance, ,,110

which

primarily

consisted of Felder's payments on November 28, 2008, and January 7,
2009. 111

After accounting for additional charges,

the Notice of

109Acti ve Loan Mortgage Interest Statement, Exhibit A-4 to
Plaintiff's First Amended Complaint, attached to Motion to Amend,
Docket Entry No. 27-7, p. 2; Loan History Statement, Exhibit A-3 to
Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23-4, pp. 4-5. The treatment of each of Felder's payments as
partial payments would continue for the remaining life of the loan.
Loan History Statement, Exhibit A-3 to Lender Defendants' Motion
for Summary Judgment, Docket Entry No. 23-4, pp. 4-6. In pleading
his fraud claim in his First Amended Complaint, Felder alleges for
the first time that he "sent in erratic large monthly mortgage
payments to Lender Defendant in reliance that such actions would
rectify the delinquent status Countrywide and BAC represented was
required to regain a current status or avoid foreclosure." First
Amended Complaint, attached to Motion to Amend, Docket Entry
No. 27-2, p. 26 ~ 82.
However, the evidence produced does not
support an allegation of "erratic large monthly" payments.
See
Loan History Statement, Exhibit A-3 to Lender Defendants' Motion
for Summary Judgment, Docket Entry No. 23-4.
l10January 16, 2009, Notice of Default, Exhibit A-6 to Lender
Defendants' Motion for Summary Judgment, Docket Entry No. 23-7,
p. 13.
l11See Active Loan Mortgage Interest Statement, Exhibit A-4 to
Plaintiff's First Amended Complaint, Docket Entry No. 27-7, p. 2;
(cont inued ... )
-35-

Defaul t

stated

that

Felder

could

cure

his

$6,819.48 "on or before February 15, 2009."112

default

by

paying

On January 20, 2009,

a $5,646.18 accounting entry adjusted Felder's "Unapplied Total" to
reflect a regular payment of $4,024.70 that was applied to November
of 2008. 113
(c)

Subsequent Proposed Loan Modifications

Felder was
2009. 114

offered another Loan Modification

of

Felder has produced a letter stating that the proposed

modification would "reduce [his]

interest rate to 6%" and "result

in a new payment amount of $1,476.26.,,115
the

in April

modification

would

"take

effect

continue until April 30, 2010.,,116

May

The letter states that
1,

2009

and

[would]

In addition, the letter states

that" [a] ccepting the enclosed modification also resolves your past
111 ( ... continued)
Loan History Statement, Exhibit A-3 to Lender Defendants' Motion
for Summary Judgment, Docket Entry No. 23-4, pp. 4-5.
112January 16, 2009, Notice of Default, Exhibit A-6 to Lender
Defendants' Motion for Summary Judgment, Docket Entry No. 23-7,
p. 13.
113Acti ve Loan Mortgage Interest Statement, Exhibit A-4 to
Plaintiff's First Amended Complaint, attached to Motion to Amend,
Docket Entry No. 27-7, p. 2; Loan History Statement, Exhibit A-3 to
Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23-4, p. 4.
114April 2009 Loan Modification Correspondence, Exhibit D to
Plaintiff's First Amended Complaint, attached to Motion to Amend,
Docket
Entry
No.
27-12;
April
2009
Loan
Modification
Correspondence, Exhibit D to Amended Original Petition (Exhibit A
to Notice of Removal), Docket Entry No. 1-2, p. 7.
115Id.
116Id.
-36-

----------------------------

---

----

---

-----------

due amount of $12,293.15 as of March 30, 2009,"117 and that "this
modification will bring your loan current."11S
The letter states that in order to accept the modification
Felder

must

both

"[s] ign

enclosed

modification

document in the presence of a notary" and "include

income

information applicable to
notarized

and

[his]

loan-modification

specifically

states

date

that

verification of your income.

the

situation with

The

agreement. "119
"this

offer

[his]

is

signed and

letter

also

contingent

upon

Even if you sign and return the loan

modification documents; this modification will not take effect if
we are not able to verify your income." 120

Both parties have produced a copy of the Loan Modification
Agreement that was signed by Felder on March 12,

2010. 121

But

117Id.
11SApril 2009 Loan Modification Correspondence, Exhibit D to
Amended Original Petition (Exhibit A to Notice of Removal), Docket
Entry No. 1-2, p. 9.
119Id. at 8; Exhibit A- 9 to Lender Defendants'
Summary Judgment, Docket Entry No. 23-10, p. 5.

Motion for

12°April 2009 Loan Modification Correspondence, Exhibit D to
Amended Original Petition (Exhibit A to Notice of Removal), Docket
Entry No. 1-2, p. 3; October 2008 Loan Modification Correspondence,
Exhibi t A- 9 to Lender Defendants' Motion for Summary Judgment,
Docket Entry No. 23-10, p. 4.
121Loan Modification Agreement, Exhibit A-3 to Plaintiff's
First Amended Complaint, attached to Motion to Amend, Docket Entry
No. 27-6; Loan Modification Agreement, Exhibit A-II to Lender
Defendants' Motion for Summary Judgment, Docket Entry No. 23-12;
Loan Modification Agreement, Exhibit A-3 to Felder's Response,
(continued ... )
-37-

neither

party

has

produced

a

copy

of

the

April

2009

Modification Agreement signed by Felder before the May 3,

Loan
2009,

deadline 122 or a copy signed by the Lender Defendants.
The Lender Defendants did not make any adjustments to Felder's
account

