Armendariz v. Bank of America, NA et al

Filing 37

ORDER GRANTING 9 Motion to Dismiss ; GRANTING 10 Motion to Dismiss for Failure to State a Claim; GRANTING 19 Motion to Dismiss for Failure to State a Claim. IT IS LASTLY ORDERED that Plaintiff Martin Armendariz MAY file a motion to amend th e Complaint, to re-plead his RESPA claim and action to quiet title, in conformity with his Order. Failure to file such a motion on or before June 1, 2015 will result in dismissal of this case without further notice to Plaintiff. Signed by Judge David C Guaderrama. (mt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

MARTIN ARMENDARIZ,
Plaintiff,
v.

BANK OF AMERICA, N.A.; DEUTSCHE
BANK NATIONAL TRUST COMPANY, as
Trustee for the Holders of GSAMP 2005-

AHL Mortgage Pass-Through Certificates,

Series 2005-AHL; JACK O'BOYLE; JACK
O'BOYLE & ASSOCIATES;
CHRISTOPHER S. FERGUSON;

§
§
§
§
§
§
§
§
§

EP-15-CV-00020-DCG

«

8
§

BARRETT DAFFIN FRAPPIER TURNER

& ENGEL LLP; and DOES 1 through 15,
inclusive,
Defendants.

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS

Presently before the Court are three motions to dismiss. Defendants Jack O'Boyle &
Associates, Christopher S. Ferguson, and Jack O'Boyle (collectively "Attorney Defendants")
filed a "Motion to Dismiss Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6)" ("O'Boyle Motion") (ECF No. 9) on February 20, 2015. Defendants Bank of America,

N.A. ("BANA"), and Deutsche Bank National Trust Company, as Trustee for the Holders of
GSAMP 2005-AHL Mortgage Pass-Through Certificates, Series 2005-AHL ("Deutsche Bank"
and collectively with BANA, "Bank Defendants"), filed a "Motion to Dismiss Plaintiffs

Complaint and Brief in Support" ("BANA Motion") (ECF No. 10) on March 2, 2015. Defendant

Barrett Daffin Frappier Turner & Engel LLP ("BDFTE")1 filed a "Motion to Dismiss, and Brief
in Support" ("BDFTE Motion") (ECF No. 19) on March 27, 2015. Plaintiff Martin Armendariz
1The Court refers to the Attorney Defendants, the Bank Defendants, and BDFTE collectively as
'Defendants."

("Plaintiff) filed at least one response to each motion. See ECF Nos. 15, 17-18, 33-34. After
due consideration of the motions, the responses, and the applicable law, the Court enters the
following order.
I.

BACKGROUND

The Court has discerned the following factual allegations from the Complaint and

documents referenced inor attached to the Complaint.2 On December 14, 2004, Plaintiff
obtaineda $483,000 home equity loan (the "Loan") from Accredited Home Lenders, Inc.

("AHL"). See BANA Mot., Ex. A ("Note"). The Loan was evidenced by a Note, and secured by
a first lien on the property located at 19 Garnet Crest Way, El Paso, Texas 79902 (the

"Property"). See BANA Mot., Ex. B ("Security Instrument"); Compl. 3-4. The Security
Instrument identifies Plaintiff and his wife, Anna J. Allen ("Allen"), as "Borrower[s]," and AHL

as the "Lender." See Security Instrument 1. The Security Instrument further identifies the

Mortgage Electronic Registration System ("MERS") as the "nominee for Lender and Lender's
successors and assigns" and as "the beneficiary under [the] Security Instrument." See Security
Instrument 1. While both Plaintiff and Allen signed the Security Instrument, only Plaintiff
signed the Note. Compare Security Instrument 14, with Note 5.
On October 8, 2009, MERS assigned both the Note and the Security Instrument to

Deutsche Bank. See Compl. 8; Compl., Ex. C (the "Assignment"). The Assignment was
recorded in the Official Public Records of Real Property in El Paso County, and is attached as an
exhibit to Plaintiffs Complaint. See Compl. 8; Assignment. At some point following the
Assignment, Plaintiff alleges that BANA contacted him and Allen, and advised them to stop

