Morlock, L.L.C., a Texas Limited Liability Company v. JPMorgan Chase Bank, N.A., No. 4:2013cv00734 - Document 17 (S.D. Tex. 2013)

Court Description: MEMORANDUM OPINION AND ORDER denying 12 First MOTION to Remand, denying 15 Motion for Leave to Amend Complaint, granting 13 MOTION to Dismiss . (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MORLOCK, L.L.C., a Texas Limited Liability Company, Plaintiff, v. JPMORGAN CHASE BANK, N.A., Defendant. § § § § § § § § § § CIVIL ACTION NO. H-13-0734 MEMORANDUM OPINION AND ORDER Defendant JPMorgan Chase Bank N.A. ("Chase") removed this action from the 127th Judicial District Court of Harris County, Texas, where it was filed under Cause No. 2013-12805. Pending before the court are plaintiff Morlock, L.L.C.'s ("Morlock") Motion to Remand (Docket Entry No. 12), Chase's Rule 12(b) (6) Motion to Dismiss ("Motion to Dismiss") (Docket Entry No. 13), and Morlock's Motion for Leave to Amend Complaint (Docket Entry No. 15 at p. 8). For the reasons explained below, Morlock's Motion to Remand and Motion for Leave to Amend Complaint will be denied and Chase's Motion to Dismiss will be granted. I. Factual and Procedural Background On February 1, 2008, Alejandro Mendoza and Iris N. Mendoza executed and delivered a Deed of Trust on their property to secure capstone Mortgage, L.P. on a $144,200 promissory note. 1 Mortgage, L. P. assigned the Deed of Trust Capstone "together with the certain note(s) described therein" to Chase the same day.2 Morlock purchased the Mendoza's property, "a certain tract of land located in Harris County, Texas . . which is known as 2819 Trinity ("the Glen, trustee's sale Houston, conducted Texas by 77047" the Brunswick Property"), Meadows at a Homeowners Association and received a Trustees Deed dated October 10, 2011. 3 Chase posted the Property for a substitute trustee's sale under the Deed of Trust scheduled for March 5, 2013. 4 Morlock filed its Original Petition in the District Court of Harris County, Texas, 127th Judicial District, on March 4, 2013. 5 Morlock's Original Petition alleged that the Deed of Trust had been "executed and delivered to secure Mortgage Electronic Registration Systems, Inc." and that it "was allegedly assigned to lDeed of Trust, Exhibit A to Motion to Dismiss, Docket Entry No. 13, pp. 1-2, 15-16. 2Assignment of Deed of Trust, Exhibit B to Motion to Dismiss, Docket Entry No. 13. 3Plaintiff's First Amended Complaint, pp . 1- 2 ~ ~ 3 - 4 . Docket Entry No. II, 4Plaintiffs' Original Petition, and Application for Temporary Restraining Order ("Original Petition"), Exhibit B to Defendant's Notice of Removal, Docket Entry No. I, p. 2 ~ 7; Defendant's Answer to Original Petition and Application for Temporary Restraining Order ("Defendant's Answer"), Docket Entry No.6, p. 2 ~ 7. 50 r iginal Petition, Exhibit Removal, Docket Entry No.1. -2 - ------'-" B to Defendant's Notice of Defendant ("MERS") Chaser] by Morlock ."6 Mortgage Electronic alleged that Registration "[tlhe Deed of Systems Trust and assignment, although appearing valid on its face, is invalid and of no force or effect because, on information and belief, MERS was not the holder of the original note that was secured by the Deed of Trust. 117 Accordingly, Morlock argued, "the assignment by MERS was not valid and Defendant Chase is not and was not the owner and holder of the Note and, therefore, has no right or authority to post the Property for a Trustee's Sale." B Morlock sought "a judgment which determines whether Defendant Chase has any interest in the Property," attorneys' fees, and a "Temporary Restraining Order which would immediately enj oin and restrain Defendant Property or Chase possession. disturb taking including to any 119 from taking Morlock's action to any action possession obtain or of to sell the enforce the Property, a writ of Morlock asserted that "unless enjoined, Defendant Chase will sell the Property and take possession of the Property" and that "[il f the Property is sold, Morlock's Property will be unnecessarily clouded."lo 6Id. at 2 ~ 6. 7Id. ~ 9. BId. 9Id. at 3 ~~ 11-15. laId. ~ 14. -3- title to the Morlock alleged that ~[t]he ~[u]nless Property is worth approximately $130,OOOH and that [Chase is] enjoined as requested, Morlock will suffer irreparable harm and inj ury . 11 H The State District Court issued a Temporary Restraining Order on March 4, 2013. 12 On March 15, 2013, Chase removed this action to federal court on the basis of diversity jurisdiction. 13 On April 25, 2013, Chase filed its Answer asserting that Morlock's Original Petition to state claims upon which Morlock's claims ~are precluded and barred by frauds. relief can be granted H the ~fails and that statute of H14 On June 13, 2013, Chase filed its Motion to Dismiss on the Pleadings. 15 Chase attached the Deed of Trust and Assignment of Deed of Trust to its motion. 16 conference was held, On June 14, 2013, a scheduling and an order was entered requiring amended pleadings to be filed by July 19, 2013. 17 ~~ 11Id. 14-15. 12Temporary Restraining Order, Exhibit Notice of Removal, Docket Entry NO.1. A-4 to Defendant's 13Defendant's Notice of Removal, Docket Entry No.1. 14Defendant's Answer, Docket Entry No.6, p. 3 15Chase's Motion to Dismiss on the Pleadings Motion H ) , Docket Entry No.8. ~~ 18-19. (~Chase's 12(c) 16Deed of Trust, Exhibit A to Chase's 12(c) Motion, Docket Entry No.8; Assignment of Deed of Trust, Exhibi t B to Chase's 12(c) Motion, Docket Entry No.8. 17Docket Control Order, Docket Entry No. 10. -4- -------------_ ....... . On July 19, 2013, Morlock filed its First Amended Complaint. 18 In it Morlock alleges that the Mendozas "executed and delivered a Deed of Trust to secure Capstone Mortgage, L.P., which created a lien on the Property" and that "[t]he Deed of Trust was allegedly assigned to Defendant Chase not by Capstone Mortgage, L.P., but by [MERS] ." 