Whiting et al v. Bank of America NA
Filing
25
MEMORANDUM AND ORDER granting 4 Motion to Dismiss. (Signed by Judge Ewing Werlein, Jr) Parties notified.(gkelner, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHNNY WHITING and ELISA
WHITING,
§
§
§
§
Plaintiffs,
§
§
§
§
§
§
§
v.
BANK OF AMERICA, N.A., and
FREO TEXAS, LLC,
Defendants.
CIVIL ACTION NO. H-14-905
MEMORANDUM AND ORDER
Pending
Dismiss
are
Defendant
(Document No.4),
joined,l and Plaintiffs'
(Document
No.
24).
Bank
of
America,
which Defendant
N .A. 's
Motion
FREO Texas,
to
LLC has
Application for Preliminary Injunction
After
carefully
considering
the
motions,
response, reply, notice of supplemental authority, and applicable
law, the Court concludes that Defendants' Motion to Dismiss should
be granted.
I. Background
Plaintiffs Johnny Whiting and Elisa Whiting
("Plaintiffs")
purchased a home at 3306 Coldwater Canyon Lane, Katy, Texas 77449
("the Property") on May 5, 2008. 2
Plaintiffs executed a promissory
1
Document No. 12.
2
Document No. 1-3 at 8 of 106, 44 of 106.
note secured by a Deed of Trust ("Deed of Trust") on the Property
in favor of Defendant Bank of America, N.A.
("Bank of America").3
After Plaintiffs defaulted on their loan, Bank of America initiated
foreclosure
proceedings
and ultimately sold the
Property at
a
foreclosure sale to Defendant FREO Texas, LLC ("FREO") on July 2,
2013. 4
Nine months after the foreclosure, Plaintiffs filed this case
in state court alleging causes of action for:
(1) violations of the
Texas Property Code, lack of standing, and wrongful fore-closure;
(2)
(4)
fraud
in
the
concealment;
(3)
fraud
in
the
intentional infliction of emotional distress;
title;
(6) quiet title;
(7) declaratory relief;
the Truth in Lending Act
Protection
Settlement
Act
("TILA")
("HOEPA");
Practices
Act
(9)
inducement;
(5)
slander of
(8) violations of
and the Home Ownership Equity
violation
("RESPA") ;
of
and
the
(10)
Real
Estate
rescission. 5
3 Id. at 8 of 106, 44 of 106.
See id. at 3 of 106; Document No. 4-1 (Notice of Foreclosure
Sale); Document No. 10 at 2 (PIs.' Resp.) ("Plaintiffs fell into
default due to financial difficulties, and thereafter [Bank of
America] began to initiate foreclosure activity . . . . The home was
sold at foreclosure on July 2, 2013 to FREO Texas, LLC for
4
$90,000.00.") .
5 Document No.
1-3 (Orig. Pet.).
Although Plaintiffs named
several other Defendants in their Original Petition, only Bank of
America and FREO have made appearances, and Plaintiffs at the
scheduling conference on August 29,
2014 dismissed without
prejudice all claims against the other defendants, none of whom had
been served.
See Document No. 19 (Minute Order) .
2
Defendants removed the case, and now move to dismiss for failure to
state a claim. 6
II. Motion to Dismiss
A.
Legal Standard
Rule 12 (b) (6) provides for dismissal of an action for "failure
to state a claim upon which relief can be granted."
P. 12 (b) (6) .
FED.
R. Crv.
When a district court reviews the sufficiency of a
complaint before it receives any evidence either by affidavit or
admission, its task is inevitably a limited one.
See Scheuer v.
Rhodes, 94 S. Ct. 1683, 1686 (1974), abrogated on other grounds by
Harlow v.
Fitzgerald,
102 S.
Ct.
2727
(1982).
whether the plaintiff ultimately will prevail,
The issue is not
but whether the
plaintiff is entitled to offer evidence to support the claims.
Id.
In considering a motion to dismiss under Rule 12(b) (6),
the
district
court must
construe
the
allegations
in the
complaint
favorably to the pleader and must accept as true all well-pleaded
facts
117
in
F.3d
the
242,
complaint.
247
See
(5th Cir.
Lowrey v.