in

Felder,

however,

2009. 124

accordance

with

the

proposed

loan

modification. 123

began making payments of $1,476.26

in June of

Felder continued making monthly payments of

$1,476.26

through March of 2010. 125

121 ( ... cont inued)
Docket Entry No. 24-4. Felder allegedly provided this copy to the
Lender Defendants in April and June of 2010 as a replacement for
the copy that the Lender Defendants allegedly misplaced.
See Fax
Transmittal, Exhibit E to Amended Original Petition (Exhibit A to
Notice of Removal), Docket Entry No. 1-2, p. 15i April 21, 2010,
Correspondence Re: Offer of Modification, Exhibit H to Amended
Original Petition (Exhibit A to Notice of Removal), Docket Entry
No. 1-2, p. 23.
122April 2009 Loan Modification Correspondence, Exhibit D to
Amended Original Petition (Exhibit A to Notice of Removal), Docket
Entry No. 1-2, p. 2i October 2008 Loan Modification Correspondence,
Exhibi t A- 9 to Lender Defendants' Motion for Summary Judgment,
Docket Entry No. 23-10, p. 5.
123See Active Loan Mortgage Interest Statement, Exhibit A-4 to
Plaintiff's First Amended Complaint, attached to Motion to Amend,
Docket Entry No. 27-7, p. 2; Loan History Statement, Exhibit A-3 to
Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23-4, p. 5.
124Id.
125Acti ve Loan Mortgage Interest Statement, Exhibit A-4 to
Plaintiff's First Amended Complaint, attached to Motion to Amend,
Docket Entry No. 27-7, p. 2; Loan History Statement, Exhibit A-3 to
Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23-4, pp. 5-6.
-38-

Felder was offered another Loan Modification in November of
2009. 126

Felder was denied the modification after failing to make

the payments required during the trial period .127
2.

Felder has failed to raise a genuine issue of material
fact for trial as to whether he was in default when the
Lender Defendants foreclosed.

~The

elements of a breach of contract claim under Texas law

are:

(1)

the existence of a valid contracti

tendered performance by the plaintiffi

(2)

performance or

(3) breach of the contract

by the defendanti and (4) damages to the plaintiff resulting from
the breach."

Lewis v. Bank of Am. NA, 343 F.3d 540, 544-45 (5th

Cir.2003)

(citing Palmer v. Espey Huston & Assocs., 84 S.W.3d 345,

353

App.-Corpus Christi 2002,

(Tex.

pet.

denied))

The Lender

Defendants argue that Felder cannot maintain a cause of action for
breach of contract because he was in default. 128
Felder
2010,,,129

~did

not

citing

make his April
an

entry

in

1,

the

They allege that

2009 payment until

Loan

History

May 13,

Statement

dated

126November 2009 Loan Modification Correspondence, Exhibit A-5
to Plaintiff's First Amended Complaint, attached to Motion to
Amend, Docket Entry No. 27-8i November 2009 Loan Modification
Correspondence, Exhibit A-10 to Lender Defendants' Motion for
Summary Judgment, Docket Entry No. 23-11.
127April 26, 2010, Correspondence from Bank of America to
Felder Re: Trial Plan Default, Exhibit A-6 to Felder's Response,
Docket Entry No. 24-7.
128Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23, pp. 20-21 ~~ 33-34.
129Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23, p. 28 ~ 1.bi Bank of America's Reply, Docket Entry No. 25
p. 9 ~ 20.
-39-

-----------------------

-

May 13, 2010, representing a $4,033.83 payment applied to April of
2009.130
clear

Although the entry is labeled "REGULAR PAYMENT," it is
based

Felder's

on

actual

the

cancelled

payments were

checks

produced

recorded using

by
the

Felder
label

that

"MISC.

POSTING" and applied to "Partial Balance" or "Unapplied Total.,,131
However, despite making payments in accordance with the April
2009

proposed

loan

modification,

Felder

has

not

produced

any

evidence to suggest that he was ever approved for the modification.
The only copy of the proposed Loan Modification Agreement that
either party has produced was signed by Felder in March of 2010. 132

l3OLoan History Statement, Exhibit A-3 to Lender Defendants'
Motion for Summary Judgment, Docket Entry No. 23-4, p. 6.
131See Cancelled Checks, Exhibit G to Felder's First Amended
Complaint, Docket Entry No. 27-15; Active Loan Mortgage Interest
Statement, Exhibit A-4 to Plaintiff's First Amended Complaint,
attached to Motion to Amend, Docket Entry No. 27-7, p. 2; Loan
History Statement, Exhibit A-3 to Lender Defendants' Motion for
Summary Judgment, Docket Entry No. 23-4, pp. 5-6.
132Loan Modification Agreement, Exhibit A-3 to Plaintiff's
First Amended Complaint, attached to Motion to Amend, Docket Entry
No. 27-6; Loan Modification Agreement, Exhibit A-II to Lender
Defendants' Motion for Summary Judgment, Docket Entry No. 23-12;
Loan Modification Agreement, Exhibit A-3 to Felder's Response,
Docket Entry No. 24-4. Jane Cashel's affidavit states that "Felder
did not sign and return the loan modification agreement until
March 12, 2010." Declaration of Jane Cashel, Exhibit A to Lender
Defendants' Motion for Summary Judgment, Docket Entry No. 23-1,
p. 6 ~ 14.
However, this assertion is belied by the records
produced with Cashel' s affidavit.
The Account Status Listing
produced by the Lender Defendants indicates that Felder's
application was reviewed on April 14, 2009, and May 11, 2009, and
denied because Felder "failed to remit required proof of income
documentation."
Account Status Listing, Exhibit A-4 to Lender
Defendants' Motion for Summary Judgment, Docket Entry No. 23-5,
(continued ... )
-40-

The letter accompanying the proposed modification makes clear that
the modification was conditional upon verification of
income. l33
that
remi t

Felder's

The evidence produced by the Lender Defendants indicates

Felder's application was denied because Felder "failed to
required proof

of

income documentation. ,,134

Felder has not produced a
statute

of

payments of

frauds

to

document

establish

$l,476.26. l35

Furthermore,

that would comply with the

that

he

was

See BACM 2001-1

entitled

to

make

San Felipe Rd.

Ltd.

P'ship v. Trafalgar Holdings I, Ltd., 218 S.W.3d 137, 144-48 (Tex.
App.-Houston [14th Dist.] 2007, pet. denied).
In light of the foregoing,

and drawing all inferences in a

light most favorable to Felder, the court concludes that Felder has
failed to produce sufficient evidence to establish that a genuine
issue of material fact exists as to whether he was in default when
the Lender Defendants foreclosed on the property.

