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Townsend v. Bank of America, N.A.

United States District Court, Fifth Circuit

October 23, 2013

BOBIE KENNETH TOWNSEND, Plaintiff,
v.
BANK OF AMERICA, N.A., Successor By Merger to BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing, LP; FEDERAL NATIONAL MORTGAGE ASSOCIATION; and ANY AND ALL KNOWN OR UNKNOWN DOE ENTITIES 1-10, Defendants.

MEMORANDUM AND ORDER

NANCY F. ATLAS, District Judge.

Plaintiff Bobie Kenneth Townsend brought this foreclosure case against Defendants Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing, LP ("Bank of America"); the Federal National Mortgage Association ("Fannie Mae"); and "any and all known or unknown Doe entities 1-10." Plaintiff has filed a Motion for Reconsideration [Doc. # 26] regarding the Court's rulings on February 21, 2013, see Docs. # 24, # 25, and Defendants have filed a response [Doc. # 29].[1] Plaintiff also has filed a Plea to the Jurisdiction [Doc. # 31], to which Defendants have responded [Doc. # 33].

The parties also have filed cross-motions for summary judgment. Defendants filed a Motion for Summary Judgment [Doc. # 27], to which Plaintiff responded [Doc. # 32].[2] Plaintiff also filed a Motion for Summary Judgment [Doc. # 36], to which Defendants responded [Doc. # 37] and Plaintiff replied [Doc. # 38].

The motions are ripe for review. Having considered the parties' submissions, all matters of record, and applicable legal authorities, the Court denies Plaintiff's Motion for Reconsideration, denies Plaintiff's Plea to the Jurisdiction, grants Defendants' Motion for Summary Judgment, and denies Plaintiff's Motion for Summary Judgment.

I. BACKGROUND

On June 29, 2004, in connection with Plaintiff's purchase of property located at 1504 Memorial Lane in Conroe, Texas (the "Property"), Plaintiff executed a promissory note ("Note") in the amount of $99, 900 in favor of Countrywide Home Loans, Inc. See Note (Exhibit A to Declaration of Jesse Declaration ("Ford Declaration") attached to Defendant's Motion for Summary Judgment [Doc. # 27]).[3] The Note was secured by a Deed of Trust that identified Mortgage Electronic Registration Systems ("MERS") as "the beneficiary under this Security Instrument" and stated that MERS was acting as "a nominee for Lender [Countrywide] and Lender's successors and assigns." Deed of Trust (Exhibit B to Ford Declaration), at 2.

In 2006 and 2007, Plaintiff refused in protest to pay his property taxes.[4] As a result, Countrywide paid the taxes and established an escrow account to cover the amount. Ford Declaration, at 2, ¶ 6. Effective August 12, 2010, MERS assigned the Note and Deed of Trust to BAC Home Loans Servicing, LP ("BAC").[5] Because of Plaintiff's failure to make required payments on the loan, BAC sent Plaintiff notices of default and of his right to cure the default. Ford Declaration, at 2, ¶ 7; id. Exhibit D (notices of default). Defendants have presented evidence that Plaintiff did not cure the default, see id. Exhibit E (loan payment history), and Plaintiff does not contend otherwise.

On October 1, 2010, Plaintiff filed suit in Montgomery County, Texas, against BAC, and challenged a foreclosure on the Property BAC had scheduled for October 5, 2010. BAC removed the case to federal court in this District. On March 29, 2011, the Honorable Kenneth M. Hoyt dismissed all of Plaintiff's claims. The Fifth Circuit affirmed the dismissal on December 5, 2011. See Townsend v. BAC Homes Loans Servicing, LP, 783 F.Supp.2d 968 (S.D. Tex. 2011), aff'd, 461 F.Appx. 367 (5th Cir. 2011) ( Townsend I ).[6]

On March 8, 2012, Defendant Bank of America, as successor by merger to BAC, notified Plaintiff that foreclosure proceedings had been initiated and that a foreclosure sale was scheduled for April 3, 2012. Notice of Foreclosure (Exhibit F to Ford Declaration); Notice of Substitute Trustee's Sale (Tab AG to Plaintiff's Notice of Support of Quiet Title to Plaintiff [Doc. # 28]).[7] On April 3, 2012, the Property was sold to Fannie Mae at a foreclosure sale. Plaintiff's Original Quiet Title Action (Exhibit A-2 to Notice of Removal [Doc. # 1]) ("Complaint"), at 7, ¶ 49; Ford Declaration, at 2, ¶ 11.[8]

On October 29, 2012, Plaintiff filed the current lawsuit in the 284th Judicial District Court of Montgomery County, Texas. Defendants timely removed the case to this Court. Notice of Removal [Doc. # 1]. Plaintiff filed a Motion to Remand [Doc. # 8], which the Court denied on January 4, 2013 [Doc. # 11]. Plaintiff's sole claim in this suit is a claim to quiet title to the Property.

II. ANALYSIS

Four motions currently are pending before the Court: Plaintiff's Motion for Reconsideration; Plaintiff's Plea to the Jurisdiction; and the parties' cross-motions for summary judgment on Plaintiff's claim to quiet title.

A. Plaintiff's Motion for Reconsideration [Doc. # 26]

Plaintiff has filed a Motion for Reconsideration [Doc. # 26] of the Court's rulings at a conference on February 21, 2013 [Docs. # 24, # 25]. At the hearing, the Court heard arguments on discovery matters and then ruled as follows: Defendants' Motions to Quash Subpoenas regarding Shelley Douglass and Sharon Vaughan were denied as moot; Plaintiff's Motion for Judge as Sequestrator was denied as unnecessary; ...


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