1997).
To
Tex.
A&M Uni v .
survive
Sys.,
dismissal,
a
complaint must plead "enough facts to state a claim to relief that
is plausible on its face."
1955,
1974
6
(2007).
Bell Atl. Corp. v. Twombly, 127 S. Ct.
"A claim has
Document Nos. 1, 4, 12.
3
facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable
inference
misconduct alleged."
(2009) .
While
a
allegations . .
that
the
defendant
Ashcroft v.
complaint
"does
not
liable
129 S.
Iqbal,
is
Ct.
need
for
1937,
detailed
the
1949
factual
[the] allegations must be enough to raise a right
to relief above the speculative level, on the assumption that all
the allegations in the complaint are true
fact) ."
Twombly,
127 S.
Ct.
at 1964-65
(even if doubtful in
(citations and internal
footnote omitted) .
B.
Discussion
Plaintiffs at the scheduling conference on August 29, 2014 and
in their subsequent Application for Preliminary Injunction have
affirmatively abandoned their federal claims under the Truth in
Lending Act, the Home Ownership Equity Protection Act, and the Real
Estate Settlement Practices Act, and those claims are dismissed. 7
1.
Texas Property Code Violations
Plaintiffs allege that Defendants violated Texas Property Code
Section 51.0075(e) because the April 3, 2013 Notice of Acceleration
and Notice of Foreclosure Sale sent to Plaintiffs listed nineteen
different substitute trustees, because it was unsigned, and because
7
Document No. 24 at 2 of 9. ("Plaintiffs have waived all
federal question claims brought in their original State Court
Petition.") .
4
the Notices of Sale filed in the county records were signed by a
different person than the substitute trustee who conducted the
sale. 8
None of these alleged facts,
however,
violates Section
51.0075(e), which provides in full that "[t]he name and a street
address for a trustee or substitute trustees shall be disclosed on
the notice [of sale] required by Section 51.002 (b) .
§
51.0075(e).
The
Notice
of
Foreclosure
II
Sale
TEX. PROP. CODE
about
which
Plaintiffs complain contains the name and address for substitute
trustees, including Wayne Wheat, whom Plaintiffs allege conducted
the sale. 9
Accordingly, Defendants complied with the requirements
of Section 51.0075(e).
Plaintiffs further allege that Defendants violated Section
51.002(b) of the Texas Property Code because "[n]o notice of the
purported July 2013
sale was sent by certified mail
to either
plaintiff, and if it was it was not timely, nor was such purported
sale posted at the courthouse or filed in the office of the county
clerk.
1110
Section 51.002(b) provides:
8
Document No. 1-3 at 15 of 106; Document No. 10 at 12-14.
9
Document No. 1-3 at 89 of 106.
Id. at 15 of 106 to 16 of 106.
Oddly, Plaintiffs also
assert that "the purported Substitute Trustee for the August 2009
sale, Wayne Wheat, was substituted within 21 days of the August
2009 sale date, in violation of Texas law.
Id. at 16 of 106,
(emphasis added).
However, all of Plaintiffs' other allegations
are that the foreclosure sale was conducted July 2, 2013, and the
2009 allegation appears to be a non sequitur.
10
II
5
Except as provided by Subsection (b-1), notice of the
sale, which must include a statement of the earliest time
at which the sale will begin, must be given at least 21
days before the date of the sale by:
(1) posting at the courthouse door of each
county in which the property is located a
written notice designating the county in which
the property will be sold;
(2) filing in the office of the county clerk
of each county in which the property is
located a copy of the notice posted under
Subdivision (1); and
(3) serving written notice of the sale by
certified mail on each debtor who, according
to the records of the mortgage servicer of the
debt, is obligated to pay the debt.
TEX. PROP. CODE
§
51.002(b).
The Court takes judicial notice of the
Notice of Foreclosure Sale filed with Harris County on June 10,
2013,
at least 21 days before the July 2,
Foreclosure
Sale
Deed
and
accompanying
Plaintiffs- -stating that notice of
Harris
County
Plaintiffs. 12
courthouse
and
the
mailed
2013 sale, 11 and the
Affidavit- -produced
by
sale was posted on the
by
certified
mail
to
See Causey v. Sewell Cadillac-Chevrolet, Inc., 394
F.3d 285, 288 (5th Cir. 2004)
("Documents that a defendant attaches
to a motion to dismiss are considered part of the pleadings if they
are referred to in the plaintiff's complaint and are central to her
claim."); Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir.
