Shelly Smith v. Bank of America, N.A., 615 F. App'x 830

Smith sued Bank of America and Deutsche Bank as trustee after foreclosure efforts on her property secured by a deed of trust.
The mortgage chain began with NationPoint, passed to HSBC, then to First Franklin Trust; Home Loan Services, Inc. served as servicer; Deutsche Bank served as trustee; Bank of America later acquired related entities.
In 2008 the Trust allegedly dissolved; Smith claimed the Trust never had authority to foreclose once dissolved.
Foreclosure notice was issued in December 2009; a substitute trustee was appointed in March 2012.
The district court dismissed several claims under Rule 12(b)(6) and granted summary judgment to the Bank on the negligent misrepresentation claim; the Fifth Circuit affirmed.
The court applied standard Rule 12(b)(6) de novo review and summary judgment standards, and reviewed expert-evidence admissibility for abuse of discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
TDCA claim viability based on dissolution and timing	Smith argues the Trust dissolved, removing authority to foreclose, violating TDCA §§392.303, 392.304.	Bank contends TDCA claims fail on the merits; citations to statutes are legal conclusions and the facts show no violations.	TDCA claims moot on Trust existence; no viable misrepresentation found; affirmed dismissal.
TDCA §§392.303 and 392.304 factual sufficiency	Smith alleged unfair methods and deceptive representations related to foreclosure timing.	Bank argues no facts support §392.303(a) practices or actionable misrepresentations under §392.304(a).	Court affirmed dismissal under 12(b)(6); no factual basis for §392.303 or §392.304 claims.
Negligent misrepresentation elements and evidence	Smith asserts Bank provided false information; seeks to rely on expert testimony to prove existence of the Trust.	Bank contends no genuine issue on false information; late expert disclosure was properly excluded.	Affirmed ruling that no genuine issue on falsity; exclusion of Petit affidavit upheld; economic loss doctrine not reached.

Betzel v. State Farm Lloyds, 480 F.3d 704 (5th Cir. 2007) (expert evidence and prejudice considerations in summary judgment)
Geiserman v. MacDonald, 893 F.2d 787 (5th Cir. 1990) (four-factor test for excluding untimely expert testimony)
Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875 (5th Cir. 2004) (evidence-deadlines and prejudice considerations in evidentiary rulings)
Betzel v. State Farm Lloyds, 480 F.3d 704 (5th Cir. 2007) (expert testimony necessity and prejudice analysis (duplicate entry kept for emphasis))
Thompson v. Bank of Am., N.A., 783 F.3d 1022 (5th Cir. 2014) (TX TDCA and false statement analysis in debt-collection contexts)
Johnson v. City of Shelby, Miss., 135 S. Ct. 346 (2014) (plausibility standard for pleading after Twombly/Iqbal)
U.S. Bank Nat’l Ass’n v. Verizon Commc’ns, Inc., 761 F.3d 409 (5th Cir. 2014) (district court fact-finding developments after bench trial interpretations)
Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305 (5th Cir. 2002) (constructing claims under Rule 12(b)(6) and factual sufficiency)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for pleading)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (note on pleading requirements for federal claims)