Andrade v. Countrywide KB Home Loans, Mortg. Elec. Registration Servs., Inc.
| Decision Date | 22 February 2016 |
| Docket Number | Civil Action No. 3:14-CV-3969-K |
| Court | U.S. District Court — Northern District of Texas |
| Parties | CLAUDIO D. & DALINDA ANDRADE, Plaintiffs, v. COUNTRYWIDE KB HOME LOANS, MORTGAGE ELECTRONIC REGISTRATION SERVICES, INC.; G. TOMMY BASTIAN, et al., RECONTRUST COMPANY, NA, BANK OF AMERICA, NA, COUNTRYWIDE HOME LOANS, INC., THE BANK OF NEW YORK MELLON, COLFIN AI-TX 1, LLC, and DOES 1-X, Defendants. |
Pursuant to Special Order No. 3-251, this pro se case was automatically referred for pretrial management. Before the Court is Bank Defendants' Motion to Strike or Dismiss Plaintiffs' August 5, 2015 Amended Complaint and Brief in Support, filed August 19, 2015 (doc. 25). Based on the relevant filings and applicable law, the motion to strike should be DENIED, and the motion to dismiss should be GRANTED.
This action involves the foreclosure of real property located at 1328 Acosta Street, Grand Prairie, Texas 75051 (the Property). (doc. 1-1 at 5, 10.) On or about July 18, 2006, Claudio D. and Dalinda Andrade (Plaintiffs) executed a note payable to Countrywide KB Home Loans in the original principal amount of $142,315.00, as well as a deed of trust that secured payment of the note. (doc. 23 at 19-38; 25-2 at 2-4, 6-23.) The deed of trust provided that Mortgage Electronic Registration Systems, Inc. (MERS)1 was a beneficiary under the deed of trust and acted solely as nominee for the Lender and Lender's successors and assigns. (doc. 23 at 23-24; doc. 25-2 at 7-8.) MERS had the right to exercise any and all of those interests, including the right to foreclose and sell the Property and to release and cancel the deed of trust. (doc. 23 at 24; doc. 25-2 at 8.) On July 25, 2011, MERS assigned all beneficial interest under the deed of trust, together with the note and the obligations under the note, to The Bank of New York Mellon f/k/a the Bank of New York (BNYM), as Trustee for the Certificateholders CWALT Inc., Alternative Loan Trust 2006-28CB, Mortgage Pass-Through Series 2006-28CB (CWALT) pursuant to an Assignment of the Deed of Trust filed on July 27, 2011 (the Assignment). (doc. 23 at 108-109; doc. 25-2 at 25-26.)
On February 28, 2012, Plaintiffs filed for bankruptcy under Chapter 7 of the United States Bankruptcy Code. (doc. 25-2 at 28.) They submitted their bankruptcy schedules that same day. (Id. at 57.) Their Schedule A noted that the Property was the only real property in which they had an interest. (Id. at 37.) In their Schedule B, Plaintiffs listed cash, bank accounts, household goods, books, pictures, "knick-knacks", clothing, jewelry, sports and photographic equipment, life insurance, a retirement and pension plan, and motor vehicles, as their personal property. (Id. at 38-42.) They did not disclose any pending or potential claims against any of the defendants in their Schedule B, claiming not to have any property in the category of (See id. at 41.) In their Schedule D, they listed Bank of America (BANA) as a secured creditor having a lien on the Property via a "first mortgage" and a "second mortgage." (Id. at 46.) Plaintiffs also fileda statement of intention to surrender the Property. (Id. at 67.) On May 31, 2012, the bankruptcy court discharged Plaintiffs under Section 727 of Title 11 of the United States Code. (Id. at 87-88.)
On August 28, 2014, Plaintiffs filed this pro se action against Countrywide KB Home Loans (KBA)2, MERS, ReconTrust Company, N.A. (ReconTrust), BANA, Countrywide Home Loans, Inc., BNYM, CWALT, as well as Colfin AI-TX, LLC3, G. Tommy Bastian4, and "Does 1-X" in state court. (doc. 1-1.) In their state court petition, they argued that the Assignment was transferred to CWALT after CWALT's closing date, and the Assignment was therefore void. (Id. at 10, 14.) They also argued that the Assignment was void because the defendants failed to transfer the deed of trust into CWALT "within 30 days of signing" and to notify them of the transfer in violation of 15 U.S.C. § 1641(g). (Id. at 12.) Plaintiffs also contended that the defendants did not have lawful authority to foreclose on the Property, and that as a consequence, they lost it in an "improper, illegal foreclosure sale." (Id. at 4, 13.) Finally, they contended that the "claim for foreclosure" on their Property was barred by the statute of limitations. (Id. at 17.) The petition expressly asserted claims against the defendants for slander of title and fraud based on the alleged invalidity of the Assignment, as well as a declaratory judgment regarding various declarations based on the alleged invalidity of the Assignment and the defendants' lack of rights and interest in the note or deed of trust. (Id. at 13, 15-18.) Liberally construed, the petition also asserted a claim for wrongful foreclosure as well as a declaration that the defendants' right to foreclose on the Property was barred by the statute oflimitations. (See doc. 1-1 at 4,13,17.)
