Smith et al v. US Bank, National Association
Filing
21
OPINION and ORDER granting 5 Motion to Dismiss.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DAVID SMITH AND MICHELLE SMITH, §
§
Plaintiffs,
§
§
VS.
§
§
US BANK, NATIONAL ASSOCIATION, §
§
Defendant.
§
CIVIL ACTION H-13-2578
OPINION AND ORDER
Pending before the Court in the above referenced cause to
recover real property are Defendant US Bank, National Association’s
motion to dismiss (instrument #5) and United States Magistrate
Judge’s memorandum and recommendation that it be granted and that
Plaintiffs’ original petition be dismissed with prejudice (#17).
Plaintiffs David Smith and Michelle Smith have not filed any
objections to the memorandum and recommendation.
Standard of Review
Where no timely objections are filed to a magistrate judge’s
memorandum and recommendation (“M&R”), the district court reviews
for plain error.
The district court only has to review the
memorandum and recommendation to determine whether it is clearly
erroneous or contrary to law.
United States v. Wilson, 864 F.2d
1219, 1221 (5th Cir. 1989), cert denied, 492 U.S. 918 (1989).
Failure to file timely objections bars the aggrieved party from
attacking factual findings on appeal, and, absent plain error, from
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attacking conclusions of law on appeal.
Proctor v. U.S., Civ. A.
No. H-06-2110, 2007 WL 2471606, *3 (S.D. Tex. Aug. 29, 2007),
citing Thomas v. Arn, 474 U.S. 140, 149 (1985); Ware v. King, 694
F.2d 89 (5th Cir. 1982), cert. denied, 461 U.S. 930 (1983); Nettles
v. Wainwright, 677 F.2d 404, 408 (5th Cir. 1982)(en banc); and
Douglas v. United States Auto Ass’n, 79 F.3d 1415, 1429 (5th Cir.
1996),
superceded
by
636(b)(1)(extending
statute
the
time
on
to
other
file
grounds,
objections
28
U.S.C.
from
ten
§
to
fourteen days).
Court’s Decision
Because the Court agrees with the Magistrate Judge that as a
matter of law the four-year residual statute of limitations under
Texas Civil Practice & Remedies Code § 16.051 bars Plaintiffs’
claims that their home equity loan violated several provisions of
the Texas Constitution Art. XVI, § 50(a)(6) under the Fifth
Circuit’s decision in Priester v. J.P. Morgan Chase Bank, N.A., 708
F.3d 667, 674 (5th Cir.), cert. denied, 134 S.Ct. 196 (2013) and
progeny. The Court also agrees with United States Magistrate Judge
Stacy that Plaintiffs’ breach of Deed of Trust is additionally by
§ 16.051's residual four-year statute of limitations.
Phelps v.
U.S. Bank Nat. Ass’n, Civ. A. No. 2:13-CV-361, 2014 WL 991803, at
*4, the Court hereby
ADOPTS the Magistrate Judge’s memorandum and recommendation as
its own and
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ORDERS that US Bank National Association’s motion to dismiss
is GRANTED and Plaintiffs’ Original Petition is DISMISSED with
prejudice.
A final judgment will issue by separate document.
SIGNED at Houston, Texas, this
14th
day of
August , 2014.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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