Benitez v. The Bank of New York Mellon et al
Filing
17
MEMORANDUM AND ORDER. It is ORDERED that the Motion by Defendants The Bank of New York Mellon, CWABS, Inc., Bank of America, N.A., and Mortgage ElectronicRegistration Systems, Inc. to Dismiss Plaintiff's Amended Complaint (Document No. 6 ), whi ch Defendant FREO Texas, LLC has joined, is GRANTED in part, and Plaintiff's claim for violation of 15 U.S.C. § 1641(g) is DISMISSED with prejudice. It is further ORDERED that Plaintiff's remaining state law claims areSEVERED from this action, renumbered as Civil Action No. H-14-953-A, and REMANDED to the 189th Judicial District Court of Harris County, Texas. A separate Final Judgment will be entered for Defendants on Plaintiff's claim under 15 U.S.C. § 1641(g). (Signed by Judge Ewing Werlein, Jr) Parties notified.(gkelner, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JUAN BENITEZ,
§
Plaintiff,
v.
AMERICA'S WHOLESALE LENDER,
THE BANK OF NEW YORK MELLON
AS TRUSTEE FOR THE CWABS
ASSET-BACKED CERTIFICATES TRUST
2005-3, CWABS, INC., BANK OF
AMERICA, N.A., FREO TEXAS, LLC,
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., and
DOES 1 THROUGH 100, INCLUSIVE,
Defendants.
§
§
§
§
§
§
§
CIVIL ACTION NO. H-14-953
§
§
§
§
§
§
§
§
§
MEMORANDUM AND ORDER
Pending is
the Motion by Defendants The Bank of New York
Mellon as Trustee, CWABS, Inc., Bank of America, N. A., and Mortgage
Electronic
Registration
Systems,
Inc.
to
Dismiss
Plaintiff's
Amended Complaint (Document No.6), which Defendant FREO Texas, LLC
has joined. 1
reply,
After carefully considering the motion,
and applicable law,
response,
the Court concludes that the Motion
should be granted as to Plaintiff's Truth in Lending Act ("TILA")
claim, and that Plaintiff's remaining claims should be remanded to
state court.
1
Document No. 16.
I. Background
Plaintiff Juan Benitez ("Plaintiff") purchased a home at 8822
Clearbourne Lane, Houston, Texas 77075 ("the Property") on February
16, 2005. 2
of Trust
Defendant
Plaintiff executed a promissory note secured by a Deed
("Deed of Trust")
America's
on the property,
Lender. 3
Wholesale
Electronic Registration Systems,
Inc.
both in favor of
Defendant
("MERS")
was
Mortgage
named as
a
beneficiary under the Deed of Trust and authorized to act for
America's Wholesale Lender. 4
Plaintiff attaches to his Amended
Complaint a report containing copies of four separate documents,
each of which appears to be an assignment of the Deed of Trust from
MERS to Defendant The Bank of New York Mellon as Trustee for the
CWABS Asset-Backed Certificates Trust 2005-3
("BNYM").5
The last
of these purported assignments, of which Defendants attach a copy
of the original
2
filed with the Harris County Clerk,
was dated
Document No. 3-1 at 6 of 182.
Id. at 37 of 182 to 54 of 182. America's Wholesale Lender
is the trade name for Countrywide Home Loans, which was later
merged into Defendant Bank of America, N.A. See Document NO.3 at
1 n.1 ("America's Wholesale Lender was an assumed name, registered
and used by Countrywide Home Loans, Inc. ") i see also Young v.
Countrywide Home Loans, No. 1:13-0117, 2014 WL 935308, *1 n.1 (M.D.
Tenn. March 10, 2014) ("It is undisputed that Countrywide Home
Loans Servicing, LP merged into BAC Home Loans Servicing, L.P. that
later merged into Bank of America, N.A.").
3
4
Document No. 3-1 at 38 of 182 to 39 of 182.
