Boykin et al v. Wells Fargo Financial Texas, Inc. et al
MEMORANDUM AND ORDER entered. It is ORDERED that Defendant Wells Fargo Financial Texas, Inc.s Motion to Dismiss [Doc. # 4] is GRANTED. It is furtherORDERED that Defendant Michael Schroeders Motion to Dismiss [Doc. # 5]is GRANTED. It is further ORDERE D that Defendant Elaine Jacksons Motion to Dismiss [Doc. # 8] is GRANTED. It is further ORDERED that Defendant Randolph Vincent, Jr.s Motion to Show Authority Pursuant to FED. R. CIV. P. 17 and Motion to Dismiss Plaintiffs Original Complaint [Doc. # 9] is GRANTED. It is further ORDERED that Buckley Madole, P.C.s Motion to Dismiss [Doc. # 14] isGRANTED. It is further ORDERED that Defendant Deputy Leon Hubbards Motion to Dismiss [Doc. # 17] is GRANTED. It is further ORDERED that Defendant Ocwen Fi nancial Corporations Motion to Dismiss Plaintiffs Complaint [Doc. # 24] is GRANTED. It is further ORDERED that Defendant Texas Eviction LLCs Motion to Dismiss [Doc. # 41] is GRANTED. It is further ORDERED that unserved Defendants Chuck Martin, Waller County Precinct 3, and Does 1-100 are DISMISSED pursuant to Rules 4(m) and 41(b). It is finally ORDERED that the Clerk of Court is instructed to send a copy of this Order to Plaintiff by certified mail, return receipt requested, and by First Class mail. All of Plaintiffs claims are DISMISSED with prejudice pursuant to Rules 12(b)(6) and 41(b). A separate final judgment will issue. (Signed by Judge Nancy F Atlas) Parties notified. (wbostic, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CECIL BOYKIN, as trustee for ROY
LEE KEMP TRUST; and CECIL
WELLS FARGO FINANCIAL
TEXAS, INC., , et al.,
December 08, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 4:17-02663
MEMORANDUM AND ORDER
Plaintiff Cecil Boykin, who proceeds pro se, brought this foreclosure-related
case on September 5, 2017, against eleven Defendants. Eight Defendants have filed
motions to dismiss. See Defendant Wells Fargo Financial Texas, Inc.’s Motion to
Dismiss [Doc. # 4]; Defendant Michael Schroeder’s Motion to Dismiss [Doc. # 5];
Defendant Elaine Jackson’s Motion to Dismiss [Doc. # 8]; Defendant Randolph
Vincent, Jr.’s Motion to Show Authority Pursuant to FED. R. CIV. P. 17 and Motion
to Dismiss Plaintiff’s Original Complaint [Doc. # 9]; Buckley Madole, P.C.’s Motion
to Dismiss [Doc. # 14]; Defendant Deputy Leon Hubbard’s Motion to Dismiss [Doc.
# 17]; Defendant Ocwen Financial Corporation’s Motion to Dismiss Plaintiff’s
Complaint [Doc. # 24]; and Defendant Texas Eviction LLC’s Motion to Dismiss [Doc.
# 41]. The remaining three Defendants (Chuck Martin, “Waller County Precinct 3,”
and “Does 1-100”) have not appeared. Having considered the pleadings, motions,
briefing, relevant legal authority, and all matters of record, the Court dismisses this
action under Rules 12 and 41.
Plaintiff’s Complaint [Doc. # 1], filed on September 5, 2017, brings nine
claims: (1) wrongful foreclosure, (2) recision and restitution, invoking 15 U.S.C.
§ 1635, (3) Real Estate Settlement Procedures Act (“RESPA”) violations under 12
U.S.C. § 2605, (4) fraudulent concealment, (5) fraudulent misrepresentation, (6)
“elder abuse,” (7) quiet title, (8) violations of 42 U.S.C. § 1983, and (9) declaratory
and injunctive relief. His demand is $5 million. He states that he brings all of his
claims against all eleven Defendants, but does not explain the involvement of each
Defendant in each claim.
