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Boykin v. Wells Fargo Financial Texas, Inc.

United States District Court, S.D. Texas, Houston Division

December 8, 2017

CECIL BOYKIN, as trustee for ROY LEE KEMP TRUST; and CECIL BOYKIN, Plaintiffs,



         Plaintiff 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.

         I. Background

         Plaintiff's 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.

         Plaintiff's 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.[1] 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.

         On July 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.

         According 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.

         The 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 3.[2]

         For 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.

         Plaintiff 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.

         On 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.

         At 1:30 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. # 44].

         II. Legal Standards

         A 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, ...

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