Accordingly,

132 ( ... continued)
pp. 7-8.
This information is also reproduced in the HomeSaver
Workout Notes produced by the Lender Defendants. HomeSaver Workout
Notes, Exhibit A-8 to Lender Defendants' Motion for Summary
Judgment, Docket Entry No. 23-9, pp. 5-6.
l33April 2009 Loan Modification Correspondence, Exhibit D to
Amended Original Petition (Exhibit A to Notice of Removal), Docket
Entry No. 1-2, pp. 8-9; Exhibit A-9 to Lender Defendants' Motion
for Summary Judgment, Docket Entry No. 23-10, pp. 4-5.
134Account Status Listing, Exhibit A-4 to Lender Defendants'
Motion for Summary Judgment, Docket Entry No. 23-5, pp. 7-8;
HomeSaver Workout Notes, Exhibit A-8 to Lender Defendants' Motion
for Summary Judgment, Docket Entry No. 23-9, pp. 5-6.
135Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23, pp. 24-25 ~~ 41-44.
-41-

...

_---------

summary judgment is appropriate with regard to Felder's claim that
the Lender Defendants "breached the contract .
accept

further

monthly

payments

and

. by refusing to

instead

elected

to

foreclose. ,,136
3.

Felder has failed to raise a qenuine issue of material
fact for trial as to whether the Lender Defendants failed
to provide proper notice prior to foreclosure.

Felder alleges that the Lender Defendants did not provide the
notice required by the Deed of Trust thirty days prior to the
May 16,

2011,

Notice of Acceleration and Sale.137

The relevant

portion of the Deed of Trust states:
22. Acceleration; Remedies. Lender shall give notice to
Borrower prior to acceleration following Borrower's
breach of any covenant or agreement in this Security
Instrument
(but
not
prior
to
acceleration under
Section 18 unless Applicable Law provides otherwise).
The notice shall specify: (a) the default; (b) the action
required to cure the default; (c) a date, not less than
30 days from the date the notice is given to Borrower, by
which the default must be cured; and (d) that failure to
cure the default on or before the date specified in the
notice will result in acceleration of the sums secured by
this Security Instrument and sale of the Property. The
notice shall further inform Borrower of the right to
reinstate after acceleration and the right to bring a
court action to assert the non-existence of a default or
any other defense of Borrower to acceleration and sale.
If the default is not cured on or before the date
specified in the notice, Lender at its option may require
immediate payment in full of all sums secured by this
Securi ty Instrument without further demand and may invoke
the power of sale and any other remedies permitted by
Applicable Law. Lender shall be entitled to collect all

136Plaintiff's First Amended Complaint, attached to Motion to
Amend, Docket Entry No. 27-2, pp. 29-30 ~ 95.
137Id. at 27-29
No. 24 p. 19 ~ 50.

~~

87-92;

Felder's
-42-

Response,

Docket

Entry

expenses incurred in pursuing the remedies provided in
this Section 22,
including,
but not limited to,
reasonable attorneys' fees and costs of title evidence.
For the purposes of this Section 22, the term "Lender"
includes any holder of the Note who is entitled to
receive payments under the Note. l38
The

Lender

Defendants

have

produced

a

Notice

of

Default

in

compliance with the Deed of Trust dated May 17, 2010. 139
Felder
required

to

appears

to

provide

such a

acceleration. 140

argue

However,

that
notice

the

Lender

Defendants

exactly thirty days

were

before

the Deed of Trust specifically states

that the Lender Defendants must provide Felder with "not less than
30 days" to cure his default before accelerating the loan. 141

The

May 17, 2010, Notice of Default specifies that Felder may cure the
default by paying $52,747.57 "on or before June 16, 2010."142

The

Lender Defendants did not accelerate the loan until nearly a year
later on May 16, 2011. 143
138Deed of Trust, Exhibit L to First Amended Complaint,
attached to Motion to Amend, Docket Entry No. 27-20, p. 13 ~ 22;
Deed of Trust, Exhibit A-2 to Lender Defendants' Motion for Summary
Judgment, Docket Entry No. 23-3, p. 16 ~ 22.
139May 17, 2010, Notice of Default, Exhibit A-7 to Lender
Defendants' Motion for Summary Judgment, Docket Entry No. 23-8.
14°Plaintiff's First Amended Complaint, attached to Motion to
Amend, Docket Entry No. 27-2, p. 9 ~ 32.
141Deed of Trust, Exhibit L to First Amended Complaint, Docket
Entry No. 27-20, p. 13 ~ 22; Deed of Trust, Exhibit A-2 to Lender
Defendants' Motion for Summary Judgment, Docket Entry No. 23-3,
p. 16 ~ 22.
142May 17, 2010, Notice of Default, Exhibit A-7 to Lender
Defendants' Motion for Summary Judgment, Docket Entry No. 23-8.
143Notice of Acceleration and Sale, Exhibit A-13 to Lender
Defendants' Motion for Summary Judgment, Docket Entry No. 23-14.
-43-

Felder also argues that he was entitled to two Notices of
Default -- one at least thirty days prior to acceleration pursuant
to

the

Deed of

Trust,

and one

at

least

twenty days

acceleration under the Texas Property Code. 144

prior to

Felder has cited no

authority, and the court is aware of none, to suggest that a single
notice

is

not

obligations.

sufficient

to

satisfy

the

Lender

Defendants'

The court therefore concludes that Felder has failed

to establish that a genuine issue of material fact exists as to
whether the Lender Defendants provided him with proper notice prior
to

the

foreclosure

sale.

Accordingly,

summary

judgment

is

appropriate on Felder's claims regarding the Lender Defendants'
alleged failure to properly notice.

C.

The Lender Defendants Had Standing to Foreclose
Felder appears

to

advance

three

Defendants lacked standing to foreclose:

arguments

why

the

Lender

(1) the securitization of

his mortgage rendered his Note unsecured and the Deed of Trust
unenforceable;
was void; and

(2)

(3)

the August 30, 2010, assignment to BONY Mellon
BAC was not a mortgagee entitled to foreclose

under the Deed of Trust. 145

The Lender Defendants argue that they

144Plaintiff's First Amended Complaint, attached to Motion to
Amend, Docket Entry No. 27-2, pp. 12-13 ~ 43; Felder's Response,
Docket Entry No. 24, p. 20 ~ 52.
145Plaintiff's First Amended Complaint, attached to Motion to
Amend, Docket Entry No. 27-2, pp . 1 0 -11 ~ ~ 3 7 - 3 9 , pp . 14 - 2 7
~ ~ 4 7 - 85 , pp . 3 0 - 3 2 ~ ~ 99 -1 0 9 ; Felder's Response, Docket Entry
No. 24, pp. 12-18 ~~ 27-47.
-44-

---,--------------- -

"have standing to foreclose as both the holder of the note and as
mortgage servicer. ,,146
The securitization of Felder's mortgage did not affect
the Lender Defendants' standing to foreclose.

