United States District Court, W.D. Texas, Austin Division
SPARKS UNITED STATES DISTRICT JUDGE
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Plaintiff Dan Sergio de
la Cruz's Motion to Dismiss [#18], Defendant The Bank of
New York as Trustee for the Certificateholders CWABS, Inc.
Asset-Backed Certificates, Series 2005-9 (BONY)'s
Response [#19] in opposition, and Plaintiffs Reply [#20] in
support. Having reviewed these documents, the governing law,
and the file as a whole, the Court now enters the following
opinion and order.
lawsuit involves a piece of real property located in Travis
County, Texas (Property), which is more specifically
described as follows:
LOT 3, BLOCK "A, " OF STEINER RANCH PHASE ONE,
SECTION 9, A SUBDIVISION IN TRAVIS COUNTY, TEXAS, ACCORDING
TO THE MAP OR PLAT RECORDED UNDER DOCUMENT NUMBER 200200113,
IN THE PLAT RECORDS OF TRAVIS COUNTY, TEXAS.
Countercl. [#17] ¶ 6. The address of the Property is
12713 Bright Sky Overlook, Austin, Texas, 78732. Id.
25, 2005, Plaintiff executed a Texas Home Equity Adjustable
Rate Note (Note) and a Texas Home Equity Security Instrument
(Security Instrument), granting Loan America, Inc. a security
interest in the Property. Id. ¶¶ 5-6. The
Security Instrument includes a power of sale provision,
stating "Lender's default remedies shall include the
most expeditious means of foreclosure available by law,
" and an acceleration clause. Id. [#17-2] Ex. B
(Security Instrument) ¶¶ 21-22. BONY is the current
owner and holder of the Note and mortgagee of the Security
Instrument. Id. [#17] ¶ 7. Defendant Ditech
Financial, LLC is the current mortgage servicer of the Note
and the Security Instrument (together, Loan Agreement), on
behalf of BONY. Id.
subsequently defaulted under the Note. Id. ¶ 8.
On January 14, 2011, Plaintiff was notified of his default
and demand was made on him to immediately pay the past due
amount. Id. Plaintiff failed to pay the due amount.
Id. On February 24, 2016, BONY filed an application
under Texas Rule of Civil Procedure 736 in the 98th District
Court for Travis County, Texas, seeking an expedited court
order allowing foreclosure of the Property. Id.
¶ 9. The state court authorized BONY to proceed with
foreclosure, and the foreclosure sale was set for February 7,
February 1, 2017, Plaintiff filed the instant suit to quiet
title in the 419th District Court for Travis County, Texas,
which automatically stayed the 98th District Court's
foreclosure order under Rule 736.11(a). Id. On March
2, 2017, BONY and Ditech Financial timely removed the action
to this Court. Not. Removal [#1]. On March 22, 2017,
Plaintiff filed an amended complaint, alleging the four-year
statute of limitations under Texas Civil Practice &
Remedies Code § 16.035 bars BONY from foreclosing on the
Property. Am. Compl. [#15] ¶ 23. On March 28, 2017, BONY
filed a counterclaim, seeking judicial foreclosure of the
Property based on Plaintiffs breach of the Loan Agreement.
Countercl. [#17]. Plaintiff filed his motion to dismiss
BONY's counterclaim on March 29, 2017. Mot. Dismiss
[#18]. The motion has been fully briefed and is now ripe for
Rule of Civil Procedure 8(a)(2) requires a complaint to
contain "a short and plain statement of the claim
showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). A motion under Federal Rule of Civil
Procedure 12(b)(6) asks a court to dismiss a complaint for
"failure to state a claim upon which relief can be
granted." Fed.R.Civ.P. 12(b)(6). The plaintiff must
plead sufficient facts to state a claim for relief that is
facially plausible. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). "A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 566 U.S. at
678. Although a plaintiffs factual allegations need not
establish that the defendant is probably liable, they must
establish more than a "sheer possibility" that a
defendant has acted unlawfully. Id. Determining
plausibility is a "context-specific task, " and
must be performed in light of a court's "judicial
experience and common sense." Id. at 679.
deciding a motion to dismiss under Rule 12(b)(6), a court
generally accepts as true all factual allegations contained
within the complaint. Leatherman v. Tarrant Cty.
Narcotics Intelligence & Coordination Unit, 507 U.S.
163, 164 (1993). However, a court is not bound to accept
legal conclusions couched as factual allegations. Papasan
v. Allain, 478 U.S. 265, 286 (1986). Although all
reasonable inferences will be resolved in favor of the
plaintiff, the plaintiff must plead "specific facts, not
mere conclusory allegations." Tuchman v. DSC
Commc'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994).
In deciding a motion to dismiss, courts may consider the
complaint, as well as other sources such as documents
incorporated into the complaint by reference, and matters of
which a court may take judicial notice. Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322
BONY'S Judicial ...