Rice et al v. JP Morgan Chase Bank, National Association et al

Filing 16

MEMORANDUM OPINION AND ORDER granting 5 MOTION to Dismiss and Motion for Judgment on the Pleadings, granting 7 MOTION to Dismiss (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

MARK RICE and FRANCESCA RICE,

§
§

Plaintiffs,

§
§

v.

§
§

JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, SUCCESSOR IN
INTEREST TO WASHINGTON MUTUAL
BANK, SUCCESSOR IN INTEREST TO
LONG BEACH MORTGAGE COMPANY;
LONG BEACH SECURITIES CORP.;
SELECT PORTFOLIO SERVICING,
INC.; U. S. BANK, N. A., AS
SUCCESSOR TRUSTEE TO WACHOVIA
BANK, N. A. (FORMERLY KNOWN AS
FIRST UNION NATIONAL BANK) AS
TRUSTEE FOR LONG BEACH MORTGAGE
LOAN TRUST 2002-1,

CIVIL ACTION NO. H-15-0416

§
§
§
§
§
§
§
§
§
§
§
§
§
§

Defendants.

§

MEMORANDUM OPINION AND ORDER

Plaintiffs Mark Rice and Francesca R. Rice ("Plaintiffs") sued
Defendants

JPMorgan

Securities Corp.
("SPS"),

and

"Defendants")

Chase

Bank,

N.A.,

( "JPMC"),

Long

Beach

("Long Beach"), Select Portfolio Servicing, Inc.

U.S.

Bank,

N.A.

( "U . S .

Bank" )

(collectively,

in County Court at Law 1, Fort Bend County, Texas,

under Cause No. 15-CCV-054402.1

Defendants removed to this court. 2

lSee Register of Actions, Exhibit C to Notice of Removal,
Docket Entry No. 1-3, pp. 1-2; Petition, Exhibit C-1 to Notice of
Removal, Docket Entry No. 1-4.
2See Notice of Removal, Docket Entry No.1.

As of the date of
(continued ... )

Pending before

the

court

are Defendants

SPS's

and

u.s.

Bank's

Motion to Dismiss and Motion for Judgment on the Pleadings (Docket
Entry No.5)
Dismiss

and Defendants JPMC's

(Docket

Dismiss") .

Entry

No.7)

and Long Beach's Motion to

(collectively,

For the reasons stated below,

the

"Motions

to

the Motions to Dismiss

will be granted, and this action will be dismissed with prejudice.
I .

On February 14,
Fort Bend County,

2002,

Texas,

Background

the property at 142 Keswick Court in

was conveyed to plaintiff Francesca R.

Rice by warranty deed with a vendor's lien in favor of Long Beach
Mortgage Company,

identified therein as "Lender.,,3

According to

Plaintiffs' Petition, that same day Plaintiffs executed a note (the
"Note")

in favor of Long Beach Mortgage Company in the amount of

$224,000. 4

Plaintiffs also entered into a deed of trust agreement

(the "Deed of Trust"),

securing the Note and naming Long Beach

Mortgage Company as the beneficiary.5

Plaintiffs allege that after

2 ( • • • continued)
removal, JPMC and Long Beach had not been served and therefore did
not join the notice of removal.
rd. at 3 ~ 7.

3Warranty Deed with Vendor's Lien, Exhibit D to Affidavit of
Joseph R. Esquivel Jr., Exhibit A to Petition, Exhibit A to
Defendants' Supplement to Notice of Removal, Docket Entry No. 4-1,
p. 43.
4Petition, Exhibit A to Defendants' Supplement to Notice of
Removal, Docket Entry No. 4 -1, p. 3 ~ 11.
The court has not
identified a copy of the note in the record.
5Deed of Trust,
Exhibit D to Petition,
Exhibit A to
Defendants' Supplement to Notice of Removal, Docket Entry No. 4-1,
p. 53.
-2 -

February 14,

2002, Long Beach Mortgage Company sold the Note to

Long

Securities

Beach

Corp. ,6

and

that

the

note

was

then

securitized into the Long Beach Mortgage Loan Trust 2002-1 pursuant
to a pooling services agreement ("PSA"). 7
On or about June 10, 2011, JPMC, as successor in interest to
Washington