19 Morlock argues that " [t] he assignment, although appearing valid on its face, is invalid and of no force or effect because, on information and belief, the person who signed the assignment on behalf of MERS was not employed by MERS and that person had no authority to endorse the Note assignment. ,,20 [or] Accordingly, Morlock argues that Chase "was not the owner and holder of the Note and Deed of Trust hard] to execute the [and] therefore[] no right or authority to post the Property for a Trustee's Sale. ,,21 Morlock also asserts that it "has attempted to contact the person or the entity who is the owner of the Note and Deed of Trust to either pay the Note or at a minimum to enter into discussions regarding a payoff of the Note" and that Chase "has refused to provide any proof . . that it is the owner of the Note and/or Deed of Trust or whether it is the proper party to be paid." 22 18Plaintiff's First Amended Complaint, Docket Entry No. 11. 19Id. at 2 2°Id. ~ 5. 6. ~ ~ 7. 21Id. 22Id. -5- Morlock asserts that it "is concerned that if it pays Chase, it could be subject to double exposure for the payment of the Note if Chase is not entitled to payout 23 and "seeks a II judgment which determines whether Defendant Chase is the owner and holder of the Note and/or Deed of Trust and whether Chase has any interest in the Property. 1124 On July 19, 2013 Morlock filed I its Motion to Remand. 25 Morlock argues that this action should be remanded to state court because Morlock "has not plead [ed] an amount of damages and accordingly it is defendant's burden to establish an amount in excess of $75,000 as the amount in controversy. 1126 Morlock asserts that Chase "relies solely on the value of the Property" but that \\ [a] ccording to [Morlock]' s Complaint, ownership of the Property is not in dispute and therefore, the amount in controversy is not in excess of $75,000."27 On July 30, reviewing the Chase filed its Motion to Dismiss. 28 2013, nature of the proceeding, Chase "Mortgagors Alejandro Mendoza and Iris N. Mendoza . 23Id. a t 3 24Id. ~~ fT 1 . 1 8 11-12. 25Motion to Remand, Docket Entry No. 12. 26Id. a t 3 5 fT 1 . 1 28Motion to Dismiss I Docket Entry No. 13. -6- states In that . executed a Deed of Trust with lender Capstone Mortgage, and with [MERS] as the beneficiary under the Deed of Trust (solely as nominee for the lender) . ,,29 of Chase attached copies the Deed of Trust and Assignment of Deed of Trust to its Motion. 30 Chase alleges that Morlock's argument against the validity of the assignment "appears to stem from the theory that the 'bifurcation' of the note and Deed of Trust renders the Deed of Trust invalid" and that "[h] ere, the Deed of Trust expressly provides that MERS holds the Deed of Trust for the benefit of the original noteholder and its successors and assigns. ,,31 Chase argues that the "bifurcation theory" has been rejected by Texas courts and that Morlock has therefore failed to state a claim in its First Amended Petition. 32 Chase also argues that because Morlock was not a party to the assignment it does not have standing to challenge the assignment, that Morlock has failed to state a plausible quiettitle claim, and that Morlock has failed to plead facts to support its action for declaratory judgment. 33 29Id. at 2. 30Deed of Trust, Exhibit A to Motion to Dismiss, Docket Entry No. 13 i Assignment of Deed of Trust, Exhibit B to Motion to Dismiss, Docket Entry No. 13. 31Motion to Dismiss, Docket Entry No. 13, pp. 4 and 5. 32Id. 33Id. at 5-6. -7- On August 8, 2013, Motion to Remand. 34 Chase filed its Response to Morlock's Chase argues that because Morlock "seeks a determination [of] whether \ [Chase] is the owner of the Note and/or Deed of Trust and whether [Chase] has an interest in the Property,'l1 the amount in controversy should be measured by the value of the Property.35 Chase notes that Morlock had previously contended in its Original Petition that the property was worth approximately $130,000 36 and attached a printed report from the Harris County Appraisal District's website showing the appraised value of the property at $132,425. 37 On August 20, 2013, Motion to Dismiss. 38 Morlock filed its Response to Chase's Morlock argues that it "only seeks to have a determination that Chase is the proper party which holds the lien ll and that it "is concerned that if it pays Chase it may be exposed to double payment of the same debt. 1139 Morlock acknowledges that "[a]t the time Morlock purchased the Property, it was subject to a 34Defendant's Response to Motion to Remand, Docket Entry No. 14. 35Id. at 2-3 ~~ 6-7. 37Harris County Appraisal District Real Property Account Information, Exhibit A to Defendant's Response to Motion to Remand, Docket Entry No. 14. 38Plaintiff's Response to Defendant's Rule 12 Motion, Docket Entry No. 15. 39Id. a t 3 fT 11 10 ¢ -8- Deed of Trust lien, dated February 1, 2008, which secured a Note executed by Alej andro Mendoza and Iris Mendoza and payable to capstone Mortgage, L.P." and asserts that "[t]he Deed of Trust was purportedly assigned to Chase by one or more assignments signed by [MERS] . "40 Morlock argues that "[a] s the owner of the Property, [it] has the right to determine the validity of liens against its own property. ,,41 Morlock also argues that its "action to determine the right [s] of the parties and to strike any interest [Chase] may have in the Property certainly states a cause of action to remove a cloud on ti tle. ,,42 Morlock asserts that i t " is not at tacking the existence of the lien. It is only seeking a determination of whether Chase is the 1 ien holder to whom payment is owed." 43 Morlock's Response to Chase's Motion to Dismiss also contains a Motion for Leave to Amend Complaint. 