On July 13, 2015, it was recommended that all the claims based on the Assignment, as they related to Plaintiffs individually, should be dismissed with prejudice. (doc. 18 at 26.) Because it was found that those claims belonged to the bankruptcy estate, it was recommended that the bankruptcy trustee be allowed to intervene in the action, and if he did not, that the claims be dismissed against the bankruptcy estate with prejudice. (doc. 18 at 26.) It was also recommended that Plaintiffs be allowed to amend their complaint to sufficiently state a claim for relief, as to them individually, because it did not appear that they had alleged their best case with respect to the wrongful foreclosure claim. (Id.) It was recommended that Plaintiffs' wrongful foreclosure claim be dismissed with prejudice if Plaintiffs did not file an amended complaint within the 14 days allowed for filing objections. (Id.) Additionally, it was recommended that Plaintiffs' request for a declaration that the foreclosure sale was barred by the statute of limitations be allowed to proceed to trial as to Plaintiffs individually. (Id.)
On July 27, 2015, the bankruptcy trustee declined to intervene in the action. (doc. 21.)
After being granted additional time, Plaintiffs filed their amended complaint on August 5, 2015 against KBA, MERS, BANA, ReconTrust, Countrywide Home Loans, Inc., BNYM, and Countrywide Alternative Loan Trust 2006-28CB5 (the Trust) (collectively, along with Certificateholders CWALT Inc., Alternative Loan Trust 2006-28CB, Mortgage Pass-Through Series2006-28CB, referred to as Defendants).6 (docs. 22, 23.)
Plaintiffs contend that after the "closing date" of the loan on July 18, 2006, it appears that KBA sold the note to BNYM as trustee for the Trust. (doc. 23 at 4.) They assert that the Trust had a closing date of August 30, 2006, and therefore nothing can be transferred into it after that date. (Id.) In addition to contending that MERS "allegedly" assigned the deed of trust to BNYM as trustee for the Trust on July 27, 2011, they allege that MERS again allegedly assigned the deed of trust to BNYM as trustee for the Trust on April 9, 2012. (Id.)
Also, Plaintiffs "declare" a violation of Texas Local Gov't Code § 192.007(a) and a broken chain of title as to the loan at the time of the Assignment. (Id.) They "declare" that MERS did not have the authority to assign the deed of trust as nominee for KBA because KBA divested itself of its rights to the loan when it sold the note to BNYM. (Id.) According to Plaintiffs, the Assignment is fraudulent and void due to violation of § 192.007(a) and a broken chain of title as to the loan. (Id. at 4-5.) They further "declare" that BNYM, as trustee of the Trust, conducted a wrongful "trustee" sale on February 5, 20147; that there was a knowing intent to defraud and "calculated maneuvers by Defendant" in order to deceive Plaintiffs; and that the sale of the Property was knowingly fraudulent. (Id. at 5.)
On January 9, 2013, an appointment of substitute trustee was recorded by BNYM in the Official Public Records of Dallas County, Texas; and on January 11, 2013, Plaintiffs received anotice of substitute trustee's sale. (Id. at 5, 114-115.) Plaintiffs "declare" that BNYM did not have authority to remove the trustee and appoint a substitute or schedule a sale because the Assignment is fraudulent and void. (Id. at 5.)
They contend that after the February 5, 2014 sale, they made several attempts to notify BNYM and ReconTrust of the fraudulent and wrongful foreclosure of the Property "with a broken chain of title." (Id.) BNYM allegedly failed to provide them with "legally sufficient proof" that it was authorized to enforce the loan, and it instead relied on fraudulent documents to "achieve authorization to foreclose." (Id. at 6.)
On February 19, 2013, ReconTrust recorded a substitute trustee's deed in the Official Public Records of Dallas, County, Texas. (Id. at 6, 117.) Plaintiffs contend that on March 24, 2014 and after, they sent KBA, BANA, and MERS a series of "Error Resolution and Information Request[s]" pursuant to the "Consumer Financial Protection Bureau Mortgage Servicing Regulations." (Id. at 6.) They "declare" that KBA, BANA, and MERS failed to show proof that they were legally entitled to payment for the loan; that ReconTrust and BNYM conducted a fraudulent and wrongful sale of the Property on February 5, 2014; and that the substitute trustee's deed is void. (Id.) They further "declare" that each of the Defendants could not show a proper chain of title to establish a right to foreclose under the Texas Property Code as mortgagee or mortgage servicer, and they did not have the ability to establish that the deed of trust was legally or properly acquired pursuant to Texas Local Government Code § 192.007(a). (Id.)
The amended complaint expressly asserts...
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