Coleman v. Bank of N.Y. Mellon

• Decision Date: 04 September 2013
• Docket Number: No. 3:12–CV–04783–M–BH.,3:12–CV–04783–M–BH.
• Citation: 969 F.Supp.2d 736
• Parties: Audrey COLEMAN, Plaintiff, v. BANK OF NEW YORK MELLON et. al, Defendants.
• Court: U.S. District Court — Northern District of Texas

969 F.Supp.2d 736

Audrey COLEMAN, Plaintiff,

v.BANK OF NEW YORK MELLON et. al, Defendants.

No. 3:12–CV–04783–M–BH.

United States District Court,

N.D. Texas,

Dallas Division.

Sept. 4, 2013.

Audrey Coleman, Grand Prairie, TX, pro se.

Andrew T. Ward, Winston & Strawn LLP, Houston, TX, for Defendants.

ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

BARBARA M.G. LYNN, District Judge.

After reviewing the Findings, Conclusions, and Recommendation of the United States Magistrate Judge and conducting a de novo review of those parts of the Findings and Conclusions to which objections have been made, I am of the opinion that the Findings and Conclusions of the Magistrate Judge are correct and they are accepted as the Findings and Conclusions of the Court.

Defendants Gabriel Ozel and Pite Duncan, LLP's Motion to Dismiss Pursuant to Rule 12(b), filed January 2, 2013 (doc. 24), is GRANTED in part and DENIED in part. By separate judgment, Plaintiff's claims against Gabriel Ozel and Pite Duncan, LLP will be DISMISSED with prejudice.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

IRMA CARRILLO RAMIREZ, United States Magistrate Judge.

Pursuant to Special Order No. 3–251, this case has been automatically referred for pretrial management. Before the Court for recommendation is Defendants Gabriel Ozel and Pite Duncan, LLP's Motion to Dismiss Pursuant to Rule 12(b),filed January 2, 2013 (doc. 24). Based on the relevant filings and applicable law, the motion should be GRANTED in part and DENIED in part.

I. BACKGROUND

This case arises from foreclosure of real property located at 623 Sotogrande Street, Grand Prairie, Texas, 75051 (the Property). (doc. 3 at 3.) On November 21, 2012, Audrey Coleman (Plaintiff) filed this pro se suit against Bank of New York Mellon, as trustee for the Certificateholders of CWABS, Inc., Asset-backed Certificates, Series 2007–6 (Mellon), Bank of America, N.A. (BOA), Mortgage Electronic Registration Systems, Inc. (MERS), Recontrust Company, N.A. (Recontrust), Gabriel Ozel Pite Duncan, LLP,¹ Blank Rome Counselors at Law, LLP (Blank Rome), and Prudential Lone Star Realtors/Pat Watson–Capps, C.R.S. (Prudential). ( Id. at 1–3.)

On March 2, 2007, Plaintiff purchased the Property with a mortgage loan from Countrywide KB Home Loans, LLC (Countrywide). ( Id. at 3, 24.) Plaintiff executed a promissory note and a deed of trust securing the note in Countrywide's favor. ( Id. at 23–38, 53–56.) Both the note and deed of trust named Countrywide as “Lender.” ( Id. at 24, 53.) The deed of trust designated Mortgage Electronic Registration Systems, Inc. (MERS), as “the beneficiary” under the deed of trust and the nominee for Lender and its successors and assigns. ( Id. at 24.) Pursuant to the deed of trust, MERS held legal title to the Property with power of sale on Borrower's (Plaintiff's) default. ( Id. at 25.) MERS could also exercise any and all of the interests Borrower granted Lender, including releasing and canceling the deed of trust. ( Id.) The loan could “be sold one or more times without prior notice to Borrower,” which would “result in a change in the entity ... known as the ‘Loan Servicer.’ ” ( Id. at 34.) Borrower would be given “written notice of the change ... stat[ing] the name and address of the new Loan Servicer.” ( Id.)

In late 2008, Plaintiff experienced financial difficulties and contacted Countrywide to inquire about its loan modification program. ( Id. at 3.) She requested a loan modification from BOA in 2010, but BOA declined her application. ( Id. at 4.) On April 22, 2011, Mellon mailed her a notice of her mortgage transfer effective March 23, 2011. ( Id. at 39.) The notice stated that Mellon was the “new creditor” and BAC Home Loans Servicing, LP (BAC) was the new mortgage servicer. ( Id.) On August 5, 2011, MERS, as nominee for Lender and its successors and assigns, assigned the note and deed of trust to Mellon. ( Id. at 41.) Also that day, Mellon executed an “appointment of substitute trustee.” ( Id. at 40.) Both MERS's assignment and the appointment of substitute trustee were electronically recorded with the Dallas County Clerk on August 11, 2011. ( See id. at 4041.)

