Smitherman v. Bayview Loan Servicing, LLC et al

Filing 9

OPINION on Dismissal terminating 4 . Smitherman does not describe a transaction protected by the law. His claims will be dismissed. (Signed by Judge Lynn N. Hughes) Parties notified. (ghassan, 4)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

United States District Court
Southern District of Texas

D. Pa':rick Smitherman,
Plaintiff,

'Versus
Bayvkw Loan Servicing, LLC, et al.,
Defendants.

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ENTERED
April 27, 2016
David J. Bradley, Clerk

Civil Action H,r6'798

Opinion on Dismissal
I.

Introduction.
D. Patrick Smitherman sues Bayview Loan Servicing, LLC, to stop it from foreclosing.

His complaint will be dismissed because he does not describe a transaction protected by the law.

2..

Smitherman's Claims.
In almost five years, Smitherman has not made a payment on his mortgage. He says that

Bayview did not notify him before foreclosing and defamed him by lying about whether he could
make his mortgage payments.
Bank of America previously held the lien and tried to foreclose twice. Smitherman sued
twice to prevent those foreclosures. His first case was dismissed, a decision that was appealed
and affirmed. While the appeal pended, Bank of America tried to foreclose again, and
Smitherman sued a second time. The parties agreed that Bank of America would not try to
forec:,ose again while the second case pended.
Smitherman says that his agreement with the Bank should bar Bayview's foreclosure
and that the Bank forced him to insure his property at a high rate.

3

Res Judicata.
Smitherman sued the Bank in his first lawsuit to prevent foreclosure. He was required

to bring all the claims he had in that lawsuit. He does not say that additional claims have
accrued since that lawsuit. A state court dismissed that suit and an appellate court affirmed that
decision. His claims have already been resolved and are barred by res judicata.

4-

No Claim.
Even if they were not barred by his earlier suit, Smitherman's claims do not describe a

transaction protected by the law.
Bayview has not foreclosed; its notice could not have been defective.
Smitherman is part of a legal transaction with Bayview. As a participating party, its
publications about Smitherman's default and its election to sell are privileged. Further,
Smitherman has not paid his mortgage. Thus, Bayview's publication of that fact does not
defame him as it is true.
Smitherman says that he had an agreement with Bank of America that it would not
forecbse on his property. That agreement does not bind Bayview.
Smitherman agreed in his deed of trust that ifhe did not insure his house, the mortgage
holder could. He agrees that he did not insure his house; he cannot now complain that the
Bank did, which was in his interest because it protected his equity in the house.
Smitherman does not describe a transaction protected by the law. His claims will be
dismissed.

Signed on April 2.6, 2.or6, at Houston, Texas.

United States DistrictJudge