1.

Felder advances several arguments as to why the securitization
process rendered the Note and Deed of Trust unenforceable.

Felder's

arguments rely heavily on the effect of the Pooling and Servicing
Agreement

("PSA")

governing the

CWABS Asset-Backed Certificates

Trust ("CWABS") in relation to Texas Real Property Law.
(a)

The CWABS PSA does not affect the enforceability of
Felder's Deed of Trust.

Felder alleges that his "mortgage loan was bifurcated into
three parts":

the Note, the Deed of Trust, and "the loan payment

obligations sold or stripped out of the original mortgage loan,"
which Felder terms "the Intangible Obligations .,,147
that

"the

Obligation)

income
is

or

stream
was

from

owned

[his]
by

loan

various

(Certificateholders of the CWABS Trust)
described by the Prospectus"
2007-2

and that

Felder alleges

payments
classes

(Intangible
of

investors

in a unified manner as
"[e] ach class of the CWL

trust owns a different partial interest

in the Felder's

Intangible Obligation. ,,148

146Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23, p. 13 ~ 15.
147Plaintiff's First Amended Complaint, attached to Motion to
Amend, Docket Entry No. 27-2, p. 15 ~ 50.
148Id. , 49.
-45-

Felder argues that the assignment of his intangible payment
obligations to various classes of the CWABS trust rendered the Note
and Deed of Trust unenforceable because "[a] true sale of Note and
the Deed of Trust to all and each of the potential multiple owners
of

the

certificates must

be

compliant

with

the

local

laws

of

jurisdiction and such division is a legal impossibility" because
such a "transfer lacks supporting tangible law .
to

the

Note

and

Deed

of

Trust

can

only

be

as the rights
to

one

party. ,,149

Felder's argument is misplaced because, as he acknowledges, the PSA
is not an assignment of the Note or Deed of Trust.
The PSA requires the parties selling mortgages to CWABS to
deliver the "Mortgage File" either prior to or within thirty days
of the trust's closing date. 150

The Mortgage File includes the

original promissory note, the deed of trust, and "a duly executed
assignment of the [Deed of Trust] to [CWABS], by [BONY Mellon], as
trustee. ,,151

At most, the PSA reflects a promise to assign the Note

and Deed of Trust.

Felder acknowledges this fact, asserting that

"[t]he initial and subsequent certificate transactions involving
divided intangible payment stream of the Intangible Obligation do

149Id. at 16

~

52.

150pSA, Exhibit E to Plaintiff's First Amended Petition, Docket
Entry No. 27-13, pp. 67-74.
151Id. i
see
also
Prospectus
Supplement,
Exhibit
M to
Plaintiff's First Amended Complaint, attached to Motion to Amend,
Docket Entry No. 27-21, pp. 44-45.
An assignment is not even
required for mortgages that are part of the MERS system to be in
compliance with the PSA.
Id.
-46-

not transfer the rights to the Tangible Note or the Deed of Trust
to the owners of the intangible payment stream.

Accordingly, at

1/152

the time of securi ti zation there was no assignment "of Note and the
Deed of trust to all and each of the potential multiple owners of
the certificates

[that] must be compliant with the local laws of

jurisdiction. 1/153

Therefore,

Felder's argument that his Deed of

Trust is unenforceable under the terms of the PSA has no merit.
(b)

Felder's claims based on the "split-the-notel/ theory
fail as a matter of law.

Felder also argues that the Lender Defendants assigned the
Intangible Obligation to CWABS prior to assigning the Note or Deed
of Trust, and that this process renders the Note and Deed of Trust
unsecured

and

compliant

unenforceable. 154

with

laws

of

Felder

negotiation,

alleges

transfer

of

that

"[t] 0

ownership

be
and

rights to enforce the Tangible Note secured by a Deed of Trust
require that a true sale of Note and the Deed of Trust be executed
prior

to

the

instruments.

stripping

1/155

of

partial

interest

In

the

tangible

Felder cites no authority for this conclusion. 156

He elaborates on his claim by arguing that

152Plaintiff's First Amended Complaint, attached to Motion to
Amend, Docket Entry No. 27-2, p. 16 ~ 52.
153Id. at 16

~

52.

154Id. at 17

~

56.

155Id. a t 16

tT 1 .
1

52

156Id.
-47-

A properly recorded assignment of the Deed of Trust
memorializes the Note's negotiation, but does not cause
the Note's transfer. For a Note to change ownership and
remain secured through the Deed of Trust each and every
transfer of the Note, by indorsement or negotiation, must
be performed with a parallel assignment to remain as a
secured party of record.
If a Note is indorsed and
negotiated to one party while the Deed of Trust is
assigned to another party, a separation between the
Ownership of the Note evidencing the Tangible Obligation
and the Ownership of the Conditions which secure the
Intangible Obligation to Real Property occurs and such is
a
legal
impossibility.
As
such bifurcation is
impossible, there is no lawful mechanism to allow for a
security securing a Note to follow an Intangible Payment
Stream to allow an Intangible owner to be a party
perfected of record to the Note. 157
To

the

"splitting"

extent
or

that

Felder

"bifurcating"

the

relies
Note

on

from

the
the

theory
Deed of

that
Trust

renders either unenforceable, his claims have no merit under Texas
law.

The "split-the-note" theory posits that "the

'transfer of

[the] deed of trust . . . "splits" the note from the deed of trust,
thus rendering both null.'"
No.

12-51039,

Wiley v. Deutsche Bank Nat. Trust Co.,

2013 WL 4779686,

at *1

(5th Cir.

Sept.