44 No copy of the proposed amended complaint was attached. On September 6, 2013, Chase Response to its Motion to Dismiss. 45 filed its Reply to Morlock's Chase argues in its reply that 40Id. ~~ 13-14. 41Id. at 6 ~ 29. 42Id. at 8 ~ 40. 43Id. at 6 ~ 31. 44Id. at 8-9 ~~ 41-44. 45Defendant's Reply to Plaintiff's Response to Rule 12 (b) (6) Motion, and Response to Motion for Leave to Amend Complaint, Docket Entry No. 16. -9- Morlock's "vague[] challenge[ to] the recorded Assignment" is not sufficient to state a claim because Morlock does not have standing to challenge the assignment under Texas law. 46 II. Morlock's Motion to Remand In its Motion to Remand, plead [ed] Morlock asserts that it "has not an amount of damages and accordingly it is defendant's burden to establish an amount in excess of $75,000 as the amount in controversy. ,,47 Removal, that Morlock also notes that "[i] n its Notice of [Chase] relies solely on the value of the Property," but "[a] ccording to [Morlock's] Complaint, ownership of the Property is not in dispute and therefore, the amount in controversy is not in excess of $75,000.,,48 It is unclear whether Morlock intends to reference its Original Petition or its First Amended Complaint. subject However, because "federal courts base decisions about matter jurisdiction after removal on the plaintiff's complaint as it existed at the time that the defendant filed the removal petition," only Morlock's Original Petition is relevant to a determination of the propriety of removal. Airlines. Co., 891 F.2d 540, 546 (5th Cir. Kidd v. 1990); Southwest see also Cavallini v. State Farm Mutual Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995) (" [A] complaint amended post-removal cannot divest a 46Id. at 2. 47Motion to Remand, Docket Entry No. 12, p. 3 4Bld. ~ 6. -10- ~ 5. federal court of jurisdiction" (citing Pullman Co. v. Jenkins, 59 S. Ct. 347, 348-49 (1939))). A. Applicable Law "Under 28 U.S.C. 1441(a) any state court civil action over § which the federal courts would have original jurisdiction may be removed from state to federal court." Gasch v. Hartford Accident Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007). & Federal courts have original jurisdiction over "all civil actions where the matter in controversy exceeds the interest and costs, States." 28 U.S.C. sum or value of and is between § $75,000, exclusive of citizens of different 1332 (a) (1). Removal jurisdiction depends on the plaintiff's state court pleadings at the time of removal. Cavallini, 44 F.3d at 264. Pullman Co., 59 S. Ct. at 349; "When the plaintiff's complaint does not allege a specific amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds [the jurisdictional amount]." Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993). has two ways to meet its burden. proper if 'it is facially The removing defendant Garcia v. Koch Oil Co. of Texas Inc., 351 F. 3d 636, 639 (5th Cir. 2003). be De Aguilar v. "First, jurisdiction will apparent' from complaint that their 'claims are likely above the plaintiffs' [$75,000].'" Id. (quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995)). However, "[i]f the value of the claims is not apparent, -11- then the defendants 'may support federal jurisdiction by setting forth the [either] facts in the removal petition [or] by affidavit -- that support a finding of the requisite amount." (quoting AlIeni 63 established l a by F. 3d at Once 1335) preponderance that I "[t] he federal Id. defendant has jurisdiction is '[i]t must appear to a legal certainty that the warranted [I] claim is really for less than the jurisdictional amount to justify dismissal. Cir. 1995) S. Ct. 586 B. De Aguilar v. Boeing CO' III I 47 F.3d 1404 1412 1 (quoting St. Paul Mercury Indem. Co. v. Red Cab CO' 1 (5th I 58 590 (1938)). Analysis In its Original injunctive relief. 49 Petition l Morlock seeks declaratory and "In actions seeking declaratory or injunctive relief l it is well established that the amount in controversy is measured by the value of the object of the litigation." Washington State Apple Adver. Commln l 97 S. Ct. 2434 "To put it another way I the amount in controversy declaratory or injunctive relief l I 1 2443 (1977). in an action for is the value of the right to be protected or the extent of the injury to be prevented. v. Leininger l 705 F.2d 7271 729 Hunt v. (5th Cir. 1983) II Leininger AccordinglYI whether the amount in controversy in this case exceeds $75 / 000 depends upon the "value of the right to be protected or the extent 490riginal Peti tion l Exhibit B to Defendantls Removal Docket Entry No. 11 pp. 3-4 ~~ 11-16. I -12- Notice of of the injury to be prevented Original Petition. 1. ll by the relief requested in Morlock's Id. The rights to be protected in this case are Morlock's rights as owner of the Property. It is facially apparent from Morlock's Original Petition that the rights to be protected in this case are Morlock's property rights as owner of the exclusive possession. Property, particularly its right of Morlock asserts that it is the owner of the Property, having purchased it at "a Trustees Sale Conducted by the Brunswick Meadows Homeowners Association, Restraining Order which would II and seeks "a Temporary immediately enj oin and restrain Defendant Chase from taking any action to sell the Property or to disturb Morlock's possession of the Property, including taking any action to obtain or enforce a writ of possession. 