Case Information
*1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION
JAMES E. GRAVES,
$ $
Plaintiff,
$ $ V. $ NO. 2:10-CV-00183-J $ $ DEUTSCHE BANK NATIONAL TRUST $
COMPANY, as Trustee for Carrington $ Mortgage Loan Trust, Series 2005-NCI $ Asset Backed Pass-Through Certificates, $ $
Defendant.
MEMORANDUM OPINION AND ORDER Before the Court Defendant's Motionfor Summary Judgment. Plaintiff has responded, and Defendant replied. Motion therefore ripe decision.
Plaintiff James Graves entered into a consumer contract refinance his primary residence Claude, Texas. He alleges that Defendant Deutsche Bank National Trust Company induced him enter into predatory agreement, committed numerous acts fraud in furtherance criminal conspiracy, failed make proper notices, charged false fees, among other things. seeks damages the amount $966,000.20, well as judgment granting him title property. moves summary judgment, asserting it entitled summary
judgment because a Texas state court previously granted it permission foreclose and each Graves' claims is baned by respective of limitations.
Graves responds that Deutsche Bank did not have standing to foreclose. He alleges that he discharged the loan on May 26,2009 with lawful bonded promissory note in the amount $3,000,000.00. He asserts that Carrington Mortgage Services, LLC stole that note.
Graves further alleges in his Response that the transfer note from Carrington Mortgage Services, LLC Deutsche was done without notiffing him, in violation of the Truth in Lending Act.
Additionally in Response, Graves makes allegations under the Racketeer Influenced and Comrpt Organizations Act (RICO).
STANDARI)
A motion for summary judgment should be granted if movant shows that there no genuine issue any material fact. Fnp. R. CIv, P. 56(a). party who moves summary judgment the burden of identifying the parts the
pleadings and discovery on file that, together with any affidavits, show the absence a genuine issue material fact. Celotex Corp. v. Catrett, U.S. 3I7, (1986). The nonmovant must set forth specific facts show genuine issue trial. Anderson Liberty Lobby, Inc., U.5.242,256 (1986). In determining whether genuine issue of material fact exists, courts must resolve all ambiguities fact in favor of non-movingparty. Id.
DISCUSSION
New Century Mortgage Corporation and James Graves reached an agreement a loan the amount $100,000. On October 25, 2004, Graves executed a Texas Home Equity Note Texas Home Equity Security Instrument. At closing, was given $75,198.97. Sometime Graves defaulted the loan.
New Century Mortgage assigned the Note and Deed to Deutsche Bank on October 15, 2009. Bank subsequently filed foreclosure proceeding the district court of Armstrong County, Texas. On January 22, 2010, the state court granted Deutsche Bank permission to proceed with the foreclosure. Deutsche Bank purchased property the foreclosure sale August 3,2010.
Validity of the Lien brings an action seeking invalidate the foreclosure. The district court of
Armstrong County, Texas authorized Deutsche Bank proceed with foreclosure. Pursuant the Rooker-Feldman doctrine, this Court lacks jurisdiction to entertain any question regarding validity lien or Deutsche Bank's right to foreclose. See, e.g., Pease First Nat. Bank, Fed.Appx. 412,415 (unpublished) (5th Cir 2009) ("to the extent [plaintiff] is challenging the merits of the foreclosure, we will entertain collateral attack on the final judgment state court"); Flores Citizens State Bank Roma, Tex., 132 F.3d 1997 (unpublished) (5th Cir. 1997) ("Federal courts lack jurisdiction to engage appellate review of state-court determinations. . . .") (citations omitted).
TILA
The purpose TILA provide meaningful disclosure credit terms. 15 U.S.C. $ 1601. Failure to provide the appropriate disclosures TILA gives rise private right action. 15 U.S.C. $ 16a0(a). The limitations under TILA is one year from the violation. U.S.C. l6a0(e). also, Lqwson Conyers Chrysler, Plymouth, and Dodge Truclcs, F.2d violation generally occurs when the transaction consummated, i.e., when contractual relationship created between parties. See Bittinger v. Wells Fargo NA,744 F.Supp .2d (S.D.Tex. 2010); Williams v. Countrywide *4 Home Loons, Inc., 504 F.Supp,2d 176 (S.D.Tex. 2007). Non-disclosure not a continuing violation. Moor v. Travelers Ins. Co.,784F.2d 632,633 (5th Cir.
