Pope v. Bank of America et al

Filing 19

ORDER GRANTING 17 Motion for Summary Judgment. Signed by Judge Sam Sparks. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WE
DIVISION

JOMO K. POPE,
Plaintiff,
Case No. A-17-CA-108-SS

-vs-

BANK OF AMERICA; BAC; BAC HOME

WILMINGTON
TRUST, NATIONAL ASSOCIATION Trustee of
ARLP Securitization Trust, Series 2014-2; FAY
SERVICING; POWER DEFAULT SERVICE;
LOANS/COUNTRYWIDE;

and WILMINGTON SAVINGS FUND SOCIETY,
Defendants.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and

specifically Defendants Fay Servicing, LLC and Wilmington Trust, National Association, as Trustee

of ARLP Securitization Trust, Series 2014-2 (collectively Defendants)' Motion for Summary
Judgment [#17]. Plaintiff Jomo K. Pope has not filed a response. Having reviewed the documents,
the governing law, and the file as a whole, the Court now enters the following order GRANTiNG

the motion for summary judgment.

Background
On May 31,2006, Plaintiff signed a promissory note in favor of Bank of America, N.A, the

original lender. See Mot. [#17-2] Ex. 1-A (Note). Plaintiff also signed a deed of trust (Deed of Trust)

confirming a lien on real property located at 500 Paladin Place, Round Rock, TX 78664 (the
Property) secured the obligations under the Note (collectively, the Mortgage).

See Id.

[#17-3] Ex.

1-B (Deed of Trust). Defendant Wilmington Trust, National Association (Wilmington Trust), is the

trustee of ARLP Securitization Trust, Series 20 14-2 and is the current mortgagee.' Defendant Fay
Servicing, LLC (Fay Servicing) is the current mortgage servicer for Trustee. See Id. [#17-9] Ex 1-H

(Servicing Agreement).
The last payment Plaintiff made in satisfaction of his obligations under the Mortgage
occurred before April 1, 2009. Plaintiff is now past due for the April 1, 2009 payment and all
subsequent payments.

See

Id.

[#17-1] Ex.

of default was provided to Plaintiff

See

1

(Fay Servicing Decl.) ¶ 8. On March 14, 2014, a notice

Id.

[#17-7] Ex. 1-F (Default Notice). Subsequently, on

January 17, 2017, Plaintiff was provided with a notice of acceleration.

See

Id.

[#17-8] Ex. 1-G

(Acceleration Notice). Plaintiff nevertheless remains in default. See Fay Servicing Dccl. ¶ 8.
On February 6, 2017, Plaintiff filed this lawsuit in state court.

See

Removal Notice [#1-4]

(Pet.). Plaintiff alleges fraud, intentional infliction of emotional distress (TIED), slander of title,

violations of the Truth in Lending Act (TILA), and violations of the Real Estate Settlement
Procedures Act (RESPA). Id. Plaintiff seeks to quiet title, obtain declaratory relief, and secure

recision of the Mortgage. In particular, Plaintiff claims Defendants unlawfully sold, assigned and/or
transferred the ownership interest in the Mortgage. Id. Consequently, Plaintiff claims Defendants are
attempting to illegally foreclose on the property. Id. Defendants timely removed to this Court based

on federal question jurisdiction.
On June 5, 2017, Plaintiff filed for bankruptcy in the United States Bankruptcy Court for the

Western District of Texas.2 On September 11, 2017, Bankruptcy Judge Tony M. Davis entered an

order of discharge under

11

U.S.C.

§

727, and Plaintiff's bankruptcy case was subsequently closed.

'Trustee became the mortgagee through a chain of assignments. See Mot. [#17-4] Ex. 1-C (assigning the Deed of Trust
fromBank ofAmerica to Christiana Trust); id. [#17-51 Ex. 1 -D (correcting the assignee name from the prior assignment);
id. [#17-6] Ex. 1 -E (assigning the Deed of Trust from Christiana Trust to Wilmington Trust).
2

The bankruptcy case number is 17-10179-tmd, and it was closed on May 23, 2017.

-2-

Defendants now seek summary judgment, and Plaintiff has declined to file a response.

Analysis
I.

Legal StandardSummary Judgment
Summary judgment shall be rendered when the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(a); Celotex Corp.
v.

Catrett, 477 U.S. 317, 323-25 (1986); Washburn

v.

Harvey, 504 F.3d 505, 508 (5th Cir. 2007).

A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could

return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). When ruling on a motion for summary judgment, the court is required to view all inferences

drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co.

v.

Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. Further, a court

"may not make credibility determinations or weigh the evidence" in ruling on a motion for summary

judgment. Reeves

v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477

U.S. at 254-55.
Once the moving party makes an initial showing that there is no evidence to support the

nonmoving party's case, the party opposing the motion must come forward with competent summary

judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere
conclusory allegations are not competent summary judgment evidence, and thus are insufficient to
defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343
(5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and unsupported speculation are

not competent summary judgment evidence. Id. The party opposing summary judgment is required
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to identify specific evidence in the record and to articulate the precise manner in which that evidence

supports his claim. Adams v. Travelers Indem. Co. ofConn., 465 F.3d 156, 164(5th Cir. 2006). Rule
56 does not impose a duty on the court to "sift through the record in search of evidence" to support

the nonmovant's opposition to the motion for summary judgment. Id.

"Only disputes over facts that might affect the outcome of the suit under the governing laws
will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact

issues that are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary

judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the
existence of an element essential to its case and on which it will bear the burden of proof at trial,

summary judgment must be granted. Celotex, 477 U.S. at 322-23.

II.

Application
As a preliminary matter, Fay Servicing and Wilmington Trust argue it is unclear why the

Defendants Bank of America, BAC, BAC Home Loans/Countrywide, Power Default Service, and

Wilmington Savings Fund Society were included in this action and there is no evidence they have been
served. Mot. [#17] at

1.

After reviewing the record, the Court agrees there is no evidence these other

Defendants have been served. The Court therefore dismisses Defendants Bank of America, BAC, BAC
Home Loans/Countrywide, Power Default Service, and Wilmington Savings Fund Society without

prejudice for failure to prosecute.

Plaintiff's allegations focus on alleged collective behavior of the remaining Defendants, Fay
Servicing and Wilmington Trust. Thus, Plaintiff's allegations rise or fall together, and fall they must.
Defendants are entitled to summary judgment as a matter of law for the reasons described below.

El

First, Plaintiff appears to dispute Wilmington Trust's standing to foreclose on the Property. As
the Defendants point out, Plaintiffpresents no evidence Wilmington Trust lacks standing to foreclose and
is not the real party in interest for the Mortgage. See Mot. [#17] at 6. By contrast, Defendants provide

copies of the chain of assignments, demonstrating Wilmington Trust is the current mortgagee with
standing to foreclose.
Second, Plaintiffpresents no evidence even suggesting Defendants committed fraud. In particular,

Plaintiff claims the Defendants concealed the nature of the Mortgage. See Pet. at 10. However, the Note
and Deed of Trust were plainly signed by Plaintiff. See Note; Deed of Trust. Plaintiff offers no

explanation on how Defendants misrepresented the Mortgage. Additionally, Plaintiff does not allege or
present evidence on any of the other requirements for fraud, namely the Defendants knew a representation
was false when made or made the representation without knowledge if its truth, Defendants intended for

Plaintiff to act upon the alleged misrepresentation, Plaintiff relied on the said misrepresentation, and
Plaintiff was damaged. See Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960
S.W.2d 41, 47 (Tex. 1998) ("A fraud cause of action requires 'a material misrepresentation, which was
false, and which was either known to be false when made or was asserted without knowledge of its truth,

which was intended to be acted upon, which was relied upon, and which caused injury." (quoting Sears,
Roebuck & Co.

v.

Meadows, 877 S.W.2d 281, 282 (Tex.1994)). Thus, Plaintiff's fraud allegations fail.

Plaintiff's lIED allegations also fail. To succeed on an lIED claim, a plaintiff must show "(1) the
defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions

of the defendant caused the plaintiff emotional distress; and (4) the resulting emotional distress was
severe." GTE Sw., Inc.

v.

Bruce, 998 S.W.2d 605, 611 (Tex. 1999). But Plaintiff provides no evidence

and makes no showing Defendants' conduct was extreme or outrageous in character. See id. ("[C]onduct

must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of

-5-

decency, and to be regarded as atrocious, and utterly intolerable in a civilized conununity."). Plaintiff fails
to even allege Defendants acted outside the normal range

of behavior for a mortgagee attempting to

collect on unpaid monthly mortgage payments.

Likewise, Plaintiff offers only conclusory allegations Defendants slandered his title. See Pet. at
12-13. Plaintiff fails to present any false documents or even allege Defendants filed specific false
documents relating to the Mortgage or the Property. Plaintiff demonstrates no effect on the Property's title
and points to no evidence indicating he lost a specific sale of the Property. See Ellis

v.