6,

2013)

(quoting Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249,
254 (5thCir. 2013))

"In order to foreclose, the theory goes, a

party must hold both the note and the deed of trust.
Martins, 722 F.3d at 254).

II

Id.

(quoting

However, "Texas courts have explained

on multiple occasions that a note and a deed of trust constitute
separate actions."

Id. at *2.

"It is so well settled as not to be

controverted that the right to recover a personal judgment for a
debt secured by a lien on land and the right to have a foreclosure
157Id. at 17 , 56.
-48-

of lien are severable, and a plaintiff may elect to seek a personal
judgment without foreclosing the lien, and even without a waiver of
the lien."

Martins,

722 F.3d at 255

(quoting Carter v. Gray,

81

S.W.2d 647, 648 (Tex. Comm'n App. 1935)).
"The

duality

of

the

lien

and

the

note

means

that

the

beneficiary of the lien can be different from the holder of the
note."

Wiley, 2013 WL 4779686, at *2.

need not possess the note itself.'

"'The party to foreclose

So long as it is a beneficiary

named in the deed of trust or an assign, that party may exercise
its authority even if it does not hold the note itself."
(internal citations omitted)

(quoting Martins,

Id.

722 F.3d at 255).

Thus, "the split the note theory is . . . inapplicable under Texas
law where the foreclosing party is a
has been properly assigned."
255)
at

Id.

[mortgagee] and the mortgage

(quoting Martins,

(internal quotation marks omitted)
255

("A

deed

of

trust

' gives

i

the

722 F.3d at

see also Martins, 722 F.3d
lender

as

well

as

the

beneficiary the right to invoke the power of sale,' even though it
would not be possible for both to hold the note."

(quoting Robeson

v. Mortgage Elec. Registration Sys., Inc., No. 02-10-00227-CV, 2012
WL 42965, at *6 (Tex. App.-Fort Worth Jan. 5, 2012, pet. denied))).
Felder's argument that securitization of his mortgage required
that "a true sale of Note and the Deed of Trust be executed prior
to the stripping of partial interest in the tangible instruments"
is also unavailing. 158

158Id. at 16

~

Felder alleges that

52.
-49-

[m]ultiple classes of the CWL 2007-2 Trust are/were the
owners of the Felder Intangible Obligation, however,
according to Texas State Law, multiple classes of the CWL
2007-2 Trust can only be entitled to enforce the Felder
Deed of Trust if multiple classes of the CWL 2007-2 Trust
were transferred the rights to the Felder Deed of Trust
by way of assignments pursuant to Recordation/Assignment
Statutes. 159
However,

as

Felder acknowledges,

certificate

transactions

"[t]he

involving

initial

divided

and subsequent

intangible

payment

stream of the Intangible Obligation do not transfer the rights to
the

Tangible Note

intangible

or

payment

the

Deed of

stream. ,,160

Trust

to

the

Furthermore,

authority for his contention that

owners

Felder

of

cites

the
no

"multiple classes of the CWL

2007-2 Trust [are] entitled to enforce the Felder Deed of Trust."161
Courts routinely reject arguments that securitization of a mortgage
renders

the

Deed

of

Trust

unenforceable.

See

Marban

Mortgage, No.

3:12-CV-3952-M, 2013 WL 3356285, at *10

July 3, 2013)

v.

PNC

(collecting cases) .

2.

(N.D. Tex.

. Felder has failed to raise a qenuine issue of material fact
as to the validity of the August 30, 2010, assignment.

Felder argues that the Lender Defendants lacked standing to
foreclose

because

the August

30,

2010,

assignment

was

void. 162

159rd. at 18 ~ 59 i see also id. at 2 0 ~ 62 (" In contradiction
to law, the Felder Deed of Trust must have been duly assigned to
multiple classes of the CWL 2007-2 Trust for multiple classes of
the CWL 2007-2 Trust to be entitled to enforce the Felder Deed of
Trust.") .
l6°rd.

at 16 ~ 52.

161Id. at 20 ~ 62; see also id. at 18 ~ 59.
162Id. at 18-24 ~~ 58-72.

-50-

Felder advances three arguments as to why the August 30,
assignment to BONY Mellon was void:

2010,

(1) the assignment was forged,

(2) the signer lacked authority to execute the assignment, and (3)
the assignment violated the terms of the PSA.
because

he

has

not

produced any evidence

Felder's claims fail
to

suggest

that

the

assignment was void, and he does not have standing to challenge the
assignment.
(a)

Felder has produced no evidence to suggest that the
August 30, 2010, assignment to BONY Mellon was void.

The Lender Defendants have presented evidence of standing to
foreclose through a facially valid assignment, which was signed by
Craig Hooley for BAC, as Servicer, on behalf of MERS acting solely
as nominee for America's Wholesale Lender .163
recorded in Harris County,

Texas,

The assignment was

on September 28,

2010. 164

See

Morlock, L.L.C. v. JP Morgan Chase Bank, N.A., No. 12-20623, 2013
WL 2422778,

at

*2

(5th Cir.

June

4,

2013)

evidence of this standing [to foreclose]

(" [Lender]

presents

through a facially valid

assignment, which was signed by MERS's assistant secretary with a
proper corporate acknowledgment and recorded in the county clerk's

163Assignment of Mortgage, Exhibit A- 5 to Lender Defendants'
Motion for Summary Judgment, Docket Entry No. 23-6.
The Lender
Defendants also argue that Felder lacks standing to challenge the
assignment of his mortgage. Lender Defendants' Motion for Summary
Judgment, Docket Entry No. 23, p. 2 ~ 2, pp. 6-7 ~~ 16-18, p. 19
~ 46.
164Assignment of Mortgage, Exhibit A- 5 to Lender Defendants'
Motion for Summary Judgment, Docket Entry No. 23-6.
-51-

Because

office.").
transfers

taking
with

'view [s]

certificates

"[r]eal

property

place many years

suspicion

of

and

in

the

distrust

acknowledgment,'

records

under

and

convincing

beyond

contain
Texas

past [, ]

attempts
which

the

presumptively valid and contradicting evidence
cogent,

often

reasonable

to

discredit

transfer

'must

be

is

clear,

Id.

controversy.' "

(quoting Ruiz v. Stewart Mineral Corp., 202 S.W.3d 242, 248

(Tex.