Plaintiff’s claims pertain to property at 22396 FM Road 1098 in Prairie View
(the “Property”), which is in Waller County. The Property previously was owned by
Plaintiff’s sister, Roy Lee Kemp.1 Plaintiff was never owner of the Property, but
Ms. Kemp filed a case against Wells Fargo, which Wells Fargo removed to federal
court on March 7, 2017. See Kemp v. Wells Fargo et al, 4:17-CV-721. The case was
assigned to Hon. Keith P. Ellison, who sua sponte dismissed the case without
prejudice on March 22, 2017, for lack of jurisdiction.
apparently owns land “surrounding” the Property. In his pleadings, Plaintiff identifies
himself as “Trustee for the Roy Lee Kemp Trust” and states that Ms. Kemp is eightyfour years old and disabled. Ms. Kemp is not a party to this suit. The record before
this Court contains no documentation of the trust.
On July 11, 2007, Ms. Kemp executed a Deed of Trust and Promissory Note for
the Property in the amount of $63,991.53. The lender was Defendant Wells Fargo.
See Exhibit A to Doc. # 4. Plaintiff states that Ms. Kemp made payments on the
Property “from 2007 until the time in which payments were refused.” Complaint, at
4. Wells Fargo states that Ms. Kemp defaulted on her loan obligations and, in 2016,
Wells Fargo initiated foreclosure proceedings. On August 15, 2016, the 506th District
Court in Waller County entered an agreed foreclosure order. See Exhibit C to Doc.
# 4 (“Agreed Foreclosure Order”). Ms. Kemp was represented by counsel, who
approved the agreed order.
According to Wells Fargo and the documents attached to its motion, the
Property was sold to Wells Fargo at a foreclosure sale on November 1, 2016. Exhibit
B to Doc. # 4. On May 26, 2017, Wells Fargo sold the property to Cypress Four
Property Ventures LLC, who in turn sold the property on June 9, 2017, to Randolph
Vincent, Jr. See Exhibits D & E to Doc. # 4. Wells Fargo’s motion, filed on October
10, 2017, stated that Ms. Kemp continues to occupy the Property.
The other Defendants who have appeared in this action are Mike Schroeder,
whom Plaintiff identifies as a Wells Fargo employee; Ocwen Financial Corporation,
a successor loan servicer apparently on Ms. Kemp’s loan; Buckely Madole PC, the
law firm that represented Wells Fargo in Ms. Kemp’s previous suit before Judge
Ellison; Texas Eviction LLC (“Eviction”), whom Plaintiff alleges trespassed in
connection with eviction proceedings; Randolph Vincent, Jr., who purchased the
Property on June 9, 2017; “Constable Hubble,” whom Plaintiff identifies as “only a
nominal Defendant”; and Elaine Jackson, a Justice of the Peace for Waller County
For seven of the pending motions to dismiss, the Court issued orders directing
Plaintiff to respond by a set deadline and cautioning Plaintiff that “failure to respond
as ordered by the deadline will result in dismissal of his claims.” See Docs. # 10,
# 16, # 23, & # 25. The eighth motion, filed by Eviction, was filed on November 30,
2017, several days before the Court’s initial pretrial conference. Plaintiff’s response
deadline is December 21, 2017.
Plaintiff has not filed timely responses to all pending motions. His most recent
Three Defendants have not appeared: Chuck Martin, whom Plaintiff alleges was a
Wells Fargo employee; Waller County Precinct 3, whom Plaintiff identifies in his
Complaint as a “only a nominal defendant”; and “Does 1-100,” whose alleged
involvement is not explained in Plaintiff’s filings. The Court’s docket does not
reflect service of process on any of the three.
filing was docketed on October 31, 2017. Plaintiff filed several documents responsive
to earlier motions to dismiss. See Docs. # 18, # 19, # 20, # 21, & # 22.
On November 27, 2017, Defendants filed a Joint Discovery/Case Management
Plan [Doc. # 31]. The Plan states that Defendants attempted to confer with Plaintiff
by email, Fed Ex, and telephone in the range of November 22-27, but that Plaintiff did
At 1:30 p.m. on December 4, 2017, the Court held an initial pretrial conference,
which had been set by an Order entered on September 7, 2017. See Order for Initial
Pretrial and Scheduling Conference [Doc. # 3]. Plaintiff did not appear at the
conference. The Court delayed calling the case until 1:43 p.m. and then heard
argument from Defendants’ attorneys on the pending motions. The Court then called
another case and directed Defendants’ attorneys to wait, to give Plaintiff a final
chance to appear. At 2:45 p.m., Plaintiff still had not appeared and the Court
dismissed Defendants’ attorneys. Hearing Minutes and Order [Doc. # 44].