1I50 from Morlock's perspective, the rights Morlock's rights as owner of the Property. to be Therefore, protected are See, e.g., Martinez v. BAC Home Loans Servicing, LP, 777 F. Supp. 2d 1039, 1049 (W.D. Tex. 2010) ("At least one of the bundle of property rights that [the plaintiff] is seeking to enforce or protect through this litigation is his right to peacefully possess and enjoy his home. From [the plaintiff's] perspective, then, it is the whole title and its 'bundle of rights' at issue." (quoting Mapp v. Deutsche Bank Nat. Trust Co., No. 3:08-CV-695-WKW, 2009 WL 3664118, at *3 50Id. at 1-3 ~~ 4-5, 11, 13. -13- (M.D. Ala. Oct. 28, 2009))); see also Burr v. JPMorgan Chase Bank, N.A., No. 4:11-CV-03519, 2012 WL 1016121, at *2 (S.D. Tex. Mar. 23, 2012) ("The amount in controversy is measured from the perspective of the (citing Garcia, 351 F.3d at 640 n.4)). plaintiff." Accordingly, whether the amount in controversy exceeds $75,000 will depend upon the value of Morlock's rights as owner of the Property. As owner of the Property, Morlock exclusive possession of the entire property. Co. v. Smith, dism'd w.o. j . ) possession of 860 S.W.2d 157, 159 is entitled to See Mobil Pipe Line (Tex. App.-EI Paso 1993, writ (DAn owner of land has title and is entitled to the premises."). The Texas Supreme Court has characterized "the right to exclude all others from use of the property" as Done of the 'most essential sticks in the bundle of rights that are commonly characterized as property. '" Patterson, 370 S.W.3d 70S, 709 (Tex. 2012) Severance v. (quoting Dolan v. City of Tigard, 114 S. Ct. 2309, 2316, 2320 (1994)); see also Evanston Ins. Co. v. Legacy of Life, Inc., 370 S.W.3d 377, 383 (Tex. 2012) (identifying Dthe right to exclusive possession" as one of the Dcore rights in the bundle of property rights") . Morlock's ownership interest in the Property, including its right of exclusive possession, is most accurately reflected by the Property's fair market value, as that is the amount that Morlock could expect to receive if it sold its ownership interest on the open market. See Martinez, 777 F. Supp. 2d at 1051 (holding that when a "plaintiff seeks both a preliminary and permanent injunction -14- to prevent the defendant from foreclosing on his home . the fair market value of his home is the proper measure of the amount in controversy"); .M.9J;m, 2009 WL 3664118, at *3 ("Ownership, title and possession, thus, are not only the objects of this lawsuit, but similarly represent the value of the rights sought to be protected by an injunction enjoining the foreclosure. In monetary terms, these benefits, objects and rights are best measured by the value of the home itself. Dictionary 1549 II (internal citations omitted)); Black's Law (7th ed. 1999) (defining "fair market value" as " [t] he price that a seller is willing to accept and a buyer is willing to pay on the open market and in an arm's-length transaction; the point at which supply and demand intersect"). It is undisputed that the fair market value of the Property exceeds $75,000. 51 Indeed, Morlock asserts in its Original Petition that " [t] he Property is worth approximately $130,000.00." 52 Accordingly, "the value of the right to be protected" by Morlock's action for declaratory and injunctive relief, and thus the controversy, exceeds $75,000 and removal was proper. amount in Leininger, 705 F.2d at 729. 51Id. at 3 ~ 14; Harris County Appraisal District Real Property Account Information, Exhibit A to Defendant's Response to Motion to Remand, Docket Entry No. 14. 520riginal Pet i t ion, Exhibit Removal, Docket Entry No. I, p. 3 ~ -15- B to 14. Defendant's Notice of 2. The injury to be prevented by Morlock's requested relief is the clouding and potential loss of its title to the Property. It is facially apparent from Morlock's Original Petition that the injury to be prevented by Morlock's requested relief is the clouding and potential loss of Morlock's title and the loss of its right to possess the Property. According to its Original Petition, Morlock "fears that, unless enjoined, Defendant Chase will sell the Property and take possession of the Property. 1153 asserts that "[i]f the Property is sold, Morlock also Morlock's title to the Property will be unnecessarily clouded" and that "if the Property is sold, a third party may claim to be the owner of the Property, thereby causing a Morlock's Original further cloud to the Petition declares enjoined as requested, inj ury . II title. that 1154 "[u] nless Furthermore, [Chase is] Morlock will suffer irreparable harm and 55 "[T]he 'value of the extent of the injury to be prevented' [is] the amount the plaintiffs stood to lose if their requests for injunctions were denied." No. H-10-3482, Govea v. 2010 WL 5140064, at *3 (quoting Leininger, 705 F.2d at 729) JPMorgan Chase Bank, N. A. , (S.D. Tex. Dec. 10, 2010) Morlock's Original Petition argues that had its request for an injunction been denied, Morlock 53Id. 54Id. 55Id. ~ 15. -16- would have "suffer red] irreparable harm and injury" because "if the Property is sold, a third party may claim to be the owner of the Property, thereby causing a further cloud to the title. 1156 Because the scheduled Deed of Trust sale could have clouded Morlock's title or, potentially, divested Morlock of title completely, "a right to property [was] called into question in its entirety" and thus "the value of the property Nationstar Mortg. 2009) LLC v. (quoting Waller v. 547-48 (5th controls Cir. Knox, the amount controversy. 351 F. App'x 844, Professional Ins. 1961)) i in see also Corp., Waller, 296 848 II (5th Cir. 296 F.2d 545, F.2d at 547 ("[C]ourts look to the value of the property involved rather than the damages that might be suffered, to determine the jurisdictional amount in suits for injunctions cloud from the title of realty." . and in suits to remove a (internal citations omitted)). Since it is facially apparent from Morlock's Original Petition that "[t]he Property is worth approximately $130,000.00,"57 the extent of the injury to be prevented exceeds the jurisdictional amount and removal was proper. words, Garcia, 351 F.3d at 639. In other looking to the value of the right to be protected or the extent of the injury to be prevented it is clear that the "object of the litigation" is the Property itself, and thus the amount In controversy is measured by the value of the Property. 