Lopez et al v. Bank of America, N.A. et al
OPINION AND ORDER granting 11 Motion to Dismiss, all claims against the Substitute Trustees are DISMISSED without prejudice..(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GENARO LOPEZ, et al,
BANK OF AMERICA, N.A., et al,
February 09, 2018
David J. Bradley, Clerk
CIVIL ACTION NO. 4:17-CV-697
OPINION AND ORDER
Pending before the Court in the above-referenced cause is Defendants Anna Sewart,
David Barry, Byron Sewart, Keith Wolfshohl, Helen Henderson, David Stiles, Patricia Poston,
Shonia Shaw, Cole D. Patton and Denny Tedrow’s (collectively, “Substitute Trustees”) Motion
to Dismiss under Texas Property Code Section 51.007(c), Doc. 11. Plaintiffs Genaro Lopez and
Mary R. Lopez (“Lopezes”) have not responded. After careful consideration of the filings,
record, and law, the Court is of the opinion that the motion should be granted and that this case
should be dismissed without prejudice.
On February 3, 2017, the Lopezes filed their Original Verified Petition and Application
for Temporary Restraining Order to prevent a “foreclosure sale” of their “homestead” in the
190th Judicial District of Harris County, Texas, as Cause No. 2017-07939. Doc. 1-1 at 7, 11.
Attached to their Petition was a “Notice of Substitute Trustee Sale” listing the Substitute
Trustees as substitute trustees. Doc. 1-1 at 64.
On March 5, 2017, Substitute Trustees, along with co-defendants Bank of America, N.A.,
Mortgage Electronic Systems, Inc., and Santander Bank, N.A., removed the case to this Court.
Doc. 1. Substitute Trustees next filed an Answer and Verified Denial, asserting that they are “not
a necessary party” because “they were named as defendants in this suit because they were
appointed as substitute trustees with respect to the deed of trust at issue in this suit,” attaching the
required verifications. Doc. 9. Substitute Trustees then filed a Motion to Dismiss “them from this
suit” under Texas Property Code Section 51.007(c). Doc. 11. The Lopezes did not respond.
Section 51.007 of the Texas Property Code provides a procedure under which a trustee
may be dismissed from a case. Specifically, Section 51.007(a) states that a trustee named in a
suit “may plead in the answer [by a verified denial] that the trustee is not a necessary party” to
the action.” See TEX. PROP. CODE ANN. § 51.007(a); TEX. R. CIV. P. 93. This verified denial must
“stat[e] the basis for the trustee’s reasonable belief that the trustee was named as a party solely in
the capacity as a trustee.” Id. Within thirty days, the plaintiff must then file a “verified response”
rebutting the trustee's claim. § 51.007(b). If the plaintiff does not file a timely verified response,
“the trustee shall be dismissed from the suit or proceeding without prejudice.” § 51.007(c);
Morgan v. Chase Home Fin., LLC, 306 Fed. Appx. 49, 52 (5th Cir. 2008) (upholding trustee
dismissal where plaintiff did not respond to trustee’s motion); see also Vargas v. Martin, No.
1:16-CV-172, 2017 WL 2876482, at *2 (S.D. Tex. July 6, 2017) (Hanen, J.) (“Under Texas law,
a trustee under a deed of trust is not a necessary party in a suit to prevent a foreclosure.”).
However, if the plaintiff does file a timely verified response, the court will hold a hearing on the
matter and will dismiss the trustee “if the court determines that the trustee is not a necessary
party.” § 51.007(d); Rodriguez v. Ocwen Loan Servicing LLC, No. CIV.A. C-07-471, 2008 WL
65405, at *5 (S.D. Tex. Jan. 4, 2008) (Jack, J.) (holding that trustees may be dismissed only
under certain circumstances).
Here, Substitute Trustees have met the statutory requirements for dismissal. Substitute
Trustees plead that they were not a necessary party in their answer, along with a verified denial.
See TEX. PROP. CODE ANN. § 51.007(a); TEX. R. CIV. P. 93. The Lopezes did not respond. Also,
the Lopezes make no specific claims against the Substitute Trustees in their Verified Petition,
and a trustee under a deed of trust is not a necessary party in a suit to prevent a foreclosure. See
Vargas, 2017 WL 2876482, at *2. Thus, the Court holds that the Substitute Trustees “shall be
dismissed from the suit or proceeding without prejudice.” See TEX. PROP. CODE ANN. §
51.007(c); Morgan, 306 Fed. Appx. at 52. Accordingly, the Court hereby
GRANTS Substitute Trustees’ Motion to Dismiss under Texas Property Code Section
51.007(c), Doc. 11.
IT IS FURTHER ORDERED that all claims against the Substitute Trustees are
DISMISSED without prejudice.
SIGNED at Houston, Texas, this 7th day of February, 2018.
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?