Davis v. Countrywide Home Loans, Inc. et al
Filing
24
MEMORANDUM OPINION AND ORDER GRANTING 21 MOTION for Summary Judgment . Plaintiff's claims are DISMISSED with prejudice.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
R. KYLE DAVIS,
Plaintiff,
v.
COUNTRYWIDE HOME LOANS, INC., et al.,
Defendants.
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CIVIL ACTION H-13-623
M EMORANDUM O PINION & O RDER
Pending before the court is a motion for summary judgment filed by Countrywide Home Loans,
Inc. (“Countrywide”); The Bank of New York, as Trustee for the Alternative Loan Trust 2006-18CB
(“BNY”); Countrywide Home Loans Servicing, LP; CWALT, Inc.; ReconTrust Company, N.A.; and
Mortgage Electronic Registration System (“MERS”) (collectively, the “defendants”). Dkt. 21. After
considering the briefing, evidence of record, and applicable law, the defendants’ motion for summary
judgment (Dkt. 21) is GRANTED. The claims of plaintiff R. Kyle Davis as Trustee for the Cape
Lookout Way Trust (“plaintiff”) are DISMISSED WITH PREJUDICE.
I. BACKGROUND
On April 18, 2006, Tracy James (“James”) took out a home loan in the amount of $242,400.00
in favor of America’s Wholesale Lender (“America’s Wholesale”), the “Lender,” for the purchase of a
home in Humble, Texas. Dkt. 21, Ex. A (the promissory note). James (together with Gary McBride)
contemporaneously executed a deed of trust (the “deed”) to secure payment of the note.1 Dkt. 21, Ex. B
(the deed). The deed named MERS as the nominee for America’s Wholesale and its successors and
1
Courts interchangeably use the terms “deed of trust” and “mortgage” throughout the relevant case law. See Starcrest
Trust v. Berry, 926 S.W .2d 343, 351 (Tex. App.— Austin 1996, no writ) (defining a “deed of trust” as a mortgage with power
to sell on default). This court will generally refer to the “deed of trust” in this case as simply the “deed.”
assigns.2 Id. at 2. The deed also specified that MERS had “the right to foreclose and sell the [home]; and
to take any action required of Lender including, but not limited to, releasing and canceling this Security
Instrument.” Id. at 3. On June 15, 2011, MERS executed an assignment of the note and deed in which
MERS purported to assign the note and deed to BNY. Dkt. 21, Ex. C (assignment). The assignment was
recorded in the deed records of Harris County on July 5, 2011. Id. at 1. The original mortgagor, James,
is a former owner of the home, and after a series of transfers via quitclaim deed in 2012, the plaintiff is
current owner and mortgagor of the property. See Dkt. 22, Exs. M–O.
The note required the mortgagor to remit monthly payments to the Lender on the first day of each
month beginning on June 1, 2006. Dkt. 21, Ex. A at 1 ¶ 3(A). The mortgagor fell behind on the
payments, and a trustee’s sale for foreclosure was scheduled for March 5, 2013. Dkt. 1 (notice of
removal), Ex. B-1 (TRO application) at 1. On February 27, 2013, plaintiff filed this lawsuit in the 61st
Judicial District Court of Harris County, Texas. Dkt. 1 (notice of removal) at 2 ¶ 1. Defendants timely
removed the case to this court on March 7, 2013. Id. at 1. Plaintiff asserts the following claims in his
live pleading: wrongful foreclosure; fraud in the inducement; slander of title; a suit to quiet title; and a
claim for other declaratory/injunctive relief. Dkt. 1, Ex. B-2 (original petition) at 15–25.
II. STANDARD OF REVIEW
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper if “the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED . R. CIV . P. 56(a); see also Carrizales v. State Farm Lloyds, 518 F.3d
343, 345 (5th Cir. 2008). The movant bears the initial burden of informing the court of evidence, if any,
2
The MERS system is an “electronic mortgage registration system and clearinghouse that tracks beneficial ownerships
in, and servicing rights to, mortgage loans.” In re Mortg. Elec. Registration Sys. (MERS) Litig., 659 F. Supp. 2d 1368, 1370
(J.P.M.L. 2009).
2
that demonstrates the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S. Ct. 2548 (1986). Only when the movant has discharged its initial burden does the
burden shift to the nonmovant to demonstrate that there is a genuine dispute of material fact. Id. at 322.
A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the
nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986). A dispute
is “material” if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248.
