675 Fed.Appx. 396 (5th Cir. 2017), 16-10276, Johnson-Williams v. Mortgage Electronic Registration Systems, Inc.

Docket Nº:16-10276
Citation:675 Fed.Appx. 396
Opinion Judge:PER CURIAM
Party Name:CHERYL JOHNSON-WILLIAMS, also known as Cheryl Angrum, Plaintiff - Appellant v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INCORPORATED; CITIMORTGAGE, INCORPORATED; SHELLEY ORTOLANI, substitute trustees, Defendants - Appellees
Attorney:CHERYL JOHNSON-WILLIAMS, also known as Cheryl Angrum, Plaintiff - Appellant, Pro se, Grand Prairie, TX. For MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INCORPORATED, CITIMORTGAGE, INCORPORATED, Defendants - Appellees: Walter McInnis, Akerman, L.L.P., Dallas, TX.
Judge Panel:Before KING, DENNIS, and COSTA, Circuit Judges.
Case Date:January 04, 2017
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 396

675 Fed.Appx. 396 (5th Cir. 2017)

CHERYL JOHNSON-WILLIAMS, also known as Cheryl Angrum, Plaintiff - Appellant

v.

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INCORPORATED; CITIMORTGAGE, INCORPORATED; SHELLEY ORTOLANI, substitute trustees, Defendants - Appellees

No. 16-10276

United States Court of Appeals, Fifth Circuit

January 4, 2017

UNPUBLISHED

Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1

Appeal from the United States District Court for the Northern District of Texas. USDC No. 3:14-CV-3927.

CHERYL JOHNSON-WILLIAMS, also known as Cheryl Angrum, Plaintiff - Appellant, Pro se, Grand Prairie, TX.

For MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INCORPORATED, CITIMORTGAGE, INCORPORATED, Defendants - Appellees: Walter McInnis, Akerman, L.L.P., Dallas, TX.

Before KING, DENNIS, and COSTA, Circuit Judges.

OPINION

Page 397

PER CURIAM:[*]

Defendant--Appellee CitiMortgage, Incorporated, noticed Plaintiff-Appellant Cheryl Johnson--Williams's home for a non-judicial foreclosure sale after she defaulted on her note. Johnson--Williams then filed suit against Defendants--Appellees in state district court, and the suit was removed to federal district court. The district court dismissed Johnson--Williams's complaint and denied her motion for reconsideration. Johnson--Williams now appeals. We AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

In September 2006, Plaintiff--Appellant Cheryl Johnson--Williams, né e Angrum, purchased property located in Grand Prairie, Texas (the Property). In connection with that purchase, she executed a Note in favor of Everett Financial, Inc., d/b/a Supreme Lending (Everett). The Note was secured by a Deed of Trust. The Deed of Trust named Defendant--Appellee Mortgage Electronic Registration Systems, Inc. (MERS)1 as the beneficiary of the Deed of Trust " solely as the nominee for [Everett] . . . and [Everett's] successors and assigns." The Deed of Trust provided that MERS " has the right: to exercise any or all of [Everett's or its successors and assigns'] interests, including, but not limited to, the right to foreclose and sell the Property." In January 2012, MERS executed an Assignment of the Deed of Trust in favor of Defendant-Appellee CitiMortgage, Inc. (CMI), who--following Johnson--Williams's default on the Note--noticed the property for an August 5, 2014, non-judicial foreclosure sale. CMI bought the property at the foreclosure sale, with Defendant--Appellee Shelley Ortolani executing the Substitute Trustee's Deed conveying the property to CMI.

Johnson--Williams, proceeding pro se, filed suit in Texas state court naming, in relevant part, MERS, CMI, and Ortolani as defendants.2 She asserted causes of actions for fraud (based at least in part on alleged violations of section 12.002 of the Texas Civil Practice and Remedies Code) and slander of title, and sought declaratory and injunctive relief. MERS and CMI removed the case to the United States District Court for the Northern District of Texas, asserting that Ortolani was improperly joined to defeat diversity jurisdiction.3

Page 398

The district court assigned the case to a magistrate judge for the resolution of all non-dispositive pre-trial motions and for reports and recommendation regarding dispositive motions. The magistrate judge issued a scheduling order setting a July 2, 2015, deadline for Johnson--Williams to move to amend her complaint or to add parties.

MERS and CMI moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). On July 16, 2015, the magistrate judge recommended that the motion be granted. The magistrate judge recognized that courts typically give pro se plaintiffs like Johnson--Williams an opportunity to amend their complaint before dismissing it, but concluded that granting leave would be futile because all of Johnson-Williams's claims " are based on the invalid 'show-me-the-note' and 'split-the-note' theories or . . . on the alleged invalidity of the Assignment, which [Johnson--Williams] lacks standing to challenge."

On August 7, 2015--more than a month after the deadline set by the magistrate judge--Johnson--Williams moved to amend her complaint and to add Everett and the Government National Mortgage Association (Ginnie Mae) as defendants. Johnson--Williams's proposed amended complaint largely overlapped with her prior complaint, but did assert several new grounds for relief. In relevant part, she asserted a claim for quiet title asking that the Assignment be declared " invalid or unenforceable" because it was not recorded in compliance with section 192.007 of the Texas Local Government Code.

The magistrate judge denied Johnson--Williams's motion to amend and add party defendants on August 13, concluding that amendment would be futile. With respect to Johnson--Williams's new quiet title claim based on an alleged violation of section 192.007(a), the magistrate judge concluded that the claim necessarily failed because section 192.007(a) does not require an assignment be recorded in order to be effective as to the parties to such assignment and, in any event, the Assignment was recorded.

On August 19, 2015, the district court--after reviewing for plain error based on Johnson--Williams's failure to object--concluded that the magistrate judge's recommendation for dismissal should be accepted and granted MERS and CMI's motion to dismiss. That same day, the district court rendered final judgment...

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