2"Documents that a defendant attaches to a motion to dismiss are considered part of the pleadings
if they are referred to in the plaintiffs complaint and are central to her claim." Causey v. Sewell
Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (citing Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)); accord In re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007).
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making monthly payments on the Loan pending a modification agreement. See Compl. 4.
Plaintiff alleges that BANA refused to modify the Loan in bad faith, and instead "beganthe
foreclosure process." See id. While Plaintiffdoes not provide a date or even a general time

period for the foreclosure, it is clear that one or both of the Bank Defendants eventually
foreclosed on the Property. See id. at 9, 26. On June 4, 2013, Deutsche Bank purchased the
Property at a foreclosure sale, and was granted a Substitute Trustee's Deed. See BANA Mot.,
Ex. D (the "Substitute Trustee's Deed").

On January 30, 2015, Plaintiff initiated this action challenging the propriety of the Bank
Defendants' foreclosure and asserting various causes of action under federal and state law.

Specifically, Plaintiff alleges that Defendants violatedthe Truth in Lending Act ("TILA"), 15
U.S.C. § 1601 et seq, Compl. 1, 12-17, and that Defendants are liable for breach of a fiduciary

duty and for common law fraud, id. at 20-22. Plaintiffadditionally pleads, exclusively against
the Attorney Defendants, a claim for intentional infliction of emotional distress ("IIED"). See id.
at 26. Plaintiff further seeks an order quieting title in the Property and declaring the Bank
Defendants' foreclosure void. See id. at 25. Plaintiff also seeks to prosecute this case as a class

action pursuant to Federal Rule ofCivil Procedure 23. See id. at 17-20.3 In their motions, the
Defendants move to dismiss Plaintiffs Complaint under Federal Rule of Civil 12(b)(6) for
failure to state a claim upon which relief can be granted. See O'Boyle Mot. 7; BANA Mot. 1;
BDFTE Mot. 1.

3For reasons discussed below, the Courtalso construes Plaintiffs Complaintas alleging a
violation of the Real Estate Settlement Procedures Act.

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II.

LEGAL STANDARD

When faced with a Rule 12(b)(6) motion, a court must determine whetherthe plaintiff

has asserted a legally sufficient claim for relief. A viable complaint must include "enough facts
to state a claim to reliefthat is plausible on its face" to survive a Rule 12(b)(6) motion. See Bell

Atl Corp. v. Twombly, 550 U.S. 544, 570 (2007). To meet this "facial plausibility" standard, a
plaintiff must "plead[] factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citing Twombly, 550 U.S. at 556). A court generally accepts well-pleaded facts as true and
construes the complaint in the light most favorable to the plaintiff. See Gines v. D.R. Horton,
Inc., 699 F.3d 812, 816 (5th Cir. 2012) (citation omitted). But a court does not accept as true

"conclusory allegations, unwarranted factual inferences, or legal conclusions." Ferrer v.

Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007) (citation omitted). Factual allegations must be
enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in fact). Id. (citations omitted). Courts
must consider the complaint in its entirety, documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice. Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007).
III.

DISCUSSION

A. The O 'Boyle Motion and the BANA Motion

The Attorney Defendants seek dismissal of Plaintiffs Complaint on the ground that the
Complaint fails to state a claim for violation of TILA, breach of fiduciary duty, common law
fraud, and IIED. See O'Boyle Mot. 12-19. Similarly, the Bank Defendants seek dismissal of
Plaintiffs Complaint because Plaintiffs TILA claim is time-barred and Plaintiffs breach of

fiduciary duty and fraud claims do not state a cognizable claim for relief. See BANA Mot. 4-9.
The Attorney Defendants and the Bank Defendants also allege that Allen initiated a federal

lawsuit against them onNovember 21, 2014, with a complaint (the "Allen Complaint") virtually
identical to Plaintiffs Complaint. See BANA Mot. 1 n.l; O'Boyle Mot. 8. On April 15, 2015,

Judge Kathleen Cardone of the Western District of Texas, El Paso Division, dismissed Allen's
claims with prejudice, with the exception of Allen's equitable action to quiet title in the Property
andclaims arising underthe Real Estate Settlement Procedures Act ("RESPA"). See generally
Allen v. BankofAm., N.A., No. EP-14-CV-429-KC, 2015 WL 1726986 (W.D. Tex. Apr. 15,
2015).
1.