App.-Tyler 2006, pet. denied)).
Felder fails
standard.

to plead any facts

remotely approaching this

Felder alleges that the "Lender Defendants have failed

to provide legal, verifiable proof of assignment and ownership to
The Bank of New York Mellon

West & Associate LLP typed up,

Substitute Trustee,
filed

after

Plaintiff's

. besides the void document that

having

conducted

homestead. ,,165

a

defective

"This

'naked

notarized and

foreclosure

assertion []

sale

of

devoid

of

further factual enhancement' fails to state a plausible claim for
relief."

Id.

(citing Iqbal,

(b)

129 S.

Ct. at 1949).

Felder lacks standing to challenge the assignment.

Felder alleges "that the assignment of the Deed of Trust is
due to the lack of capacity and authority of the acting Defendants"
and

"request [s]

aside. ,,166

a

declaration that

the void assignments be set

However, Felder lacks standing to challenge the validity

165Felder's Response, Docket Entry No. 24, p. 15 ~ 40.
166Id. a t

7

t1
11

16

•

-52-

of the August 30, 2010, assignment on the basis of the assignor's
alleged lack of authority.

See Reinagel, 735 F.3d at 228.

In Reinagel the plaintiff-homeowners sought declaratory and
injunctive relief on the basis that the assignee of their mortgage
lacked standing to foreclose.

The Fifth Circuit

Id. at 222-25.

analyzed the effect of two mortgage assignments challenged by the
plaintiff-homeowners, noting that "the first instrument assigned
only the deed of trust, whereas the second instrument assigned both
the deed of trust and 'the certain note(s)
Id. at 225.

described therein.'"

The court ultimately held that the second assignment

was valid against the plaintiffs and "reaffirm [ed] that under Texas
law,

facially valid assignments cannot be challenged for want of

authority except by the defrauded assignor."
the

Here,

facially

instrument in Reinagel,

valid

Id. at 228.
like

assignment,

the

second

assigns both the Deed of Trust and the

"note or notes therein described or referred to." 167

See id. at 225

("[T]he second instrument also expressly transferred "the certain
note(s) described [in the deed of trust] .").
have

standing

to

"defend

'on

any

Although Felder would

ground

which

renders

the

assignment void,'" his challenge based on the signer's alleged lack
of

authority

would

unauthorized contract,
election

of

the

render
[]

the

assignment,

not void,

defrauded

"like

any

other

but merely voidable at the

principal."

Id.

at

226

(quoting

167Assignment of Mortgage, Exhibit A- 5 to Lender Defendants'
Motion for Summary Judgment, Docket Entry No. 23-6.
-53-

----.--.------

-

..

_---_._--_ _-._._---..

Tri-Cities Const.! Inc. v. Am. Nat. Ins. Co., 523 S.W.2d 426, 430
(Tex. Civ. App.-Houston

[1st Dist.]

Thus,

1975, no writ)).

the

signer's alleged lack of authority, even accepted as true, does not
furnish Felder with a basis to challenge the assignment.
The

same

principle

applies

to

Felder's

claims

Id.
that

assignment was void because it was in violation of the PSA.

the

Felder

argues that when his Deed of Trust was assigned on August 30, 2010,
"the CWABS 2007-2 was closed per its
substantiates

and

supports

PSA agreement which also

Plaintiff's

allegations

that

the

purported recordation of the assignment of Mortgagee beneficiary
interest under Plaintiff's Deed of Trust to [BONY Mellon] was void
and an

impossibility. 11168

Felder alleges

that

the

trust

New York asset-backed trust and that New York law applies .169

is

a

See

Green v. Bank of Am. N.A., No. H-13-1092, 2013 WL 3937070, at *3
(S.D. Tex. July 30, 2013)

("[Plaintiff] alleges that the trust is

a New York asset-backed trust.

New York law applies.") .

"Under New York law 'every sale, conveyance or other act of
the trustee in contravention of the trust, except as authorized by
this article and by any other provision of law,
(quoting

N.Y.

Est.

Powers

&

Trusts

Law

§

is void.'11

7-2.4).

Id.

However,

" [c] ourts applying New York law have treated actions by trustees as
voidable.

II

rd.

(citing Mooney v. Madden,

597 N.Y.S.2d 775,

776

168Plaintiff's First Amended Complaint, attached to Motion to
Amend, Docket Entry No. 27-2, pp. 20-21 ~ 64.
169Id. at 22 ~ 68 i see also Prospectus Supplement, Exhibit M to
Plaintiff's First Amended Complaint, attached to Motion to Amend,
Docket Entry No. 27-21, pp. 4, 68.
-54-

(N.Y. App. Div. 1993)); see also Sigaran v.
No.

H-12-3588,

2013 WL 2368336,

at *3

u.s. Bank Nat. Ass'n,

(S.D.

Tex.

May 29,

2013)

("Despite New York law's use of the term 'void,' courts applying
New York

law have

treated ultra vires

actions

by trustees

as

voidable and capable of ratification."); Calderon v. Bank of Am.
N.A.,

941

cases)

170

F.

Supp.

2d

753,

766

(W.D.

Tex.

2013)

(collecting

In addition, the Fifth Circuit has "found that borrowers

lacked standing to challenge the transfer of a note in violation of
the terms of the PSA."

Farkas,

Reinagel, 735 F.3d at 228).

2013 WL 6231114,

at *3

(citing

Accordingly, because assignments made

after the trust's closing date are voidable,

rather than void,

Felder cannot challenge the assignments of his mortgage.

Green,

2013 WL 3937070, at *3.
3.

BAC had standing to foreclose as mortgage servicer.