11
Document No. 4-1.
12
Document No. 1-3 at 56 of 106 to 58 of 106.
6
2007)
(" [I] t
is clearly proper in deciding a 12 (b) (6) motion to
take judicial notice of matters of public record."); Associated
Builders,
1974)
Inc. v. Alabama Power Co.,
(on
motion
to
dismiss
for
505 F.2d 97,
failure
to
100
state
(5th Cir.
a
claim,
"[c]onclusory allegations and unwarranted deductions of fact are
not
admitted
as
true,
contradicted by facts
complaint.
complaint
reveals
especially
when
disclosed by a
such
conclusions
are
document appended to the
If the appended document, to be treated as part of the
for
facts
all
purposes
which
under Rule
foreclose
dismissal is appropriate.")
10(c),
recovery
as
(citation omitted)
a
FED.
R.
matter
Crv.
of
P.,
law,
Accordingly, the
pleading and documents properly considered on this motion establish
that
Defendants
complied
with
the
requirements
of
Section
51.002(b), and Plaintiffs have not stated a claim for violations of
the Texas Property Code.
2.
Wrongful Foreclosure / Lack of Standing to Foreclose
Plaintiffs allege that Defendants lack standing to foreclose
on the Property because "Defendants, and each of them, have failed
to perfect any security interest in the Property, or cannot prove
to the court that they have a valid interest as a real party in
interest to foreclose.
"13
Relatedly,
Plaintiffs allege that "the
only individual who has standing to foreclose is the holder of the
13
Id. at 16 of 106.
7
note," and that "[t]he only individuals who are the holder of the
note are the certificate holders of the securitized trust because
they are the end users and pay taxes on their interest gains.,,14
However, the Deed of Trust, Notice of Acceleration, and Foreclosure
Sale
Deed- -which
Original
Plaintiffs
attach
Peti tion- -uniformly
and
identify
incorporate
Bank
of
into
America
their
as
the
lender, beneficiary, mortgagee (both originally and at the time of
foreclosure), and mortgage servicer of Plaintiffs' loan, with power
to foreclose on the Property.1S
Accordingly, Plaintiffs' challenge
to Bank of America's standing to foreclose fails.
See Martins v.
BAC Home Loans Servicing, L.P., 722 F.3d 249, 255 (5th Cir. 2013)
("A deed of trust 'gives the 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.")
(citation omitted)
TEX. PROP. CODE
foreclosure
§
of
mortgagee . . .")
51.0025
id.
§
see also
("A mortgage servicer may administer the
property
i
i
under
Section
51. 0001 (3)
51.002
on
behalf
of
a
('" Mortgage servicer' means the
last person to whom a mortgagor has been instructed by the current
mortgagee to send payments
instrument.
for
the debt
secured by a
security
A mortgagee may be the mortgage servicer.") .
Plaintiffs also allege that their loan "was securitized by
[Bank of America], with the Note not being properly transferred to
14 rd. at 17 of 106.
1S rd. at 44 of 106, 56 of 106, 88 of 106.
8
Defendant, Ginnie Mae, acting as the Trustee for the Ginnie 2008-38
Trust Trust
(sic) holding plaintiff's note," and that Defendants
violated the Pooling and Servicing Agreement ("PSA") governing the
securitization,
depriving them of the right to foreclose on the
property. 16 Assuming these allegations are true,
17
Plaintiffs do not
allege that they are parties to or intended beneficiaries of the
PSA, or that there are any facts to support such an allegation, and
therefore Plaintiffs have no rights to enforce its terms.
See
Reinagel v. Deutsche Bank Nat. Trust Co., 735 F.3d 220, 228
(5th
Cir. 2013)
(rejecting claim that mortgage assignments are void for
violating PSA, because plaintiffs, who were not party to the PSA
and failed to state any facts indicating that the parties to the
PSA intended to benefit plaintiffs, "have no right to enforce its
terms").
