United States District Court, W.D. Texas
REPORT AND RECOMMENDATION OF THE UNITED STATES
HIGHTOWER, UNITED STATES MAGISTRATE JUDGE
THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT
this Court are Defendants Countrywide Home Loans, Inc. d/b/a
America's Wholesale Lender (“Countrywide”)
and The Bank of New York Mellon f/k/a The Bank of New York,
as Trustee for the Certificate Holder CWALT, Inc., Series 18
CB's (“BoNY”) Motion to Dismiss, filed
October 4, 2019 (Dkt. No. 4); Plaintiff's Motion to
Remand, filed on October 21, 2019 (Dkt. No. 7); Defendants
Malcom Cisneros, a Law Corporation (“MCLC”), and
MTC Financial, Inc., d/b/a Trustee Corps' (misnamed by
Plaintiff as “Malcolm Cisneros/Trustee Corps”)
(“Trustee Corps”) Motion for Dismissal Without
Prejudice Pursuant to Texas Property Code § 51.007,
filed on October 30, 2019 (Dkt. No. 10); and the various
December 2 and 17, 2019, 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.
Susan Sissom's (“Plaintiff”) third lawsuit to
prevent the foreclosure of her property located at 106 Eight
Oaks Drive, Bastrop, Texas 78602 (the
April 18, 2006, Plaintiff executed a note (the
“Note”) in favor of America's Wholesale
Lender (“AWL”) in exchange for a loan for the
Property in the principal amount of $241, 792.00 (the
“Loan”). Dkt. No. 4-1. The Note was secured by a
deed of trust on the Property, in favor of Mortgage
Electronic Registration Systems, Inc. (“MERS”),
as nominee for AWL and its successors and assigns. Dkt. No.
4-2 (the “Deed of Trust”).
modified her Loan first in 2010, with BAC Home Loans
Servicing, LP, and again in 2012, with Bank of America, NA.
On July 18, 2011, MERS assigned the Deed of Trust to BoNY. In
February 16, 2013, Resurgent Mortgage Servicing began
servicing the Loan. After Plaintiff defaulted on her Loan
payments, she was notified that her Property would be
foreclosed on and sold on May 2, 2017.
1, 2017, Plaintiff filed two simultaneous lawsuits in Bastrop
County District Court to challenge the foreclosure. Plaintiff
filed the first lawsuit against Countrywide, BoNY, and MERS,
seeking to enjoin the foreclosure sale of her Property based
on her allegations that Defendants Countrywide, BoNY, and
MERS failed to send proper notices under Texas Property Code
§ 51.002, failed to provide her notice of her right to
rescind the Loan under the Truth in Lending Act, and failed
to inform her of a decision on her loss mitigation
application in violation of the Real Estate Settlement
Procedures Act (“RESPA”). See Sissom v.
Countrywide Home Loans, Inc., Cause No. 524-21 (21st
Dist. Ct., Bastrop County, Tex. May 1, 2017) (“Lawsuit
I”). Plaintiff also sought a declaratory judgment and a
temporary restraining order to stop the foreclosure.
Countrywide, BoNY, and MERS removed Lawsuit I to federal
court, where it was assigned to the Honorable Robert Pitman
under No. 1:17-CV-449-RP. The same defendants then filed a
Motion for Judgment on the Pleadings, arguing that
Plaintiff's claims were barred as a matter of law and
otherwise failed to state a plausible claim for relief.
See 1:17-CV-449 at Dkt. No. 7. While Plaintiff
failed to file a response to the Motion, she did file
multiple frivolous motions with the Court. In its Order
addressing the Motion, the District Court noted that due to
Plaintiff's failure to file a response and her
“contumacious conduct, ” the Court could grant
the motion as unopposed. See id., Dkt. No. 18 at p.
2. Despite Plaintiff's “stubborn resistance to the
Court's authority” and “willful refusal to
comply with the Court's rules, ” the District Court
declined to dismiss the case with prejudice without first
providing her with the opportunity to amend her complaint
since she was proceeding pro se. Id. at p.
3. Thus, the District court ordered Plaintiff to
“either obtain Defendants' consent or seek the
Court's leave to amend her complaint on or before
January 5, 2018.” Id.
