United States District Court, E.D. Texas, Sherman Division
MEMORANDUM ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
L. MAZZANT UNITED STATES DISTRICT JUDGE
for consideration the report of the United States Magistrate
Judge in this action, this matter having been heretofore
referred to the Magistrate Judge pursuant to 28 U.S.C. §
636. On May 31, 2017, the report of the Magistrate Judge
(Dkt. #33) was entered containing proposed findings of fact
and recommendations that Defendants American Mortgage
Investment Partners Fund I Trust and FCI Lender Services,
Inc.'s Motion to Dismiss (Dkt. #27) be granted. Having
received the report and recommendation of the Magistrate
Judge (Dkt. #33), having considered Plaintiffs' timely
filed objections (Dkt. #34), and having conducted a de novo
review, the Court is of the opinion that the findings and
conclusions of the Magistrate Judge are correct, except as to
the Texas Debt Collection Act claims, the breach of contract
claim, negligent misrepresentation claim, and set aside
claims, and as such adopts in part the Magistrate Judge's
report (Dkt. #33) as the findings and conclusions of the
Tawnya Brigandi initially filed this suit in the Denton
County Probate Court. On July 14, 2016, the suit was removed
to this Court (Dkt. #1). On August 12, 2016, Plaintiffs filed an
Amended Complaint (Dkt. #7). Thereafter, Defendants filed a
Rule 12(b)(6) motion to dismiss, which was rendered moot by
the filing of Plaintiffs' Third Amended Complaint on
April 6, 2017 (Dkt. #26). Defendants' instant Motion to
Dismiss was filed on April 25, 2017 (Dkt. #27).
Plaintiffs' Response was filed on May 9, 2017 (Dkt. #28),
and Defendants' Reply (Dkt. #30) on May 16, 2017.
Notably, the ruling of the Fort Worth Court of Appeals in the
parallel state proceedings (discuss infra) was
issued on April 20, 2017. See Brigandi v. Am. Mortg. Inv.
Partners Fund I Tr., 2017 WL 1428726 (Tex. App.-Fort
Worth Apr. 20, 2017, no pet. h.).
Third Amended Complaint alleges that in June of 2003,
Plaintiffs purchased real estate at 2428 Cherry Lane, Little
Elm, Texas 75068 (“Property”). To purchase the
Property, Plaintiffs executed a Note payable to First
National Bank along with a Deed of Trust to secure payment on
the Note. The terms of the Deed of Trust provide that the
Lender's rights to require immediate payment in full
and/or to foreclose may be limited by Housing and Urban
Development (HUD) regulations (Dkt. #26, Exhibit 2 at 4
(“This Security Instrument does not authorize
acceleration or foreclosure if not permitted by regulations
of the [HUD] Secretary.”)).
Brigandi became unemployed in November of 2012. Facing
foreclosure, in December of 2013, Tawnya Brigandi filed a
Petition and Application for Temporary Restraining Order in
the District Court of Denton County, Texas, against Lex
Special Assets, L.L.C. The Petition alleged Lex Special
Assets (“Lex”) was threatening to foreclose on
the Property, did not hold the Note, and had wrongfully
stalled or refused to consider her request for a loan
modification before initiating foreclosure. Brigandi v.
Lex Special Assets, L.L.C., 4:14-cv-68-RAS, Dkt. #1,
Exhibit 2. Tawnya Brigandi sought a determination of whether
Lex was authorized to foreclose on the Property. She further
claimed Lex committed fraud and violated the Texas Debt
Collection Act (“TDCA”) by refusing to produce
the loan servicing agreement evidencing its right to collect
on the Note, and its ability to accept mortgage payments and
modify the Note. Brigandi v. Lex Special Assets,
L.L.C., 4:14-cv-68-RAS, Dkt. #1, Exhibit 2. That lawsuit
was removed to federal court on January 31, 2014, and it was
dismissed with prejudice on June 23, 2015. Brigandi v.
Lex Special Assets, 4:14-cv-68-RAS, Dkt. #1; Dkt. #7.