Res Judicata

The Allen Complaint differs from Plaintiffs Complaint in only one respect: Plaintiffs
Complaint includes a request for class certificationunder Rule 23 that is absent from the Allen
Complaint. Compare Compl., with Allen Complaint, Allen v. Bank ofAm., N.A., No. EP-14-

CV-429-KC.4 That difference notwithstanding, the Allen Complaint and Plaintiffs Complaint
both sue the Attorney Defendants and the Bank Defendants, allege the same facts, and plead the
same claims, practically verbatim. In the interest ofjudicial economy, the Court hereby finds
Plaintiffs TILA, breach of fiduciary duty, common law fraud, and IIED claims against the
Attorney Defendants and the Bank Defendants barred by the doctrine of res judicata for the
reasons set forth below. See Mowbray v. Cameron Cnty., Tex., 274 F.3d 269, 281 (5th Cir. 2001)
(citation omitted) (recognizing that res judicata may be raised sua sponte by a court); Boone v.
Kurtz, 617 F.2d 435,436 (5th Cir. 1980) {per curiam) (citations omitted) (holding that even
though Federal Rule of Civil Procedure 8 denominates res judicata as an affirmative defense the

4The Allen Complaint is available as ECF No. 1 in theAllen case, Cause No. EP-14-CV^429KC.

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doctrine may beinvoked sua sponte by a court "in the interest ofjudicial economy where both
actions were brought before the same court").

"The preclusive effect of a prior federal court judgment is controlled by federal res

judicata rules." Ellis v. Amex Life Ins. Co., 211 F.3d 935, 937 (5th Cir. 2000). Resjudicata is
appropriate if:

1) the parties to both actions are identical (or at least in privity); 2) the judgment
in the first action is rendered by a court of competent jurisdiction; 3) the first
action concluded with a final judgment on the merits; and 4) the same claim or
cause of action is involved in both suits.

Id. "If these conditions are satisfied, all claims or defenses arising from a 'common nucleus of

operative facts' are merged or extinguished." Procter &Gamble Co. v. Amway Corp., 376 F.3d
496,499 (5th Cir. 2004) (citing Agrilectric Power Partners, Ltd. v. Gen. Elec. Co., 20 F.3d 663
(5th Cir. 1994)). "When two suits proceed simultaneously, as in this case,resjudicata effect is
given to the firstjudgment rendered." Id. at 500 (citing Chicago, Rock Island &Pac. R.R. v.
Schendel, 270 U.S. 611 (1926)). The Court analyzes the four elements of resjudicata below.
a.

The Parties

The Attorney Defendants and the Bank Defendants were parties to the Allen action.
Allen, however, did not explicitly name Plaintiff as a complainant in her case. Therefore, for the

judgment in Allen to have preclusive effectin this action, Allen and Plaintiffmust be in privity.
"Privity is a 'legal conclusion that the relationship between the one who is a party on the record
and the non-party is sufficiently close to afford application of the principle of preclusion.'"
Vines v. Univ. ofLa. at Monroe, 398 F.3d 700, 706 (5th Cir. 2005) (quoting Sw. Airlines Co. v.
Tex. Int7 Airlines, 546 F.2d 84, 95 (5th Cir. 1977)). Here, the dispute in Allen and the present

action both concern Plaintiff and Allen's interest in the Property. The two complaints make this

abundantly clear by referring to "plaintiffs" even though only a single plaintiff is named in each

