Richard Kreway v. Countrywide Bank, FSB
647 F. App'x 437
5th Cir.
2016
Check Treatment
Docket

Richard J. KREWAY, Plaintiff-Appellant v. COUNTRYWIDE BANK, FSB; Countrywide Home Loans, Incorporated; Bank of America, N.A.; The Bank of New York Mellon, as Trustee for the CHL Mortgage Pass-Through Trust Series 2007-21; CWMBS, Incorporated; Mortgage Electronic Registration Systems, Incorporated, Also known as MERS, Defendants-Appellees.

No. 15-50854

United States Court of Appeals, Fifth Circuit.

May 3, 2016.

437

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

Christopher J. Deeves, Esq., San Antonio, TX, for Plaintiff-Appellant.

Connie Flores Jones, Jameson Joseph Watts, Winston & Strawn, L.L.P., Houston, TX, Phoebe Norton Coddington, Winston & Strawn, L.L.P., Charlotte, NC, for Defendants-Appellees.

PER CURIAM:*

Richard Kreway appeals the district court‘s dismissal under Federal Rules of Civil Procedure Rule 12(b)(6) of his civil suit against Countrywide Bank, FSB; Countrywide Home Loans, Inc.; The Bank of New York Mellon as Trustee for the CHL Mortgage Pass-through Trust Series 2007-21; CWMBS, Inc.; Bank of America, N.A.; and Mortgage Electronic Registration Systems, Inc. (MERS), which asserted the following causes of action: (1) violation of the Texas Property Code; (2) lack of standing to foreclose; (3) a suit to quiet title; (4) a request for declaratory judgment; (5) breach of contract; (6) promissory estoppel; (7) violation of the Texas Debt Collection Act; and (8) common law recession. Kreway argues that dismissal under Rule 12(b)(6) was inappropriate because he “pled sufficient facts to demonstrate that it was facially plausible that the assignments relied upon to foreclose on his property are void as forgeries.”

We review a district court’s dismissal under Rule 12(b)(6) de novo, applying the same standards as the district court. . 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.” . “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” (quotation marks, citations, and footnote omitted). Claims alleging fraud must also comply with the supplemental pleading requirements of Rule 9(b), which demand that “a party must state with particularity the circumstances constituting fraud or mistake.” FED.R.CIV.P. 9(b). “Put simply, Rule 9(b) requires ‘the who, what, when, where, and how’ [of the alleged fraud] to be laid out.” .

In his complaint Kreway alleged, inter alia, that the assignment of his mortgage note and deed of trust by MERS to BAC Home Loans Servicing, LP, was void because the signature affixed to it was forged. Contrary to his assertions on appeal, Kreway did not plead sufficient facts to support his allegations of forgery. Kreway merely stated:

Upon information and belief, and/or information reasonably expected to be discovered during this litigation, the 2011 assignment purportedly signed by [MERS Assistant Secretary] Bud Kamyabi is also void because it was signed or affixed by a person not Bud Kamyabi, and signed or affixed by a person without any authority or knowledge whatsoever from the real Bud Kamyabi.

Kreway also attached an exhibit to his pleading, which was labeled “Bud Kamyambi [sic] Signature Comparisons.” However, Kreway did not plead any facts relating to who perpetrated the alleged forgery or how, when, and where the alleged forgery was executed. The allegation therefore falls short of the pleading requirements of Rule 9(b). See As a result, dismissal of all claims relying on the alleged forgery was proper. See (“Rule 9(b) applies by its plain language to all averments of fraud, whether they are part of a claim of fraud or not.”). Any other points of error are waived as a result of Kreway’s failure to brief them.

The judgment of the district court is AFFIRMED.

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