Rule 56 requires the nonmovant to go beyond the pleadings and show by affidavits, depositions,
answers to interrogatories, admissions on file, or other admissible evidence that specific facts exist over
which there is a genuine dispute for trial. Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996).
The nonmovant’s burden may not be satisfied by conclusory allegations, unsubstantiated assertions,
metaphysical doubt as to the facts, or a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir.1994). Instead, the nonmovant must identify specific evidence in the record and articulate
precisely how that evidence supports his or her claims. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455,
458 (5th Cir.1998). When the nonmovant fails to set forth specific facts, by affidavits or otherwise, to
show that there is a genuine dispute for trial, summary judgment is appropriate. Topalian v. Ehrman,
954 F.2d 1125, 1132 (5th Cir.1992). Factual controversies are to be resolved in nonmovant’s favor,
“‘but only when there is an actual controversy, that is, when both parties have submitted evidence of
contradictory facts.’” Wallace, 80 F.3d at 1048 (quoting Little, 37 F.3d at 1075). The court will not, “in
the absence of any proof, assume that the [nonmovant] could or would prove the necessary facts.”
McCallum Highlands, Ltd. v. Wash. Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir.1995). Unless there is
sufficient evidence for a jury to return a verdict in the nonmovant’s favor, there is no genuine dispute for
trial. Anderson, 477 U.S. at 249–51.
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III. ANALYSIS
A.
Lack of Standing/Wrongful Foreclosure
In his first claim, plaintiff seeks a declaration from this court that any foreclosure of the home
would be wrongful because no defendant has standing to foreclose due to defects in the assignment and
securitization process.3 Specifically, his wrongful foreclosure allegations can be grouped into three
categories: (1) BNY is not a proper party to foreclose because it is not the Lender and there are
insufficient indorsements of the note and deed; (2) an unauthorized agent for MERS improperly assigned
the power of sale under the deed to BNY, thus invalidating the assignment; and (3) defendants did not
comply with the securitization requirements of the applicable Pooling and Servicing Agreement
(“PSA”).4 Under recent Fifth Circuit case law, however, each ground fails and plaintiff’s wrongful
foreclosure claim must be dismissed.
1.
Chain of Title and Assigned Rights
First, plaintiff contends that MERS’s assignment of the note and deed to BNY was invalid
because the note lacks any indorsements. Dkt. 22 at 11. But plaintiff fails to realize that while a chain
of indorsements is sufficient to establish a right to foreclose, it is not necessary. Miller v. Homecomings
3
Plaintiff’s claim must be one for declaratory relief because an attempted wrongful foreclosure claim is not
recognized under Texas law and a traditional wrongful foreclosure claim would not be ripe when plaintiff retains possession
of the home. See Port City State Bank v. Leyco Constr. Co., 561 S.W .2d 546, 547 (Tex. Civ. App.— Beaumont 1977, no writ)
(finding no supporting authority for an attempted wrongful foreclosure claim under Texas law); Ayers v. Aurora Loan Servs.,
787 F. Supp. 2d 451, 454 (E.D. Tex. 2011) (“Plaintiff has not alleged an actual violation of the Texas Property Code because
no foreclosure sale has occurred.”).
4
“Securitization” refers to the “process of pooling loans and selling them to investors on the open market.”
Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc., 680 F.3d 1194, 1197 n.2 (10th Cir. 2011). A
PSA is one of many “complex, interrelated contracts” typically executed when a mortgage securitization trust is formed. Chase
Manhattan Mortg. Corp. v. Advanta Corp., No. Civ. A. 01-507 KAJ, 2005 W L 2234608, at *1 (D. Del. Sept. 8, 2005). In
a mortgage securitization, the securitizing party acquires mortgage notes, pools them together, and then sells them into a trust.
Id. Interests in the trust are sold to investors, and the money raised is used for new mortgages. BlackRock Fin. Mgmt. Inc.
v. Segregated Account of Ambac Assurance Corp., 673 F.3d 169, 173 (2d Cir. 2012). In this case, BNY acted as the trustee
for the Alternative Loan Trust 2006-18CB (the “trust”), which was the assignee of James’s promissory note and security
instrument. See Dkt. 21, Ex. C at 1.
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Fin., LLC, 881 F. Supp. 2d 825, 830 (S.D. Tex. 2012) (“[H]olding the original note is one way to
establish the right to foreclose, but not the only way.”). Instead, defendants have pointed to an unbroken
chain of assignments for standing to foreclose, even without the original note. Martins v. BAC Home
Loan Servicing, L.P., 722 F.3d 249, 255 (5th Cir. 2013).
