Allen v. Bank of Am., N.A.
| Decision Date | 15 April 2015 |
| Docket Number | EP-14-CV-429-KC |
| Parties | ANNA J. ALLEN, Plaintiff, v. BANK OF AMERICA, N.A. et al., Defendants. |
| Court | U.S. District Court — Western District of Texas |
On this day, the Court considered the Bank Defendants' Motion to Dismiss Plaintiff's Petition and Brief in Support (the "Banks' Motion"), ECF No. 11, and Defendants Jack O'Boyle's, Christopher Ferguson's, and Jack O'Boyle and Associates' Motion to Dismiss Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (the "O'Boyle Defendants' Motion"), ECF No. 12, in the above-captioned cause (the "Case"). For the reasons set forth below, the Court GRANTS both the Banks' Motion and the O'Boyle Defendants' Motion.
Plaintiff Anna J. Allen ("Plaintiff") filed her original complaint ("Complaint") in this Court on November 21, 2014. See Compl. 1.1 By the Complaint, Plaintiff asserts various causes of action against Bank of America, N.A. ("BANA") and Deutsche Bank National Trust Company ("Deutsche Bank") (collectively, the "Bank Defendants") in connection with the Bank Defendants' foreclosure of a homestead property located at 19 Garnet Crest Way, El Paso, Texas 79902 (the "Property"). Id. at 1-3. The Complaint is jumbled, conclusory, and devoid of anyfacts explaining the circumstances preceding the Bank Defendants' foreclosure. Nevertheless, because the Bank Defendants attach copies of the actual mortgage and loan documents to their motion,2 the Court has been able to discern the following facts relevant to its resolution of the instant motions to dismiss:
On December 14, 2004, Plaintiff's husband, Martin Armendariz ("Armendariz"), obtained a $483,000 home equity loan (the "Loan") from Accredited Home Lenders, Inc. ("AHL"). See Texas Home Equity Adjustable Rate Note, Banks' Mot. Ex. A ("Note"), ECF No. 11-1. The Loan was evidenced by a Note, see id., and secured by a first lien on Plaintiff's and Armendariz's Property. See Texas Home Equity Security Instrument, Banks' Mot. Ex. B ("Security Instrument"), ECF No. 11-2. The Security Instrument identifies both Armendariz and Plaintiff as "Borrower[s]," and AHL as the "Lender." See Security Instrument 2. The Security Instrument further identifies the Mortgage Electronic Registration System ("MERS")3 as the "nominee for Lender and Lender's successors and assigns" and as "the beneficiary under this Security Instrument." Id. While both Plaintiff and Armendariz signed the Security Instrument, only Armendariz signed the Note. Compare id. at 15, with Note 6.
On October 8, 2009, MERS assigned both the Note and the Security Instrument to Deutsche Bank. See Compl. Ex. C (the "Assignment"); see also Compl. 8. The Assignment was recorded in the Official Public Records of Real Property in El Paso County, and is attached here as an exhibit to Plaintiff's Complaint.4 See Assignment; see also Compl. 8. Plaintiff identifies BANA as the entity that was tasked with servicing the Loan on Deutsche Bank's behalf. Compl. 10; see also Banks' Mot. 6.
At some point following the Assignment, Plaintiff alleges that BANA contacted her and Armendariz and advised them to stop making monthly payments on the Loan pending a modification agreement. Compl. 4; see also Compl. Ex. A (Plaintiff's and Armendariz's September 6, 2010, application for a loan modification). Plaintiff alleges that BANA refused to modify the Loan in bad faith, and instead "began the foreclosure process." See Compl. 4. While Plaintiff does 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.5 See id. at 9, 23. On June 24, 2013, Deutsche Bank purchased the Property at a foreclosure sale, and was granted a Substitute Trustee's Deed. See Banks' Mot. Ex. D (the "Substitute Trustee's Deed"), ECF No. 11-4.6 Plaintiff then initiated this action challenging the propriety of the Bank Defendants' foreclosure and asserting various causes of action under federal and state law.
Although Plaintiff styles this Case as an action arising under the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq., see Compl. 2, her claims are actually far more expansive. The Court summarizes Plaintiff's contentions below.