56Id. ~~ 57Id. ~ 14-15. 14. -17- Hunt, 97 S. Ct. at 2443; Leininger, 705 F.2d at 729; Govea, 2010 WL 5140064, at *4. Accordingly, Morlock's Motion to Remand will be denied. III. Chase's Motion to Dismiss Chase argues that to the extent that Morlock's claims "stem from the theory that the 'bifurcation' of the note and Deed of Trust renders the Deed of Trust invalid," it has failed to state a claim as a matter of law because rejected this theory."5a "Texas Courts have routinely Chase further argues that Morlock lacks standing to challenge the assignment of the Deed of Trust, has failed to advance a plausible quiet-title claim, and that Morlock's claim for declaratory judgment, apparently based loosely on a theory of wrongful foreclosure, fails as a matter of law. 59 A. Applicable Law A motion to dismiss Procedure 12(b) (6) pursuant to Federal Rule of Civil for failure to state a claim for which relief may be granted tests the formal sufficiency of the pleadings and is "appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied sub nom Cloud v. United States, 122 S. Ct. 2665 (2002). The court must accept the factual allegations of the complaint as true, view them 58Motion to Dismiss, Docket Entry No. 13, p. 4. 59Id. at 5-6. -18- in a light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiff's favor. Id. When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Swierkiewicz v. Sorema N.A., 122 S. Ct. 992, 997 Scheuer v. (1974)). Rhodes, 94 S. Ct. 1683, 1686 (2002) (quoting To avoid dismissal a plaintiff must allege "enough facts to state a claim to Bell Atlantic Corp. relief that is plausible on its face." Twombly, 127 S. Ct. 1955, 1974 (2007). v. Plausibility requires "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that defendant is liable for the misconduct alleged." complaint pleads facts defendant's liability, possibil i ty and (quoting Twombly, omitted) . relief." it are 127 S. regarding a merely stops plausibility of " [D] ismissal allegation that short entitlement Ct. at 1966) is proper required if "Where a consistent of the to the with line a between reI ief . " Id. (internal quotation marks the element complaint necessary lacks to an obtain Torch Liquidating Trust ex reI. Bridge Assocs. L.L.C. v. Stockstill, 561 F.3d 377, 384 (5th Cir. 2009). -19- When considering a motion to dismiss courts are "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. L.P. v. Barclays Bank PLC/ 594 Lone Star Fund V (U.S.), 1I F.3d 383/387 (5th Cir. 2010) (citing Collins v. Morgan Stanley Dean Witter/ 224 F.3d 496/ 498-99 (5th Cir. 2000)). a 12 (b) (6) record. 2007) In addition/ "it is clearly proper in deciding motion to take judicial notice of matters of public Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. II (citing Cinel v. Connick/ 15 F.3d 1338/ 1343 n.6 (5th Cir. 1994)). When a party presents "matters outside the pleadingsll with a 12 (b) (6) Rule motion to dismiss / the court has "complete discretion ll to either accept or exclude the evidence for purposes of the motion to dismiss. Isquith ex rel. Isquith v. Middle South Utilities, Inc./ 847 F.2d 186/ 194 n.3 (5th Cir. 1988). However/ "[i]f . . . matters outside the pleadings are presented to and not excluded by the court / the motion must summary judgment under Rule 56 reasonable opportunity to pertinent to the motion. II 11 be treated as one for and "all parties must be given a present Fed. R. all Civ. the P. material 12 (d) . that is Chase has attached to its Motion to Dismiss copies of documents it contends are the Deed of Trust 60 and Assignment of Deed of Trust. 61 Because 60Deed of Trust, Exhibit A to Motion to Dismiss/ Docket Entry No. 13. 61Assignment of Deed of Trust/ Exhibit B to Motion to Dismiss/ Docket Entry No. 13. -20- these documents are referenced in Morlock's First Amended Complaint and central to Morlock's claims, the court concludes that they can be considered without converting the motion to dismiss to a motion for summary judgment. B. Analysis Morlock filed its First Amended Complaint on July 19, 2013, seeking "a judgment which determines whether Defendant Chase is the owner and holder of the Note and/or Deed of Trust and whether Chase has any interest in the property.,,62 concerned that if it pays Chase, Morlock asserts that it "is it could be subject to double exposure for the payment of the Note if Chase is not entitled to payout. ,,63 Morlock admits "that there is a lien on the Property and only seeks a Judicial Determination as to whether Chase has a right to receive payment." 64 "Morlock is not seeking a determination that its interest is superior to the Deed of Trust but only to determine whether Chase is the holder of the Note which is secured by the Deed of Trust. ,,65 Morlock's argument that Chase may not be entitled to enforce the Deed of Trust relies solely on its assertion that the Assignment of Deed of Trust "is invalid and of no force or effect 62Plaintiff's First Amended Complaint, p. 3 ~ 11. 63Id. ~ 8. -21- Docket Entry No. 11, because, on information and belief, the person who signed the assignment on behalf of MERS was not employed by MERS and that person had no authority to endorse the Note and no authority to execute the assignment. "66 Assignment of Deed of Trust. 67 MERS is never mentioned in the The parties, however, have made the role of MERS a central feature of this litigation. 