Plaintiff also argues that MERS did not assign the right to foreclose properly because it did not
assign in its capacity as nominee and only assigned its beneficial interest.5 Dkt. 22 at 11. To determine
if MERS transferred the power of sale requires the court to determine whether MERS received such
power under the security instrument. According to the assignment, MERS assigned “all beneficial
interest” to BNY. The deed in turn states that “MERS holds only legal title to the interests granted by
Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee
for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests,
including, but not limited to, the right to foreclose and sell the Property . . . .” Dkt. 21, Ex. B at 3. The
plain language of this provision makes clear that one of MERS’s “interests” in the home explicitly
includes a power of sale. Athey v. MERS, 314 S.W.3d 161, 166 (Tex. App.—Eastland 2010, pet. denied).
Plaintiff nonetheless cites the quoted language above and says that MERS does not have the power of sale
to transfer because that interest is not “necessary to comply with law or custom.” Dkt. 21, Ex. B at 3.
This argument misses the mark because that clause is irrelevant to the court’s analysis. The clause
specifies conditions for the exercise of certain rights, including “the right to foreclose,” not whether
5
Plaintiff makes a brief statement in his response that MERS could not act as a nominee for America’s W holesale,
the Lender, because it was defunct on the date of the assignment. Dkt. 22 at 18 ¶ 41. Plaintiff offers no evidence, however,
to substantiate this assertion, and the court will not consider a naked claim that is insufficient to create a genuine dispute of
material fact. Little, 37 F.3d at 1075 (holding that plaintiff’s summary judgment burden is not satisfied by unsubstantiated
assertions and can only be met with actual evidence of contradictory facts).
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MERS holds those rights in the first place. MERS was granted a beneficial interest in the power of sale
under the deed and had the capacity to transfer that right to BNY.
2.
The Authority of MERS’s Purported Agents
Next, assuming MERS had a right to foreclose that it could convey to BNY, plaintiff argues that
the MERS assignment was signed by an unauthorized agent and is void. Dkt. 22 at 21 ¶ 48. Plaintiff
alleges that Tanyia Hill, a purported MERS Assistant Secretary, improperly assigned the note and deed
to BNY on the same day that she executed a document as an Assistant Vice President of BAC Home
Loans Servicing, LP. Id. at 17 ¶ 40. Therefore, the plaintiff’s argument goes, Ms. Hill was an
unauthorized agent and the assignment is void as a forgery. Id.
While mortgagors argued the forgery point for years in the district courts, the Fifth Circuit recently
issued a published opinion addressing this precise contention. Reinagel v. Deutsche Bank Nat’l Trust
Co., 735 F.3d 220 (5th Cir. 2013). In Reinagel, the mortgagors defaulted on their note and sought to
enjoin the foreclosure, contending that the assignments by which the bank obtained the note and deed
were invalid. Id. at 223–24. The Fifth Circuit held that the mortgagors could argue that the transfers
were void, because while “an obligor cannot defend against an assignee’s efforts to enforce the obligation
on a ground that merely renders the assignment voidable at the election of the assignor, Texas courts
follow the majority rule that the obligor may defend ‘on any ground which renders the assignment void.’”
See id. at 225 (first emphasis added) (quoting Tri-Cities Constr., Inc. v. Am. Nat’l Ins. Co., 523 S.W.2d
426, 430 (Tex. Civ. App.—Houston [1st Dist.] 1975, no writ)); Ortiz v. CitiMortgage, Inc., 954 F. Supp.
2d 581, 586–87 (S.D. Tex. 2013) (holding that plaintiffs could challenge an assignment on grounds that
it did not occur because such an allegation goes to the issue of validity ab initio). And as relevant to the
instant case, a contract executed by a person fraudulently purporting to be a corporate officer is voidable
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at the defrauded principal’s election; it is not void as a matter of law. Reinagel, 735 F.3d at 226 (citing
Nobles v. Marcus, 533 S.W.2d 923, 926 (Tex. 1976)).
Thus, under Reinagel, plaintiff’s validity and forgery contentions cannot be heard. Assuming Ms.