Accordingly, Plaintiffs' claim for wrongful foreclosure
based on lack of standing to foreclose is dismissed.
3.
Fraud
Plaintiffs allege fraud in the concealment and fraud in the
inducement, asserting that Defendants concealed the fact that the
loans were securitized and misrepresented that they were entitled
16
rd. at 8 of 106, 17 of 106.
Defendants point out that "Plaintiffs provide no specific
factual allegations that the Deed of Trust or Note in this case
were ever pooled with other mortgage loans in a securitized
transaction" or that it was subject to a PSA.
Document No. 11
at 2-3.
17
9
to exercise the power of sale provision in the Deed of Trust. 18
Plaintiffs allege that Defendants engaged in this fraud in order to
induce Plaintiffs to enter into a loan agreement with Defendants. 19
Because
the
loan
agreement
between
Plaintiffs
and
Defendants
originated in 2008, any fraudulent statements made or other conduct
to
induce
Plaintiffs
to
enter
into
that
occurred
no
later
than
2008.
necessarily
2008
loan
Thus,
agreement
Defendants
correctly argue, Plaintiffs' fraud claims, which were not alleged
until March 2014,
limitations.
See
are time barred by the
TEX. CIV. PRAC.
REM. CODE
&
statute of limitations on fraud claims)
§
four-year statute of
16.004(a) (4)
(four-year
Accordingly, Plaintiffs'
claims for fraud in the concealment and fraud in the inducement are
dismissed. 20
4.
Intentional Infliction of Emotional Distress
Plaintiffs
allege
that
Defendants
intentionally
inflicted
emotional distress on Plaintiffs by intentionally or recklessly
misrepresenting that Defendants were entitled to exercise the power
of
sale
provision
in
the
Deed
of
Trust,
in
order
18
render
Document No. 1-3 at 20 of 106 to 23 of 106.
19
to
Id.
20
It is worth
opposing Defendants'
their allegations of
distress, slander of
noting that Plaintiffs in their Response
Motion to Dismiss do not attempt to defend
fraud, intentional infliction of emotional
title, or rescission.
See Document No. 10.
10
Plaintiffs
so
emotionally distressed and debilitated as
unable to exercise legal rights in the Property.21
An intentional
infliction of emotional distress claim has four elements:
defendant acted intentionally or recklessly,
to be
(2)
(1) the
the conduct was
extreme and outrageous, (3) the actions of the defendant caused the
plaintiff
emotional
distress,
65
(4)
the
resulting
emotional
Standard Fruit & Vegetable v. Johnson,
distress was severe.
S . W. 2 d 62,
and
(Tex. 1998).
"Extreme and
985
outrageous conduct is
conduct 'so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded as
atrocious,
and utterly intolerable in a
Hoffman-La Roche Inc.
2004)
v.
Zeltwanger,
civilized community.'"
144 S.W.3d 438,
445
(Tex.
(quoting Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1994)).
None
of
the
specific
conduct
that
Plaintiffs
Defendants is either extreme or outrageous.
ascribe
to
As discussed above,
Plaintiffs' allegations fail to state a claim that Defendants were
not
entitled
to
representation
foreclose
that
on
the
they did have
Property,
the
power
and
to
Defendants'
foreclose
therefore not extreme or outrageous as a matter of law.
was
See Wieler
v. United Sav. Ass'n of Texas, FSB, 887 S.W.2d 155, 159 (Tex. App.Texarkana 1994,
writ denied)
("Clearly,
a foreclosure sale that
complies with the terms of the loan agreements and the applicable
law
would
not
justify
a
claim
for
intentional
21 Document No. 1-3 at 23 of 106 to 25 of 106.
11
infliction
of
emotional
distress. ") .
Accordingly,
Plaintiffs'
claim
for
intentional infliction of emotional distress is dismissed.
5.
Slander of Title
Plaintiffs allege that Defendants slandered Plaintiffs' title
by recording documents including the Notice of Default, Notice of
Trustee's Sale,
and Trustee's Deed,
which falsely cast doubt on
Plaintiffs' exclusive legal title to the Property.22
claim
of
slander
of
title,
Plaintiffs
must
utterings and publishing of disparaging words;
false;
(3) that they were malicious;
sustained thereby;
(5)
To advance a
allege:
(1)
the
(2) that they were
(4) that special damages were
that the plaintiff possessed an estate or
interest in the property disparaged; and (6) the loss of a specific
sale.
