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Strickland v. The Bank of New York Mellon

United States District Court, N.D. Texas, Fort Worth Division

January 3, 2020

CLINE STRICKLAND, ET AL,, Plaintiffs,
v.
THE BANK OF NEW YORK MELLON, ET AL., Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN McBRYDE UNITED STATES DISTRICT JUDGE

         Came on 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.

         I.

         Plaintiffs' Claims

         On July 15, 2019, plaintiffs filed their original petition in the District Court of Parker County, Texas, 415th Judicial District. Doc.[1] 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. c-1.

         Plaintiffs 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"), [2] insured title. Id. ¶ 13.

         Further,

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 secured.
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.

         Plaintiffs 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.

         II.

         Grounds of the Motion Movants urge that plaintiffs have failed to state any claim ...


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