Felder "claims that Defendant AWL l71 and BAC have no standing
to

foreclose

on the Note and under the Deed of Trust bec'ause

17°Felder cites Wells Fargo Bank, N.A. v. Erobobo, 972 N.Y.S.2d
147 (N.Y. Sup. Ct. 2013) for the proposition that an assignment to
a trust after the closing date is void rather than voidable.
Plaintiff's First Amended Complaint, attached to Motion to Amend,
Docket Entry No. 27 - 2, p. 2 2 ~ 68.
The court finds Erobobo' s
reasoning unpersuasive.
See Halacy v. Wells Fargo Bank, N.A.,
No. 12-11447-TSH, 2013 WL 6152351, at *3 (D. Mass. Nov. 21, 2013)
("Erobobo has been criticized and multiple federal courts,
including in this District, have held that under New York law, an
assignment of a mortgage into a trust in violation of the terms of
the PSA is voidable, not void."). Neither is the court persuaded
by any of the other cases Felder cites in support of this
proposition. See Plaintiff's First Amended Complaint, attached to
Motion to Amend, Docket Entry No. 27-2, p. 22 ~ 68.
171America's Wholesale Lender is the d/b/a of defendant
Countrywide. Lender Defendants' Corporate Disclosure Statement and
Certificate of Interested Parties, Docket Entry No.4, p. 1.
-55-

Defendant BAC is not the owner of the Note and the Deed of Trust
for which i [t]

The Lender Defendants

intends to foreclose. ,,172

argue that BAC had standing to foreclose as the mortgage servicer
under Texas Law. 173
"The Texas Property Code provides that a 'mortgage servicer'
"

may administer a foreclosure on behalf of a mortgagee
Martins, 722 F.3d at 255 (quoting Tex. Prop. Code

§

51.0025)

The

Fifth Circuit has held that MERS "qualifies as a mortgagee" under
Texas

A

law.

beneficiary,
(citing

owner,

Tex.

Prop.

mortgagee

also

or holder of a
Code

"the

grantee,

security instrument."

51.0001 (4)).

§

includes

"In either

event,

Id.
the

mortgage servicer need not hold or own the note and yet would be
authorized

to

administer

a

foreclosure."

Accordingly,

Felder's argument that BAC lacked standing to foreclose because it
did not own the Note and Deed of Trust has no merit.
D.

Felder's Fraud Claims

To prevail on a fraud claim under Texas law a plaintiff must
prove that

(1)

the defendant made a material representation that

was false;

(2) the defendant knew the representation was false or

made it recklessly as a positive assertion without any knowledge of
its truth;

(3)

the defendant intended to induce the plaintiff to

172Plaintiff's First Amended Complaint, attached to Motion to
Amend, Docket Entry No. 27-2, p. 30 ~ 100.
173Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23, p. 15 ~ 19.
-56-

act

upon

the

representation;

(4)

the

plaintiff

actually

and

justifiably relied upon the representation; and (5) the plaintiff
thereby suffered an injury.

Ernst & Young, L.L.P. v. Pacific Mut.

Life. Ins. Co., 51 S.W.2d 573, 577
Civil Procedure 9(b)

(Tex. 2001).

Federal Rule of

imposes a heightened level of pleading for

A party bringing a fraud claim "must state with

fraud claims.

particularity the circumstances constituting fraud or mistake.
Fed. R. Civ. P. 9(b).

II

The plaintiff must therefore "'specify the

statements contended to be fraudulent, identify the speaker, state
when and where

the

statements

were made,

and explain why the

statements were fraudulent.'"

Sullivan v. Leor Energy, LLC, 600

F.3d 542, 551

(quoting ABC Arbitrage v. Tchuruk,

(5th Cir. 2010)

291 F.3d 336, 350 (5th Cir. 2002)).
The most detail that Felder provides with regard to his fraud
claims is his allegation that
Lender Defendant Bank of America[] misrepresented
and erroneously communicated to Plaintiff that his
mortgage loan was immediately delinquent and in default
in 2007 after his settlement and closing, erroneous [ly]
and intentionally misrepresented by telephone and mail,
Plaintiff's accounting of payment history, incomplete and
inaccurate mortgage statement documents and accounting of
late fees,
and conducted a fraudulent and illegal
foreclosure of Plaintiffs homestead. 174
The Lender Defendants argue that these allegations are insufficient
to establish a

genuine

issue of

material

fact

with regard to

174Plaintiff's First Amended Complaint, attached to Motion to
Amend, Docket Entry no. 27-2, p. 33 ~ 116.
-57-

Felder's

fraud

claims. 175

The

court

agrees.

Felder

has

not

specified any statement contended to be fraudulent or explained why
it was fraudulent.

Accordingly, summary judgment is appropriate on

Felder's fraud claims.
E.

Fe1der's C1aims for Interference with Existing Contract

Felder argues that u[t]here existed a contract (Deed of Trust)
that is subject to interference between Plaintiff and the original
lender that is not BAC.; America's Wholesale Lender is the original
Mortgagee, with MERS acting as a nominee and beneficiary" and that
U[t]here is a willful and intentional act of interference by BAC,
BONY MELLON and Substitute Trustee by foreclosing on Plaintiff's
Homestead without proper documented (void) assignment" of the Note,
Deed of Trust, or umortgagee beneficiary interest." 176
Defendants argue

that

they had standing

to

The Lender

foreclose

and that

Felder has failed to produce any evidence that would support a
claim of tortious interference. 177
uA tortious interference cause of action is established if the
plaintiff proves:
interference;

(2)

(1)

the existence of a

contract

subj ect

to

a willful and intentional act of interference;

175Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23, pp. 22-23 ~~ 36-37.
176Plaintiff's First Amended Complaint, attached to Motion to
Amend, Docket Entry No. 27-2, pp. 33-34 ~ 121(a), (b).
177Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23, pp. 26-27 ~~ 47-48.
-58-

(3) the act was a proximate cause of the plaintiff's damages; and
(4)

actual

damage or loss

McDade & Co.,
§

Friendswood Dev.

resulted./I

926 S.w.2d 280,

282

(Tex.

1996).

Co.

v.

As explained in

IV.C above, the Lender Defendants had standing to foreclose on

Felder's

property.

Felder's

claim that

the

Lender Defendants

interfered with his Deed of Trust by foreclosing thus has no merit.
Accordingly, summary judgment is appropriate on Felder's claims for
interference with existing contract.
F.

Felder's Quiet-Title Claims
A suit to quiet title, also known as a suit to remove cloud

from title, is an equitable action to clarify ownership by removing
invalid claims.