Williams v. Jennings, 755 S.W.2d 874, 879 (Tex. App.-Houston
[14th Dist.] 1988, writ denied).
Plaintiffs' allegation that the
documents Defendants filed falsely disparaged Plaintiffs'
circuitously
Defendants'
derives
from
foreclosure
was
their
conclusory
wrongful.
As
allegations
already
title
that
observed,
however, Plaintiffs fail to state a claim for wrongful foreclosure.
Regardless, Plaintiffs do not allege that they lost any specific
sale of the property because of the filings, which is a necessary
element of a
slander of title claim.
claim for slander of title is dismissed.
22 rd. at 25 of 106 to 27 of 106.
12
Accordingly,
Plaintiffs'
6.
Quiet Title
Plaintiffs seek to quiet title in their favor, alleging that
Defendants are falsely claiming rights in the Property which cloud
Plaintiffs' title to the Property. 23
"The elements of the claim for
relief to quiet title are (1) an interest in a specific property,
(2) title to the property is affected by a claim by the defendant,
and
(3)
the
claim,
unenforceable."
4:11-CV-02085,
although
Bell v.
Bank of Am.
2012 WL 568755,
(Ellison, J.)
facially
at *7
valid,
Home
(S.D.
is
invalid
or
Loan Servicing LP,
Tex.
Feb.
21,
2012)
(citing u.S. Nat. Bank Ass'n v. Johnson, 01-10-00837-
CV, 2011 WL 6938507, at *3 (Tex. App.-Houston [1st Dist.] Dec. 30,
2011) ) .
Plaintiffs
"must allege right,
title,
or ownership in
[themselves] with sufficient certainty to enable the court to see
[they
have]
a
right
of
ownership
that
will
warrant
judicial
interference."
Wright v. Matthews, 26 S.W.3d 575, 578 (Tex. App.-
Beaumont
2000,
pet.
strength
of
their
adversary's title.
denied).
own
Plaintiffs
title,
not
on
Fricks v. Hancock,
must
the
recover on the
weakness
45 S.W.3d 322,
of
their
327
(Tex.
App.-Corpus Christi 2001, no pet.).
The
facts
pled by Plaintiffs
together with the
documents
referred to that are central to Plaintiffs' claims demonstrate that
Plaintiffs
23
executed the
Deed of
Trust
Id. at 27 of 106 to 28 of 106.
13
to
secure payment
of
a
purchase money note,
that Plaintiffs fell into default, and that
Bank of America sold the mortgaged property at foreclosure pursuant
to the Deed of Trust.
support
a
plausible
Plaintiffs have not asserted facts that
claim
to
their
having
superior
title.
Accordingly, Plaintiffs' quiet title action is dismissed.
7.
Declaratory Judgment
Plaintiffs seek a declaratory judgment that Plaintiffs own the
Property outright and that no Defendants have any interest in the
Property. 24
Plaintiffs
argue
that
"[t] he
existing
controversy
between Plaintiffs and Defendant is the disputed right of Defendant
to foreclose on the property in 2013. ,,25
As already discussed,
Plaintiffs have not alleged facts to state a cause of action upon
which relief can be granted that the foreclosure was wrongful.
Accordingly,
Plaintiffs'
claim
for
a
declaratory
judgment
is
dismissed.
8.
Rescission
Plaintiffs seek to "rescind the loan and all accompanying loan
documents.
,,26
"Rescission is a remedy only and not an independent
cause of action."
Siens v. Trian, LLC, A-11-CV-07S-AWA,
24
Id. at 28 of 106 to 30 of 106.
25
Document No. 10 at 23.
26
Document No. 1-3 at 32 of 106 to 33 of 106.
14
2014 WL
(citing Cantu v. Guerra &
1900737, at *5 (W.D. Tex. May 13, 2014)
Moore, Ltd., LLP, 328 S.W.3d 1, 8 (Tex. App.-San Antonio 2009, no
pet.)).
