Routh et al v. Bank of America, N.A.

Filing 46

ORDER DENYING 44 Motion for New Trial. Signed by Judge Xavier Rodriguez. (rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
RANDY ROUTH and SHIRLEE ROUTH,
Plaintiffs,
v.
BANK OF AMERICA, N.A.,
Defendant.

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Civil Action No. SA-12-CV-244-XR

ORDER
On this day the Court considered Plaintiffs’ motion for a new trial and for rehearing
(docket no. 44). Plaintiffs ask the Court to vacate its order granting Defendant’s supplemental
motion for summary judgment and granting in part Defendant’s motion to exclude Plaintiffs’
expert witnesses (docket no. 41). Since there has not been a trial, and since Plaintiffs filed their
motion within twenty-eight days of judgment, the Court construes Plaintiffs’ motion as a motion
to alter or amend judgment under Federal Rule of Civil Procedure 59(e). See Demahy v. Schwarz
Pharma, Inc., 702 F.3d 177, 182 n.2 (5th Cir. 2012) (explaining that a motion challenging a prior
judgment on the merits is treated as a motion to alter or amend judgment under Rule 59(e) if the
motion was filed within twenty-eight days after the entry of judgment); St. Paul Mercury Ins. Co.
v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir. 1997) (construing a motion for new trial,
challenging an entry of summary judgment, as a Rule 59(e) motion to alter or amend judgment).
I. Background
On March 5, 2012 Plaintiffs Randy Routh and Shirlee Routh sued Defendant Bank of
America N.A. to prevent Defendant from selling their home at a foreclosure sale. Docket No. 12. Plaintiffs asserted causes of actions for declaratory judgment, violations of the Uniform

Commercial Code, common law fraud, quiet title, violations of the Texas Debt Collection
Practices Act, and violations of the Texas Deceptive Trade Practices Act. Defendant removed
the action to this Court. Docket No. 1.

On February 4, 2013, the Court issued an order

dismissing all of Plaintiffs’ claims, except Plaintiffs’ claim for quiet title. Docket No. 32.
Plaintiffs’ claim for quiet title—to the extent it survived the February 4, 2013 dismissal
order—was based on allegations that Defendant was invalidly assigned Plaintiffs’ mortgage note
and deed of trust by the Mortgage Electronic Registration Systems, Inc. (“MERS”), which was
the entity that originally held the beneficial interest to Plaintiffs’ deed of trust. See Deed of Trust
at 2–3, Def.’s MSJ, Docket No. 25, Ex. A-3 (listing MERS as the “beneficiary” under the deed
of trust with the right to foreclose). Specifically, Plaintiffs’ amended complaint asserted that the
assignment was invalid because the individual who signed the assignment on behalf of MERS
lacked the authority to do so.

Plaintiffs also asserted generally that the assignment was

“fraudulent and fake.” See First Am. Compl. ¶ 4, 24.
The Court instructed the parties to submit summary judgment evidence on Defendant’s
authority to foreclose so that the Court could determine whether Plaintiffs’ quiet title claim had
merit. Order at 15, Docket No. 32. Defendant responded with evidence showing that the
individual who signed the assignment, Jennifer Baker, was a “Signing Officer” of MERS. See
MERS Corporate Resolution Appointing Signing Officers at 2, Def.’s Suppl. MSJ, Docket No.
34, Ex. E-1; Assignment, Def.’s MSJ, Docket No. 25, Ex. A-7; see also Bierwirth v. BAC Home
Loans Servicing, L.P., No. 03–11–00644–CV, 2012 WL 3793190, at *5 (Tex. App.—Austin
Aug. 30, 2012, no pet.) (mem. op.) (holding that where MERS is a “beneficiary” of a deed of
trust with the right to foreclose, MERS can transfer its beneficial interest and its right to

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foreclose to another party). Defendant also produced uncontroverted evidence that it possessed
the original note. See Decl. of Adam Nunnallee ¶ 5, Def.’s MSJ, Docket No. 25, Ex. D (stating
that Defendant’s counsel obtained possession of the original note from Defendant). Plaintiffs
responded with an affidavit of forensic document examiner, Curt Baggett. Pls.’ Resp., Docket
No. 35, Ex. 6. Mr. Baggett’s affidavit asserted—without explaining how the conclusion was
reached—that Ms. Baker’s signature on the assignment was forged. Id. at 3–4.
The Court considered the arguments and the evidence and determined that Plaintiffs’
claim for quiet title lacked merit. Docket No. 41. First, the Court determined that Defendant
produced sufficient and uncontroverted evidence that Ms. Baker had the authority to execute the
assignment on behalf of MERS. Second, the Court held that regardless of whether Ms. Baker
had authority to execute the assignment, Plaintiffs did not have standing to challenge the
assignment for lack of authority. Third, the Court held that Plaintiffs’ complaint only alleged
that Ms. Baker did not have authority to execute the assignment; it did not allege that another
individual forged Ms. Baker’s signature.