Hill is an unauthorized agent—and there is little evidence to do so—the plaintiff has no standing as an
obligor to challenge her authority.6 Nobles, 533 S.W.2d at 926–27 (“It is settled that . . . a deed [executed
by a person fraudulently misrepresenting her agency] is valid and represents prima facie evidence of title
until there has been a successful suit to set it aside . . . [which] can only be maintained by the defrauded
[principal].”). Further, there is no evidence that Ms. Hill’s signature was “forged” in the correct sense
of the term. Under Texas law “one who signs his true name, purporting to act as the agent of another,
has not committed a forgery.” Nobles, 533 S.W.2d at 926. Here, plaintiff merely alleges that Ms. Hill
was not authorized to sign on MERS’s behalf. That is not a forgery. Plaintiff lacks standing to challenge
MERS’s assignment on grounds of unauthorized agency.
3.
The Allegedly Improper Transfer Under the PSA
Plaintiff further argues that MERS’s assignment of the note and deed to Deutsche Bank is
procedurally and substantively irregular under the PSA and New York trust law. Regarding PSA defects,
plaintiff has no standing to make these arguments against any mortgagee.7 Reinagel, 735 F.3d at 228.
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But even if it could be heard, plaintiff’s challenge to Ms. Hill’s authority would likely fail on the current record.
Plaintiff’s basic argument is that on June 15, 2011, Ms. Hill acted in separate transactions as an Assistant Secretary for MERS
and as an Assistant Vice President of BAC Home Loans Servicing, LP. This allegation, however, serves little purpose other
than to highlight that Ms. Hill acted in separate capacities, which is not uncommon in our society. After all, the Vice President
of the United States also serves as the Senate’s President, with the power to cast the tie-breaking vote when that body is equally
divided. U.S. C O NST . art. I, § 3, cl. 4. It would hardly be unlawful for the Vice President to attend a state funeral and break
a Senate tie on the same day. Similarly, in the case of MERS, the organization generally relies on its members to have their
employees act as MERS officers with authority to sign on MERS’s behalf. See Cervantes v. Countrywide Home Loans, Inc.,
656 F.3d 1034, 1040 (9th Cir. 2011); Howard v. JPMorgan Chase N.A., No. SA-12-CV-00440-DAE, 2013 W L 1694659,
at *8 (W .D. Tex. Apr. 18, 2013). “As a result, most of the actions taken in MERS’s own name are carried out by staff at the
companies that sell and buy the beneficial interest in the loans.” Cervantes, 656 F.3d at 1040.
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The alleged defects in the securitization process include a purported violation of the M ERS Rules of M embership
and a mortgage assignment after the closing date of the trust. Dkt. 22 at 18–19 ¶¶ 41–43.
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Plaintiff further claims that the trustee’s acts void the assignment under New York trust law, which
provides that “every sale, conveyance or other act of the trustee in contravention of the trust, except as
authorized by this article and any other provision of law, is void.” N.Y. EST . POWERS & TRUSTS LAW
§ 7-2.4. Although the statute uses the term “void,” courts applying the law have treated improper
transfers as subject to ratification and therefore voidable, not void. Mooney v. Madden, 193 A.D. 2d 933,
933–34, 597 N.Y.S.2d 775 (N.Y. App. Div. 1993) (“A trustee may bind the trust to an otherwise invalid
act or agreement which is outside the scope of the trustee’s power when the beneficiary or beneficiaries
consent or ratify the trustee’s ultra vires act or agreement.”); cf. Peniche v. Aeromexico, 580 S.W.2d 152,
157 (Tex. Civ. App.—Houston [1st Dist.] 1979, no pet.) (“It is well settled that an illegal contract cannot
be ratified or saved by estoppel.”); Bank of Am. Nat’l Ass’n v. Bassman FBT, LLC, 981 N.E.2d 1, 8–10
(Ill. App. Ct. 2012) (concluding under New York law that a trustee’s unauthorized or ultra vires decisions
are voidable, not void).8 Thus, plaintiff’s allegations regarding New York trust law and PSA violations
address voidable acts that plaintiff has no standing to contest. Reinagel, 735 F.3d at 228.
4.