Waldrop, 656

S.W.2d 902, 904-05 (Tex. 1983) (reiterating the "long-standing general rule in Texas that in order to

recover damages for the disparagement of title, the plaintiff must allege the loss of a specific sale"). As
a result, Defendants are also entitled to summary judgment on Plaintiff's slander of title claim.

In addition, Plaintiff's assertions to quiet title fail. A suit to quiet title is an equitable action in
which the plaintiff seeks to recover possession of property wrongfully withheld. Porretto
251 S.W.3d 701, 708 (Tex.

v.

Patterson,

App.Houston [1st Dist.] 2007, no pet.). "The principal issue in a suit to

quiet title is the existence of a cloud that equity will remove." Ballard v. Allen, No. 12-03-00370-CV,
2005 WL 1037514, at *3 (Tex. App.Tyler May 4, 2005, no pet.) (mem. op.). To quiet title in his favor,
a plaintiff "must allege right, title, or ownership in himself or herself with sufficient certainty to enable

the court to see he or she has a right of ownership that will warrant judicial interference." Wright

v.

Matthews, 26 S.W.3d 575, 578 (Tex. App.Beaumont 2000, pet. denied). In other words, the plaintiff

must recover on the strength of his own title, not the weakness of his adversary's title. Fricks v. Hancock,
45 S.W.3d 322, 327 (Tex. App.----Corpus Christi 2001, no pet.) But here there is no evidence of a cloud

on Plaintiff's title or that Plaintiff has a superior title to the Property.
Furthermore, Plaintiff's TILA claims fail for at least two reasons. First, TILA expressly states the
right of rescission does not apply to residential mortgage transactions. 15 U. S.C.

§

1635 (e)( 1); see also

id. § 1602(x) (defining residential mortgage transaction as "a transaction in which a mortgage, deed

trust,.

.

.

of

or equivalent consensual security interest is created or retained against the consume? s dwelling

to finance the acquisition or initial construction of such dwelling"). Second, Plaintiff's TILA claims are

time-barred. The right to rescission under TILA expires after three years from the date of consummation

of the transaction. Lowery v. Capital One Mortg., 429 F. App'x 377, 378 (5th Cir. 2011) (per curiam)
(citing 15 U.S.C.

§

1635(f)) (holding the district court did not err in finding the plaintiff failed to state

a claim in seeking rescission under TILA beyond the three-year period). As the Mortgage was

consummated on May 31, 2006, and Plaintiff's petition was not filed until February 6, 2017, Plaintiff's
TILA claims cannot survive.
Similarly, Plaintiff's RESPA claims cannot survive. RESPA claims have either a one-year or

three-year statute of limitations, depending on which RE SPA provisions are alleged to have been violated.
12 U.S.C. § 2614. Regardless,

of the exact violation alleged here, Plaintiff's claims fall well outside of

the one-year or three-year statute of limitations and are therefore barred.
Finally, Plaintiffhas no basis to pursue declaratory relief Both the Federal Declaratory Judgment

Act and the Texas Uniform Declaratory Judgment Acts are procedural devices that do not create any
substantive rights or causes of action. See Skelly Oil Co.

v.

Phillzs Petroleum Co., 339 U.S. 667,

671

(1950) ("The operation of the Declaratory Judgment Act is procedural only." (citation and internal

quotation marks omitted)); SidRichardson Carbon & Gasoline Co. v. Interenergy Res., Ltd., 99 F.3d 746,
752 (5th Cir. 1996) ("The Texas Uniform Declaratory Judgments Act is merely a procedural device; it

does not create any substantive rights or causes of action." (internal citation omitted)). Where, as here,
all the underlying claims are without merit, a claim for declaratory judgment cannot be established.

-7-

Conclusion
In sum, the Court dismisses Plaintiff's claims against Defendants Bank of America, BAC, BAC
Home Loans/Countrywide, Power Default Service, and Wilmington Savings Fund Society without

prejudice for failure to prosecute. The remaining Defendants, Fay Servicing and Wilmington Trust, are
entitled to summary judgment on all of Plaintiff's claims.

Accordingly,
IT IS ORDERED that Plaintiff's claims against Defendants Bank of America, BAC, BAC

Home Loans/Countrywide, Power Default Service, and Wilmington Savings Fund Society are
DISMISSED without prejudice for failure to prosecute; and
IT IS ORDERED that Defendants Fay Servicing, LLC and Wilmington Trust, National

Association, as Trustee of ARLP Securitization Trust, Series 2014-2's Motion for Summary
Judgment [#17] is GRANTED.
SIGNED this the

3O

day of October 2017.

SAM SPARKS
UNITED STATES DISTRICT JUDGE