United States District Court, S.D. Texas, Houston Division
CECIL BOYKIN, as trustee for ROY LEE KEMP TRUST; and CECIL BOYKIN, Plaintiffs,
WELLS FARGO FINANCIAL TEXAS, INC., et al., Defendants.
MEMORANDUM AND ORDER
F. ATLAS, SENIOR UNITED STATES DISTRICT JUDGE.
Cecil Boykin, who proceeds pro se, brought this
foreclosure-related case on September 5, 2017, against eleven
Defendants. Eight Defendants have filed motions to dismiss.
See Defendant Wells Fargo Financial Texas,
Inc.'s Motion to Dismiss [Doc. # 4]; Defendant Michael
Schroeder's Motion to Dismiss [Doc. # 5]; Defendant
Elaine Jackson's Motion to Dismiss [Doc. # 8]; Defendant
Randolph Vincent, Jr.'s Motion to Show Authority Pursuant
to Fed.R.Civ.P. 17 and Motion to Dismiss Plaintiff's
Original Complaint [Doc. # 9]; Buckley Madole, P.C.'s
Motion to Dismiss [Doc. # 14]; Defendant Deputy Leon
Hubbard's Motion to Dismiss [Doc. # 17]; Defendant Ocwen
Financial Corporation's Motion to Dismiss Plaintiff's
Complaint [Doc. # 24]; and Defendant Texas Eviction LLC's
Motion to Dismiss [Doc. # 41]. The remaining three Defendants
(Chuck Martin, “Waller County Precinct 3, ” and
“Does 1-100”) have not appeared. Having
considered the pleadings, motions, briefing, relevant legal
authority, and all matters of record, the Court
dismisses this action under Rules 12 and 41.
Complaint [Doc. # 1], filed on September 5, 2017, brings nine
claims: (1) wrongful foreclosure, (2) recision and
restitution, invoking 15 U.S.C. § 1635, (3) Real Estate
Settlement Procedures Act (“RESPA”) violations
under 12 U.S.C. § 2605, (4) fraudulent concealment, (5)
fraudulent misrepresentation, (6) “elder abuse, ”
(7) quiet title, (8) violations of 42 U.S.C. § 1983, and
(9) declaratory and injunctive relief. His demand is $5
million. He states that he brings all of his claims against
all eleven Defendants, but does not explain the involvement
of each Defendant in each claim.
claims pertain to property at 22396 FM Road 1098 in Prairie
View (the “Property”), which is in Waller County.
The Property previously was owned by Plaintiff's sister,
Roy Lee Kemp. Plaintiff was never owner of the Property,
but apparently owns land “surrounding” the
Property. In his pleadings, Plaintiff identifies himself as
“Trustee for the Roy Lee Kemp Trust” and states
that Ms. Kemp is eighty-four years old and disabled. Ms. Kemp
is not a party to this suit. The record before this Court
contains no documentation of the trust.
11, 2007, Ms. Kemp executed a Deed of Trust and Promissory
Note for the Property in the amount of $63, 991.53. The
lender was Defendant Wells Fargo. See Exhibit A to
Doc. # 4. Plaintiff states that Ms. Kemp made payments on the
Property “from 2007 until the time in which payments
were refused.” Complaint, at 4. Wells Fargo states that
Ms. Kemp defaulted on her loan obligations and, in 2016,
Wells Fargo initiated foreclosure proceedings. On August 15,
2016, the 506th District Court in Waller County entered an
agreed foreclosure order. See Exhibit C to Doc. # 4
(“Agreed Foreclosure Order”). Ms. Kemp was
represented by counsel, who approved the agreed order.
to Wells Fargo and the documents attached to its motion, the
Property was sold to Wells Fargo at a foreclosure sale on
November 1, 2016. Exhibit B to Doc. # 4. On May 26, 2017,
Wells Fargo sold the property to Cypress Four Property
Ventures LLC, who in turn sold the property on June 9, 2017,
to Randolph Vincent, Jr. See Exhibits D & E to
Doc. # 4. Wells Fargo's motion, filed on October 10,
2017, stated that Ms. Kemp continues to occupy the Property.
other Defendants who have appeared in this action are Mike
Schroeder, whom Plaintiff identifies as a Wells Fargo
employee; Ocwen Financial Corporation, a successor loan
servicer apparently on Ms. Kemp's loan; Buckely Madole
PC, the law firm that represented Wells Fargo in Ms.
Kemp's previous suit before Judge Ellison; Texas Eviction
LLC (“Eviction”), whom Plaintiff alleges
trespassed in connection with eviction proceedings; Randolph
Vincent, Jr., who purchased the Property on June 9, 2017;
“Constable Hubble, ” whom Plaintiff identifies as
“only a nominal Defendant”; and Elaine Jackson, a
Justice of the Peace for Waller County Precinct
seven of the pending motions to dismiss, the Court issued
orders directing Plaintiff to respond by a set deadline and
cautioning Plaintiff that “failure to
respond as ordered by the deadline will result in dismissal
of his claims.” See Docs. # 10,
# 16, # 23, & # 25. The eighth motion, filed by Eviction,
was filed on November 30, 2017, several days before the
Court's initial pretrial conference. Plaintiff's
response deadline is December 21, 2017.
has not filed timely responses to all pending motions. His
most recent filing was docketed on October 31, 2017.
Plaintiff filed several documents responsive to earlier
motions to dismiss. See Docs. # 18, # 19, # 20, #
21, & # 22.
November 27, 2017, Defendants filed a Joint Discovery/Case
Management Plan [Doc. # 31]. The Plan states that Defendants
attempted to confer with Plaintiff by email, Fed Ex, and
telephone in the range of November 22-27, but that Plaintiff
did not respond.
p.m. on December 4, 2017, the Court held an initial pretrial
conference, which had been set by an Order entered on
September 7, 2017. See Order for Initial Pretrial
and Scheduling Conference [Doc. # 3]. Plaintiff did not
appear at the conference. The Court delayed calling the case
until 1:43 p.m. and then heard argument from Defendants'
attorneys on the pending motions. The Court then called
another case and directed Defendants' attorneys to wait,
to give Plaintiff a final chance to appear. At 2:45 p.m.,
Plaintiff still had not appeared and the Court dismissed
Defendants' attorneys. Hearing Minutes and Order [Doc. #
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure is viewed with disfavor and is rarely
granted. Turner v. Pleasant, 663 F.3d 770, 775 (5th
Cir. 2011) (citing Harrington v. State Farm Fire &
Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)). The
complaint must be liberally construed in favor of the
plaintiff, and all facts pleaded in the complaint must be
taken as true. Harrington, 563 F.3d at 147. The
complaint must, however, contain sufficient factual
allegations, as opposed to legal conclusions, to state a
claim for relief that is “plausible on its face.”
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Patrick v. Wal-Mart, Inc., 681 F.3d 614, 617 (5th
Cir. 2012). When there are well-pleaded factual allegations,
a court should presume they are true, even if doubtful, and
then determine whether they plausibly give rise to an
entitlement to relief. Iqbal, 556 U.S. at 679. Rule
8 “generally requires only a plausible ‘short and
plain' statement of the plaintiff's claim, not an
exposition of his legal argument.” Skinner v.
Switzer, 562 U.S. 521, ...