Conclusion
In sum, plaintiff’s challenges to MERS’s assignment of the power of sale to BNY may not
proceed in this wrongful foreclosure action. Because plaintiff has failed to raise a genuine dispute of
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Plaintiff cites a recent New York decision to support his argument that improper trust transfers are void. Wells
Fargo Bank, N.A. v. Erobobo, No. 31648/2009, 2013 W L 1831799, at *8 (N.Y. Sup. Ct. Apr. 29, 2013) (holding that “the
acceptance of the note and mortgage by the trustee after the date the trust closed [is] void”). Erobobo’s reasoning, however,
has been generally criticized by courts around the country, including this district. See, e.g., Felder v. Countrywide Home
Loans, No. H-13-0282, 2013 W L 6805843, at *19 & n.170 (S.D. Tex. Dec. 20, 2013) (Lake, J.); Halacy v. Wells Fargo Bank,
N.A., No. 12-11447-TSH, 2013 W L 6152351, at *3 (D. Mass. Nov. 21, 2013); Sigaran v. U.S. Bank Nat’l Ass’n, No. H-123588, 2013 W L 2368336, at *3 (S.D. Tex. May 29, 2013) (Rosenthal, J.) (“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.”). This court
agrees with Judges Lake and Rosenthal and finds that Erobobo’s holding, from a New York trial court, does not accurately
reflect New York trust law as would be interpreted by the state’s court of last resort, the Court of Appeals of New York.
Travelers Cas. & Sur. Co. of Am. v. Ernst & Young LLP, 542 F.3d 475, 482–83 (5th Cir. 2008) (explaining that a federal court
sitting in diversity must make an educated Erie guess as to what state law is when the court of last resort has not addressed
a particular issue). The court holds that a trustee’s acts that are inconsistent with its obligations under the trust are voidable
under the New York Estates, Powers and Trusts Law.
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material fact as to the validity of MERS’s assignment of the note and deed to BNY, summary judgment
is granted on plaintiff’s wrongful foreclosure claim.
B.
Fraudulent Inducement
Plaintiff next contends that the defendants defrauded him by affirmatively misrepresenting that
they were entitled to exercise the deed’s power of sale provision and that they were legal holders or
beneficiaries of the note and deed. Dkt. 1, Ex. B-2 at 20–21 ¶¶ 79–85. Plaintiff claims that defendants
made these material misrepresentations “in order to induce the Plaintiff to rely on the misrepresentations
and [foreclose] on the Property.” Id. at 21 ¶ 82.
To prove fraudulent inducement, the plaintiff must first establish the five basic elements of fraud
under Texas law: “(1) a [material] misrepresentation that (2) the speaker knew to be false or made
recklessly (3) with the intention to induce the plaintiff’s reliance, followed by (4) actual and justifiable
reliance (5) causing injury.” Rio Grande Royalty Co. v. Energy Transfer Partners, L.P., 620 F.3d 465,
468 (5th Cir. 2010). Fraudulent inducement also requires proof of an underlying contract that was
induced by the fraudulent statement. Haase v. Glazner, 62 S.W.3d 795, 798 (Tex. 2001).
Here, defendants are entitled to summary judgment on the fraud claim because plaintiff has not
shown any contract that was purportedly induced by defendants’ statements of authority to foreclose
under the note and deed. Further, as discussed above, plaintiff has not raised a genuine dispute of
material fact relating to BNY’s authority to exercise the power of sale, and thus plaintiff has not met his
summary judgment burden to present evidence of a material misrepresentation. For both of these reasons,
plaintiff’s fraud in the inducement claim is dismissed.
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C.
Slander of Title
Plaintiff further alleges that the defendants’ notice of default and trustee’s sale slandered his valid
title. Dkt. 1, Ex. B-2 at 21–23 ¶¶ 86–93. Defendants move for summary judgment on grounds that
plaintiff has no evidence that defendants acted falsely or maliciously or that he lost a specific sale as a
result of defendants’ conduct. Dkt. 21 at 15–16. The court agrees with the defendants.
Under Texas law, “‘[s]lander of title’ is defined as a false and malicious statement made in
disparagement of a person’s title to property which causes special damages.” Elijah Ragira/VIP Lodging
Grp., Inc. v. VIP Lodging Grp., Inc., 301 S.W.3d 747, 758 (Tex. App.—El Paso 2009, no pet.). The
necessary elements are “the uttering and publishing of disparaging words that were false and malicious,
that special damages were sustained, and that the injured party possessed an interest in the property
disparaged. . . . Further, the complaining party must demonstrate the loss of a specific sale.” Id. at 759.
