United States District Court, S.D. Texas, Brownsville Division
MAGISTRATE JUDGE'S REPORT AND
Ignacio Torteya, III United States Magistrate Judge.
Bank of New York Mellon (“BNYM”) filed its
Original Complaint in the above-captioned civil action on
February 14, 2019 (hereinafter, BNYM's
“Complaint”). Dkt. No. 1. The Complaint (Dkt. No.
1) identifies only two causes of action: one for a
declaratory judgment, and the other requesting a court order
for permission to proceed with a non-judicial foreclosure.
Id. at 5-6. For the reasons provided below, it is
recommended that BNYM's Complaint be
DISMISSED, and the Clerk of Court be ordered
to close this case.
about September 24, 1999, Defendant Judith L. Walker executed
a Note bearing a principal amount of $45, 000.00 and a yearly
interest rate of 8.625%. Dkt. No. 1-1 at 2. Walker
contemporaneously executed a Texas Home Equity Security
Instrument (the “Security Instrument”), which
granted the lender a security interest in a property bearing
the address 426 Winnipeg, Brownsville, Texas 78521 (the
“Property”). Although it does not address the chain
of assignment(s) or sale(s) of either the Note or Security
Instrument, BNYM avers that it “is the current legal
owner and holder of the Note . . . and mortgagee of the
Security Instrument.” Dkt. No. 1 at 4. The loan
servicer, not a party to this lawsuit, is Ocwen Loan
Servicing, LLC. See Dkt. No. 1-1 at 21-24. According
to BNYM, a default resulted from Defendants' failure
“to make payments under the terms of” the Note
and Security Instrument. Dkt. No. 1 at 4. BNYM claims that
Defendants are delinquent on payments from December 1, 2017
to present. Id. A “Notice of Default”
was mailed to an address associated with Walker on February
2, 2018, informing her of the total amount past due and
detailing instructions on how to cure the default. Dkt. No.
1-1 at 21-22. On December 27, 2018, a “Notice of
Acceleration of Loan Maturity” was mailed to two
different addresses associated with Walker, including the
address of the Property. Id. at 26-29. BNYM makes no
averment regarding whether the Property has been or currently
is claimed as a “homestead” by either of the
February 14, 2019, BNYM filed this action seeking to enforce
its security interest in the Property through foreclosure.
Dkt. No. 1. BNYM seeks a “judgment . . . declaring that
Plaintiff is the owner and holder of the Note, beneficiary of
the Security Instrument[, ] and mortgagee, ” along with
a judgment “allowing Plaintiff to proceed with
non-judicial foreclosure or, in the alternative, judicial
foreclosure as to the Property.” Id. at 6-7.
In the “Prayer” section of its Complaint, BNYM
also demands a judgment “quieting title as to any and
all competing interests” and “attorney's fees
[and] costs.” Id. at 7. Neither of these final
two requests is set out as a separate cause of action.
Defendants were served on February 25, 2019. Dkt. Nos. 5, 6.
Pursuant to the Federal Rules of Civil Procedure, each
Defendant had until March 18, 2019 to file a responsive
pleading. Fed.R.Civ.P. 12(a)(1). As of that date, only
Defendant Segars had responded to the lawsuit. See
Dkt. No. 7. In his pro se Answer, Segars avers that the loan
to Ocwen “was never in [his] name, ” and that he
“no longer own[s]” the Property because he
“sold it to Alamo Capital Partners, LLC” in
January of 2019. Id. at 2.
for declaratory judgments in federal court are governed by
the Declaratory Judgment Act, which provides, “[i]n a
case of actual controversy within its jurisdiction . . . any
court of the United States . . . may declare the rights and
other legal relations of any interested party seeking such
declaration, whether or not further relief is or could be
sought.” 28 U.S.C. § 2201(a). The Supreme Court
has held that “the phrase ‘case of actual
controversy' in the Act refers to the type of
‘Cases' and ‘Controversies' that are
justiciable under Article III.” MedImmune, Inc. v.
