Thompson v. Deutsche Bank National Trust Co.
2014 U.S. App. LEXIS 24527
| 5th Cir. | 2014Background
- Thompsons sued in Texas state court (April 9, 2012) alleging Deutsche and ASC violated Texas Constitution Section 50; Deutsche was never served; a state court default judgment against Deutsche was entered (June 22, 2012) while ASC remained in the case; Thompsons later nonsuited ASC (Sept. 4, 2012) and Deutsche removed to federal court (Jan. 17, 2013); district court vacated the default judgment as void and dismissed the complaint as time-barred; on appeal, court affirms removal, void-judgment vacancy, and dismissal under Rule 12(b)(6).
- Thompsons alleged defects in a 2006 loan renewal under Section 50(a)(6); the loan was serviced by ASC; Deutsche and ASC were not properly served, and Deutsche moved to remove after learning of the judgment.
- Removal rights run from formal service; Deutsche timely removed within the one-year diversity period; Oviedo is distinguishable because Deutsche was not properly served and did not participate until removal.
- Rule 60(b)(4) requires vacating a void judgment when service is lacking; the district court did so; the claims are barred by statute of limitations under §16.051 (four-year accrual from loan closing); fraudulent concealment tolling not established.
- Affirmative holding that (i) removal was proper despite lack of service, (ii) the default judgment was void and vacated, and (iii) the action was correctly dismissed under Rule 12(b)(6) as time-barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court had jurisdiction and properly vacated the void judgment | Thompsons: removal improper due to service defects | Deutsche: removal proper since not served; court has jurisdiction | Yes; removal valid and judgment void; vacatur proper |
| Whether Deutsche was properly served to trigger removal timing | Deutsche not served; removal late | Deutsche not served; removal timely under §1446(c) | Yes; Deutsche not served so §1446(b) accrual did not start; removal timely under §1446(c) |
| Whether the case was properly removed under §1441 and §1332 | Diversity jurisdiction existed but service flawed | Diversity existed and removal allowed after learning of judgment | Yes; diversity removal proper and timely |
| Whether the district court correctly dismissed under Rule 12(b)(6) for statute of limitations | Fraudulent concealment tolls limitations | Limitations run from 2006 closing; concealment not proven | Yes; four-year accrual from closing; claim time-barred; no tolling shown under Priester/Holland |
| Whether fraudulent concealment tolls the limitations period | Deutsche concealed facts to hide constitutional violations | No deception; disclosures and paperwork acknowledged; Priester cited | No; no plausible deception established; tolling rejected |
Key Cases Cited
- Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999) (removal rights commence only after service; not before)
- Oviedo v. Hallbauer, 655 F.3d 419 (5th Cir. 2011) (removal after final judgment not permissible; distinguishable facts)
- Recreational Props., Inc. v. Sw. Mortg. Serv. Corp., 804 F.2d 311 (5th Cir. 1986) (void judgment requires vacatur under Rule 60(b)(4))
- Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667 (5th Cir. 2013) (§16.051 four-year accrual; no tolling for lack of disclosures)
- Jones v. Alcoa, Inc., 339 F.3d 359 (5th Cir. 2003) (Rule 12(b)(6) dismissal when limitations clearly bar action)