Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S Bank N.A. v. Morris

United States District Court, W.D. Texas, Austin Division

October 30, 2019

U.S. BANK N. A., as Trustee, on behalf of the Holders of J.P. Morgan Mortgage Acquisition Trust 2006-WMC4 Asset Backed Pass-Through Certificates, Series 2006-WMC4, Plaintiff
v.
BRENDA A. MORRIS and SCOTT A. MORRIS, Defendants

          HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          SUSAN HIGHTOWER UNITED STATES MAGISTRATE JUDGE

         Before this Court is a Motion to Dismiss filed by Defendants Brenda A. Morris and Scott A. Morris (Dkt. No. 13) and Plaintiff U.S. Bank's Response (Dkt. No. 14). Defendants did not file a reply. The District Court referred the above motions to the undersigned Magistrate Judge for Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72, and Rule 1 of Appendix C of the Local Rules of the United States District Court for the Western District of Texas.

         I. BACKGROUND

         On March 26, 2016, U.S. Bank N.A., as trustee, on behalf of the holders of the J.P. Morgan Mortgage Acquisition Trust 2006-WMC4 Asset Backed Pass-Through Certificates, Series 2006-WMC4 (“U.S. Bank”) filed this action against Defendants Brenda A. Morris and Scott A. Morris (“Defendants”) seeking judicial and non-judicial foreclosure of the real property located at 11801 Bell Avenue, Austin, Texas 78759 (the “Property”). (Am. Complaint, Dkt. No. 11). Defendant Scott Morris purchased the Property by warranty deed with vendor's lien in 2002. (Id. ¶ 9). In 2006, Defendants executed a Home Equity Note and Security Instrument (together, “the Loan Agreement”). (Id. ¶¶ 10-11). U.S. Bank alleges it is the successor in interest to WMC Mortgage Corporation, the original holder of the Note and the Security Instrument. (Id. ¶¶ 11-13). U.S. Bank alleges that Defendants have defaulted on the Loan Agreement by conveying the property to a third party without the lender's prior written consent (id. ¶¶ 14, 16), failing to make payments under the Note (id. ¶¶ 15, 17), and violating other covenants and conditions of the Security Instrument (id. ¶ 17). U.S. Bank alleges that Defendants have failed to make any payments since August 1, 2007. (Id.).

         The parties have litigated their dispute in a series of cases before this Court and the Travis County District Court. U.S. Bank filed its first Application for Home Equity Foreclosure Order in the 345th District Court of Travis County, Texas, under Cause No. D-1-GN-07-003494. (Id. ¶ 20). U.S. Bank “nonsuited” the case by dismissing its claims on February 15, 2008. (Id.). After a second notice of acceleration on March 18, 2008, U.S. Bank filed a second Application for Home Equity Foreclosure Order in the 201st District Court of Travis County, Texas, under Cause No. D-1-GN-08-001076. (Id. ¶ 21). U.S. Bank requested a nonsuit in that case on May 20, 2009. (Id. ¶ 22). U.S. Bank subsequently filed a third and fourth Application for Home Equity Foreclosure Order in Travis County Court. (Id. ¶¶ 23-28).[1] The 353rd District Court entered a Home Equity Foreclosure Order granting non-judicial foreclosure on July 10, 2015. (Id. ¶ 29). Defendants then challenged the foreclosure in an affirmative suit against U.S. Bank. (Id. ¶ 30). U.S. Bank removed that case to this Court, which dismissed the case without prejudice on January 22, 2016. (Id. ¶ 30 (citing Morris et al v. Select Portfolio Servicing Inc. et al., No. 1:15-cv-2028-RP (W.D. Tex. Nov. 11, 2015) (dismissing case after plaintiffs' counsel failed to cure lack of admission to the Western District of Texas))). Defendants filed a second affirmative case in Travis County court on December 5, 2016. (Id. ¶ 32). After removal, this Court granted summary judgment in favor of U.S. Bank on January 26, 2018. (Id. ¶¶ 32-33 (citing Morris et al v. Select Portfolio Servicing Inc. et al., No. 1:16-cv-1315-RP (W.D. Tex. Dec. 16, 2016) (Order Granting Summ. J., Dkt. 40))). U.S. Bank mailed its fifth notice of default to Defendants on March 29, 2018, notice of acceleration on April 30, 2018, and its fifth Application for Home Equity Foreclosure Order under Cause No. D-1-GN-18-006996 in the 53rd District Court of Travis County on November 21, 2018. (Id. ¶¶ 35-36). U.S. Bank nonsuited that case. (Id. ¶ 36).[2]

         U.S. Bank filed this action on March 26, 2019. (Id. ¶ 37; see also Complaint, Dkt. 1). It alleges that Defendants “have failed to cure the default since demand.” (Id. ¶ 38). U.S. Bank seeks an order for non-judicial foreclosure by public auction pursuant to the terms of the Loan Agreement and the Texas Property Code § 51.002. (Id. ¶ 40). Alternatively, U.S. Bank seeks a judgment for judicial foreclosure and an order of sale pursuant to Rule 309 of the Texas Rules of Civil Procedure. (Id. ¶ 43-44). On May 24, 2019, Defendants filed the instant Motion to Dismiss under Rule 12(b)(1). (Dkt. No. 13). The Court now turns to the motion.

         II. LEGAL STANDARD

         While Defendants cite only Rule 12(b)(1) in their motion to dismiss, two of their arguments raise grounds for dismissal under Rule 12(b)(6). (See Dkt. No. 13, at 1; 9-11). The Court includes both legal standards here and explains this reasoning further in Part III.

         A. Rule 12(b)(1)

         Federal Rule of Civil Procedure 12(b)(1) allows a party to assert lack of subject matter jurisdiction as a defense to suit. Fed.R.Civ.P. 12(b)(1). Federal district courts are courts of limited jurisdiction and may only exercise such jurisdiction as is expressly conferred by the Constitution and federal statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court properly dismisses a case for lack of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). In ruling on a Rule 12(b)(1) motion, the court may consider any one of the following: (1) the complaint alone; (2) the complaint plus undisputed facts evidenced in the record; or (3) the complaint, undisputed facts, and the court's resolution of disputed facts. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). “Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.” Id.

         B. Rule 12(b)(6)

         Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss an action for failure to state a claim on which relief can be granted. In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court “accepts all well-pleaded facts as true, viewing them in the light most favorable to the [nonmovant].” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks omitted). The Supreme Court has explained that a complaint must contain sufficient factual matter “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the [nonmovant] pleads factual content that allows the court to draw the reasonable inference that the [movant] is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal quotations and citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. “The court's review is limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Ironshore Europe DAC v. Schiff Hardin, L.L.P., 912 F.3d 759, 763 (5th Cir. 2019) (quoting Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010)). “A statute of limitations may support dismissal under Rule 12(b)(6) where it is evident from the plaintiff's pleadings that the action is barred and the pleadings fail to raise some basis for tolling or the like.” Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003).

         III. THE ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.