Parsons v. Deutsche Bank Nat'l Trust Co.
| Decision Date | 22 January 2019 |
| Docket Number | No. 3:18-cv-1287-L-BN,3:18-cv-1287-L-BN |
| Parties | BRADLEY EVANS PARSONS, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee for the Holders of New Century Home Equity Loan Trust, Series 2005-A, Asset Backed Pass-Through Certificates, Defendant. |
| Court | U.S. District Court — Northern District of Texas |
This case has been referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference from United States District Judge Sam A. Lindsay. See Dkt. No. 10.
Defendant Deutsche Bank National Trust Company, as Trustee for the Holders of New Century Home Equity Loan Trust, Series 2005-A Pass-Through Certificates ("Deutsche"), filed a Motion to Dismiss Plaintiff's Original Complaint. See Dkt. No. 7. Plaintiff Bradley Evans Parsons, representing himself pro se, filed a response, see Dkt. No. 14, and Deutsche filed a reply, see Dkt. No. 17.
Plaintiff also filed a Motion to Quash Defendant's Motion to Dismiss for Failure to State a Claim upon Which Relief Can Be Granted. See Dkt. No. 25. Plaintiff asserts that the Motion to Dismiss should be denied because it lacks documentary or affidavit support for statements made in the motion. Deutsche filed a response, see Dkt. No. 26, and Plaintiff filed a reply, see Dkt. No. 27.
The undersigned magistrate judge withdraws the original Findings, Conclusions, and Recommendation [Dkt. No. 36] and issues the following amended findings of fact, conclusions of law, and recommendation.
This lawsuit arises from the attempted foreclosure of real property located in Johnson County, Texas.
On April 25, 2015, Plaintiff and his wife, Sandra B. Parsons, obtained a $50,000 home equity loan from New Century Mortgage Corporation to refinance their house in Cleburne, Texas (the "Property"). They executed a Texas Home Equity Note (the "Note"), see Dkt. No. 8-2, and a Texas Home Equity Security Instrument (First Lien) (the "Security Instrument"), see Dkt. No. 8-3.
On December 10, 2013, New Century Mortgage Corporation assigned the Security Instrument to Deutsche. See Dkt. No. 8-4.
On November 3, 2015, Sandra B. Parsons passed away. See Dkt. No. 8-1 at 11.
On May 31, 2017, Deutsche filed an application for expedited foreclosure under Texas Rule of Civil Procedure 736 (the "Rule 736 Application"). See Dkt. No. 8-5 at 2-11. In the Rule 736 Application, Deutsche alleged that the Loan was in default status, that a notice to cure the default had been sent, and that the opportunity to cure had expired. See id. at 2-6. The Rule 736 Application was supported by affidavit evidence,see id. at 7-10, and copies of the pre-foreclosure notices sent by certified mail, see id. at 40-45 (November 15, 2012 "Notice of Default"); 48-51 (April 9, 2015 "Notice of Acceleration").
On June 19, 2017, Plaintiff mailed a notice of rescission (the "Notice of Rescission") to Deutsche in which he claims to rescind the note and deed of trust under the Truth in Lending Act ("TILA"). See Dkt. No. 1-1 at ¶12; Dkt. No. 8-8 at 3. The Notice of Rescission was also filed in the real property records of Johnson County, Texas. See Dkt. No. 8-8.
On August 17, 2017, the state court entered a Rule 736 order authorizing Deutsche to proceed with a foreclosure sale of the Property. See id. at 8-1.
Foreclosure was scheduled for May 1, 2018. See Dkt. No. 1-1 at 10.
On March 5, 2018, Plaintiff filed a voluntary petition for Chapter 13 bankruptcy (the "Bankruptcy Petition"). See Dkt. No. 8-6; In re Parsons, No. 18-30700-hdh13 (Bankr. N.D. Tex. Mar. 5, 2018). The bankruptcy court dismissed Plaintiff's Bankruptcy Petition on March 12, 2018. See Dkt. Nos. 8-6 at 2, 8-7 at 3.