The contractual relationship at issue here was consummated on October 25,2004. The statute of has thus run any claim under TILA regarding non-disclosure at the time the loan was consummated. Fifth Circuit has held that a plaintiff may not rely on the doctrine of equitable tolling
to extend the of limitations under TILA. Moor v. Travelers Ins. Co.,784 F.2d (citations omitted). also, Val-Com Acquisitions Trust U.S. Nat. Ass'n as Trustee for Citigroup Mortg. Loan Trust Inc. Asset-Backed Pass-Through Certifications Series 2005-H83, 2010 WL (N.D.Tex. Graves' claims under TILA are thus barred by the statute of limitations.r
' asserts an additional claim TILA in his Response to the Motion for Summary Judgment, specifically the failure to notifu him the transfer of the loan. When claim is raised for the first time in response to motion summary judgment, the Court will construe claim a motion to amend the complaint. See Cash Jefferson Assocs., lnc.,978F.2d217,218 (5th Cir. 1992); Stover v. Hattiesburg Pub. Sch. Dist., F.3d n.2 (5th Cir. 2008); Debowalev. (J.5. 62 F.3d 395, 395 (5th Cir. 1995). The motion should be granted unless it would be futile. An amendment deemed futile if "the amended complaint would fail to state a claim upon which relief could be granted." Stripling Jordan Prod. Co., LLC, 234 F.3d 863, S73 2000) (citation omitted). U.S.C. $ 16a1(g) states: "not later than 30 days afterthe date which mortgage is
sold or otherwise transferred or assigned to third party, the creditor that is the new owner or assignee the debt shall notify the borrower writing of such transfer . . ."
Damages are limited to sum actual damages twice amount any finance charge. plaintiff must allege sufficient damages order state claim under this section. See Beall v. Quality Loan Service Corp.,20ll (S.D.Cal. 20ll) ("Plaintiff not alleged any actual damages or finance charges related [Defendant's] failure provide notice assignment required under 1641(g)(l).").
Graves has alleged damages arising from failure to noti$' him transfer. Any amendment Graves' cause action under TILA would therefore be futile and the implied motion amend is hereby DENIED.
HOEPA
The Home Ownership Equity Protection Act (HOEPA) was passed as an amendment to TILA to heighten disclosure requirements. Smith v. Nat. City Mortg., WL 3338537 (W.D.Tex. Claims under HOEPA are subject TILA's of limitations. Id. at *8; Lechner v. Citimortgage, WL2356142 (N.D.Tex .2009).
Graves' claims HOEPA are therefore also barred bv the one-vear statute of limitations. l5 U.S.C. 1640.
RESPA
RESPA was enacted ensure that real estate consumers are provided with sufficient and accurate information about settlement process. Snow First American Title Ins. Co., 332 F.3d 356 2003). RESPA claims have either one-year or three-year statute of limitations, depending on which provisions RESPA are claimed have been violated. U.S.C. S 2614. one-year limitations period applies claims alleging kickbacks and uneamed fees, as well claims regarding title insurance. Misczak Chase Home Finance, LLC,2011 at *3 (N.D.Tex.
Generally, RESPA violations occur date closing, thereby triggering of . Snow , 332 F .3d at 36I . The loan was closed 2004. Any RESPA claim stemming from the consummation barred by either three-year or one-year statute limitations.
It been shown equitable tolling applies claims under RESPA. Vanderbilt Mortg. and Finance, Inc. Flores,735 F.Supp.2d679 (S.D.Tex.20l0); 9now,332F.3d356, *6 whether 2614 subject to n. (5th Cir.) ("we therefore express no opinion on equitable tolling.").
Regardless, Graves provided sufficient factual allegations support its application here and his RESPA claims are therefore barred by limitations.
Deceptive Practices Act
The statute of claim Texas Deceptive Trade Practices Act (DTPA) two years. Tex. Bus. & Comm. Code $ 17.565. The cause of action accrues when the consumer discovers or should have discovered deceptive practice. Id. The loan was closed in2004. Graves' claims are thus barred bv limitations.