Mutual

Mortgage Company,

Bank,

successor

in

interest

to

Long

Beach

assigned the Deed of Trust "together with the

indebtedness or obligation described [therein]" to u.S. Bank, as
successor trustee to Wachovia Bank,
Beach Mortgage Loan Trust 2002-1. 8

N.A.,

trustee for the Long

The Assignment was filed and

recorded in Fort Bend County on June 27, 2011. 9
2014,

On December 30,

SPS sent Plaintiffs a letter informing them that SPS had

"referred [their] account for legal action," but that they might
"still be able to avoid foreclosure."lo

On February 3, 2015, the

day after Plaintiffs filed their state court Petition in this case,
Plaintiffs filed a Memorandum of Points and Authorities in support

6Petition, Exhibit A to Defendants' Supplement to Notice of
Removal, Docket Entry No.4-I, p. 3 ~ 14.
7Id. at 5 ~ 18.

8Assignment of Deed of Trust, Exhibit F to Petition, Exhibit
A to Defendants' Supplement to Notice of Removal, Docket Entry
No. 4 -1, p. 60.

IOLetter, Exhibit G to Petition, Exhibit A to Defendants'
Supplement to Notice of Removal, Docket Entry No. 4-5, pp. 64-65.
-3-

That Memorandum indicates a

of a temporary restraining order.ll
Trustee Sale Date of February 3,

2015. 12

Defendants removed on

February 13, 2015. 13
Motions to Dismiss Under Rule 12 (b) (6)

II.

A.

Standard of Review

A motion

to

dismiss

Procedure 12(b) (6)

pursuant

to

Federal

Rule

of

Civil

for failure to state a claim for which relief

may be granted tests the formal sufficiency of the pleadings and is
"appropriate when a

defendant attacks the complaint because it

fails

legally

to

state

a

cognizable

claim."

United States, 281 F.3d 158, 161 (5th Cir. 2001).

Ramming

v.

The court must

accept the factual allegations of the complaint as true, view them
in a light most favorable to the plaintiff, and draw all reasonable
inferences in the plaintiff's favor.

Id.

To avoid dismissal a plaintiff must allege "enough facts to
state a claim to relief that is plausible on its face."
Atlantic

Corp.

Plausibility

v.

Twombly,

requires

"more

127

S.

than

an

unlawfully-harmed-me accusation."

Ct.

1955,

unadorned,

Ashcroft v.

1974

(2007) .

the-defendant-

Iqbal, 129 S. Ct.

11Memorandum of Points and Authorities, Exhibit C-2 to Notice
of Removal, Docket Entry No. 1-5.
12Id.

13Notice of Removal, Docket Entry No.1.
-4-

1937,

1949

"A claim has

(2009).

facial

plausibility when the

plaintiff pleads factual content that allows the court to draw the
reasonable

inference

that

misconduct alleged."

Id.

the

defendant

is

liable

for

the

"Where a complaint pleads facts that are

merely consistent with a defendant's liability, it stops short of
the line between possibility and plausibility of entitlement to
relief."

Id.

(quoting Twombly,

127 S.

Ct.

The court will

quotation marks omitted).

at

1966)

(internal

"'not accept as true

conclusory allegations, unwarranted factual inferences, or legal
Ferrer v. Chevron Corp.,

conclusions.'"
Cir. 2007)

(quoting Plotkin v.

(5th Cir. 2005)).
allegation
relief."

484 F.3d 776,

IP Axess Inc.,

780

407 F.3d 690,

(5th
696

"[D] ismissal is proper if the complaint lacks an

regarding

a

required

element

necessary

to

obtain

Torch Liquidating Trust ex rel. Bridge Assocs. L.L.C. v.

Stockstill, 561 F.3d 377, 384 (5th Cir. 2009)

(internal quotation

marks and citation omitted) .
When considering a motion to dismiss courts are generally
"limited to the complaint, any documents attached to the complaint,
and any documents

attached to

the motion to dismiss

central to the claim and referenced by the complaint."

that

Lone Star

Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387
Cir.