5 Id. at 85 of 182 to 96 of 182.
2
December
After
2012. 6
13,
Plaintiff
defaulted
in making
all
obligatory payments on this promissory note, the purported holder
of the note and Deed of Trust appointed substitute trustees, who
sold the Property at a foreclosure sale to Defendant FREO Texas,
LLC ("FREO") on September 3, 2013. 7
Plaintiff
January 27,
filed
2014,
his
Original
alleging:
(1)
Petition
lack of
in
state
court
on
standing and wrongful
foreclosure; (2) declaratory relief; (3) quiet title; (4) breach of
contract;
(5)
violation of
Property Code;
(7)
TILA;
intentional
relationship; and (8)
(6)
violations
of
interference with a
fictitious entity.8
the
Texas
contractual
Defendants removed the
case based on federal question jurisdiction. 9
Defendants now move
to dismiss for failure to state a claim.10
II. 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. CIV.
When a district court reviews the sufficiency of a
complaint before it receives any evidence either by affidavit or
6
Id.; Document No. 7-3.
7
Document No. 3-1 at 55 of 182 to 57 of 182.
8 Id. at 4 of 182 to 32 of 182 (Orig. Pet.).
9
Document No.3.
10 Document No.7.
3
admission
See Scheuer v.
its task is inevitably a limited one.
l
Rhodes, 94 S. Ct. 1683
Harlow v. Fi tzgerald
l
1
1686 (1974)
abrogated on other grounds by
I
102 S. Ct. 2727
(1982).
whether the plaintiff ultimately will prevail
The issue is not
but whether the
I
plaintiff is entitled to offer evidence to support the claims.
In considering a motion to dismiss under Rule 12(b) (6)
district
court must
construe
the allegations
in the
Id.
the
I
complaint
favorably to the pleader and must accept as true all well-pleaded
facts
117
in
the
F.3d
complaint.
2421
247
Lowrey v.
See
(5th Cir.
1997).
Tex.
To
A&M Univ.
survive
Sys'l
dismissal
I
a
complaint must plead "enough facts to state a claim to relief that
is plausible on its face."
1955
1
1974
(2007).
Bell Atl. Corp. v. Twombly, 127 S. Ct.
"A claim has
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
Iqbal
"does
not
need
l
Twombly,
1937
detailed
1
the
1949
factual
on the assumption that all
the allegations in the complaint are true
II
Ct.
for
[the] allegations must be enough to raise a right
to relief above the speculative level
fact) .
liable
129 S.
I
is
127 S. Ct. at 1964-65
footnote omitted) .
4
(even if doubtful in
(citations and internal
III. Discussion
A.
Plaintiff's Truth in Lending Act Claim
Title 15 U.S.C.
1641(g)
§
provides that "not later than 30
days after the date on which a mortgage loan is sold or otherwise
transferred or assigned to a third party, the creditor that is the
new owner or assignee of the debt shall notify the borrower in
writing of such transfer" and provide the borrower with certain
disclosures.
15
U.S.C.
§
1641(g).
Plaintiff
alleges
that
Defendant BNYM failed to give him notice within 30 days after the
mortgage loan was transferred to BNYM.ll
Plaintiff's TILA claim is time-barred.
Claims under
§
1641(g)
are subject to a one year statute of limitations which runs from
the end of the 30 days period after the date of an assignment.
15
U.S.C.
§
1640 (e)
(" [A]ny action under
this
See
section may be
brought in any United States district court, or in any other court
of competent jurisdiction, within one year from the date of the
occurrence of the violation .
v. u.s. Bank,
NA,
No.
."); see also, e.g., Kilpatrick
12-cv-1740-W(NLS),
(S.D. Cal. March 24, 2014)
2014 WL 1247336, at *3
("Because 15 U.S.C.
§
1641(g) allows a
creditor thirty days in which to provide notice to the borrower of
a transfer or assignment, the statute of limitations begins to run
after those thirty days have expired."); see also,
11
Document No. 3-1
~~
88-95.
5
e.g., Ward v.
Branch Banking
2707768,
&
at *12
Trust Co.,
(D. Md.
Civ.
June 13,
A.
No.
2014)
ELH-13-01968,
2014 WL
(" [P] laintiffs'
action accrued at the expiration of the 30-day period.")
cause of
i
Connell
v. CitiMortgage, Inc. r civ. A. No. 11-0443-WS-C r 2012 WL 5511087,
at *8
(S. D. Ala. Nov. 13,
2012)
(TILA claim was barred one year
after the 30-day disclosure window expired).