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure is viewed with disfavor and is rarely granted. Turner v. Pleasant, 663 F.3d
770, 775 (5th Cir. 2011) (citing Harrington v. State Farm Fire & Cas. Co., 563 F.3d
141, 147 (5th Cir. 2009)). The complaint must be liberally construed in favor of the
plaintiff, and all facts pleaded in the complaint must be taken as true. Harrington, 563
F.3d at 147. The complaint must, however, contain sufficient factual allegations, as
opposed to legal conclusions, to state a claim for relief that is “plausible on its face.”
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Patrick v. Wal-Mart, Inc., 681 F.3d
614, 617 (5th Cir. 2012). When there are well-pleaded factual allegations, a court
should presume they are true, even if doubtful, and then determine whether they
plausibly give rise to an entitlement to relief. Iqbal, 556 U.S. at 679. Rule 8
“generally requires only a plausible ‘short and plain’ statement of the plaintiff’s claim,
not an exposition of his legal argument.” Skinner v. Switzer, 562 U.S. 521, 530
(2011). Additionally, regardless of how well-pleaded the factual allegations may be,
they must demonstrate that the plaintiff is entitled to relief under a valid legal theory.
See Neitzke v. Williams, 490 U.S. 319, 327 (1989); McCormick v. Stalder, 105 F.3d
1059, 1061 (5th Cir. 1997).
On a motion to dismiss, the Court’s review “is limited to the complaint, any
documents attached to the complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the complaint. Lone Star Fund
V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). See Walch
v. Adjutant General’s Dep’t of Tex., 533 F.3d 289, 294 (5th Cir. 2008) (on a Rule
12(b)(6) motion, documents attached to the briefing may be considered by the Court
if the documents are sufficiently referenced in the complaint and no party questions
their authenticity (citing 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1357 (3d ed. 2004))).
Federal Rule of Civil Procedure 41(b) permits dismissal if a plaintiff “fails to
prosecute or to comply with these rules or a court order.” A dismissal under Rule
41(b) is with prejudice unless otherwise stated in the dismissal order.
Defendants’ Motions to Dismiss
Wells Fargo’s Motion to Dismiss [Doc. # 4] argues that Plaintiff’s Complaint
should be dismissed under Rule 12(b)(6) because Plaintiff—who was not a party to
the relevant note or deed and was never an owner of the Property—lacks standing to
assert claims regarding Ms. Kemp’s loan or the Property. Wells Fargo also urges
dismissal under Rule 12(b)(6) because, among other grounds, the Agreed Foreclosure
Order defeats Plaintiff’s wrongful foreclosure claims; because 15 U.S.C. § 1635 does
not apply to residential mortgage transactions; because Plaintiff fails to plead a claim
under RESPA, under Chapter 48 of the Texas Human Resources Code, under 42
U.S.C. § 1983, or for quiet title; and because Plaintiff fails to plead fraud with
particularity. Plaintiff has responded to Wells Fargo’s motion, and Wells Fargo filed
a reply. See Docs. # 18, # 27.
Plaintiff has failed to allege facts that would support his standing to bring this
lawsuit in his pleadings, his response to Wells Fargo’s motion, or any other filings in
this suit. Wells Fargo has produced documentation showing that Plaintiff was not a
party to the deed or note relevant to the foreclosure, which this Court may consider
on a Rule 12(b)(6) motion. See Lone Star Fund V, 594 F.3d at 387.3 Based on
Plaintiff’s lack of standing as well as the Agreed Foreclosure Order, the Court grants
Wells Fargo’s motion to dismiss.
