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Burch v. Freedom Mortgage Corp.

United States District Court, N.D. Texas

October 24, 2019

WILLIAM PAUL BURCH, Plaintiff,
v.
FREEDOM MORTGAGE CORP., Defendant.

          MEMORANDUM OPINION AND ORDER

          JOHN McBRYDE, UNITED STATES DISTRICT JUDGE

         Now pending are the motion of defendant, Freedom Mortgage Corporation, to dismiss and the motion of plaintiff, William Paul Burch, for partial summary judgment. The court, having considered the motions, the responses, the reply in support of plaintiff's motion, the record, and applicable authorities, finds that defendant's motion should be granted and that plaintiff's motion should be denied.

         I.

         Plaintiff's Claims

         The operative pleading is plaintiff's amended complaint filed August 27, 2019. Doc.[1] 12. In it, plaintiff alleges:

         The subject of the action is property located at 1006 Nancy Lane, Lancaster, Texas. Doc. 12, ¶ 7. The property was purchased with a loan made by defendant. Id. ¶ 8. In December 2008, plaintiff filed for relief under Chapter 11 of the Bankruptcy Code under No. 08-45761-RFN-11. Id. ¶ 10. On December 9, 2009, the bankruptcy court approved a plan of reorganization. Id. ¶ 11; Doc. 13, Ex. C. Defendant failed to abide by the plan, immediately defying the order confirming the plan by issuing in January 2010 a notice of intent to foreclose. Doc. 12, ¶ 12. By letters dated January 31, 2011, plaintiff gave notice of defendant's violation of the confirmation order, threatening that he would be proceeding within 3 0 days to remove any encumbrances to the property. Id.; Doc. 13, Ex. J. On January 14, 2011, defendant foreclosed on the property. Doc. 12, ¶ 15.

         Plaintiff asserts causes of action under Tex. Prop. Code § 53.160, for violation of Texas Penal Code § 32.49, for violation of Texas Penal Code § 32.45, for violation of Tex. Civ. Prac. & Rem. Code § 12.003, for breach of contract, and to quiet title.

         II.

         Grounds of the Motions

         Defendant urges that plaintiff's claims are barred by limitations. In addition, plaintiff lacks standing to assert claims under the Texas Penal Code; Chapter 53 of the Texas Property Code pertains only to mechanic's and materialman's liens; and, defendant does not owe plaintiff any fiduciary duties.

         Although difficult to follow, the gist of plaintiff's motion appears to be that his claims are not barred by limitations.

         III.

         Applicable Standards of Pleading and Review

         A. Rule ...


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