2010).

In addition,
take

are

(5th

"it is clearly proper in deciding a

12 (b) (6)

motion to

judicial

record."

Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir.

-5-

notice

of

matters

of

public

2007) (citing Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994)) .
The

court

is

proceeding pro se.

mindful

that

Plaintiffs

in

this

case

are

"It is well-established that pro se complaints

are held to less stringent standards than formal pleadings drafted
by lawyers."

Taylor v. Books A Million, Inc., 296 F.3d 376, 378

(5th Cir. 2002)

(internal quotation marks and citation omitted) .

"However, regardless of whether the plaintiff is proceeding pro se
or

is

represented by counsel,

conclusory allegations

or legal

conclusions masquerading as factual conclusions will not suffice to
prevent a motion to dismiss."

B.

Id.

(same).

Analysis
Plaintiffs

contract,

have

slander

of

asserted
title,

causes
and

Collection Practices Act ("FDCPA").

of

action

violation

of

for

breach

the

Fair

of

Debt

Plaintiffs also seek various

declarations pertaining to the securitization and enforcement of
their Note and Deed of Trust.

Defendants have moved to dismiss all

of Plaintiffs' claims.
1.

Breach of Contract

To prevail on a breach of contract claim under Texas law a
plaintiff must prove:
(2)

performance

or

(1)

the existence of a valid contract;

tendered

performance

by

the

plaintiff;

(3) breach of the contract by the defendant; and (4) damages to the
plaintiff resulting from the breach.
-6-

Lewis v. Bank of America NA,

343

F.3d 540,

Huston

&

544-45

Assocs.,

(5th Cir.

2003)

84 S. W. 3d 345,

2002, pet. denied))

353

(citing
(Tex.

Palmer v.

Espey

App .-Corpus Christi

"[A] party to a contract may not bring a suit

for the contract's breach if that party, itself,

is in default."

Ybarra v. Wells Fargo Bank, N.A., 575 F. App'x 471, 474 (5th Cir.
2014)

(citing Dobbins v. Redden, 785 S.W.2d 377, 378 (Tex. 1990)).
Plaintiffs' Note was secured by a Deed of Trust in favor of

Long Beach Mortgage Company, of which company defendant JPMC is the
successor

in

interest. 14

assigned to U. S.

Bank. 15

The

Deed

of

Trust

was

subsequently

The Deed of Trust contains a

release

provision:

"Upon payment of all sums secured by this Security

Instrument,

Lender

shall

release

this

Security

Instrument." 16

Plaintiffs allege that Long Beach Mortgage Company "being paid all
sums due upon the Rice Note sold the Rice Note to Long Beach

14Deed of Trust, Exhibit D to Petition, Exhibit A to
Defendant's Supplement to Notice of Removal, Docket Entry No. 4-1,
p. 53; see Assignment of Deed of Trust, Exhibit F to Petition,
Exhibit A to Defendants' Supplement to Notice of Removal, Docket
Entry No. 4-5, p. 60 (identifying JPMC as successor in interest to
Washington Mutual Bank, successor in interest to Long Beach
Mortgage Company) .
15Assignment of Deed of Trust, Exhibit F to Petition, Exhibit
A to Defendants' Supplement to Notice of Removal, Docket Entry
No. 4-5, p. 60.
16Deed of Trust, Exhibit D to Petition, Exhibit A to
Defendant's Supplement to Notice of Removal, Docket Entry No. 4-1,
p. 56 ~ 22.
-7-

Securities Corp," but that Long Beach Mortgage Company "failed to
release the Rice DOT.

1117

Plaintiffs' Petition does not allege that Plaintiffs paid off
In their

the Note or otherwise performed under the contract.

Response, Plaintiffs state that they made payments under the Note
the Deed

and/or Deed of Trust "until Plaintiffs realized that .

of Trust was contractually required to be released and had not
been. illS

Plaintiffs contend that "[t]he terms of the contract do

not say for whom or how payment must come. ,,19
argue

that

Company,

because

the

original

sold Plaintiffs'

Security Instrument

II

lender,

mortgage,

have been paid,

Plaintiffs appear to
Long

Beach

Mortgage

"all sums secured by
and therefore

Long Beach

Mortgage Company was obligated to release the Deed of Trust. 2o
court is not persuaded.