1. The parties have made conflicting representations about the role of MERS in securing and assigning the Deed of Trust. In its Original Petition Morlock asserted that "Alej andro Mendoza and Iris N. Mendoza executed and delivered a Deed of Trust to secure Mortgage Electronic Registration Systems, Inc. nominee for Capstone Mortgage, L.P.') ."68 ('MERS as Morlock further asserted that the Deed of Trust "was allegedly assigned to Defendant Chase by [MERS]. "69 In its Answer "Chase admit [ted] that a Deed of Trust was filed and recorded in Harris County, Texas, and that it was assigned to Chase," but denied that it secured MERS or was assigned by MERS. 70 66Id. at 2 ~ 6. 67Assignment of Deed of Trust, Exhibit B to Motion to Dismiss, Docket Entry No. 13. 680riginal Petition, Exhibit B to Removal, Docket Entry No. I, p. 2 ~ 6. Defendant's 7°Defendant's Answer, Docket Entry No.6, p. 2 -22- ~ Notice 6. of Chase's 12(c) Motion stated that the Mendozas "executed a Deed of Trust with lender Capstone Mortgage, beneficiary under the Deed of Trust lender) .1171 Chase attached to its and with [MERS] as the (solely as nominee for the 12 (c) Motion "[a] true and correct copy of the Deed of Trust recorded in the Official Public Record of Real Property of Harris County, Texas. 1172 Chase also asserted that "[t] he Deed of Trust was subsequently assigned to Chase ll and attached "the Assignment recorded in the Official Public Record of Real Property of Harris County, Texas. 1173 MERS is never mentioned in either of the attached documents. 74 Apparently realizing that the Deed of Trust did not secure MERS, as alleged in its Original Petition, Morlock alleges in its First Amended Complaint that "Alej andro Mendoza and Iris N. Mendoza executed and delivered a Deed of Trust to secure Capstone Mortgage, L.p.1I75 However, Morlock also alleges that" [t]he Deed of Trust was 71Chase's 12(c) Motion, Docket Entry No.8, p. 2. 72Id.; Deed of Trust, Exhibit A to Chase's 12(c) Motion, Docket Entry No.8. 73Chase's 12 (c) Motion, Docket Entry No.8, pp. 2-3; Assignment of Deed of Trust, Exhibit B to Chase's 12(c) Motion, Docket Entry No.8. 74Deed of Trust, Exhibit A to Chase's 12(c) Motion, Docket Entry No.8; Assignment of Deed of Trust, Exhibit B to Chase's 12(c} Motion, Docket Entry No.8. 75Plaintiff's First Amended Complaint, p. 2 ~ 5. -23- Docket Entry No. 11, allegedly assigned to Defendant Chase not by Capstone Mortgage, L.P., but by [MERS] II 76 In its Motion to Dismiss, Chase asserts that the Mendozas uexecuted a Deed of Trust with lender Capstone Mortgage, and with [MERS] nominee as the for Trust. 78 beneficiary under the Deed of the Chase subsequently lender) also assigned 1177 and attaches a asserts to that Chase" 79 U[t]he and Trust copy of Deed attaches (solely as the Deed of of a Trust copy of was the Assignment of Deed of Trust.so In its Response to Chase's Motion to Dismiss, Morlock asserts that the Deed of Trust usecured a Note executed by Alejandro and Iris Mendoza and payable to Capstone Mortgage, L.P." and that it U was purportedly assigned to Chase by one or more assignments signed by [MERS]. 1181 A review of the Deed of Trust and Assignment of Deed of Trust, attached to Chase's Motion to Dismiss, reveals that neither party has an accurate grasp of the underlying facts regarding the Deed of Trust and its assignment. 76Id. 77Motion to Dismiss, Docket Entry No. 13, p. 2. 7SDeed of Trust, Exhibit A to Motion to Dismiss, Docket Entry No. 13. 79Motion to Dismiss, Docket Entry No. 13, p. 3. SOAssignment of Deed of Trust, Exhibit B to Motion to Dismiss, Docket Entry No. 13. 81Plaintiff's Response to Defendant's Rule 12 Motion, Docket Entry No. 15, p. 3 ~~ 13-14. -24- 2. MERS is never mentioned in either the Deed of Trust or Assignment of Deed of Trust. The Deed of Trust identifies Mortgage, LpH and states that the this Security ~Thomas F. Instrument. Vet ters. H H ~Lender The 82 the as ~LenderH ~Capstone is the beneficiary under ~TrusteeH is identified as MERS is never mentioned in the Deed of 83 Trust, nor is there any language to indicate that anyone other than Capstone Mortgage, L.P. is the beneficiary.84 There indication that MERS or any other entity is acting as the lender. H is no ~nominee for 85 Similarly, MERS is never mentioned in the Assignment of Deed of Trust. 86 Instead, the assignor Mortgage, LpH and the assignee as is identified as ~JPMorgan ~Capstone Chase Bank, N .A. H87 The signature on the Assignment of Deed of Trust is that of Alberto Rios, as Capstone Mortgage, L.P.'s ~personally known to [the ~duly notary] to authorized officer[]H and be the individual that 82Deed of Trust, Exhibit A to Motion to Dismiss, Docket Entry No. 13, pp. 1-2. 83Id. at 2. 84Id. at 1-2. B5Cf. Original Petition, Exhibit B to Defendant's Notice of Removal, Docket Entry No.1, p. 2 ~ 6; Chase's 12(c) Motion, Docket Entry No.8, p. 2; Motion to Dismiss, Docket Entry No. 13, p. 2. 86Assignment of Deed of Trust, Exhibit B to Motion to Dismiss, Docket Entry No. 13. -25- executed the [Assignment]. 1188 was] of Capstone Alberto Rios "acknowledged that [he Mortgage, Lp. and that [he] executed the [Assignment] and affixed its seal as its duly authorized officer[] and that such execution was done as the free Capstone Mortgage, Lp. Furthermore, states that it II act and deed of 89 the Assignment of Deed of Trust specifically assigns "the described deed of trust and any modifications, bearing the date of February 1, 2008, together with the certain note(s) described therein with all interest, all liens, and any rights due or to become due thereto to: Bank, N. A . Trust are II Both the Deed of Trust and Assignment of Deed of 90 attached Morlock's claims, Complaint. to the Motion record, to Dismiss, are central to and are referenced in Morlock's First Amended They are therefore properly considered in deciding Chase's Motion to Dismiss. Collins, JPMorgan Chase 224 F.3d at 498-99. Lone Star Fund, 594 F.3d at 387; They are also "matters of public having been filed in Public Records of Harris County, Texas," and therefore "may properly be considered in connection with a Rule 12(b) (6) Motion to Dismiss." of America, N.A. ("Morlock v. BOA") , WL 1640895, at *2 (S.D. Tex. May 8, 2012) at 454) . S8Id. at 1-2. 