Plaintiff’s lack of standing to bring claims regarding the loan or the Property
further requires dismissal of his claims against the remaining Defendants, all of whom
are sued by Plaintiff in connection with the foreclosure dispute.4 Nothing in the
responses filed by Plaintiff provides facts that would support his standing to bring
claims against these parties related to the foreclosure of the deed of trust on the
Plaintiff asserts that a “Roy Lee Kemp Trust” exists and that he is trustee. However,
he provides no further details about the purported trust, and his filings provide no
facts regarding the formal name of the trust, the beneficiaries, the date of formation,
or its connection to the Property. At the initial pretrial conference, defense counsel
stated that they had searched for records relating to the trust claimed by Plaintiff and
had found no evidence that the trust exists. Whether or not the trust exists, the
documents in this Court’s record list “Roy L. Kemp” as a party to the relevant deed
and Agreed Foreclosure Order, and not “Roy Lee Kemp Trust.” See Exhs. A & C to
Doc. # 4. Therefore, Plaintiff’s assertion that he is trustee of the “Roy Lee Kemp
Trust” also does not suffice to allege standing to bring his claims.
Although the Motion to Dismiss filed by Eviction, filed on November 30, is not yet
ripe, Eviction joins Wells Fargo’s motion. Plaintiff has had full opportunity to
respond to Wells Fargo’s motion, and the same grounds warranting dismissal of his
claims against Wells Fargo also require dismissal of his claims against Eviction.
Additional Grounds for Dismissal
Defendants Chuck Martin, “Waller County Precinct 3,” and “Does 1-100”
have not appeared, and the docket does not reflect service of process on any of them.
Because Plaintiff’s complaint was filed on September 5, 2017, dismissal is warranted
under Rule 4(m). See FED. R. CIV. P. 4(m) (“If a defendant is not served within 90
days after the complaint is filed, the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice against that defendant or order
that service be made within a specified time”).
In addition, the Court dismisses this case because Plaintiff’s failure to prosecute
this action forces the Court to conclude that he lacks due diligence. Plaintiff did not
participate in preparation of the Joint Discovery/Case Management Plan and did not
appear at the initial pretrial conference. Under the inherent powers necessarily vested
in a district court to manage its own affairs, this Court determines that dismissal for
want of prosecution is appropriate. See FED. R. CIV. P. 41(b); Nottingham v. Warden,
Bill Clements Unit, 837 F.3d 438, 440-41 (5th Cir. 2016) (a district court may dismiss
an action sua sponte for failure to prosecute or to comply with any court order).
For the foregoing reasons, it is hereby
ORDERED that Defendant Wells Fargo Financial Texas, Inc.’s Motion to
Dismiss [Doc. # 4] is GRANTED. It is further
ORDERED that Defendant Michael Schroeder’s Motion to Dismiss [Doc. # 5]
is GRANTED. It is further
ORDERED that Defendant Elaine Jackson’s Motion to Dismiss [Doc. # 8] is
GRANTED. It is further
ORDERED that Defendant Randolph Vincent, Jr.’s Motion to Show Authority
Pursuant to FED. R. CIV. P. 17 and Motion to Dismiss Plaintiff’s Original Complaint
[Doc. # 9] is GRANTED. It is further
ORDERED that Buckley Madole, P.C.’s Motion to Dismiss [Doc. # 14] is
GRANTED. It is further
ORDERED that Defendant Deputy Leon Hubbard’s Motion to Dismiss [Doc.
# 17] is GRANTED. It is further
ORDERED that Defendant Ocwen Financial Corporation’s Motion to Dismiss
Plaintiff’s Complaint [Doc. # 24] is GRANTED. It is further
ORDERED that Defendant Texas Eviction LLC’s Motion to Dismiss [Doc.
# 41] is GRANTED. It is further
ORDERED that unserved Defendants Chuck Martin, “Waller County Precinct
3,” and “Does 1-100” are DISMISSED pursuant to Rules 4(m) and 41(b). It is finally
ORDERED that the Clerk of Court is instructed to send a copy of this Order
to Plaintiff by certified mail, return receipt requested, and by First Class mail.
All of Plaintiff’s claims are DISMISSED with prejudice pursuant to Rules
12(b)(6) and 41(b).
A separate final judgment will issue.
SIGNED at Houston, Texas, this 8th day of December, 2017.
NAN Y F. ATLAS
STATES DISTRICT JUDGE
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