Hutchison v. Bank of America, N.A.

Filing 10

MEMORANDUM AND ORDER GRANTED 4 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ANTHONY L. HUTCHINSON,
Plaintiff,
v.
BANK OF AMERICA, N.A.,
Defendant.

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CIVIL ACTION NO. H-14-1371

MEMORANDUM AND ORDER
Plaintiff Anthony L. Hutchinson filed this lawsuit challenging Defendant Bank
of America, N.A.’s right to foreclose on his property and pursue his eviction. The
case is now before the Court on Bank of America’s Motion to Dismiss [Doc. # 4], to
which Plaintiff filed a Response [Doc. # 6], and Defendant filed a Reply [Doc. # 9].
Having reviewed the full record and the governing legal authorities, the Court grants
the Motion to Dismiss.
In December 2011, Plaintiff filed an Original Petition in Texas state court
challenging Bank of America’s right to foreclose on his property. Bank of America
removed the case to federal court, where it was assigned to the Honorable Gray Miller
as Civil Action No. H-12-3422. By Memorandum Opinion and Order [Doc. # 18 in
H-12-3422] entered October 16, 2013, Judge Miller granted summary judgment in

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favor of Bank of America, dismissing with prejudice each of Plaintiff’s claims in
opposition to foreclosure.
In March 2014, Plaintiff filed the current lawsuit in Texas state court asserting
the same arguments and causes of action that were previously dismissed by Judge
Miller in H-12-3422. Additionally, Plaintiff argued in the new lawsuit that Bank of
America had no right to pursue his eviction because his challenge to Bank of
America’s right to foreclose was still pending before the United States Court of
Appeals for the Fifth Circuit on appeal from Judge Miller’s decision.
On July 17, 2014, the Fifth Circuit affirmed Judge Miller’s dismissal of
Plaintiff’s claims in H-12-3422. See Fifth Circuit Opinion, Exh. A to Reply. The
Fifth Circuit stated that Judge Miller had “debunked each of those dilatory actions by
Hutchinson, clearly aimed at prolonging occupancy and possession of the properties
while avoiding payments on the obligations secured by the encumbrances.” Id. at 2.
In Civil Action No. H-12-3422, Judge Miller rejected each of Plaintiff’s
arguments challenging Bank of America’s right to foreclose and dismissed with
prejudice each of his causes of action. The Fifth Circuit affirmed Judge Miller’s
decision in its entirety. As a result, Plaintiff’s identical claims and causes of action
in this case are dismissed for the reasons stated by Judge Miller in H-12-3422, and
affirmed by the Fifth Circuit. Absent any valid arguments challenging Bank of

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America’s foreclosure of the property, Plaintiff has no legally viable arguments
against eviction. See, e.g., Lo Voc v. JPMorgan Chase Bank, N.A., 2012 WL
6772061, *5 (N.D. Tex. Dec. 5, 2013) (citing Byrd v. Chase Home Fin. LLC, 2011
WL 5220421, *6 (N.D. Tex. Oct. 31, 2011)). Accordingly, it is hereby
ORDERED that Bank of America’s Motion to Dismiss [Doc. # 4] is
GRANTED and this case is DISMISSED WITH PREJUDICE. The Court will
issue a separate dismissal order.
SIGNED at Houston, Texas, this 8th day of September, 2014.

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