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De La Cruz v. Bank of New York

United States District Court, W.D. Texas, Austin Division

May 25, 2017

DAN SERGIO DE LA CRUZ, Plaintiff,
v.
THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS CWABS, INC. ASSET-BACKED CERTIFICATES, SERIES 2005-9 and DITECH FINANCIAL, LLC. Defendants.

          ORDER

          SAM SPARKS UNITED STATES DISTRICT JUDGE

         BE IT 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.

         Background

         This 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.

         On July 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.

         Plaintiff 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, 2017. Id.

         On 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 review.

         Analysis

         I. Legal Standard

         Federal 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.

         In 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 (2007).

         II. BONY'S Judicial ...


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