Riley et al v. Wells Fargo Bank, N.A. et al

Filing 28

OPINION AND ORDER OF DISMISSAL. ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 21 Memorandum and Recommendations, 7 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, 5 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Brief in Support, 6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Signed by Judge Melinda Harmon) Parties notified.(rvazquez)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GEORGE O. RILEY and TRENA
LEEANN RILEY,
Plaintiffs,
VS.
WELLS FARGO BANK, N.A.,
CRESTMARK MORTGAGE CO., LTD.,
and BARRETT DAFFIN FRAPPIER
TURNER and ENGEL, LLP,
Defendants.

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CIVIL ACTION NO. H-13-0608

OPINION AND ORDER OF DISMISSAL
Pending before the Court in the above referenced action
arising out of foreclosure on Plaintiffs George O. Riley and Trena
Leeanne Riley’s property at 13403 Explorer Drive, Houston, Texas
77044, are three unanswered motions to dismiss for failure to state
a

claim

filed

by

Fargo”)(instrument

Defendants Wells Fargo Bank, N.A. (“Wells
#5),

Crestmark

Mortgage

Company,

Ltd.

(“Crestmark”)(#6), and Barrett Daffin Frappier Turner & Engel, L.L.P.
(“Barrett Daffin”) (#7); United States Magistrate Judge Frances
Stacy’s memorandum and recommendation that the Court grant these
motions for failure to state a claim under Federal Rules of Civil
Procedure 9(b) and 12(b)(6)(#21), entered on November 21, 2013;
Plaintiffs’

objections

(#24);

Barrett

Daffin’s

Response

to

Plaintiffs’ objections; Wells Fargo’s Response (#26); and Crestmark’s
Response (#27).
Plaintiffs have asserted claims for violations of the
Federal Debt Collection Practices Act, slander of title/to quiet
title, fraud/misrepresentation grounded in violations of the Texas
Deceptive Trade Practices Act, negligent supervision of employees and

agents, and common law fraud.

Despite the fact that they did not

file a response to any of the three motions to dismiss, although
granted an extension of time to do so, they have filed an objection
to the Magistrate Judge’s memorandum and recommendation, which the
Court review de novo.
On June 3, 2013 Plaintiffs filed a Chapter 13 Petition in
the United States Bankruptcy Court, Houston Division, Case No. 1333482.

Thus Plaintiff’s sole objection to the Magistrate’s

memorandum and recommendation is that the automatic stay under 11
U.S.C. § 362 immediately went into effect and stayed all proceedings
against them and all causes of action existing at the commencement
of the bankruptcy action become property of the bankruptcy estate.
11 U.S.C. § 541(a)(the bankruptcy estate is comprised of “all legal
or

equitable

interests

of

the

debtor

in

property

as

of

the

commencement of the [bankruptcy] case”); In re Swift, 129 F.3d 792,
795 (5th Cir. 1997); Drew v. Anderson, 988 F.2d 1212 (5th Cir. 1993).
They note that Wells Fargo, represented by Barrett Daffin, filed a
Proof of Claim in the bankruptcy case on September 4, 2012.
Plaintiffs insist that Wells Fargo should not be allowed to proceed
in two separate courts seeking its remedy.

They maintain that this

Court should abate further proceedings until the bankruptcy court
rules and the Chapter 13 plan is confirmed.
As a matter of law, and by its own terms, as argued by
Wells Fargo, the automatic stay under 11 U.S.C. § 362(a) only stays
proceedings brought “against the debtor.”
brought by the debtor.

This suit is a proceeding

In re Versoy, 306 Fed. Appx. 65, 68-69 (5th

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Cir. Jan. 5, 2009), citing McMillan v. MBank Fort Worth, N.A., 4 F.3d
362, 366 (5th Cir. 1993).
objection.

Therefore the Court overrules Plaintiffs’

Furthermore as pointed out by Crestmark on December 30,

2013 the bankruptcy judge issued an an order abating the Rileys’
amended objection to Wells Fargo’s proof of claim and “ORDERED that
the Objection is hereby abated pending a final ruling by Judge
Melinda Harmon on the Defendants’ Motion to Dismiss that is pending
in Civil Action No. H-13-0608.” (#27, Ex. 1)
Moreover after reviewing the Magistrate Judge’s memorandum
and recommendation and the applicable law, the Court fully agrees
with her findings and conclusions.
Accordingly for the reasons stated above, the Court
ORDERS that Plaintiffs’ objection (#24) to the Magistrate
Judge’s memorandum and recommendation is OVERRULED.

The Court

further
ADOPTS the memorandum and recommendation is its own and
ORDERS that Defendants’ motions to dismiss (#5, 6, and 7) are GRANTED
and that all Plaintiffs’ claims against Defendants are DISMISSED for
failure to state a claim under Rules 9(b) and 12(b)(6).
SIGNED at Houston, Texas, this

8th

day of

January ,

2014.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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