[the]

The

The Deed of Trust contemplates sale of the

Note and transfer of the security instrument:

"The Note or a

l7Petition, Exhibit A to Defendants' Supplement to Notice of
Removal, Docket Entry No. 4-1, pp. 3-4 ~~ 14-15.
JPMC and Long
Beach Securities Corporation argue that plaintiffs have not
identified any contract with them and have not named Long Beach
Mortgage Company in this suit. See Defendants' Motion to Dismiss,
Docket Entry No.7, p. 3 ~ 9.
The court need not address this
issue as Plaintiffs' claim fails regardless of which Defendant is
implicated.
lSPlaintiff's Response to Defendants' Motion to Dismiss and
Motion for Judgment on the Pleadings ("Plaintiffs' Response"),
Docket Entry No.8, p. 2 ~ 6 (emphasis added) .
19Id. at 3.

-8-

partial

interest

in

the

Note

(together

with

this

Security

Instrument) may be sold one or more times without prior notice to
Borrower. ,,21

It

further

provides

that

"[t]he

covenants

and

agreements of this Security Instrument shall bind and benefit the
successors and assigns of Lender and Borrower. ,,22

These provisions

would be nonsensical if the lender were required to release the
Deed of Trust upon the sale of the note.

Furthermore, by its terms

the Deed of Trust "secures" to the beneficiary "repayment of the
debt evidenced by the Note, ,,23 an obligation clearly placed on the
borrower, i.e., Plaintiffs.24

The "sums secured by [the] Security

Instrument" would therefore appear to be all payments due from
Plaintiffs under the Note, not the consideration received in a sale
or other transfer of the Note itself. 25

Plaintiffs have not pleaded

21Deed of Trust, Exhibit D to Petition,
Exhibit A to
Defendants' Supplement to Notice of Removal, Docket Entry No.4-I,
p. 56 ~ 19.
22Id. at 55

~

12.

24~, id. ("Borrower owes Lender the principal sum . . . .);
id. at 54 ~ 1 ("Borrower shall promptly pay when due the principal
of and interest on the debt evidenced by the Note . . . . ); see id.
at 53 (This Security Interest secures
the performance of
Borrower's covenants and agreements).

250ther courts have recently rejected identical arguments from
other pro se litigants.
See Conrad v. SIB Mortg. Corp.,
No. 4:14-CV-915-A, 2015 WL 1026159, at *6 (N.D. Tex. Mar. 6, 2015)
("To the extent plaintiffs interpreted the various assignments of
the note as constituting full payment as contemplated by paragraph
19 of the deed of trust, they are mistaken.
The 'payment of
(continued ... )
-9-

a plausible claim for breach of contract, and this claim will be
dismissed.
2.

Slander of Title
"To recover in an action for slander of title, a party must

allege and prove: (1) uttering and publishing of disparaging words;
(2) falsity;

(3) malice;

(4) special damages;

(5) possession of an

estate or interest in the property disparaged; and (6) the loss of
a specific sale."
1778612, at *3
pet.).
that

Conklin, No.

01-13-00840-CV,

2015 WL

(Tex. App.-Houston [1st Dist.] Apr. 16, 2015, no.

To recover, a plaintiff must plead and prove a pending sale
was

defeated

159 S.W.2d 483, 490
value

Wise v.

by

the

slander.

(Tex. 1942).

or vendability

are

Shell

Oil

Co.

v.

Howth,

Allegations of impaired market

insufficient.

A.

H.

Belo

Corp.

v.

Sanders, 632 S.W.2d 145, 145-46 (Tex. 1982); Davis v. Countrywide
Home Loans, Inc., 1 F. Supp. 3d 638, 646 & n.9 (S.D. Tex. 2014).