Plaintiffs have not alleged facts demonstrating that they
are entitled to rescission as an equitable remedy.
the
extent
equitable
that
remedy
[plaintiffs]
of
claim
rescission,
they
they
are
id.
See
entitled
failed
to
("To
to
plead
the
facts
sufficient to show that they are entitled to such relief" where
plaintiffs
"have not alleged that they are able or willing to
return the money loaned to them to purchase the Subj ect Property") .
Plaintiffs' rescission claim is therefore dismissed.
III. Leave to Amend
Plaintiffs
pleadings
at
request
least
one
in
the
more
alternative
time
to
"to
remedy
amend
any
their
defects."
Plaintiffs have not submitted a proposed amendment or proffered any
additional facts or claims that they would state in an amended
complaint that would meet the requirements of Rule 11(b).
Indeed,
Plaintiffs commenced this case with an exhaustive petition 40 pages
in length alleging the numerous claims listed on page two of this
Memorandum.
Plaintiffs later filed their 25 pages-long opposition
to the present motion in which they argued at length in defense of
what they regarded as their best claims.
filing
a
month ago,
an Application
for
In their most recent
Preliminary Injunction
(Document No. 24), Plaintiffs state that Plaintiffs'
15
surviving allegations from [their] State Court Petition
are state law claims for:
(1) declaratory relief to set
aside the foreclosure sale for violations of the Texas
Property Codei (2) declaratory relief to set aside the
foreclosure sale for lack of standing as a real party in
interest to foreclosei
(3)
common law fraudi and
(4) common law rescission.
Plaintiffs have waived all
federal question claims brought in their original State
Court Petition.
As seen above, Plaintiffs' four remaining allegations state no
cause of action upon which relief can be granted,
susceptible
to
being
pled
better
documents, precedent, and time bar.
because
of
the
and are not
controlling
Plaintiffs have no wrongful
foreclosure claim--based on either violations of the Texas Property
Code
or
the
notion
foreclose- -because
that
of
Bank
the
of
content
America
of
the
had
no
standing
to
controlling mortgage
documents submitted in the filings on this motion and central to
Plaintiffs'
claims,
and
the
legal precedents
set
forth above.
Plaintiffs' common law fraud claims are doomed as time barred, and
Plaintiffs'
"common law rescission"
is not a
claim at all but
merely a remedy to which Plaintiffs have stated no claim for which
such relief can be granted.
yet another round of
overcome
the
It would be futile to allow Plaintiffs
flawed pleading and briefing that cannot
dispositive
force
of
the
documents
exhibited
by
Plaintiffs themselves and controlling legal precedents.
Given the futility of any prospective amendment and failure of
Plaintiffs to demonstrate otherwise, it is not in the interest of
justice to allow an amended complaint.
16
FED. R.
CIV.
P.
15 (a) (2) i
see Sigaran v.
(5th Cir.
U.S. Bank National Association,
2014)
when it denies
futile.
("A district court acts wi thin
leave
Amending
amendment
560 F. Appx. 410
a
[its]
discretion
to amend because any amendment would be
complaint
is
futile
when
'the
proposed
. could not survive a motion to dismiss,' or when
'the theory presented in the amendment lacks legal foundation.''')
(internal citations omitted).
As in Sigaran, "all of [Plaintiffs']
claims are either foreclosed by precedent, time-barred, or waived.
They
have
never
explained
how
complaint to avoid these problems."
they
Id.
could
amend
their
Plaintiffs' request to
amend is DENIED.
IV. Order
For the foregoing reasons, it is
ORDERED
that Defendant Bank of America,
Dismiss
(Document No.4),
joined,
is
GRANTED,
and
which Defendant
Plaintiffs'
N .A. 's Motion to
FREO Texas,
cause
is
LLC has
DISMISSED
with
PREJUDICE for failure to state a claim upon which relief can be
granted.
FED. R. Crv. P. 12 (b) (6) .
The Clerk will enter this Order, providing a correct copy to
all counsel of record.
SIGNED in Houston, Texas, this
of October, 2014.
~-~CL-,
G WERLEIN, JR.
TATES DISTRICT JUDGE
17
71'-
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