Spencer v. Hughes Watters Askanase, LLP
| Decision Date | 21 April 2016 |
| Docket Number | No. 5:16-CV-062-DAE,5:16-CV-062-DAE |
| Parties | ODIS SPENCER, Plaintiff, v. HUGHES WATTERS ASKANASE, LLP, and EVERHOME MORTGAGE COMPANY, Defendants. |
| Court | U.S. District Court — Western District of Texas |
Before the Court are four motions: (1) a Motion to Dismiss filed by Everhome Mortgage Company ("Everhome") (Dkt. # 3); (2) a Motion to Dismiss filed by Hughes Watters Askanase LLP ("HWA") (Dkt. # 5); and (3) two Motions to Remand filed by Odis Spencer1 ("Plaintiff" or "Spencer") (Dkts. ## 11, 15). The Court will refer to Everhome and HWA collectively as "Defendants." Pursuant to Local Rule 7(h), the Court finds this matter suitable for disposition without a hearing. Upon careful consideration of the memoranda filed in support of and in opposition to the motions, the Court, for the reasons that follow,DENIES Plaintiff's Motions to Remand (Dkts. ## 11, 15) and GRANTS Defendants' Motions to Dismiss (Dkts. ## 3, 5.)
This case arises out of a foreclosure and subsequent litigation involving four lawsuits about property located at 7403 Cinnabar Trail, San Antonio, Texas 78244 ("the Property"). ( Dkt. # 1-3.)
On January 29, 1987, Defendant and his wife Angela Spencer2 executed a Promissory Note and a Deed of Trust (collectively "the Deed") in favor of Texas Homestead Mortgage Company to secure a loan in the amount of $ 96,350. (Dkt. # 4-5.) That same day Texas Homestead Mortgage Company assigned the Deed to Mortgage and Trust, Inc. (Dkt. # 4-6.) On June 27, 1990, multiple assignments of the Deed occurred: first, Mortgage and Trust, Inc. re-assigned the Deed back to the Texas Homestead Mortgage Company (Dkt. # 4-7), who then assigned the Deed to Oxford Funding Corporation (Dkt. # 4-8), who assigned the Deed to City Savings and Loan Association (Dkt. # 4-9). On July 21, 1997, City Savings and Loan Association assigned the Deed to Bankers Trust Company of California, N.A., as trustee for RTC Mortgage Pass-Through Certificates. (Dkt. # 4-10.) On March 2, 2011, Deutsche Bank National Trust f/k/a Banker's Trust Company of California, N.A., as trustee for RTC Mortgage Pass-Through Certificates, assigned the Deed to EMC Mortgage Corporation. (Dkt. # 4-11.) All assignments were properly recorded with the Bexar County Clerk.3 (See Dkt. # 4.)
On or about May 1, 2010, Plaintiff admits that he defaulted on his mortgage payments. (Orig. Pet. ¶ 809.) EMC Mortgage Corporation initiated foreclosure proceedings in the summer of 2012. At least 21 days prior to the foreclosure sale, EMC Mortgage Corporation caused written notice of the foreclosure sale to be sent by certified mail to Plaintiff ("Vessella Aff.," Dkt. # 4 at APP 070) and posted such notice at the county courthouse ("Ray Aff.," Dkt. # 4 at APP 069). Plaintiff initiated judicial proceedings to enjoin the foreclosure ("Lawsuit I"), and on September 4, 2012, the 57th District Court of Bexar County granted Plaintiff a temporary restraining order ("TRO") against EMC Mortgage Corporation.4 (Dkt. # 9-3 at 33.) Despite the TRO, the foreclosure saleinexplicably went forward. On September 5, 2012, substitute trustees for EMC Mortgage Corporation transferred a Substitute Trustee's Deed to Everhome, who bid $101,900 at the Property's foreclosure. (Dkt. # 4-12.) On December 4, 2012, the 57th Judicial District Court of Bexar County dismissed Lawsuit I for want of prosecution. (Dkt. # 4-2.)
On February 25, 2013, Everhome, through counsel, sent Plaintiff a Notice to Vacate and Demand for Possession of the Property pursuant to Section 24.002(b) and 24.005 of the Texas Property Code. (Dkt. # 5-1 at 21-22.) Subsequently, Plaintiff filed a second lawsuit against Everhome in the 73rd Judicial District Court of Bexar County ("Lawsuit II") stating causes of action for wrongful foreclosure and quiet title. (Dkt. # 3 ¶ 3; Dkt. # 4-3.) On August 5, 2014, the 73rd Judicial District Court entered an order dismissing Plaintiff's wrongful foreclosure claim with prejudice on a motion for summary judgment in favor of Everhome. (Dkt. # 4-4.) Lawsuit II's quiet title claim in state court remains pending. On or about May 21, 2013, Everhome, through counsel, filed anoriginal petition for forcible detainer in Bexar County Justice of the Peace Court, Precinct 3. (Orig. Pet. # ¶ 820; Dkt. # 9-3 at 26-27.)