Genentech, Inc., 549 U.S. 118, 127, 127 S.Ct. 764, 166
L.Ed.2d 604 (2007).
the standing requirement under Article III, the party
invoking federal jurisdiction must show: (1) it has suffered
an “injury-in-fact” that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant(s); and (3) it is likely,
as opposed to merely speculative, that the injury will be
redressed by a favorable decision. Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Consol.
Cos., Inc. v. Union Pacific R.R. Co., 499 F.3d 382, 385
(5th Cir. 2007); Fla. Dep't of Ins. v. Chase Bank of
Tex. Nat'l Ass'n, 274 F.3d 924, 929 (5th Cir.
2001) (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 560- 61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).
“Standing to seek declaratory judgment is subject to
these same requirements.” BroadStar Wind Sys. Grp.
L.L.C. v. Stephens, 459 Fed.Appx. 351, 356 (5th Cir.
2012) (citing Bennett v. Spear, 520 U.S. 154, 162,
117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)).
general rule is that “standing is to be determined as
of the commencement of the suit.” Lujan, 504
U.S. at 571-72. Though a plaintiff may later amend its
complaint, post-filing events generally cannot cure a
jurisdictional defect that existed at the time the original
complaint was filed. Camsoft Data Sys., Inc. v. S. Elec.
Supply, Inc., 756 F.3d 327, 337 (5th Cir. 2014); see
also Arena v. Graybar Elec. Co., Inc., 669 F.3d 214, 218
(5th Cir. 2012) (“Although 28 U.S.C. § 1653 and
[Rule] 15(a) allow amendments to cure defective
jurisdictional allegations, these rules do not permit the
creation of jurisdiction when none existed at the time the
original complaint was filed[.]”).
seeks the following relief: (1) “a declaration from
this Court that it is the owner and holder of the Note and
beneficiary of the Security Instrument, ” (2) a
“declaration from this Court that . . . BNYM is a
mortgagee as that term is defined under Texas Property Code
section 51.0001(4), ” (3) a “judgment against
Defendants for its reasonable attorney's fees”
related to bringing the instant lawsuit, and (4) “a
judgment allowing [BNYM] to foreclose on the Property in
accordance with the Security Instrument and Texas Property
Code section 51.002.” Dkt. No. 1 at 5-6. The Court
first turns to the issue of standing to sue, because it is a
prerequisite to the maintenance of any lawsuit.
Declaratory Judgment Act authorizes federal courts to
“declare the rights and other legal relations of any
interested party seeking such declaration.” 28 U.S.C.
§ 2201(a). Such declarations may issue only to resolve
an actual controversy between the parties. United Transp.
Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000)
(quoting Aetna Life Ins. Co. v. Haworth, 300 U.S.
227, 239-40, 57 S.Ct. 461, 81 L.Ed. 617 (1937)). An actual
controversy is a dispute that is “definite and
concrete, touching the legal relations of parties having
adverse legal interests.” MedImmune, 549 U.S.
at 127 (citation and internal quotation marks omitted). The
controversy “'must be such that it can presently be
litigated and decided and not hypothetical, conjectural,
conditional or based upon the possibility of a factual
situation that may never develop.'” Rowan
Companies, Inc. v. Griffin, 876 F.2d 26, 28 (5th Cir.
1989) (quoting Brown & Root, Inc. v. Big Rock
Corp., 383 F.2d 662, 665 (5th Cir. 1967)). BNYM, as
plaintiff in this suit, has the burden of establishing the
existence of an actual controversy. See Vantage Trailers,
Inc. v. Beall Corp., 567 F.3d 745, 748 (5th Cir. 2009);
Young v. Vannerson, 612 F.Supp.2d 829, 840 (S.D.
has failed to carry that burden. The Complaint makes no
allegation of a dispute regarding what entity owns or holds
the Note or Security Instrument, no allegation of a dispute
regarding whether BNYM is a mortgagee, and no allegation of
any dispute regarding BNYM's ability to proceed with
foreclosure proceedings. While a dispute may arise between the
parties in the future, absent any allegations ...