25 ( • • • continued)
all sums' language is clearly intended to refer to the borrower's
obligation to pay all outstanding sums due under the terms of the
note, an event that plaintiffs do not contend has occurred."); cf.
Barrett v. Bank of America, N.A., No. 3:14-CV-3389-B, 2015 WL
668488, at *5 (N.D. Tex. Feb. 17, 2015) ("Unlike Defendants, the
Court does not take Plaintiff to assert that 'investors' paid her
Note in full when they transferred her Note to a pooled security,
although the Court agrees with Defendants that such a theory would
be implausible if alleged."); see also Anand v. Ocwen Loan
Servicing, LLC, 754 F.3d 195, 199 (4th Cir. 2014)
("As any
first-year law student can attest, we must read the Deed of Trust
as a whole .
. Applying this principle, it is clear that the
release provision is triggered only if the [Plaintiffs] satisfy
their contractual obligations.") .

-10-

Plaintiffs allege that the recording of the June 10,
assignment of the Deed of Trust from JPMC to

u.s.

2011,

Bank was

"a

communication to a third party of false statement derogatory to
Plaintiff's

title made with malice

Plaintiffs[']

claim of title."26

causing

special

damages

to

Specifically, Plaintiffs allege

that the "security interest as collateral to the Rice Note had been
dissol ved by operation of law, "27 that "one cannot sell what one
does not own, "28 that "an Assignment cannot memorialize a sale that
never took place, "29 and

(therefore)

"[t] hat false statement was

made with malice to improperly attempt an assignment that was not
eligible
statement

to be recorded. "30

Plaintiffs allege

"caused Plaintiffs and continues

that

to cause

this

false

Plaintiffs

financial, emotional, and special damages" because Defendants knew
that the Deed of Trust had been "dissolved by operation of law,"
and Defendants "willfully elected to claim rights over an alternate
means of collection. "31

Plaintiffs further allege that

"[a]s a

consequence of Defendants' actions or inaction, Plaintiffs cannot

26Petition, Exhibit A to Defendants' Supplement to Notice of
Removal, Docket Entry No. 4-1, p. 9 ~ 38.
~

27Id. at 10
28Id. at 9

~

29Id. at 10
30Id.

~
~

38b.
~

38c.

38d.

31Id.

38d.

38e.
-11-

in good faith transfer equitable, legal or marketable title to the
Property. ,,32
Putting aside the first five elements of a claim for slander
of title, Plaintiffs have failed to allege the loss of a specific
sale.

Plaintiffs

argue

that

"Defendants

[are]

the

part [ies]

attempting to sell the property in foreclosure, which is a sale of
the property as a loss to Plaintiff.,,33
Plaintiffs'

complaint

The court is not persuaded.

lacks an allegation regarding an element

necessary to obtain relief, and dismissal is proper.
FDCPA

3.

Plaintiffs allege that SPS violated various provisions of the
Fair Debt Collection Practices Act

seq.

"The FDCPA makes

(FDCPA),

it unlawful

15 U.S.C.

§

1692 et

for debt collectors to use

abusive tactics while collecting debts

for others."

Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985).
'debt collector' means any person .

Perry v.
"The term

who regularly collects or

attempts to collect . . . debts owed or due or asserted to be owed
or due another."

15 U.S.C.

§

1692a.

The term "debt collector"

does not include a person attempting to collect a debt that "was
not
§

in default

1692a (6) (F) .

at

the

"The

time

it

was

legislative

obtained by such person."

history

of

section

1692a (6)

32Id. , 40.
33Plaintiff's Response to Defendants' Motion to Dismiss and
Motion for Judgment on the Pleadings, Docket Entry No.8, p. 4.
-12-

indicates conclusively that a debt collector does not include the
consumer's creditors, a mortgage servicing company, or an assignee
of a debt, as long as the debt was not in default at the time it
was assigned."

Perry, 756 F. 2d at 1208.

In the case of a mortgage

servicer, the relevant issue is when the party took the mortgage
for servicing.

Castrillo v. Am. Home Mortg. Servicing, Inc., 670

F. Supp. 2d 516,

524

(E.D. La. 2009).

