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Lawry v. The Bank of New York Mellon Trust Co.

United States District Court, N.D. Texas, Fort Worth Division

May 16, 2019

KENNETH LAWRY, ET AL., Plaintiffs,
v.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. FORMERLY KNOWN AS THE BANK OF NEW YORK' TRUST COMPANY, N.A. AS SUCCESSOR IN INTEREST TO JPMORGAN CHASE BANK, N.A., F/K/A JPMORGAN CHASE BANK, AS TRUSTEE FOR MASTR ADJUSTABLE RATE MORTGAGES TRUST 2 0 05-2 MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2005-2, ET AL., Defendants.

          MEMORANDUM OPINION AND ORDER

          John McBryde United States District Judge

         Came on for consideration the motion of defendants, The Bank of New York Mellon Trust Company, N.A., formerly known as the Bank of New York Trust Company, N.A., as successor in interest to JPMorgan Chase Bank, N.A., f/k/a JPMorgan Chase Bank, as trustee for MASTR Adjustable Rate Mortgages Trust 2005-2 Mortgage Pass-Through Certificates, Series 2005-2 ("BONY"), and PNC Bank, N.A. ("PNC"), to dismiss or, in the alternative, for judgment on the pleadings. Plaintiffs, Kenneth Lawry ("Kenneth"} and Clarlee Lawry ("Clarlee"), have failed to respond to the motion, which is ripe for ruling.[1] The court, having considered the motion, the record, and applicable authorities, finds that the motion should be granted.

         I. Plaintiffs' Claims

         On April 2, 2018, plaintiffs filed their original petition in the District Court of Tarrant County, Texas, 96th Judicial District. Doc.[2] 1. On January 7, 2019, they filed a first amended petition in the state court to enjoin and restrain a foreclosure. Id. On February 6, 2019, defendants filed their notice of removal, bringing the action before this court. Id. By order signed March 8, 2019, the court ordered the parties to file amended pleadings in keeping with the Federal Rules of Civil Procedure, local rules of this court, and judge-specific requirements of the undersigned. Doc. 7. Plaintiffs' original attempt to comply with the order was stricken and unfiled. Doc. 11. On April 3, 2019, plaintiffs filed their amended complaint. Doc. 12.

         Plaintiffs say that their amended complaint is "a suit to enjoin and to restrain a foreclosure sale posted under an unlawful declaration of default and acceleration of maturity of a promissory note." Doc. 12, ¶ 9. Plaintiffs allege:

         On October 28, 2004, plaintiffs obtained a Texas home equity loan, executing a note and deed of trust. Doc. 12, ¶¶ 11-12. The lender assigned its rights in the note and deed of trust to BONY. Id. ¶ 13. PNC is the servicer. Id. ¶ 14, Under the heading "Declaratory Relief: Defendants Seeking More Than Is Owed," plaintiffs allege that defendants have demanded that plaintiffs pay taxes and insurance that they have already paid. Id. ¶¶ 16-20. Under the heading "Declaratory Relief: No. Notice Given to Clarlee Lawry," they allege that Clarlee was not given notice of intent to accelerate the loan. Id. ¶¶ 21-23. And, under the heading "Violations of Fair Debt Collection Acts," plaintiffs say that they bring this action for injunctive relief, actual damages, and attorney's fees for each violation of Tex. Finance Code § 392.101, § 392.202, or § 392.301(a)(3), (hereinafter "TDCA"), and for violation of Subchapter E, Chapter 17, Business & Commerce Code (hereinafter "DTPA"). Id. ¶¶ 24-25.

         II.

         Grounds of the Motion

         Defendants urge three grounds in support of their motion. The first and second grounds argue that plaintiffs have failed to allege an underlying claim to support either request for declaratory relief. And, the third ground argues that Clarlee is not an obligor on the loan and is not entitled to notice as a matter of law.

         III.

         Applicable Pleading Standards

         Rule 8(a)(2} of the Federal Rules of Civil Procedure provides, in a general way, the applicable standard of pleading. It requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), "in order to give the defendant fair notice of what the claim is and the grounds upon which it rests," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and ellipsis omitted). Although a complaint need not contain detailed factual allegations, the "showing" contemplated by Rule 8 requires the plaintiff to do more than simply allege legal conclusions or recite the elements of a cause of action. Twombly, 550 U.S. at 555 & n.3. Thus, while a court must accept all of the factual allegations in the complaint as true, it need not credit bare legal conclusions that are unsupported by any factual underpinnings. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.").

         Moreover, to survive a motion to dismiss for failure to state a claim, the facts pleaded must allow the court to infer that the plaintiff's right to relief is plausible. Iqbal, 556 U.S. at 678. To allege a plausible right to relief, the facts pleaded must suggest liability; allegations that are merely consistent with unlawful conduct are insufficient. Id. In other words, where the facts pleaded do no more than permit the court to infer the possibility of misconduct, the complaint has not shown that the pleader is entitled to relief. Id. at 679. "Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

         In considering a motion to dismiss for failure to state a claim, the court may consider documents attached to the motion if they are referred to in the plaintiff's complaint and are central to the plaintiff's claims. Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003}. The court may also refer to matters of public record. Papasan v. Allain, 478 U.S. 265, 268 n.l (1986); Davis v. Bayless, 70 F.3d 367, 372 n.3 (5th Cir. 1995); Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994). This includes taking notice of pending judicial proceedings. Patterson v. Mobil Oil Corp., 335 F.3d 476, 481 n.l (5th Cir. 2003). And, it ...


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