The last of the
alleged assignments occurred on December 13, 2012, which meant that
BNYM had until January 12,
Plaintiff
failed
to
file
filing until January 27,
2013 to provide notice to Plaintiff.
suit within one year
2014.12
thereafter- -not
The TILA action therefore was
barred, which is evident on the face of the Original Petition.
Even if the TILA claim had been timely broughtr Plaintiff's
other allegations in his Original Petition fail to state a claim
upon which relief can be granted under
§
1641(g).
Plaintiff seeks
to recover for wrongful foreclosure because no defendant "was the
holder or owner or the representative of the holder or owner of the
note with the right to foreclose."13
§
1641 (g),
however,
To recover for a violation of
Plaintiff must allege that a defendant was
indeed the transferee of the note and deed of trust and hence was
obligated under the statute to give notice of such.
Jameel
v.
5384177,
Flagstar Bank,
at
*7
(S.D.
Tex.
FSB,
Civ.
Nov.
2,
12 Document No. 3-1 at 4 of 182.
13
Document No. 3-1 at 20 of 182.
6
A.
No.
2012)
See,
H-12-1510,
(Harmon,
J.)
e. g.
2012
WL
("[I] f
Plaintiff is going to charge [defendant] with failure to provide
her with notice
that
the
mortgage
was
assigned
therefore liable for her actual damages,
showing that
[defendant]
mortgage under
§
is
to
it
and
is
she must allege facts
the new owner or assignee of that
1641{g), a situation she is thus far denying.")
i
Price v. U.S. Bank Nat. Ass'n, Civ. A. No. 3:13-CV-0175-0, 2013 WL
3976624, at *10 (N.D. Tex. Aug. 2, 2013)
("Plaintiff's allegations
are conflicting since to recover against Defendant for failure to
comply with
§
1641{g) of TILA she would have to allege and prove
that her mortgage was sold or transferred to Defendant, but she
essentially argues that the opposite was the case.").
Accordingly,
Plaintiff has failed to state a plausible TILA claim upon which
relief can be granted.
B.
Supplemental Jurisdiction
Defendants removed this case solely on the basis of federal
question jurisdiction,
and all of Plaintiff's remaining claims
arise under Texas law.
The Court in its discretion declines to
exercise supplemental jurisdiction over these remaining state law
claims.
See 28 U.S.C.
to exercise
§
1367{c)
supplemental
("The district courts may decline
jurisdiction
if
(3)
the
district court has dismissed all claims over which it has original
jurisdiction."); Oliver v. Lewis,
Tex. 2012)
(Rosenthal, J.)
891 F. Supp. 2d 839, 843
("The 'general rule'
7
(S.D.
is to decline to
exercise
jurisdiction
over
pendent
state-law
claims
when
. When
federal claims are eliminated from a case before trial.
a
federal-law
claim
is
\ eliminated
at
an
early
stage
litigation, the District Court has a powerful reason
to continue to exercise jurisdiction. '")
all
of
the
to choose not
(quoting Brookshire Bros.
Holding. Inc. v. Dayco Products. Inc., 554 F.3d 595, 602 (5th Cir.
2009) i Enochs v. Lampasas Cnty, 641 F.3d 155, 161 (5th Cir. 2011».
Plaintiff's remaining state law claims are therefore severed and
remanded to state court.
IV. Order
For the foregoing reasons, it is
ORDERED that the Motion by Defendants The Bank of New York
Mellon, CWABS, Inc., Bank of America, N.A., and Mortgage Electronic
Registration Systems, Inc. to Dismiss Plaintiff's Amended Complaint
(Document No.6), which Defendant FREO Texas, LLC has joined, is
GRANTED in part, and Plaintiff's claim for violation of 15 U.S.C.
§
1641(g) is DISMISSED with prejudice.
ORDERED
that
Plaintiff's
SEVERED from this action,
It is further
remaining
state
law
claims
renumbered as Civil Action No.
are
H-14-
953-A, and REMANDED to the 189th Judicial District Court of Harris
County,
Texas.
A separate Final Judgment will be entered for
Defendants on Plaintiff's claim under 15 U.S.C.
8
§
1641(g).
The Clerk will enter this Order, providing a correct copy to
all counsel of record.
SIGNED in Houston, Texas, this
~~y
of July, 2014.
WERLEIN, JR.
UNITED STATES DISTRICT JUDGE
9
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