If the servicer took the

debt before default, the servicer is not a "debt collector"; if it
took the debt after default, the servicer is a "debt collector."

Plaintiffs allege that SPS "is an unknown entity and 'debt
. attempting to collect a

collectors' as defined by the FDCPA .
, debt'

as

de fined

by

[the

FDCPA]." 34

At tached

to

Plaintiffs'

petition is a letter from SPS stating that SPS is "the mortgage
servicer on the above referenced account," but also stating that
"[t] his

communication

collect a debt. ,,35
non-existent

debt

from

a

debt

collector

is

an

attempt

to

Plaintiffs allege that SPS "acquired the alleged
[from JPMC]

as

a

debt

in

default,

and

its

34Petition, Exhibit A to Defendants' Supplement to Notice of
Removal, Docket Entry No.4-I, p. 11 , 37.
Inexplicably,
Plaintiffs' Petition also references sections of the Nevada Revised
Statutes pertaining to collection agencies.
See id. "
38-40.
Plaintiffs have not pleaded any substantive violations of Nevada
law. Furthermore, Plaintiffs have not offered any reason to apply
Nevada law in this case, and the court sees none.
35Letter, Exhibit G to Petition, Exhibit A to Defendants'
Supplement to Notice of Removal, Docket Entry No. 4-5, pp. 64-65.
-13-

collection activities were based on that understanding.
Plaintiffs

also

absolutely not

state:

"Plaintiff

in default

Portfolio

Servicing

Plaintiffs

appear

to

and does

Inc. 1137
concede

further

contends

not

a

owe

Nevertheless,
that

However,

1136

they

in

debt

to

their

stopped

she

is

Select

Response,

making

their

mortgage payments, 38 and they state that "Plaintiff's Deed of Trust
has been in foreclosure since 2010 and SPS acquired the debt in
2014.

1139

In an apparent attempt to reconcile the two positions,

"Plaintiffs maintain that the debt is not in default, but that the
servicer, Select Portfolio Servicing, Inc.
be in default,

(SPS) has 'asserted to

and "the debt was attained while they would have

,II

precluded [sic] that the loan was in default.1I40
Even if these allegations are sufficient to allege that SPS is
a debt collector subject to the FDCPA, Plaintiffs fail to allege
facts sufficient to support their substantive claims.
primary substantive claim is that SPS violated

§

false, deceptive, or misleading representations. 41

Plaintiffs'

1692e by making
In addition to

36Petition, Exhibit A to Defendants' Supplement to Notice of
Removal, Docket Entry No.4-I, p. 11 ~ 41.
~

37Id. at 12

45.

38See Plaintiffs' Response, Docket Entry No.8, p. 2
39Id. a t 5

tI
11

~

6.

17 •

4°Id. at 5-6 ~~ 16-17.

I

41Petition, Exhibit A to Defendants' Supplement to Notice of
(continued ... )
-14-

i

§

1692e's general prohibition, Section 1692e (2) (A)

prohibits the

false representation of the character, amount, or legal status of
a debt.

Section 1692e(5) prohibits threatening to take any action

that cannot legally be taken or that is not intended to be taken.
Plaintiffs' claims revolve around three related allegations:
(1) Plaintiffs are not in default,
to SPS,

and

(3)

SPS does not have the right to enforce a debt

against Plaintiffs. 42
that SPS
status

of

default,43

(A)

(2) Plaintiffs do not owe a debt

Based on these allegations, Plaintiffs allege

falsely represented the character, amount and legal

Plaintiffs'
and

(B)

debt

by

threatened

stating
to

take

that

Plaintiffs

legal

Plaintiffs that SPS had no right to take. 44

action

are

in

against

Plaintiffs allege that

SPS sent them monthly statements,45 and Plaintiffs attach a letter
from

SPS

notifying

them

that

Plaintiffs'

mortgage

had

been

"referred for legal action," but that Plaintiffs might still avoid
foreclosure. 46

41 ( ... continued)
Removal, Docket Entry No. 4-1, p. 12
Response, Docket Entry No.8, p. 5 , 16.

