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Deutsche Bank Trust Company Americas v. Comstock

United States District Court, N.D. Texas, Dallas Division

January 24, 2018

DEUTSCHE BANK TRUST COMPANY AMERICAS, AS TRUSTEE FOR RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC., MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2005-SL1, Plaintiff,
v.
CHARLES MICHAEL COMSTOCK, JAMES LAWRENCE COMSTOCK, THE UNKNOWN HEIRS AT LAW OF CHARLES THEODORE COMSTOCK, DECEASED, AND THE UNKNOWN HEIRS AT LAW OF SALLYANN COMSTOCK, DECEASED, Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ NITED STATES MAGISTRATE JUDGE

         By Special Order No. 3-251, this foreclosure case has been automatically referred for full case management, including the determination of non-dispositive motions and issuance of findings of fact and recommendations on dispositive motions. Before the Court for recommendation is the defendant's “Claim for Summary Judgment, ” filed June 1, 2017 (doc. 31).[1] Based on the relevant filings, evidence, and applicable law, this motion should be DENIED.

         I. BACKGROUND

         This case involves the attempted foreclosure of real property located at 5325 South Peachtree Road, Balch Springs, Texas 75180 (the Property). (doc. 1 at 4.)[2] On July 3, 2001, Charles Theodore Comstock executed a Texas Home Equity Note (Note) in favor of Homecomings Financial Network, Inc. (Homecomings) for a home equity loan in the original principal amount of $76, 000.00. (doc. 46-1 at 7-13.) He and his wife, Sallyann Comstock (collectively Borrowers), contemporaneously executed a Texas Home Equity Security Instrument (Security Instrument) and a Texas Home Equity Affidavit and Agreement (Affidavit) that granted a security interest in the Property to Homecomings to secure repayment under the Note. (Id. at 15-32.) Under the terms of the Note and Security Instrument, Borrowers would be in default if they failed to timely pay the full amount of each required monthly payment and subject to acceleration of the loan and foreclosure proceedings. (Id. at 7-13, 15-32.)

         On August 13, 2001, the Note and Security Instrument were assigned to Bankers Trust Company (Bankers Trust) in an Assignment of Deed of Trust filed in the public records of Dallas County, Texas. (Id. at 35-36.) The Note was subsequently assigned by Bankers Trust to Residential Funding Corporation (Residential Funding) as reflected in an allonge to the Note. (Id. at 11.) The Note was assigned again by Residential Funding to Deutsche Bank Trust Company Americas, as Trustee for Residential Asset Mortgage Products, Inc., Mortgage-Backed Pass-Through Certificates, Series 2005-SL1 (Plaintiff) as reflected in a second allonge to the Note. (Id. at 13.) On November 30, 2015, a Corporate Assignment of Deed of Trust, recorded in the public records of Dallas County, Texas, was executed that assigned Plaintiff as the beneficiary to the Security Instrument. (Id. at 33.) Plaintiff is the current owner of the Note and the beneficiary of the Security Instrument. The approved loan servicer is Ocwen Servicing, LLC (Ocwen). (doc. 46-1 at 1-5.)

         Beginning April 1, 2015, Borrowers failed to submit their monthly payments as required under the Note and Security Instrument, and they were provided with a Notice of Default and Intent to Accelerate by Ocwen's attorneys on November 9, 2015. (Id. at 40-41.) This Notice explained that Borrowers were in default for failure to make required payments, and that the maturity date of the loan would be accelerated if the default was not timely cured. (Id.) Through August 3, 2016, the total amount owed on the loan was $63, 167.46 with interest and other charges continuing to accrue while in default. (Id. at 65-69.) It was subsequently discovered that Borrowers were deceased, but there was no probate, executor, or administrator in either estate.[3] (doc. 1 at 2-3.)

         On November 16, 2016, Plaintiff filed this suit seeking to enforce its statutory probate lien on the Property through foreclosure against the heirs of the Borrowers, i.e., Charles Michael Comstock, James Lawrence Comstock, Nicole L. Comstock a/k/a Nicole Wolfe, and the Borrowers' unknown heirs.[4] (docs. 1, 39.) It seeks a declaration that it has a statutory probate lien on the Property and an order allowing it to enforce its lien through foreclosure.[5] (docs. 1 at 5-6, 39 at 5-7.) Plaintiff also alleges a claim for trespass to try title and seeks attorneys' fees as allowed under the Note and Security Instrument. (docs. 1 at 7-8, 39 at 8.) On December 19, 2016, Charles Michael Comstock (Defendant) filed a pro se response and is the only named defendant who has contested Plaintiff's claims. (doc. 7.)

         On June 1, 2017, Defendant filed a “claim for summary judgment” that contested subject matter jurisdiction and the sufficiency of evidence on Plaintiff's foreclosure claim. (doc. 31.) With a timely filed response and reply, the motion is ripe for recommendation. (docs. 46, 48.)

         II. SUBJECT MATTER JURISDICTION[6]

         Defendant argues that this suit must be dismissed because Plaintiff has not shown that this Court has subject matter jurisdiction over it, and that he is “going to deprive this Court of any alleged jurisdiction” because he is a “higher authority than the Court.” (doc. 31 at 8-10.)

         Defendant's pro se challenge is liberally construed as a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). This type of motion “may be raised by a party, or by a court on its own initiative at any stage in the litigation, even after trial and the entry of judgment.” Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07 (2006). The Court must dismiss the action if it determines that it lacks jurisdiction over the subject matter. Fed.R.Civ.P. 12(h)(3); Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir.1998). The dismissal “is not a determination of the merits, ” however, and “it does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

         A. Legal Standard

         Federal courts are courts of limited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claims. See Stockman, 138 F.3d at 151. They “must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).

         The district court may dismiss for lack of subject-matter jurisdiction based on (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981) (en banc). A motion to dismiss based on the complaint alone presents a “facial attack” that requires the court to merely decide whether the allegations in the complaint, which are presumed to be true, sufficiently state a basis for subject matter jurisdiction. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1998). “If sufficient, those allegations alone provide jurisdiction.” Id. Facial attacks are usually made early in the proceedings. Id. When evidence is presented with the motion to dismiss, the attack is “factual.” Williamson, 645 F.2d at 413. In that case, “no presumptive truthfulness attaches to [the] plaintiff's allegations, and the existence of disputed material ...


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