89Id. at 2. 9OId. at l. -26- Morlock, L.L.C. v. Bank No. H-12-0364, 2012 (citing Norris, 500 F.3d 3. Morlock's action for declaratory relief fails because Morlock has not advanced a plausible cause of action under any other substantive law. "When a declaratory judgment action is filed in state court and is subsequently removed to federal court, it is converted to one brought under the federal Declaratory Judgment Act." Bank of America Home Loan Servicing LP, No. WL 568755, at *8 (S.D. Tex. Feb. 21, Bell v. 4:11-CV-02085, 2012). The 2012 federal Declaratory Judgment Act does not create a substantive cause of action but, instead, is merely a procedural vehicle that allows a party to obtain an early adj udication of an actual controversy arising under other substantive law. Hartford, Conn. v. Haworth, 57 S. See Aetna Life Ins. Co. of Ct. 461, 463 (1937) i Lowe v. Ingalls Shipbuilding, 723 F.2d 1173, 1178 (5th Cir. 1984). While it is clear that Morlock seeks a declaratory judgment as to whether Chase "is the owner and holder of the Note and/or Deed of Trust, "91 attempts it is unclear what substantive cause of action Morlock to assert acknowledges "that in its there First is a Amended lien on Complaint. the Morlock Property" and specifically states that it "is not seeking a determination that its interest is superior to the Deed of Trust."92 forecloses any plausible quiet-title claim. Metlife Home Loans, L.L.C. 9lPlaintiff's First Amended Complaint, d . ~~ See Morlock, L. L. C. v. ("Morlock v. Metlife"), No. 13-20132, p. 3 ~ 1I. 92 I This admission 9 -1 0 . -27- Docket Entry No. 11, 2013 WL 4844713, at *2 (5th Cir. Sept. 12, 2013) (uBecause Morlock does not challenge the Deed of Trust's validity or otherwise assert title superior to that of Chase or MERS, Morlock fails to advance a plausible quite-title claim. Morgan Chase Bank, N.A. 11 (quoting Morlock, (UMorlock v. JPMC"), WL 2422778, at *2 (5th Cir. June 4, 2013))). No. L.L.C. v. JP 12-20623, 2013 Yet, in its Response to Chase's Motion to Dismiss, Morlock asserts that its uaction to determine the right[s] of the parties and to strike any interest Defendant may have in the Property certainly states a cause of action to remove a cloud on title." 93 (a) Morlock fails to assert a plausible quiet-title action in its First Amended Complaint. U[T] he goal of a suit to quiet title is to clear title to property from clouds or encumbrances." 305 (Tex. 2011) In re Puig, 351 S.W.3d 301, (citing Thomson v. Locke, 1 S.W. 112, 115 (1886)). "In a Texas quiet title action, \ [t]he plaintiff must prove, as a matter of right of ownership and that law, that he has adverse claim is a Morlock, No. a cloud on title that equity will the remove.' 11 L.L.C. v. Bank of New York Mellon Trust Company, N.A., 12-20832, 2013 WL 3971517, at *1 (5th Cir. Aug. 5, 2013) (quoting Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366, 388 (Tex. App.-Houston [1st Dist.] 2012, pet. denied)). UA plaintiff in a suit to quiet title must prove and recover on the strength of 93Plaintiff's Response to Defendant's Rule 12 Motion, Docket Entry No. 15, p. 8 ~ 40. -28- his own title v. Hancock not the weakness of his adversary/s title. 1I l S.W.3d 322 45 l 1 327 (Tex. App.-Corpus Christi 2001 In its First Amended Complaint pet.) . Fricks I 1 no Morlock neither contests the Deed of Trust/s validity nor suggests that its own interest is superior to the Deed of Trust. 94 2422778 at 1 "Instead *2. l it See Morlock v. challenges JPMC the validity of assignment of the Deed of Trust from MERS to Chase. 95 MERS is never mentioned in either the Deed of l Trust or Assignment of Deed of Trust. The Assignment of Deed of Trust clearly identifies the assignor as "Capstone Mortgage Morlock does support not its assertion that Lp.1I "[t] he Deed of Trust was allegedly I L.P. I but by The Deed of Trust and Assignment of Deed of Trust were .1196 attached to Chase s 12 (c) Amended and I Complaint 97 I Dismiss. 98 Motion again filed before Morlock s l l attached to Chase/s First Motion to Morlock amended its Complaint to identify the secured 94Plaintiff s First Amended Complaint p. 3 ~~ 9-10. I 95rd. at 2 96rd. I cite or attach any relevant documentation to assigned to Defendant Chase not by Capstone Mortgage [MERS] the Id. II As noted above 2013 WL I ~ ~~ I Docket Entry No. 111 5-6. 5. 97Deed of Trust Exhibi t A to Chase s 12(c) Motion Docket Entry No.8; Assignment of Deed of Trust Exhibit B to Chase/s 12(c) Motion Docket Entry No.8. I I l I l 98Deed of Trust Exhibit A to Motion to Dismiss Docket Entry No. 13; Assignment of Deed of Trust Exhibit B to Motion to Dismiss Docket Entry No. 13. I l I l -29- party as Capstone Mortgage, L.P., rather than MERS.99 Nonetheless, Morlock continues to assert that MERS assigned the Deed of Trust to Chase. In light of the unequivocal language in the Assignment of Deed of Trust identifying the assignor as Capstone Mortgage, L.P., Morlock's assertions regarding MERS are baseless and without merit. Furthermore, Chase or MERS Morlock's has argument authority to "merely questions enforce the Deed of whether Trust. II "Because Morlock does not challenge the Deed of Trust's validity or otherwise assert title superior to that of Chase or MERS, Morlock fails to advance a plausible quiet-title claim. Id. II (citing Fricks, 45 S.W.3d at 327). (b) Morlock fails to allege a plausible action for wrongful foreclosure. Morlock fares no better to the extent that its claim for declaratory judgment is based on a theory of wrongful foreclosure. "Under a theory of wrongful foreclosure, Morlock can make Chase prove Morlock v. it has WL 2422778, S.W.3d 79, standing at *2 84 to foreclose. II JPMC, (citing Martin v. New Century Mortg. Co., (Tex. App.