Defendants refer to this lawsuit in their Motion to Dismiss
as the Fourth Lawsuit.
several transfers and assignments, Defendant American
Mortgage Investment Partners Trust Fund I
(“AMIP”) became the owner and holder of the Note
and Deed of Trust, and in July 2014, Defendant FCI Lender
Services (“FCI”) began servicing Plaintiffs'
loan on behalf of AMIP (Dkt. #26). See also
Brigandi, 2017 WL 1428726, at *1. In July 2014, Tawnya
Brigandi contacted FCI to discuss a loan modification, but
FCI's representative informed her that no loan
modification would be considered. Tawnya Brigandi thereafter
filed for Chapter 13 bankruptcy protection in August of 2014,
and FCI's scheduled foreclosure was stayed. That
bankruptcy proceeding was dismissed without prejudice in
October or November of 2014. Then in November 2014, FCI
scheduled a foreclosure for December 2014. Tawnya Brigandi
filed yet another Chapter 13 bankruptcy action in November or
December 2014. The foreclosure was again stayed. The
bankruptcy proceedings were dismissed in December of 2014.
FCI scheduled another foreclosure sale in January of 2015.
Nicholas Brigandi filed for Chapter 13 bankruptcy protection
in February 2015, and the foreclosure was stayed. That
bankruptcy proceeding was dismissed in September 2015. In
October 2015, FCI scheduled another foreclosure sale for
November 2015. Nicholas Brigandi again filed for bankruptcy
protection, listing Defendant FCI as a lender. The
foreclosure was not stayed.
subsequently tried to submit a payment to Defendant FCI, but
FCI returned the payment with a letter stating that it was
initiating foreclosure. In December 2015, Plaintiffs received
a letter stating FCI was going to foreclose in February 2016.
On February 19, 2016, FCI sent a Notice of Acceleration to
Plaintiffs. Tawnya Brigandi filed a lawsuit in the Denton
County Probate Court and obtained a temporary restraining
order, which halted the February 2016 foreclosure sale. FCI
agreed thereafter to review a loan modification request.
Plaintiffs submitted a loan modification application to FCI
on March 15, 2016, but FCI denied the application within
three days, refusing to evaluate Plaintiffs for a loan
modification because the request was submitted within
thirty-seven days of a scheduled foreclosure sale.
April 5, 2016, Plaintiffs' Property was sold to AMIP at a
foreclosure sale. At the time of the sale, Plaintiffs owed
over $57, 000 in past-due monthly principal and interest
payments. AMIP paid $167, 500 at the sale. Brigandi,
2017 WL 1428726, at *1 n.2.
the Brigandis did not immediately surrender possession of the
property after the sale, they became tenants at sufferance
under the terms of the deed of trust.” Id. at
*1. On April 14, 2016, AMIP served Plaintiffs with a notice
to vacate and demand for possession, but Plaintiffs failed to
vacate the property. Id. AMIP filed an eviction
petition on May 2, 2016. Id. On June 15, 2016, the
Denton County justice court signed a judgment of eviction,
awarding AMIP possession of the property, stating AMIP was
“entitled to such writs and abstracts as are necessary
to effect execution of this judgment, ” and setting an
appellate bond at $1, 500. Id.
Brigandi appealed the justice court's ruling to the
county court. But on October 18, 2016, without providing the
required notice, the county court dismissed the appeal for
failure to pay the appellate filing fee. Id. at *2.
On October 31, 2016, Tawnya Brigandi moved the county court
to stay or vacate the writ of possession based on the county
court's failure to notify her of the past-due filing fee.
Id. She also moved for a writ of mandamus. Tawnya
Brigandi's request was denied, but the state appellate
court did stay any attempts to execute the writ of possession
pending appellate review. Id. Tawnya Brigandi
appealed the county court's dismissal on November 17,
2016. The county court set a supersedeas bond to be paid by
December 30, 2016. Tawnya Brigandi filed a second writ of
mandamus, claiming setting a bond violated the prior appeals
court order. That writ was denied. Id.
filed a motion on January 17, 2017, requesting the state
appellate court to execute on the writ of possession based on
the failure to post the supersedeas bond. The motion was
granted. The state appellate court held AMIP was “no
longer prohibited from executing the writ of possession
issued on October 19, 2016, ” by the justice court.
Id. at *3. Tawnya Brigandi's subsequent motions
to reconsider and to review the county court's
supersedeas bond were denied. Id. “[I]f a
supersedeas bond in the amount set by the county court is not
filed, the judgment in a forcible-detainer action may be
enforced and a writ of possession may be executed, evicting
the defendant from the property.” Id.
Plaintiffs were ultimately evicted on March 2, 2017 (Dkt. #26
the eviction mooted the appeal before the state appellate
court; that court held that “[b]ecause Brigandi is no
longer in possession of the property and because she does not
assert a potentially meritorious claim raising her right to
current, actual possession of the property, the issue of
possession-the sole ...