"

43-44;

Plaintiffs'

42See Petition, Exhibit A to Defendants' Supplement to Notice
of Removal, Docket Entry No. 4-1, pp. 12-13 " 42-46.

,
,

43Id. at 12
44Id.
45Id.

,

44.

43.
42.

46Letter,

Exhibit

G

to

Petition,
-15-

Exhibit A

to Defendants'
(continued ... )

However, Plaintiffs have not alleged any facts to support the
conclusory allegation that they are not in default on their loan.
To the contrary,

Plaintiffs appear to concede that they stopped

making payments, 47 and they state that "the Deed of Trust has been
in foreclosure since 2010."48
they

do

not

owe

a

debt

Likewise, Plaintiffs' allegation that
to

SPS

is

allegations supporting the same claims.

inconsistent

with

other

Specifically, Plaintiffs

allege that SPS is the current assignee of Plaintiffs' debt, having
acquired it from defendant JPMC. 49

Lastly,

Plaintiffs have not

alleged any facts to establish that SPS has "assert [ed]

a right

which it lacks, to wit, the right to enforce a non-existent debt."so
Plaintiffs

cite

neither

facts

nor

law that

reasonable inference that Plaintiffs'

would lead to

the

debt is "non-existent" or

46 ( ... continued)
Supplement to Notice of Removal, Docket Entry No. 4-5, pp. 64-65.
47Plaintiff's Response to Defendants' Motion to Dismiss and
Motion for Judgment on the Pleadings, Docket Entry No.8, p. 2 ~ 6.
48Id. p. 5

tJ
11

17 •

49See Petition, Exhibit A to Defendants' Supplement to Notice
of Removal, Docket Entry No.4-I, p. 11 ~ 41.
An Appointment of
Substitute Trustee filed as an exhibit to Plaintiffs' Petition also
identifies SPS_as the mortgage servicer, representing the current
mortgagee, u.S. Bank National Trust.
See Docket Entry No.4-I,
p. 40.
sOPetition, Exhibit A to Defendants' Supplement to Notice of
Removal, Docket Entry No.4-I, p. 12 ~ 42.
-16-

Plaintiffs have failed to plead plausible

otherwise invalid. 51

claims for relief under
Plaintiffs
§

also

§§

1692e, 1692e (2) (A), or 1692e (5) .

allege

that

SPS

Section 1692f prohibits,

1692f (6) .

violated

1692f

§

in general,

the

use

and
of

"unfair or unconscionable means to collect or attempt to collect
any debt."

Plaintiffs argue that SPS used unconscionable means to

collect a debt when it declared Plaintiffs in default despite their
not, in fact, being in default.52
preceding paragraph,

For the reasons discussed in the

this argument is unavailing,

and Plaintiffs

have not pleaded sufficient facts to make out a plausible claim for
relief.
Section

1692f(6),

much

like

§

1692e(5)

discussed

above,

prohibits "taking or threatening to take any nonjudicial action to
effect dispossession or disablement of property" if (a)
no

present

right

to

possession

of

the

property

"there is

claimed

as

collateral through an enforceable security interest," (b) "there is

51To the extent Plaintiffs imply that securitization of their
mortgage somehow rendered the Note or Deed of Trust unenforceable,
this and other courts have routinely rejected similar arguments.
See, e.g., Felder v. Countrywide Home Loans, No. H-13-0282,
2013 WL 6805843, at *15 (S.D. Tex. Dec. 20, 2013) i Donnelly v. JP
Morgan Chase, NA, No. H-13-1376, 2014 WL 429246, at *6 (S.D. Tex.
Feb. 4, 2014) i Warren v. Bank of America, N.A., No. 3:11-CV-3603-M,
2012 WL 3020075, at *6 (N.D. Tex. June 19, 2012) (collecting
cases), reoort and recommendation adopted, No.3: 11-CV-3603-M,
2013 WL 1131252 (N.D. Tex. Mar. 19, 2013), aff'd, 566 F. App'x. 379
(5th Cir. 2014).
52Petition, Exhibit A to Defendants' Supplement to Notice of
Removal, Docket Entry No.4-I, p. 13 ~ 46.
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no present
(c)

intention

to

take

possession of

the

property,"

or

"the property is exempt by law from such dispossession or

disablement."

