Jaffer v. Kelly M. Davis & Associates, LLC, No. 4:2019cv00860 - Document 36 (E.D. Tex. 2020)

Court Description: MEMORANDUM OPINION AND ORDER. The Court finds that Plaintiff's Motion to Vacate Mechanics Lien on Homestead (Dkt. 14 ) is DENIED without prejudice to refiling against Elevated if it is added as a defendant to this suit. Signed by Magistrate Judge Kimberly C Priest Johnson on 7/27/2020. (baf, )

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Jaffer v. Kelly M. Davis & Associates, LLC Doc. 36 Case 4:19-cv-00860-RWS-KPJ Document 36 Filed 07/27/20 Page 1 of 2 PageID #: 355 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION SHAWN JAFFER, Plaintiff, v. KELLY M. DAVIS & ASSOCIATES, LLC, Defendant. § § § § § Civil Action No.: 4:19-cv-00860-RWS-KPJ § § § § MEMORANDUM OPINION AND ORDER Pending before the Court is Plaintiff Shawn Jaffer’s (“Plaintiff”) Opposed Verified Motion and Brief to Vacate Mechanics Lien on Homestead and Supporting Memorandum of Law (the “Motion”) (Dkt. 14), to which Defendant Kelly M. Davis & Associates, LLC (“Defendant”) filed a response (Dkt. 15), Plaintiff filed a reply (Dkt. 18), and Defendant filed a sur-reply (Dkt. 24). For the reasons explained below, the Court finds that Plaintiff’s Motion (Dkt. 14) is DENIED. I. BACKGROUND On November 21, 2019, Plaintiff filed a class action lawsuit against Defendant, alleging class claims for violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”) and the Texas Debt Collection Act, TEX. FIN. CODE ANN. § 392 et seq. (“TDCA”). In his Complaint, Plaintiff alleges Defendant improperly attempted to collect a debt arising from a contract between Plaintiff and Elevated Roofing, LLC (“Elevated”) for repairs on Plaintiff’s roof. See Dkt. 1 at 7. Plaintiff did not originally add Elevated as a defendant in this suit. On February 4, 2020, Plaintiff filed the Motion, alleging Defendant and Elevated filed an invalid mechanic’s lien on Plaintiff’s homestead. See Dkt. 14 at 7. On February 18, 2020, Defendant filed a response to the Motion and attached the mechanic’s lien (the “Lien”), demonstrating that Elevated holds the Lien on Plaintiff’s property, not Defendant. See Dkt. 15-4. Dockets.Justia.com Case 4:19-cv-00860-RWS-KPJ Document 36 Filed 07/27/20 Page 2 of 2 PageID #: 356 On February 24, 2020, Plaintiff filed a Motion for Leave to File Amended Complaint (the “Motion for Leave”) (Dkt. 21), wherein Plaintiff seeks to amend his complaint to assert claims against Elevated. See Dkt. 22. The Court has not yet ruled on Plaintiff’s Motion for Leave. II. ANALYSIS In the Motion, Plaintiff argues the Court should order Defendant and Elevated to vacate and release the Lien because it is invalid and unenforceable. See Dkt. 14 at 7–8. In response, Defendant argues the Court should deny the Motion because it was brought against an improper party, as Elevated is the holder of the Lien and is not a party to this suit. See Dkt. 15 at 3. In his reply, Plaintiff states that he has added Elevated as a defendant in this suit in his Amended Complaint, and thus, Plaintiff contends Defendant’s argument is moot. See Dkt. 18 at 3. In the alternative, Plaintiff argues he brought the Motion against the proper party because Defendant is an agent of Elevated. See id. As stated above, Elevated is not currently a defendant in this suit, and was not a defendant when Plaintiff filed the Motion. It is clear from the language of the Lien that Elevated is the sole holder of the Lien, not Defendant. See Dkt. 15-4. As Defendant is not the holder of the Lien, the . Court cannot order Defendant to vacate the Lien. Thus, Plaintiff’s Motion must be denied. III. CONCLUSION Based on the foregoing, the Court finds that Plaintiff’s Motion (Dkt. 14) is DENIED without prejudice to refiling against Elevated if it is added as a defendant to this suit. So ORDERED and SIGNED this 27th day of July, 2020. ____________________________________ KIMBERLY C. PRIEST JOHNSON UNITED STATES MAGISTRATE JUDGE 2

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