Carter v. Bank of America, N.A., as Successor by Merger to BAC Home Loans Servicing, LP, No. 4:2011cv03615 - Document 21 (S.D. Tex. 2012)

Court Description: MEMORANDUM OPINION AND ORDER granting 19 MOTION to Dismiss 14 Amended Complaint for Failure to State a Claim (Signed by Judge Sim Lake) Parties notified. (aboyd)

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I N THE U N I T E D STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION 5 SCOT CARTER, § § § Plaintiff, C I V I L ACTION NO. § § V. BANK OF AMERICA, , As S u c c e s s o r b y M e r g e r t o BAC HOME LOANS SERVICING, LP, N. A. H-11-3615 § 5 § § § Defendant. MEMORANDUM OPINION AND ORDER P e n d i n g b e f o r e t h e c o u r t i s D e f e n d a n t f s M o t i o n a n d Memorandum in Support of Motion ( D o c k e t E n t r y No. 1 9 ) . to Dismiss for Failure to State a Claim The c o u r t f s O r d e r e n t e r e d on J u l y 1 2 , 2012 ( D o c k e t E n t r y No. 2 0 ) , r e q u i r e d p l a i n t i f f t o r e s p o n d t o t h e m o t i o n within twenty days of t h e Order. A l t h o u g h more t h a n t w e n t y d a y s have e l a p s e d , p l a i n t i f f h a s n o t responded. A t the court's J a n u a r y 1 3 , 2012, plaintiff's i n i t i a l p r e t r i a l a n d s c h e d u l i n g c o n f e r e n c e on t h e c o u r t g r a n t e d d e f e n d a n t ' s motion t o d i s m i s s c l a i m s b a s e d on f e d e r a l l a w a n d o r d e r e d p l a i n t i f f t o f i l e a n amended c o m p l a i n t w i t h i n t w e n t y d a y s . (Hearing Minutes and O r d e r , D o c k e t E n t r y No. 11) P l a i n t i f f s u b s e q u e n t l y f i l e d h i s F i r s t Amended Original Complaint (Docket Entry No. 14), in which p l a i n t i f f c o n t e s t s d e f e n d a n t ' s r i g h t t o f o r e c l o s e on h i s p r o p e r t y . The gist of the complaint is plaintiff's suspicion that defendant is not the current owner and holder of plaintiffrs note. Docket Entry No. 14, ¶¶ (a 11-14.) In order to survive Defendant's Motion to Dismiss, Carter's Amended Original Complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Isbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twomblv, 127 S.Ct. 1955, 1960 Plaintiff acknowledges Original Complaint that in paragraph 19 of his "[iln order to prevail (2007)). First Amended in his claim contesting the right of defendant BOA to foreclose on his property, Carter must prove that BOA does not have the authority to foreclose on his property." Plaintiff's First Amended Original Complaint alleges no facts showing that Bank of America N.A., as Successor by Merger to BAC Home Loans Servicing, LP, did not have the right to foreclose on his home either as holder of the note or servicer of the loan. Nor do the documents attached to plaintiff's state court Petition (Docket Entry Nos. 1 and 2) evidence any facts that would entitle plaintiff to relief. See, e.s., Memorandum Opinion and Order in Masuku v. Bank of America, N.A., et al., Civil Action No. H-ll1443, Docket Entry No. 26, pp. 11-13; Memorandum Opinion and Order in Morlock v. JPMorqan Chase Bank, N.A., Civil Action No. H-121448, Docket Entry No. 9, pp. 15-17. Because Carter has failed to allege facts that entitle him to relief, the Defendant's Motion to Dismiss for Failure to State a Claim (Docket Entry No. 19) is GRANTED. Since the court has allowed Carter one opportunity to amend his complaint, the court will dismiss this action with prejudice. SIGNED at Houston, Texas, on this 20th day of August, 2012. UNITED STATES DISTRICT JUDGE

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