In August 2011, Plaintiff contacted BOA and Reconstruct to request information about her loan. ( Id. at 4, 9–10.) Reconstruct allegedly misinformed her regarding the date her mortgage was assigned to Mellon and whether the Property was listed for foreclosure. ( Id. at 10.) She sent a qualified written request (QWR) to both BOA and Reconstruct, and sent Reconstruct a request to validate the debt. ( Id. at 4, 47.) Reconstruct purportedly failed to respond to her QWR and debt validation request. ( Id. at 10.) She therefore does not know who owns her loan. ( Id. at 5–6.) ²

Mellon foreclosed on the Property in September 2011. ( Id. at 65.) On February 10, 2012, a Dallas County Court at Law granted Mellon a “writ of possession.” ( Id. at 12, 51.) Plaintiff was served with Mellon's writ of possession on May 7, 2012. ( Id. at 64.) On November 2, 2012, she wrote a letter to a Sergeant and a Deputy with the Dallas County Constable's Office, contending the notice to vacate was improper and advising them of her recent discharge in bankruptcy “which included the mortgage loan.” ( Id.) She also advised them of her pending suit against Mellon and the other Defendants in federal court and requested that they not go forward with her eviction, as that would violate her “civil rights.” ( Id. at 65–67.) On November 12, 2012, Plaintiff was evicted from the Property by law enforcement personnel from the Constable's Office. ( Id. at 13–14.)

Based on the foreclosure and her subsequent eviction, Plaintiff expressly asserts claims for violations of her civil rights under 42 U.S.C. § 1983, negligent supervision, unjust enrichment, negligent misrepresentation, fraudulent misrepresentation, slander of title, suit to quiet title, and violations of the Fair Debt Collection Practices Act (FDCPA), the Real Estate Settlement Procedure Act (RESPA), and § 12.002 of the Texas Civil Practice and Remedies Code. ( Id. at 15–20.) The complaint also lists claims for wrongful foreclosure and violations of the Truth in Lending Act (TILA), the Federal Trade Commission Act (FTCA), and the Fair Credit Reporting Act (FCRA). ( See id. at 12–14, 19.)

On January 2, 2013, Ozel and Pite Duncan (Defendants) moved to dismiss Plaintiff's complaint under Fed.R.Civ.P. 12(b)(1), (4)-(6). (docs. 24, 24–1.) With a timely filed response (doc. 40), the motion is now ripe for recommendation.

II. RULE 12(b)(1) MOTION

Defendants first seek dismissal under Rule 12(b)(1), contending that the Court lacks subject-matter jurisdiction over this case. (doc. 24–1 at 3–4.)

A motion to dismiss under Rule 12(b)(1) challenges a court's subject matter jurisdiction. SeeFed.R.Civ.P. 12(b)(1). Such a motion “may be raised by a party, or a by a court on its own initiative at any stage in the litigation, even after trial and the entry of judgment.” Arbaugh v. Y & H Corp., 546 U.S. 500, 506–07, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). The Court must dismiss the action if it determines that it lacks jurisdiction over the subject matter. SeeFed.R.Civ.P. 12(h)(3).

A. Rule 12(b)(1) Standard

“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted). They “must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir.2001).

“When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977)). This “prevents a court without jurisdiction from prematurely dismissing a case with prejudice.” Id. When the court dismisses for lack of subject matter jurisdiction, that dismissal “is not a determination of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction.” Id.

The district court may dismiss for lack of subject matter jurisdiction based on (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981). A motion to dismiss based on the complaint alone presents a “facial attack” that requires the court to merely decide whether the allegations in the complaint, which are presumed to be true, sufficiently state a basis for subject matter jurisdiction. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981). “If sufficient, those allegations alone provide jurisdiction.” Id. Facial attacks are usually made early in the proceedings. Id. When evidence is presented with the motion to dismiss, the attack is “factual” and “no presumptive truthfulness attaches to [the] plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Williamson, 645 F.2d at 413. A factual attack may occur at any stage of the proceedings. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980).

In this case, Defendants do not support their Rule 12(b)(1) motion with evidence. They present a facial attack that does not require the Court to resolve matters outside the pleadings. See Ramming, 281 F.3d at 161;Williamson, 645 F.2d at 412–13.

B. Federal Question Jurisdiction

Defendants argue that federal question jurisdiction under 28...