Here, plaintiff’s proof fails to demonstrate a genuine dispute of material fact on his slander of title
claim. Plaintiff has not presented sufficient evidence that any defendant made a false or malicious
statement regarding the authority to foreclose. See Storm Assocs., Inc. v. Texaco, Inc., 645 S.W.2d 579,
588 (Tex. App.—San Antonio 1982) (“A claim of title does not constitute malice where the claim is
made under color of title or upon reasonable belief that parties have title to the property acquired.”), aff’d
sub nom. Friedman v. Texaco, Inc., 691 S.W.2d 586 (Tex. 1985). Plaintiff has also not alleged that he
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lost a specific sale of his home to support a slander of title claim.9 Elijah Ragira, 301 S.W.3d at 759.
For these reasons, summary judgment is granted on plaintiff’s cause of action for slander of title.
D.
Suit to Quiet Title
In his last substantive claim, plaintiff alleges that no defendant holds a perfected claim to his
home, and thus the court should quiet title in his name and enjoin defendants from asserting any adverse
property interest. Dkt. 1, Ex. B-2 at 23–24. Defendants seek dismissal of this claim on grounds that
plaintiff cannot show a superior interest in the real property. Again, the court agrees with defendants.
A suit to quiet title “‘enable[s] the holder of the feeblest equity to remove from his way to legal
title any unlawful hindrance having the appearance of better right.’” Bell v. Ott, 606 S.W.2d 942, 952
(Tex. Civ. App.—Waco 1980, writ ref’d n.r.e.) (quoting Thomson v. Locke, 1 S.W. 112, 115 (Tex.
1886)). “[T]he plaintiff has the burden of supplying the proof necessary to establish his superior equity
and right to relief.” Hahn v. Love, 321 S.W.3d 517, 531 (Tex. App.—Houston [1st Dist.] 2009, pet.
denied) (emphasis added). The effect, therefore, of a suit to quiet title is to establish that the defendant’s
claim to title is “invalid or ineffective.” Gordon v. W. Houston Trees, Ltd., 352 S.W.3d 32, 42 (Tex.
App.—Houston [1st Dist.] 2011, no pet.).
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Plaintiff argues that “failure of a specific sale is not mandatory” to sustain a slander of title claim, and that the
plaintiff may recover upon a showing of impaired market value attributable to the cloud on the title. Dkt. 22 at 29–30 ¶ 70.
This argument is quite curious, given that the Texas Supreme Court has specifically rejected it. In A.H. Belo Corp. v. Sanders,
632 S.W .2d 145 (Tex. 1982), the jury found that the plaintiff had not lost a specific sale as a result of the defendant’s
statement, and the trial court issued a take-nothing judgment. Id. at 145. The court of appeals reversed, holding that the
plaintiff could recover upon a showing that “the vendability of the lots had been impaired.” Id. The Supreme Court disagreed
with the court of appeals, reinstated the district court’s judgment, and reaffirmed the “general rule long-standing in Texas”
that the plaintiff “was required to prove the loss of a specific sale or sales in order to recover on his slander of title action.”
Id. at 145–46; see also Jeanes v. Henderson, 703 F.2d 855, 860 (5th Cir. 1983) (applying Sanders and dismissing a slander
of title claim for failure to adduce evidence of a lost sale). This court is bound by Sanders and Henderson and will not depart
from clear Texas law on the elements of slander of title.
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Plaintiff has not created a fact question as to his superior right to relief, for he has presented no
competent evidence challenging BNY’s claimed authority to foreclose. Plaintiff’s quiet title claim is
dismissed with prejudice.
E.
Other Declaratory and Injunctive Relief
Lastly, Plaintiff seeks declarations from the court regarding the validity of the documents needed
to exercise the power of sale and the rights of the parties generally. Dkt. 1, Ex. B-2 at 24–25 ¶¶ 102–13.
This claim is intertwined and dependent with plaintiff’s wrongful foreclosure claim, which has already
been dismissed, and it will therefore be dismissed as well. Val-Com Acquisitions Trust v. CitiMortgage,
Inc., 421 F. App’x 398, 400–01 (5th Cir. 2011) (per curiam) (explaining that “[o]nce the district court
had dismissed the underlying [substantive] claims, there were no claims for which [it] could grant
declaratory relief”).
IV. CONCLUSION
For the foregoing reasons, the defendants’ motion for summary judgment (Dkt. 21) is
GRANTED, and plaintiff’s claims are DISMISSED WITH PREJUDICE. The court will enter a
separate final judgment consistent with this order.
It is so ORDERED.
Signed at Houston, Texas on March 3, 2014.
___________________________________
Gray H. Miller
United States District Judge
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