Ford v. Exxon Mobil Chemical Co., 235 S.W.3d 615,

618

(per curiam).

(Tex. 2007)

"A cloud on title exists when an

outstanding claim or encumbrance is shown, which on its face,
valid,

would

property./I

affect

or

impair

the

title

of

Hahn v. Love, 321 S.W.3d 517, 531

[1st Dist.] 2009, pet. denied).

the

owner

of

if
the

(Tex. App.-Houston

"Any deed, contract, judgment or

other instrument not void on its face that purports to convey any
interest in or make any charge upon the land of a true owner, the
invalidity of which would require proof, is a cloud upon the legal
title of the owner./I

Wright v. Matthews, 26 S.W.3d 575, 578 (Tex.

App.-Beaumont 2000, pet. denied).

A plaintiff in a suit to quiet

title "must prove and recover on the strength of his own title, not
the weakness of his adversary's title.

/I

Fricks v.

Hancock,

S.W.3d 322, 327 (Tex. App.-Corpus Christi 2001, no pet.).
-59-

45

A suit to quiet title under Texas law requires a plaintiff to
(1)

prove:

a valid equitable interest in a

specific property,

(2) title to the property is affected by a claim by the defendant,
and (3)

although facially valid, defendant's claim is invalid or

unenforceable.

Bryant v. Bank of America, N.A., No. 4:ll-CV-448,

2012 WL 2681361, at *16 (E.D. Tex. June 6,2012)
Duvall,

815 S.W.2d 285,

denied)) .

293 n.2

"The effect of a

(citing Sadler v.

(Tex. App.-Texarkana 1991, pet.

suit to quiet title is to declare

invalid or ineffective the defendant's claim to title."

Gordon v.

West Houston Trees, Ltd., 352 S.W.3d 32, 42 (Tex. App.-Houston [1st
Dist.] 2011, no pet.).
The Lender Defendants argue that "Felder's quiet-title claim
is

simply a

repeated challenge

to Lender Defendants'

foreclose based on allegedly fraudulent assignments.,,178

right

to

Although

Felder asserts that his quiet-title "claim is based solely on the
strength of his own superior Homestead title," all of his arguments
pertain to whether the Deed of Trust is unenforceable due to either
a defective securitization or a defective assignment .179
has already concluded in
enforceable.

§

Accordingly,

The court

IV.C above that the Deed of Trust is
summary

judgment

is

appropriate

on

Felder's quiet-title claims.

178Lender Defendants' Motion for Summary Judgment, Docket Entry
No. 23, p. 26 ~ 46.
179Plaintiff's First Amended Complaint, attached to Motion to
Amend, Docket Entry No. 27-2, pp. 35-36 ~~ 128-33.
-60-

G.

Felder's Claims for Slander of Title

(1) the uttering

A slander of title action in Texas requires:
and publishing of
(4) special damages,

disparaging words,

(2)

falsity,

(3)

(5) possession of an estate or interest in the

property disparaged, and (6) the loss of a specific sale.
v.

Jennings,
In

ref'd) .

interference

malice,

755 S.W.2d 874,
arguing

his

879

claims

for

App.-Houston 1988,
breach

contract,

existing

with

(Tex.

Williams

of

Felder

contract
alleges

writ
and
that

"Defendants' actions constitute a slander of Plaintiff's title to
the subject property."180
based

entirely

on

his

Felder's claims for slander of title are
allegations

that

the

Lender

Defendants

foreclosed either without standing or in breach of the Deed of
Trust. 18l

The court has already determined that Felder has failed

to raise a genuine issue of
these issues.

m~terial

Accordingly,

fact for trial with regard to

summary judgment is appropriate on

Felder's claims for slander of title .182

I8°Id. at 28

~

90, 29

~

94i

see also ide at 34

~

121.

I8IIn addition to the Lender Defendants' arguments addressed
above, the Lender Defendants assert that "Felder's claims have no
merit and his lawsuit should be dismissed because.
. his other
claims arising from the foreclosure and sale of the property lack
evidentiary proof or are barred by the economic loss rule and
statute of Frauds.
Lender Defendants' Motion for Summary
Judgment, Docket Entry No. 23, p. 9 ~ 2, p. 30 ~ 3.
II

I82Because the court has concluded that no genuine issue of
material fact exists as to any of Felder's substantive causes of
action, no basis remains for the declaratory and injunctive relief
requested in Felder's First Amended Complaint.
See Morlock,
L.L.C., 2013 WL 5781240, at *10-*14i Morlock, L.L.C. v. JP Morgan
(continued ... )
-61-

v.

Conclusions and Order

For the reasons explained in

§

II above

the court concludes

1

that BONY Mellon/s Notice of Removal was timely filed
was improperly joined
$75 / 000.

that West

l

and that the amount in controversy exceeds

l

AccordinglYI Plaintiff/s Motion to Remand Cause of Action

Under 28 U.S.C.

1447(c)

§

(Docket Entry No. 14) is DENIED.

For the reasons explained in

§

III above 1 Plaintiff/s Motion

for Leave to File First Amended Complaint (Docket Entry No. 27) is
GRANTED.

For the reasons explained in

§

IV above

1

the court concludes

that Felder has failed to raise a genuine issue of material fact
for trial with regard to any of his alleged claims for relief.
court therefore concludes that
inferences in favor of Felder
to

judgment

Accordingly

1

as

a

matter

even when drawing all reasonable
the Lender Defendants are entitled

l

of

Lender Defendants

l

The

law
1

on

all

of

Felder s
l

claims.

Motion for Summary Judgment (Docket

Entry No. 23) is GRANTED.
SIGNED at Houston

l

Texas

l

on this 20th day of December

l

2013.

UNITED STATES DISTRICT JUDGE

cont inued)
Chase Bank, N.A.I No. H-12-1448 1 2012 WL 3187918 1 at *7 (S.D. Tex.
Aug. 21 2012) 1 aff/d No. 12-20623 1 2013 WL 2422778 (5th Cir.
June 41 2013).
Defendants are therefore entitled to summary
judgment on Felder1s claims for declaratory and injunctive relief.
182 ( • • •

l

-62-