Plaintiffs allege that SPS "humiliated and belittled

Plaintiff to a point of oppression,

in that Defendant has taken

I

illegitimate

steps

disable

Plaintiff's

the

and

threatened

to

repossess

or

Plaintiffs

property." 53

unlawfully

appear

be

to

referring to SPS's letter notifying Plaintiffs that their account
had been referred for legal action - - presumably foreclosure. 54
However, Plaintiffs allegations that such actions are illegitimate
or unlawful are threadbare and conclusory.

Plaintiffs have pleaded

no facts giving rise to an inference that the Deed of Trust is
unenforceable,

that

the

foreclosing

party

lacked

a

present

intention to take possession of the property, or that Plaintiffs'
property is otherwise exempt from foreclosure.
pleaded a plausible claim for relief under
Plaintiffs'

other FDCPA claims

fail

allege that SPS harassed them in violation
sending Plaintiff monthly statements. ,,55
make out a claim under
Mortg., No.

§

1692d.

3:13-CV-00535 VLB,

Aug. 14, 2014)

~

47.
~

as
§

well.

Plaintiffs

1692d "by repeatedly

This is insufficient to

2014 WL 4073215,

(collecting cases).

55Id. at 12

1692f(2).

See Claude v. Wells Fargo Home

53Id.

54Id.

§

Plaintiffs have not

42.
-18-

at *7

(D. Conn.

Plaintiffs also allege that SPS

violated

§

1692e(9) by falsely representing documents as authorized

or issued by the State of Texas, specifically, by sending a notice
of default. 56
§

·Courts have generally limited the application of

1692e(9) to egregious situations where the debt collector overtly

impersonates a government agency or where it attempts to hide its
identity

by

using

a

false

alias."

Osborn

821 F. Supp. 2d 859, 876 (S.D. Tex. 2011)
and citation omitted) .

v.

Ekpsz,

LLC,

(internal quotation marks

Plaintiffs neither attach the notice of

default nor plead any facts indicating how the notice of default
might appear like a government document.

Plaintiffs have failed to

plead plausible claims for relief under any section of the FDCPA.
4.

Declaratory Relief
Plaintiffs

seek

various

declarations

regarding

the

securitization of their loan and the enforceability of the Note and
Deed of Trust. 57

"Both Texas and federal law require the existence

of a justiciable case or controversy in order to grant declaratory
relief."

Val-Com

421 F. App'x.

398,

Acquisitions

Trust

400

2011)

(5th Cir.

v.
i

CitiMortgage,

Inc.,

see also Conrad v.

SIB

Mortg. Corp., No. 4:14-CV-915-A, 2015 WL 1026159, at *7 (N.D. Tex.
Mar. 6, 2015)

("A declaratory judgment action requires the parties

to litigate some underlying claim or cause of action. ") .

Once a

court dismisses all the underlying claims and causes of action

56Id. , 45.
57See id. at 13-15.
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against all defendants, there is no longer a basis for declaratory
relief.

Val-Com, 421 F. App'x at 401; Conrad, 2015 WL 1026159, at

*7; Davis v. Countrywide Home Loans, Inc., 1 F. Supp. 3d 638, 646
(S.D. Tex. 2014).

Plaintiffs' requests for declaratory relief will

therefore be denied.

III.
The

court

concludes

Conclusions and Order
that

Plaintiffs have

failed

plausible claims for relief for breach of contract,
title, or violation of the FDCPA.
U. S.

Bank's Motion to Dismiss

to plead

slander of

Therefore, Defendants SPS's and
and Motion

for

Judgment

on the

Pleadings (Docket Entry No.5) and Defendants JPMC's and Long Beach
Securi ties Corp.' s

Motion to Dismiss

(Docket Entry No.7)

are

GRANTED, and this case will be dismissed with prejudice.

SIGNED at Houston, Texas, on this the 7th

2015.

UNITED STATES DISTRICT JUDGE

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