action. See, e.g., Compl. 3 (alleging that Defendants "raced at break neck speed towards
foreclosure and eviction of the Plaintiffs from [the Property]"); Allen Compl. 19 ("[T]he

plaintiffs are entitled to compensatory and punitive damages

"); Security Instrument 1

(identifying Plaintiffand Allen as borrowers in a first lien instrument encumbering the Property).
The Court therefore finds that the relationship between Plaintiff and Allen is sufficiently close to

warrant application of preclusion principles. See, e.g., Eubanks v. FDIC, 977 F.2d 166, 170 (5th
Cir. 1992) (finding privity betweenspouses where husband in the first suit was closely aligned to
wife's interests so as to be her virtual representative). The first element ofresjudicata is
therefore satisfied.

b. Judgment on the Merits by a Court ofCompetent Jurisdiction
The Allen court found that it had jurisdiction over the case based on the federal claims
raised therein. See Allen, 2015 WL 1726986, at *16 n.12. That court then dismissed all of

Allen's claims with prejudice, with the exception of her RESPA claims and her equitable action

to quiet title in the Property. See id. at *18. A dismissal that is designated "with prejudice," as
in Allen, constitutes an adjudication on the merits for purposes ofresjudicata. See OreckDirect,
LLC v. Dyson, Inc., 560 F.3d 398, 401 (5th Cir. 2009) (quoting Fernandez-Montes v. Allied
Pilots Ass 'n, 987 F.2d 278, 284 n.8 (5th Cir. 1993)). The second and third elements of res

judicata are therefore satisfied.
c.

Claims Raised in the Allen Case

Resjudicata bars consideration of those of Plaintiffs claims that were adjudicated on the
merits by the Allen court. See Comer v. Murphy Oil USA, Inc., 718 F.3d 460, 467 (5th Cir.
2013) ("A final judgment on the merits of an action precludes the parties or their privies from

relitigating issues that were or could have been raised in that action." (quoting Federated Dep 't

-7

Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981))). TheAllen court adjudged, on the merits,
Allen's TILA, breach of fiduciary duty, common law fraud, and IIED claims against the

Attorney Defendants and the Bank Defendants. Thus, the Allen judgment prevents Plaintiff from
re-litigating the same claims against the same defendants. Compare Allen Compl. 12-23, with
Compl. 12-26; see also Allen, 2015 WL 1726986, at *12—18 (dismissing "withprejudice"
Allen's TILA, breach of fiduciary duty, common law fraud, and IIED claims). The fourth

element of resjudicata is therefore satisfied with respect to the aforementioned claims.
Having concluded that Plaintiffs TILA, breach of fiduciary duty, common law fraud, and
IIED claims against the Attorney Defendants and the Bank Defendants are barred by the doctrine
ofresjudicata, the Court considers Plaintiffs RESPA claims against these defendants.
2.

RESPA

In addition to challenging the Bank Defendants' authority to foreclose, Plaintiff also
asserts that the Bank Defendants failed to comply with certain statutory obligations.

Specifically, Plaintiff asserts that the Bank Defendants "never brought forward evidence that

they provided the proper notification regarding any alleged assignment of the note or specifically
what rights were assigned, which is required under [the] Uniform Commercial Code." See

Compl. 4.5 Plaintiff further asserts that the Bank Defendants never responded to his "Qualified
Written Request" demanding that they "exhibit the instrument." See id. at 7, 10. The Court

5Plaintiff never identifies the specific provision ofthe Uniform Commercial Code ("UCC") that
he is relying upon in support of this statement of law. Instead, Plaintiff cites to Kirby v. Palos Verdes
Escrow Co., 183 Cal. App. 3d 57 (1986), a 1986 California Court of Appeal case which held that an
escrow company with actual notice of an assignment was negligent in paying escrow funds to the assignor
rather than the assignee. See Kirby, 183 Cal. App. 3d at 65-66. Notwithstanding the fact that Kirby was
decided under California law, its holding plainly has no connection to any material issue in this case.
Moreover, Texas' version of the UCC does not apply to "the creation or transfer of an interest in or lien
on real property." See Tex. Bus. & Com. Code Ann. § 9.109(d)(l 1).
-8-

construes these allegations as invoking the protections set forth under RESPA, and addresses
each of Plaintiffs contentions separately below.

