United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
McBRYDE UNITED STATES DISTRICT JUDGE
for consideration the motion of defendants The Bank of New
York Mellon f/k/a The Bank of New York, as successor trustee
to JPMorgan Chase Bank, N.A., successor by merger to Chase
Bank of Texas, National Association for Saxon Asset
Securities Trust 1999-5, Mortgage Loan Asset Backed
Certificates, Series 1999-5 ("BONY"), and PHH
Mortgage Corporation d/b/a PHH Mortgage Services, successor
by merger to Ocwen Loan Servicing, LLC ("Ocwen"),
to dismiss. The court, having considered the motion, the
response of plaintiffs, Cline Strickland and Karen
Strickland, the record, and applicable authorities, finds
that the motion should be granted.
15, 2019, plaintiffs filed their original petition in the
District Court of Parker County, Texas, 415th Judicial
District. Doc. 1. at 1. On September 19, 2019, BONY and
Ocwen filed their notice of removal, bringing the case before
this court. Id. By order signed October 21, 2019,
the court ordered the parties to file amended pleadings in
keeping with the Federal Rules of Civil Procedure, Local
Civil Rules of this court, and the undersigned's
judge-specific requirements. Doc. 14. On November 4, 2019,
plaintiffs filed their amended complaint, Doc. 16, which is
virtually identical to their original petition. Doc. 1, Ex.
allege: Plaintiffs own 33.4 acres of land in Parker County,
Texas (the "property"). Doc. 16, ¶ 7. On
September 27, 1999, they obtained a $221, 000 loan from
Excell Mortgage, Incorporated ("Excell"}, intended
to be secured by a portion of the property. Id.
¶ 8, The portion of the property intended to secure the
note was inaccurately described in the deed of trust.
Id. ¶ 9. The note and deed of trust were
transferred to BONY. Id. ¶ 10. The loan was
serviced by Ocwen. Id. ¶ 11. Defendant Fidelity
National Title Agency, Inc. ("Fidelity"),
insured title. Id. ¶ 13.
14. Defendants have refused to take action to correctly
reform the property description in the Deed of Trust in a
manner that correctly reflects the parties' intentions at
the time the loan was made.
15. Additionally, Defendants took aggressive collection
action in attempting to collect money on a loan that had
disputes and issues between the parties on how the loan was
16. Defendants' actions placed a cloud of title on the
Property that made it impossible for Plaintiffs to sell any
portion of the property, both the portion that intended to be
encumbered with a lien and the portion that was intended to
not be encumbered with a lien.
17. Plaintiffs lost out on sales of the Property or portions
of the Property due to the acts and omissions of Defendants.
Doc. 16, ¶¶ 14-17.
assert claims for violations of the Texas Deceptive Trade
Practices-Consumer Protection Act, Tex. Bus. & Com. Code
§§ 17.41-63 ("DTPA"), statutory fraud,
common law fraud, negligence, gross negligence, negligence
per se, breach of contract, "dual
tracking," violation of the Texas Debt Collection Act,
Tex. Fin. Code §§ 392.001-.404 ("TDCA"),
violation of the Real Estate Settlement Procedures Act, 12
U.S.C. §§ 2601-17, ("RESPA"}, tortious
interference with contract, violation of chapter 12 of the
Texas Civil Practice and Remedies Code, negligent
misrepresentation, violation of the Telephone Consumer
Protection Act, and to quiet title/remove cloud on title.
of the Motion Movants urge that plaintiffs have failed
to state any claim ...