To the extent that Plaintiffs raised additional

allegations of forgery in their response to Defendant’s motion for summary judgment, these
additional allegations were not properly before the court. Fourth, the Court held that even were
it to consider Plaintiffs’ allegations of forgery, Plaintiffs failed to produce sufficient evidence to
support a finding that the assignment was executed by anyone other than Ms. Baker. Finally, the
Court held that even were the assignment invalid, Defendant had authority to foreclose as the
uncontroverted holder of the note, which had been endorsed in blank by the original lender.
Plaintiffs now move to vacate the Court’s judgment. Docket No. 44. Plaintiffs argue that
the Court “has clearly made a mistake concerning property law [sic] of the state of Texas.” Id. at

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2. Plaintiffs assert that their amended complaint sufficiently alleges forgery, rather than just lack
of authority, and that, through the affidavit of Mr. Baggett, Plaintiffs produced competent
evidence to raise a fact issue regarding the authenticity of Ms. Baker’s signature on the
assignment. Further, Plaintiffs urge the Court to allow them to replead their quiet title claim and
amend Mr. Baggett’s affidavit if the Court rejects the argument that their complaint and expert
affidavit are sufficient.
II. Legal Standard
A Rule 59(e) motion to alter or amend a judgment is an “extraordinary remedy” used
only sparingly by the courts. Templet v. Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004).
Such a motion calls into question the correctness of the district court’s judgment, which “will not
be disturbed in the absence of a showing that it has worked an injustice.” Id. at 478; Tate v.
Starks, 444 F. App’x 720, 724 (5th Cir. 2011) (unpublished) (citing Garcia v. Woman’s Hosp. of
Tex., 97 F.3d 810, 814 (5th Cir. 1996). The motion “serves[s] the narrow purpose of allowing a
party to correct manifest errors of law or fact or to present newly discovered evidence.” Templet,
367 F.3d at 479; see also Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003).
Additionally, relief is appropriate when there has been an intervening change in the controlling
law. Schiller, 342 F.3d at 567; Tate, 444 F. App’x at 724; 11 Wright, Miller & Kane, Federal
Practice & Procedure: Civil 2d § 2810.1 (2d ed.1995). A Rule 59(e) motion “is not the proper
vehicle for rehashing evidence, legal theories, or arguments that could have been offered or
raised before the entry of judgment.” Templet, 367 F.3d at 479.
Because altering or amending a judgment is such an extraordinary remedy, the Rule 59(e)
standard favors denial of such motions. S. Constructors Grp., Inc. v. Dynalectric Co., 2 F.3d 606,

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611 (5th Cir. 1993). Nevertheless, since specific grounds for granting a motion to alter or amend
are not listed in the Rules, a district court enjoys considerable discretion in granting or denying
the motion. Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993);
Templet, 367 F.3d at 477 (stating that a district court’s Rule 59(e) decision will be reviewed only
for abuse of discretion). However, a court’s discretion is not without limits. “The court must
strike the proper balance between two competing imperatives: (1) finality, and (2) the need to
render just decisions on the basis of all the facts.” Edward H. Bohlin Co., 6 F.3d at 355.
III. Discussion
In Texas, to prevail on a claim for quite title, a plaintiff must show: “(1) 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.” U.S. Nat’l Bank Ass’n v. Johnson,
No. 01-10-00837-CV, 2011 WL 6938507, at *3 (Tex. App.—Houston [1st. Dist.] Dec. 30, 2011,
no pet.). The Court, in its opinion granting summary judgment, noted that regardless of the
validity of the assignment, Defendant had authority to foreclose on Plaintiffs’ mortgage as the
holder of the mortgage note. In their Rule 59(e) motion, Plaintiffs do not dispute the fact that
Defendant is the holder of the mortgage note or the Court’s finding. Therefore, even were the
Court to accept Plaintiffs’ arguments regarding the invalidity of the assignment, the ultimate
judgment against Plaintiffs would be left undisturbed. Accordingly, Plaintiffs have not shown
that the Court’s opinion worked an injustice; therefore, Plaintiffs’ Rule 59(e) motion is denied.
See Templet, 367 F.3d at 478 (stating that a district court’s judgment “will not be disturbed in the
absence of a showing that it has worked an injustice”).

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Additionally, Plaintiffs’ arguments rehash the same evidence and legal theories that they
asserted before judgment.

Plaintiffs’ Rule 59(e) motion offers no additional evidence

challenging Ms. Baker’s signature as a forgery. To the extent that Plaintiffs argue that the Court
made a manifest error of law, they support their assertion by citing and mischaracterizing cases
the Court has already considered and cited in its opinion. See e.g. Reinagel v. Deutsche Bank
Nat. Trust Co., 12-50569, 2013 WL 5832812 (5th Cir. Oct. 29, 2013); Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 157
(1999).
Finally, Plaintiffs’ request to replead their claim and rewrite their expert’s affidavit is
denied. A Rule 59(e) motion “serves[s] the narrow purpose of allowing a party to correct
manifest errors of law or fact or to present newly discovered evidence.” Templet, 367 F.3d at
479. Plaintiffs have not identified a manifest error of law or fact, and they are not alleging newly
discovered evidence. Accordingly, the Court will not disturb its judgment and allow Plaintiffs
leave to amend.
IV. Conclusion
The Court finds that Plaintiffs have failed to identify a manifest error of law or fact,
present newly discovered evidence, or show that the Court’s judgment worked an injustice or is
incorrect. As a result, Plaintiffs’ motion for a new trial and for rehearing (docket no. 44) is
DENIED.
It is so ORDERED.
SIGNED this 7th day of January, 2014.

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XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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