a. Notice ofAssignment, Sale, or Transfer
RESPA is a federal statute enacted "to insure that consumers throughout the Nation are

provided with greater and more timely information on the nature and costs ofthe settlement
process and are protected from unnecessarily high settlement charges caused by certain abusive
practices that have developed in some areas ofthe country." 12 U.S.C. § 2601(a). Section 2605
of RESPA requires that both the "transferor" and "transferee" loan servicer notify a borrower in
writing whenever the servicing of a borrower's mortgage is assigned, sold, or transferred from
one entity to another. See § 2605(b)(1), (c)(1); see also Lombardi v. Bank ofAm., Civ. A. No.
3:13_CV-1464-0, 2014 WL 988541, at *17 (N.D. Tex. Mar.13, 2014). To state a claim under

this provision, a plaintiffmustallege actual damages resulting from the RESPA violation. See
12 U.S.C. § 2605(f); Kareem v. Am. Home Mortg. Servicing, Inc., 479 F. App'x 619, 620 (5th
Cir. 2012) (per curiam); Lombardi, 2014 WL 988541, at *17; Hurd v. BAC Home Loans
Servicing, LP, 880 F. Supp. 2d 747, 768-69 (N.D. Tex. 2012).
Here, Plaintiffs vague and conclusory allegations are insufficient to state a claim under
RESPA for several reasons. At the outset, a careful reading of the Complaint reveals that

Plaintiff is not even alleging that the Bank Defendants failed to timely notify him of the
Assignment; rather, Plaintiff merely states that the Bank Defendants "never brought forward
evidence" that they affirmatively complied with their obligations under the statute. See Compl.
4. Because RESPA does not require a loan servicer to "bring forward evidence" of its
compliance absent any allegation of wrongdoing, Plaintiffs claim fails on this basis alone. See

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Twombly, 550 U.S. at 555 ("Factual allegations must be enough to raise a right to relief above
the speculative level.").

Moreover, because RESPA imposes obligations solely upon loan servicers, its

notification provisions are only triggered if the servicing of aborrower's loan is transferred from

one entity to another.7 See 12 U.S.C. §2605(b)(1), (c)(1) (imposing notification obligation only
upon "servicer[s]" and "transferee servicer[s]"). Here, though it is undisputed that the Loan was
assigned from MERS to Deutsche Bank onOctober 8,2009, Plaintiff alleges no facts supporting
an inference that the servicing of the Loan was ever transferred between different entities. As a
result, Plaintiff fails to state a plausible cause of action under § 2605's notification provisions.
See Jones v. ABNAmro Mortg. Grp, Inc., 606 F.3d 119, 124-25 (3d Cir. 2010) (finding that

mortgagees were not "servicers" under the terms of the loan and therefore could not as a matter
of law incur liability under RESPA); Daw v. Peoples Bank & Trust Co., 5 F. App'x 504, 505

(7th Cir. 2001) (per curiam) (holding that RESPA's notification provisions are not triggered
where a loan assignment does not affect the servicing of a borrower's loan); Newcomb v.
Cambridge Home Loans, Inc., 861 F. Supp. 2d 1153, 1161 (D. Haw. 2012) ("RESPA governs
the notice requirements where loan servicing is assigned, sold, or transferred, see 12 U.S.C. §
2605, but does not govern notice requirements where a note or mortgage is transferred.").

Finally, even assuming that there was a change in the servicing of the Loan, and even
assuming that Plaintiff did not receive the required notification under RESPA, Plaintiffs claim

6RESPA defines "servicer" as "the person responsible for servicing of a loan ...." 12 U.S.C. §
2605(i)(2).