Fraud & Breach of Fiduciary Duty
The of limitations fraud action is four years. Tex. Civ. Prac. & Rem. Code. $ 16.004. cause of action "is generally considered accrue either when the fraud is discovered or when the facts giving rise fraud claim are discovered or might reasonably be discovered through reasonable diligence - the so-called 'discovery rule.' " Kansa Reinsurance Co., Ltd. v. Congressional Mortg. Corp. of Tex.,20 F.3d 1994) (citing Texas authority). Because Graves' claims of fraud accrued upon consummation of they are barred by limitations. of limitations breach of fiduciary duty is four years. Tex. Civ. Prac. &
Rem. Code. $ 16.004. "[B]reach fiduciary duty cases are treated like fraud cases terms deferral cause action; the issue when the plaintiff knew or should have known, with the exercise reasonable diligence, or her injury." Slusser Union Bankers Ins. Co.,72 S.W.3d 713 (Tex.App.-Eastland 2002) (citation omitted).
This cause action is therefore also barred bv limitations.
Implied Covenant of Good Faith and Fair Dealing
The duty of good faith and fair dealing only exists Texas where express language in a contract creates duty or where special relationship of trust exists between the parties. "The relationship of mortgagor and mortgagee ordinarily does not involve a duty of good faith." Federal Deposit Ins. Corp. Coleman, 795 S.W.2d 706 (Tex. 1990). also, Lovell v. Western Nat. Life Ins. Co.,754 S.W.2d 298 (Tex.App.-Amarillo
Because there was no duty created. Graves cannot maintain cause of action this theory.
Additional State Law Claims
The statute limitations for theft (conversion) action is two years. Tex. Civ. Prac. & Rem. Code. $ 16.003. The of limitations for negligence action is two years. Tex. Civ. Prac. & Rem. Code. $ 16.003. statute limitations for intentional infliction of emotional distress is two years. Tex. Civ. Prac. & Rem. Code 16.003; Patrick McGowan, I04 S.W.3d 219 (Tex.App.-Texarkana For every action for which there no express limitations, period is four years. Tex. Civ. Prac. & Rem. Code. $ 16.051. cause action generally accrues when the wrongful act completed and causes a legal injury. Slusser LInion Bankers Ins. Co., S.W.3d (Tex.App.-Eastland 2002); Delhomme v. Caremark Rx 1nc.,232 F.R.D. (N.D.Tex. 2005) (citing Texas authority).
Any cause action conversion based improper fees accrued loan consummation and therefore barred by limitations. Any cause action negligence based on the loan transaction accrued when the loan transaction was consummated, is barred by limitations. Any cause action intentional infliction of emotional distress arising from *8 the loan consummation is barred by limitations. Any additional state law claim arising from the loan consummation is also barred by limitations.
RICO
In response to the Motion Summary Judgment, Graves makes numerous allegations violations Racketeer Influenced and Comrpt Orgarizations Act (RICO). These allegations do include any specific facts about but instead seem to malign the mortgage industry as a whole.
When claim is raised first time response a motion to dismiss or motion for summary judgment, court should construe claim motion to amend complaint. See Cashv, Jffirson Assocs., lnc.,978F.2d2I7,218 (5th Cir.l992); Stover Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 989 n.2 (5th Cir.2008); Debowalev. tls. 62 F.3d 395, 395 (5th Cir.1995).
Whether plaintiff should be granted leave amend his complaint is governed by Fed. R. Civ. Pro. 15(a)(2). The court should grant leave amend when justice so requires. 1d. An amendment deemed futile if "the amended complaint would fail to state claim upon which relief could be granted." Stripling Jordan Prod. Co., LLC, 234 F.3d 863, Cir.2000) (citation omitted).
To survive Rule l2(bx6) motion to dismiss, complaint must contain sufficient factual matter, accepted as true, state a claim relief that is plausible its face." Cox v. Hilco Receivables, L.L.C., --- F.Supp.2d ---,2010 at *2 Q.{.D.Tex. 2010). The pleading must be "factually suggestive" beyond mere conclusory allegations. Ollie Plano Independent School Dist., 564 F.Supp.2d (E.D.Tex. 2008) (citing Twombly, U.S. *9 asserted any specific factual allegations pertaining Deutsche Bank that would entitle him to relief.
Graves' motion to amend complaint DENIED.
CONCLUSION
Summary judgment is hereby GRANTED to Bank on all of Graves' causes action.
It iS SO ORDERED.
Signed this M O^rof May, 21ll.
DISTRICT JUDGE