On February 2, 2015, Plaintiff filed a third lawsuit ("Lawsuit III") in the 225th Judicial District Court of Bexar County against HWA, who represented Everhome in state court proceedings and in the foreclosure proceeding.5 On March 26, 2015, HWA properly removed Lawsuit III to the United States District Court for the Western District of Texas in Case Number 5:15-CV-233-XR. On May 19, 2015, Plaintiff filed an amended complaint in Lawsuit III, alleging claims based on the 2012 foreclosure and subsequent eviction proceeding. (Dkt. # 5-1.) Specifically, Plaintiff alleged claims for violations of the Fair Debt Collection Practices Act ("FDCPA"), codified at 15 U.S.C § 1692, fraud and misrepresentation, violations of Texas' Deceptive Trade Practices Act (DTPA), violations of Chapter 12 of the Texas Civil Practice and Remedies Code, and intentional tort. (Id.) Plaintiff filed a motion for voluntary dismissal with prejudice; on September 24, 2015, the United States District Court for the Western District of Texas issued an order dismissing all claims against HWA withprejudice. Spencer v. HWA et al., 5:15-CV-233-XR, Doc. No. 29 (W.D. Tex. Sept. 24, 2015).
On December 23, 2015, Plaintiff filed a fourth lawsuit ("Lawsuit IV") in the 57th Judicial District Court of Bexar County. (Orig. Pet.) In Lawsuit IV, Plaintiff sued Everhome and HWA asserting various causes of action based on the same set of facts alleged in the previous three lawsuits involving the September 2012 foreclosure. (Id.) Specifically, Plaintiff asserts claims for (1) slander of title; (2) wrongful foreclosure; (3) breach of contract; (4) quiet title; (5) trespass to try title; (6) usury6; (7) breach of common law tort of unreasonable collection efforts; (8) a violation of the Texas Debt Collection Practices Act ("DCPA"); (9) a violation of the FDCPA; (10) a violation of the Texas DTPA; (11) negligence; (12) an accounting; (13) declaratory judgment; and (14) injunctive relief. (Id.) On January 11, 2016, Defendants properly removed Lawsuit IV to this Court. (Dkt. # 1.)
Each Defendant filed a Motion to Dismiss (Dkts. ## 3, 5) and Plaintiff filed two Motions to Remand to state court (Dkts. ## 11, 15). Plaintiff filed responses to the motions to dismiss (Dkts. ## 7, 16) and Defendants filed reply briefs (Dkts. ## 9, 10). Defendants also filed responses to Plaintiff's Motion to Remand (Dkts. ## 13, 17) and Plaintiff filed his reply (Dkt. # 14.)
I. Dismissal Pursuant to Rule 12(b)(6)
Federal Rule of Civil Procedure 8(a) requires that a pleading include a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). If a plaintiff fails to satisfy Rule 8(a), the opposing party may file a motion to dismiss the claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In analyzing a motion to dismiss for failure to state a claim, the court "accept[s] 'all well pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" United States ex rel. Vavra v. Kellogg Brown & Root, Inc., 727 F.3d 343, 346 (5th Cir. 2013) (quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when 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). Although "detailed factual allegations" are not necessary, a plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly,550 U.S. at 555. The statements in the complaint must be sufficiently detailed to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Id. A pro se plaintiff's pleadings are construed liberally with all well-pleaded allegations taken as true. Sama v. Hannigan, 669 F.3d 585, 599 (5th Cir. 2012).
Plaintiff argues in his Motions to Remand that the Court lacks subject-matter jurisdiction, and in the alternative, all state-law claims should be remanded. Since Plaintiff raises jurisdictional questions, the Court will address them first.
U.S. District Courts are courts of limited jurisdiction. Accordingly, the power to adjudicate claims arise only when a statute or the Constitution confers such authority. Generally, district courts have original subject-matter jurisdiction in two circumstances: (1) all civil actions between citizens of different States where the amount in controversy exceeds $75,000, 28 U.S.C. § 1332(a); and (2) all civil actions arising under the Constitution, law, or treaties of the United States, 28 U.S.C. § 1331. In the latter instance, to determine whether a case is one "arising under" federal law for jurisdictional purposes, courts apply the well-pleaded complaint rule. New Orleans & Culf Coast Ry. Co. v. Barrois, 533 F.3d321, 328 (5th Cir. 2008). "The well-pleaded complaint rule focuses on whether the plaintiff has affirmatively alleged a federal claim." Id.
In the removal context, the party seeking removal has the burden of proving that federal jurisdiction is present to defeat a motion to remand. Pidgeon v. Parker, 46 F. Supp. 3d 692, 697 (S.D. Tex 2014) (quot...
To continue reading
Request your trial