7Under RESPA, the term "servicing" is defined as "receiving any scheduled periodic payments
from a borrower pursuant to the terms of any loan, including amounts for escrow accounts described in
section 2609 of this title," and "making the payments of principal and interest and such other payments
with respect to the amounts received from the borrower as may be required pursuant to the terms of the
loan." 12 U.S.C. §2605(i)(3).

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still fails because the Complaint contains no facts explaining how this alleged violation impeded

Plaintiffs ability to pay the mortgage, orotherwise caused Plaintiff to incur actual damages. See
Kareem, 479 F. App'x at 620; see also Hurd, 880 F. Supp. 2d at 768-69 (dismissing a plaintiffs
RESPA claim where the plaintiff failed to allege any facts supporting a reasonable inference that
she suffered actual damages as a result of the servicer's failure to provide the required notice);

Akintunji v. Chase Home Fin., L.L.C., Civ. A. No. H-l 1-389, 2011 WL 2470709, at *2-3 (S.D.
Tex. June 20,2011) (same).

b. Qualified Written Requests

Section2605(e) of RESPA provides that if a loan servicer receives a qualified written

request from the borrower "for information relating to the servicing of [the borrower's] loan,"
the loan servicer must send a written response acknowledging receipt of the correspondence

within five days, unless the requested action is taken before the five-day period expires. See 12

U.S.C. § 2605(e)(1)(A). Additionally, RESPA requires that the loan servicer take corrective
action or otherwise substantively respond to the borrower's inquiry within thirty days of

receiving the qualified written request. See id. § 2605(e)(2). Section 2605(e) defines a
"qualified written request" as

a written correspondence, other than notice on a payment coupon or other
payment medium supplied by the servicer, that. . . includes, or otherwise enables
the servicer to identify, the name and account of the borrower; and [that] includes
a statement of the reasons for the belief of the borrower, to the extent applicable,
that the account is in error or provides sufficient detail to the servicer regarding
other information sought by the borrower.

Id. § 2605(e)(1)(B). To state a claim for a loan servicer's failure to respond to a qualified written
request, a borrower must allege facts supporting an inference of actual damages. See Whittier v.

Ocwen Loan Servicing, L.L.C., 594 F. App'x 833, 836 (5th Cir. 2014) (per curiam); see also
Steele v. Quantum Servicing Corp., Civ. A. No. 3:12-CV-2897-L, 2013 WL 3196544, at *6
-11 -

(N.D. Tex. June 25, 2013); Hurd, 880 F. Supp. 2d at 768; Bittinger v. Wells Fargo Bank NA, 744
F. Supp. 2d 619, 627 (S.D. Tex. 2010).

To corroborate his RESPA allegations, Plaintiff attaches three substantially identical

letters to the Complaint. See Compl., Ex. B. All three letters were sent by Plaintiff on February
12, 2014. See id, Ex. B. Only one of these letters was sent to BANA, the actual loan servicer in
this Case.8 See id, Ex. B. The letter Plaintiffsentto BANA reads as follows: "Please exhibit the
Instrument for loan number 068893073 BANK OF AMERICA, NA, pursuant to UCC 3-

501(b)(2). This is a Qualified Written Request submitted underthe authority of Title 12 USC,
Section 2605e." Id., Ex. B at 2.

Accepting Plaintiffs allegations as true, and applying the standards discussed above, the
Complaint fails to state a claim upon which relief may be granted, because the February 12,
2014, letter to BANA plainly does not constitute a qualified written request. Courts have

consistently held that a borrower's written demand for the production of certain loan documents
does not relate to the "servicing" of a loan, and therefore does not trigger a loan servicer's

response obligations under the statute. See Ward v. Sec. Atl. Mortg. Elec. Registration Sys., Inc.,
858 F. Supp. 2d 561, 574 (E.D.N.C. 2012) (find that letter demanding copies of loan documents
was "a communication challenging the validity of the loan and not a communication relating to

the servicing of the loan as defined by statute"); Junodv. Dream House Mortg. Co., No. CV 117035-ODW (VBKx), 2012 WL 94355, at *3^ (CD. Cal. Jan. 5, 2012) (finding that letter

demanding, among other things, "a true and present copy of the promissory note and deed of
trust" was not a qualified written request as contemplated under RESPA); Liggion v. Branch