On April 26, 2018, Plaintiff sued Deutsche in state court. See Dkt. No. 1-1. Plaintiff asserts claims to quiet title and for fraud, breach of contract, and conspiracy and seeks declaratory and injunctive relief and actual damages. See id. Plaintiff asserts that, because he rescinded the loan on June 19, 2015, Deutsche cannot foreclose. Plaintiff also challenges Deutsche's standing as "owner" of the Security Instrument.
Deutsche removed the case to this Court on May 14, 2018, see Dkt. No. 1, and filed its motion to dismiss (the "Motion to Dismiss") on May 21, 2018, see Dkt. No. 7. Deutsche seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting that Plaintiff has failed to state a claim against it.
Plaintiff filed a response, see Dkt. No. 14, and Deutsche filed a reply, see Dkt. No. 17. Plaintiff attaches documentary evidence to his response. The Court cannot consider Plaintiff's submitted documents that are not part of the pleadings, referred to in Plaintiff's petition, or central to his claim, but it may consider the documents that are available in public records.
Plaintiff also filed a motion to quash Deutsche's motion to dismiss. See Dkt. No. 25. Deutsche file a response, see Dkt. No. 26, and Plaintiff filed a reply, see Dkt. No. 27.
The undersigned now concludes that the Court should grant Deutsche's Motion to Dismiss and deny Plaintiff's Motion to Quash.
In deciding a Federal Rule of Civil Procedure 12(b)(6) motion, the Court must "accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." In re Katrina Canal Breaches Litig., 495 F.3d 191, 205-06 (5th Cir. 2007). To state a claim upon which relief may be granted, Plaintiffs must plead "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and must plead those facts with enough specificity "to raise a right to relief above the speculative level." Id. at 555. "A claim has facial plausibilitywhen the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "A claim for relief is implausible on its face when 'the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.'" Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679).
While, under Federal Rule of Civil Procedure 8(a)(2), a complaint need not contain detailed factual allegations, Plaintiffs must allege more than labels and conclusions, and, while a court must accept all of the Plaintiffs' allegations as true, it is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A threadbare or formulaic recitation of the elements of a cause of action, supported by mere conclusory statements, will not suffice. See id. But, "to survive a motion to dismiss" under Twombly and Iqbal, a plaintiff need only "plead facts sufficient to show" that the claims asserted have "substantive plausibility" by stating "simply, concisely, and directly events" that Plaintiff contends entitle him or her to relief. Johnson v. City of Shelby, Miss., 574 U.S. ___, 135 S. Ct. 346, 347 (2014) (per curiam) (citing FED. R. CIV. P. 8(a)(2)-(3), (d)(1), (e)); accord N. Cypress Med. Ctr. Operating Co. v. Cigna Healthcare, 781 F.3d 182, 191 (5th Cir. 2015) .
The United States "Supreme Court has made clear that a Rule 12(b)(6) motion turns on the sufficiency of the 'factual allegations' in the complaint." Smith v. Bank of Am., N.A., 615 F. App'x 830, 833 (5th Cir. 2015) (quoting Johnson, 135 S. Ct. at 347, and the Federal Rules of Civil Procedure "do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted," Johnson, 135 S. Ct. at 346. That rationale has even more force in this case, as the Court "must construe the pleadings of pro se litigants liberally." Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006).
A court cannot look beyond the pleadings in deciding a Rule 12(b)(6) motion. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). Pleadings in the Rule 12(b)(6) context include attachments to the complaint. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). Documents "attache[d] to a motion to dismiss are considered to be part of the pleadings, if they are referred to in the plaintiff's complaint and are central to her claim." Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000) (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)). Kaye v. Lone Star Fund V (U.S.), L.P., 453 B.R. 645, 662 (N.D. Tex. 2011). "However, if a document referenced in the plaintiff's complaint is merely evidence of an element of the plaintiff's claim, then the court may not incorporate it into the complaint." Id.
In addition, "it is clearly proper in deciding a 12(b)(6) motion to take judicial notice of matters of public record." Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007); accord Tellabs, Inc. v. Makor...
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