December 26, 2017, Plaintiff filed a Motion for Leave to
Amend Complaint and attached her proposed amended complaint,
which failed to allege any causes of action. Instead,
Plaintiff's proposed amended complaint contained rambling
allegations, such as that Countrywide engaged in fraudulent
activity and that BoNY did not possess the Note on the
Property. The District Court found that Plaintiff's
proposed amended complaint “fails to identify a cause
of action, ” and therefore “would not survive a
motion to dismiss.” Id., Dkt. No. 21 at p.
1-2. Accordingly, the Court denied Plaintiff leave to amend
and dismissed Lawsuit I “WITH
PREJUDICE.” Id. at p. 2. Plaintiff
appealed the Court's Order, and on June 5, 2019, the
Fifth Circuit affirmed. Id. at Dkt. No. 25.
second lawsuit to stop the foreclosure, Plaintiff sued BoNY,
alleging that BoNY violated RESPA by failing to send her a
rejection letter to her loan modification application.
See Sissom v. The Bank of New York Mellon, Cause No.
423-4966 (423rd Dist. Ct., Bastrop County, Tex. May 1, 2017)
(“Lawsuit II”). Plaintiff also sought a temporary
restraining order to stop the foreclosure. Four days after
BoNY removed the case to federal court,  the parties filed
a Joint Stipulation of Dismissal notifying the Court that
Plaintiff was dismissing all of her claims against BoNY under
Federal Rule of Civil Procedure 41(a)(1)(A)(ii). Id.
at Dkt. No. 5. On May 18, 2017, the District Court entered a
Final Judgment dismissing the case without prejudice.
Id. at Dkt. No. 6.
August 27, 2019, Plaintiff filed the instant lawsuit in state
court, her third, to stop the foreclosure of the Property.
See Sissom v. Countrywide Home Loans, Inc., No.
1051-21 (21st Dist. Ct., Bastrop County, Tex. Aug. 27, 2019).
Plaintiff named as defendants Countrywide, BoNY, G. Tommy
Bastian, a Texas attorney who was allegedly named as a
trustee on the Deed of Trust, and Malcom Cisneros/Trustee
Corps,  a California law firm (collectively,
“Defendants”). As in Lawsuit I, Plaintiff's
Complaint fails to identify any causes of action. Instead,
Plaintiff's Complaint lists 38 “Statements of
Fact” and 31 “Questions of Law.” Dkt. No.
1-2 at p. 11. While not entirely clear, Plaintiff appears to
be rehashing her previous allegations that the Note and Deed
of Trust were not properly transferred to the Defendants.
Plaintiff alleges that because Defendants do not “hold
the original Note, ” they lack the authority to
foreclose on the Property. Id.
September 27, 2019, Defendants Countrywide and BoNY removed
this case to federal court on the basis of diversity
jurisdiction under 28 U.S.C. § 1332(a). In the Notice of
Removal, Countrywide and BoNY argue that Bastian was
fraudulently joined to defeat diversity jurisdiction, and
argue that Plaintiff cannot demonstrate any right to recover
against him in this case. Defendants Countrywide and BoNY
also filed the instant Motion to Dismiss, arguing that
Plaintiff's Complaint should be dismissed for failure to
state a claim under Federal Rules of Civil Procedure Rule
8(a) and 12(b)(6). Defendants Countrywide and BoNY further
argue that even if Plaintiff had alleged any causes of action
in her Complaint, they would be barred by res judicata.
October 21, 2019, Plaintiff filed a Motion to Remand, arguing
that Bastian is a necessary party in this lawsuit, and,
therefore, Defendants improperly removed this case from state
October 30, 2019, Defendants MCLC and Trustee Corps filed
their own Motion to Dismiss, arguing they are entitled to
dismissal under § 51.007(d) of the Texas Property Code
because they are unnecessary parties.
8(a)(2) of the Federal Rules of Civil Procedure governs the
requirements for pleadings that state a claim for relief,
requiring that a pleading contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” The standard for the adequacy of complaints
under Rule 8(a)(2) is the “plausibility” standard
found in Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007), and its progeny. Under this standard,
“factual allegations must be enough to raise a right to
relief above the speculative level . . . on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).” Id. at 555-56. If a
pleading contains only “labels and conclusions”
and “a formulaic recitation of the elements of a cause
of action, ” the pleading does not meet the standards
of Rule 8(a)(2). Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted).
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, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 570). “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. Lone Star Fund V (U.S.),
L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.
Defendants MCLC and Trustee Corps' Motion to
MCLC and Trustee Corps argue they are unnecessary parties
because they were named in this case solely as substitute
trustees under the Deed of Trust, and therefore are entitled
to dismissal under ...