Banking & Trust, No. 1:1l-CV-01133-WSD, 2011 WL 3759832, at *3 (N.D. Ga. Aug. 24,
8The other two letters were sent to BDFTE and Select Portfolio Servicing, Inc., respectively. See
Compl., Ex. B. Plaintiff does not mention Select Portfolio Servicing, Inc., at any other point in the
Complaint, and the entity is not named as a defendant in this case.
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2011) ("Plaintiffs information document requests are not a proper qualified written request
under RESPA because they do not relate to the servicing ofthe loan."); Jones v. PNC Bank,
N.A., No. 10-CV-01077-LHK, 2010 WL 3325615, at *2 (N.D. Cal. Aug. 20, 2010) ("A

[qualified written request] must seek information relating to the servicing ofthe loan; a request
for loan origination documents is not a [qualified written request]."); see also Kelly v. Fairon &
Assocs., 842 F. Supp. 2d 1157, 1160 (D. Minn. 2012) ("Requests for information pertaining to
the identity of a note holder or master servicer do not relate to servicing.").
Additionally, like his previous RESPA claim, Plaintiffs claim arising under § 2605(e)
fails because the Complaint contains no factual allegations that Plaintiff sustained actual
damages as a result of BANA's alleged failure to respond to Plaintiffs February 12, 2014, letter.
See Whittier, 594 F. App'x 836-37; see also Steele, 2013 WL 3196544, at *6-7; Hurd, 880 F.

Supp. 2d at 768; Bittinger, 744 F. Supp. 2d at 627. Accordingly, for all these reasons, the Court
dismisses Plaintiffs RESPA claims.

3. Equitable Action to Quiet Title

Plaintiff also seeks an order quieting title in the Property and declaring the Bank
Defendants' foreclosure void. See Compl. 25. A suit to quiet title is an equitable cause of action
to remove a cloud from the title of a property created by an invalid claim. See Hahn v. Love, 321

S.W.3d 517, 531 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). In order to prevail, a
plaintiff must establish that: (1) she has an interest in a specific property, (2) title to the property
is affected by a claim by the defendant, and (3) the claim, although facially valid, is invalid or
unenforceable. Hurd, 880 F. Supp. 2d at 766 (citation omitted); see also Wagner v.

CitiMortgage, Inc., 995 F. Supp. 2d 621, 626 (N.D. Tex. 2014). "A plaintiff in a suit to quiet

title must prove and recover on the strength of [her] own title, not the weakness of [her]

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adversary's title." Fricks v. Hancock, 45 S.W.3d 322, 327 (Tex. App.—Corpus Christi 2001, no
pet.); see also Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366, 388 (Tex. App.—Houston
[1st Dist.] 2012, pet. denied).

As discussed in detail above, the Complaint contains no facts that would allow the Court

to infer that Plaintiff possesses superior title to the Property. Plaintiff does notallege that he is
current on the mortgage payments, nor does Plaintiffdeny that he defaulted on the Note.

Plaintiffs unsupported attacks on the Bank Defendants' authority to foreclose are insufficient to
survive a motion to dismiss. See, e.g., Herrera v. Wells Fargo Bank, N.A., Civ. A. No. H-1368,2013 WL 961511, at *9 (S.D. Tex. Mar. 12, 2013) (holding that a plaintiffs attacks on the

mortgagee's authority to foreclose on the property are "not relevant" to a claim to quiet title);
Bell v. Bank ofAm. Home Loan ServicingLP, Civ. A. No. 4:1 l-CV-02085, 2012 WL 568755, at
*7 (S.D. Tex. Feb. 21, 2012) (collecting cases). Accordingly, the Court dismisses Plaintiffs
action to quiet title in the Property.
In sum, Plaintiffs TILA, breach of fiduciary duty, common law fraud, and IIED claims

against the Attorney Defendants and the Bank Defendants are dismissed with prejudice under the
doctrine ofresjudicata. Plaintiffs RESPA claims and equitable action to quiet title are
dismissed without prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). For these
reasons, the O'Boyle Motion and the BANA Motion are granted.
B.