First, Plaintiff alleges that because she and her husband executed the Loan with AHL, an entity that has since entered bankruptcy, the Bank Defendants are "strangers to the transaction" who foreclosed on the Property "without [proving] their possession of the original note." Id. at 3, 10; see also id. at 4, 6-9. Specifically, Plaintiff maintains that there is a "broken chain of title to the note" from AHL to Deutsche Bank, and therefore the Bank Defendants "do not have good and perfected title and the foreclosure is invalid and void." Id. at 9. Second, Plaintiff flatly declares that the Bank Defendants' foreclosure is invalid because "the note and mortgage cannot be split," thus appearing to contend that such a split occurred in this Case when MERS transferred its interest in the Note and the Security Instrument to Deutsche Bank. Id. at 7-8. Third, Plaintiff insists that the Assignment from MERS to Deutsche Bank "never was a valid or enforceable transfer" because it occurred more than six months after AHL, the original lender, filed for bankruptcy. Id. at 7. Plaintiff further asserts that, in any event, MERS does not have any authority to assign a mortgage on behalf of a third party. Id. at 11. Fourth, Plaintiff contends 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." Id. at 4. And fifth, Plaintiff alleges that neither Deutsche Bank nor BANA responded to Plaintiff's "Qualified Written Request" demanding that they "exhibit the instrument." Id. at 7, 10. The Court understands Plaintiff's fourth and fifth contentions as invoking the rights andprotections set forth under the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq.
In addition to these assertions, Plaintiff expressly files claims under TILA on the basis that one or both of the Bank Defendants are vicariously liable for AHL's failure to accurately disclose the amount financed, the finance charges, and the annual percentage rate at the time of the Loan's origination. Compl. 2, 12-17. Plaintiff further brings claims against the Bank Defendants for breach of fiduciary duty, common law fraud, and an action to quiet title based on these same allegations. Id. at 17-20, 22.
Finally, Plaintiff also brings claims against two different law firms involved in the foreclosure of her home. First, Plaintiff asserts an Intentional Infliction of Emotional Distress ("IIED") Claim against Defendants Jack O'Boyle and Associates, Jack O'Boyle, and Christopher Ferguson (the "O'Boyle Defendants") in connection with their legal work on behalf of their client, Deutsche Bank. Id. at 23. In support of her IIED claim, Plaintiff alleges that the O'Boyle Defendants "knew or should have known that there are numerous violations of the [TILA]" and "knew or should have known that their client does not have standing to foreclose" on the Property. Id. Plaintiff also sues the law firm of Barrett Daffin Frappier Turner & Engel, LLP ("Barrett Daffin") 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." Id. at 6. There is no indication that Barrett Daffin was ever served with process in connection with this Case.
Among a long list of legal and equitable remedies, Plaintiff requests an order enjoining Defendants from evicting her from her home, id. at 21, actual damages arising from Defendants' violations of state and federal law, id., monetary sanctions against the Bank Defendants' forfraud, including "80,000.00 silver one ounce coins from [BANA] and 80,000.00 silver one ounce coins from [Deutsche Bank]," id. at 17, and reasonable costs and attorney's fees associated with the prosecution of this Case. Id. at 21. In addition, Plaintiff also seeks a judicial declaration that Defendants violated various federal criminal statutes, including 18 U.S.C. § 1951 (), 18 U.S.C. § 1001 (), 18 U.S.C. § 1010 (), 18 U.S.C. § 1014 (), 18 U.S.C. § 1028 (), 18 U.S.C. § 1341 (), 18 U.S.C. § 1342 (), 18 U.S.C. § 1343 (), and 18 U.S.C. § 1344 (). Id. at 22-23.
The Bank Defendants filed their motion to dismiss on December 16, 2014. See Banks' Mot. 1. The O'Boyle Defendants filed their motion to dismiss on December 17, 2014. See O'Boyle Defs.' Mot. 1. To date, Plaintiff has not filed a response to either motion.
A motion to dismiss pursuant to Rule 12(b)(6) challenges a complaint on the basis that it fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In ruling on a Rule 12(b)(6) motion, the Court must accept well-pleaded facts as true and view them in the light most favorable to the plaintiff. Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002); Collinsv. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th...
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