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Robinson v. U.S. Bank N.A.

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

November 8, 2019

KAREN ARMELIN ROBINSON, Plaintiff,
v.
U.S. BANK, N.A., ET AL., Defendants.

          MEMORANDUM OPINION AND ORDER

          A. JOE FISH SENIOR UNITED STATES DISTRICT JUDGE

         Before the court is the motion of the defendants U.S. Bank, N.A., as Trustee, successor in interest to Bank of America, N.A., as Trustee, successor by merger to LaSalle Bank, N.A., as Trustee for SACO I Trust 2005-WM3 Mortgage Backed Certificates, Series 2005-WM3 (“U.S. Bank”) and Ocwen Loan Servicing LLC (“Ocwen”) to dismiss the plaintiff's complaint for failure to state a claim upon which relief may be granted (docket entry 17). For the reasons set forth below, the motion is granted.

         I. BACKGROUND

         This case arises from a pending mortgage foreclosure. The plaintiff Karen Armelin Robinson (“Robinson”) resides at 500 Cannady Circle, Cedar Hill, Texas 75104 (“the Property”), which is the subject of the instant action. Plaintiff's Original Petition and Application for Temporary Restraining Order (“Petition”) ¶ 1, attached to Supplement to Defendants' Notice of Removal (“Removal Supplement”) (docket entry 12) as Exhibit A-2.

         On or about March 9, 2005, Tyho Robinson and Robinson executed a deed of trust securing a first-position mortgage loan of $108, 000 on the Property. Defendants' Amended Motion to Dismiss Plaintiff's Original Petition and Brief in Support (“Motion”) (docket entry 17) at 2. That same day, they also secured a second-position mortgage loan (“second loan”) for $27, 000 against the Property from Long Beach Mortgage Company (“Long Beach”), which was recorded in the real property records of Dallas County.[1] Id. at 2-3; Petition ¶ 4; see also Appendix in Support of Defendants' Amended Motion to Dismiss Original Petition (“Appendix”) (docket entry 17-1) at 000085-000096. The deed of trust granted Long Beach a security interest in the Property. Petition ¶ 4.

         On March 16, 2005, Long Beach assigned its beneficial interest in the second loan to Mortgage Electronic Registration Systems, Inc. (“MERS”). Motion at 3; see also Appendix at 000099. This assignment was filed and recorded in the deed records of Dallas County, Texas. See id. at 000099-000100.

         On January 6, 2015, MERS assigned its beneficial interest in the second loan to U.S. Bank, a national banking association and a trustee of a mortgage-securitization trust, and the corporate assignment of deed of trust was filed and recorded in the deed records of Dallas County, Texas, on March 2, 2015. Motion at 3; Defendants' Notice of Removal (“Notice of Removal”) (docket entry 1) ¶ 7; see also Appendix at 000103-000104. U.S. Bank contends that it currently holds the beneficial interest in the second loan on the Property. See generally Motion; see also Defendants' Reply Brief in Support of Motion to Dismiss Plaintiff's Original Petition and Brief in Support (“Reply”) (docket entry 19) at 4 (“U.S. Bank is the beneficiary of the Deed of Trust and the last person to whom the Deed of Trust has been assigned of record.”). Ocwen is the mortgage servicer for the second loan. Motion at 3, 8.

         After Robinson defaulted on her obligations under the second loan, U.S. Bank posted a notice of foreclosure sale for the Property. See id. at 8. It does not appear, however, that a foreclosure sale has occurred.

         A. Robinson I

         To enjoin a foreclosure on the Property, on November 6, 2017, Robinson filed suit against U.S. Bank in the 160th Judicial District Court of Dallas County, Texas (“Robinson I”).[2] Id. at 2; see also Appendix at 000002. In her amended petition, Robinson asserted that U.S. Bank “identifies itself as the mortgagee by way of an assignment from MERS. However, there is no evidence of an assignment of the interest in the [second loan] to MERS.” Appendix at 000024. Robinson brought a claim for wrongful foreclosure and contended as follows.

[T]here is a missing assignment in the chain of title. . . . This creates serious doubts about [U.S. Bank]'s right to foreclose, if any. A review of the public record demonstrates that lack of assignment out of Long Beach Mortgage Company, a now defunct entity. . . . This irregularity will result in a wrongful foreclosure. Therefore, Plaintiff seeks to prevent [U.S. Bank]'s wrongful foreclosure.

Id. at 000025.

         Robinson sought a declaratory judgment, as well as injunctive and equitable relief and compensatory, special, general, and punitive damages. See id. at 000022.

         On August 16, 2018, U.S. Bank filed a motion for summary judgment and attached copies of the second loan agreement, the assignment from Long Beach to MERS, and the assignment from MERS to U.S. Bank as exhibits. See id. at 000007, 000049-000077. In its motion, U.S. Bank asserted that on or about September 25, 2017, it sent Robinson a notice of acceleration on the second loan after she defaulted on her obligations under the terms of the loan. See id. at 000051. U.S. Bank also noted that no foreclosure sale had taken place, and that “Texas does not recognize a claim for ‘attempted wrongful foreclosure.'” See id. at 000054-000055. U.S. Bank asked the court in Robinson I to “grant summary judgment with regard to each of the claims in the Petition and to dismiss it with prejudice to refiling.” Id. at 000050. Robinson did not respond to that motion. See id. at 000007; Motion at 2, n.3. On September 21, 2018, the court in Robinson I granted U.S. Bank's motion for summary judgment and entered a final judgment dismissing all of Robinson's claims against U.S. Bank with prejudice. See Appendix at 000083 (“[A]ll of Plaintiff's claims against U.S. Bank are hereby DISMISSED WITH PREJUDICE.”) (emphasis in the original); see also Motion at 2, 8.[3]

         B. The ...


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