The BDFTE Motion

Plaintiff sues BDFTE,9 a law firm, based on the theory that the firm is independently
liable for certain legal work it performed on behalf of its client, Deutsche Bank, because the firm
"cannot establish [its] client's property interest in the note." See Compl. 6. The only other

9Although Allen sued BDFTE in her complaint, the Allen court dismissed the claims against that
entity without prejudice for failure to effect service. See Allen, 2015 WL 1726986, at *18 n.13.
Therefore, the principles of rejudicata do not foreclose the present claims against BDFTE.
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mention of BDFTE in the Complaint is the allegation that the "the signer of the Assignment

appears to be an employee of[BDFTE] and not a MERS executive." See id. at 8. Plaintiff
otherwise relies on general allegations against "defendants" to support his claims for relief. See,

e.g., id. at 5 (stating that "Defendants must prove the possession ofthe note and mortgage was in
compliancewith the state statutes").

Global allegations of wrongdoing, however, are insufficient to state a claim for relief.
See, e.g., Washington v. U.S. Dep'tofHous. &UrbanDev., 953 F. Supp. 762, 770 (N.D. Tex. 1996);
see also Chyba v. EMC Mortgage Corp, 450 F. App'x 404, 406 (5th Cir. 2011) (per curiam);
Bittick v. JPMorgan Chase Bank, NA, No. 4:11-CV-812-A, 2012 WL 1372126, at *7 (N.D.

Tex. Apr. 18, 2012). Plaintiffmusttherefore specify what acts or omissions BDFTE committed
that form the basis of any of Plaintiff s claims against that entity. See Iqbal, 556 U.S. at 678;
Ferrer, 484 F.3d at 780. Because Plaintiffs allegations against BDFTE do not raise a right to

reliefabove the speculative level, the Court dismisses these claims without prejudice pursuant to
Federal Rule of Civil Procedure 12(b)(6).
IV.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that Defendants Jack O'Boyle & Associates,

Christopher S. Ferguson, and Jack O'Boyle's "Motion to Dismiss Complaint Pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6)" (ECF No. 9) is GRANTED. With the exception
of claims arising under the Real Estate Settlement Procedures Act, Plaintiff Martin Armendariz's
claims against these defendants are DISMISSED WITH PREJUDICE.
IT IS ALSO ORDERED that Defendants Bank of America, N.A., and Deutsche Bank

National Trust Company, as Trustee for the Holders of GSAMP 2005-AHL Mortgage Pass-

Through Certificates, Series 2005-AHL's "Motion to Dismiss Plaintiffs Complaint and Brief in

15

Support" (ECF No. 10) is GRANTED. With the exception ofclaims arising under the Real
Estate Settlement Procedures Act, Plaintiff Martin Armendariz's claims against these defendants
are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Defendant Barrett Daffin Frappier Turner & Engel

LLP's "Motion to Dismiss, and Brief in Support" (ECF No. 19) is GRANTED. Plaintiff Martin

Armendariz's claims against this defendant are DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Plaintiffs RESPA claims against all Defendants are
DISMISSED WITHOUT PREJUDICE.

IT IS LASTLY ORDERED that Plaintiff Martin Armendariz MAY file a motion to

amend the Complaint, to re-plead his RESPA claim and action to quiet title, in conformity with
this Order. Failure to file such a motion on or before June 1, 2015 will result in dismissal of
this case without further notice to Plaintiff.

7/57~
So ORDERED and SIGNED this CJ day of May, 2015.

DAVID C. GUADERRAMA
UNITED STATES DISTRICT JUDGE

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