-Houston [1st Dist.] 2012, 2013 377 no pet.)). Chase has presented evidence of standing through a facially valid assignment, which was signed by Alberto Rios as Capstone Mortgage, L. P. ' s "duly authorized officer [] 11100 and "recorded in the Official 99Plaintiff's First Amended Complaint, Docket Entry No. 11, p. 2 ~ 5. lOOAssignment of Deed of Trust, Exhibit B to Motion to Dismiss, Docket Entry No. 13. -30- Public Record of Real Property of Harris County, Texas." 101 See id. Because "[r]eal Property records often contain transfers taking place many years in the past[,] . . . Texas 'view[s] with suspicion and distrust attempts to discredit certificates of acknowledgment, ' under which the transfer is presumptively valid and contradicting evidence 'must be clear, cogent, and convincing beyond reasonable controversy. '" rd. (quoting Ruiz v. Stewart Mineral Corp., 202 S.W.3d 242, 248 (Tex. App.-Tyler 2006, pet. denied)). Morlock fails to plead any facts remotely approaching this standard. Morlock asserts that although the Assignment of Deed of Trust appears valid on its face, it "is invalid and of no force or effect because, on information and belief, the person who signed the assignment on behalf of MERS was not employed by MERS and that person had no authority to endorse the Note and no authority to execute the assignment. 11102 Morlock is correct that the person who signed the Assignment of Deed of Trust was not employed by MERS -he was the "duly authorized officer [] II of Capstone Mortgage, L. P .103 He did not sign the assignment on behalf of MERS, but on behalf of Capstone Mortgage, L.P., whom Morlock admits was properly secured by the Deed of Trust. 104 Morlock presents no facts impugning the lOlMotion to Dismiss, Docket Entry No. 13, p. 3. l02Plaintiff's First Amended Complaint, Docket Entry No. 11, p. 2 ~ 6. l03Assignment of Deed of Trust, Exhibit B to Motion to Dismiss, Docket Entry No. 13. l04Plaintiff's First Amended Complaint, Docket Entry No. p. 2 ~ 5. -31- 11, agreement between Capstone Mortgage, L.P. and Chase apart from the bare assertion that the "person who signed the assignment . . . had no authority to endorse the Note and no authority to execute the assignment.,,105 See Morlock v. JPMC, 2013 WL 2422778, at *2. "This 'naked assertion[] devoid of further factual enhancement' fails to state a plausible claim for relief." rd. (citing Iqbal, 129 S. Ct. at 1949). In seeking "to determine whether Chase is the holder of the Note which is secured by the Deed of Trust," it appears that Morlock is attempting to argue that bifurcation of the Note and Deed of Trust renders the Deed of Trust invalid. 106 Not only is this "split-the-note" theory without merit, the Assignment of Deed of Trust establishes that there was no bifurcation of the Note and Deed of Trust in this case. The "split-the-note" theory posits that "the 'transfer of [the] deed of trust . . . "splits" the note from the deed of trust, thus rendering both null. ,,, No. 12-51039, Wiley v. Deutsche Bank Nat. Trust Co., 2013 WL 4779686, at *1 (5th Cir. Sept. 6, 2013) (quoting Martins v. BAC Home Loans Servicing. L.P., 722 F.3d 249, 254 (5th Cir. 2013)) "In order to foreclose, the theory goes, a party must hold both the note and the deed of trust." Martins, 722 F.3d at 254). However, Id. (quoting "Texas courts have explained on multiple occasions that a note and a deed of trust constitute 105Id. 106Id. at 3 ~ 10 i Motion to Dismiss, Docket Entry No. 13, p. 4. -32- separate actions. 1I Id. at *2. "It is so well settled as not to be controverted that the right to recover a personal judgment for a debt secured by a lien on land and the right to have a foreclosure of lien are severable, and a plaintiff may elect to seek a personal judgment without foreclosing the lien, and even without a waiver of the lien.1I Martins, 722 F.3d at 255 (quoting Carter v. Gray, 81 S.W.2d 647, 648 (Tex. Comm'n App. 1935)). "The duality of the lien and the note means that the beneficiary of the lien can be different from the holder of the note. 1I "'The party to foreclose Wiley, 2013 WL 4779686, at *2. need not possess the note itself.' So long as it is a beneficiary named in the deed of trust or an assign, that party may exercise its authority even if it does not hold the note itself. (internal citations omitted) /I Id. (quoting Martins, 722 F.3d at 255). Thus, "the split the note theory is . . . inapplicable under Texas law where the foreclosing party is a has been properly assigned./I 255) at Id. [mortgagee] and the mortgage (quoting Martins, (internal quotation marks omitted) 255 ("A deed of trust 'gives i 722 F.3d at see also Martins, 722 F.3d the lender as well as the beneficiary the right to invoke the power of sale,' even though it would not be possible for both to hold the note. 1I (quoting Robeson v. Mortgage Elec. Registration Sys./ Inc., No. 02-10-00227-CV, 2012 WL 42965, at *6 (Tex. App.-Fort Worth Jan. 5, 2012, pet. denied))). In this case the Assignment of Deed of Trust specifically states that it assigns "the described -33- deed of trust and any modifications, bearing the date of February I, 2008, together with the certain note(s) described therein with all interest, all liens, and any rights due or to become due thereto to: Bank, N. A. 11107 JPMorgan Chase Thus, there was no bifurcation of the note and Deed of Trust in this case. See, e.g., Reinagel v. Deutsche Bank Nat'l Trust Co., 722 F.3d 700, 705-09 (5th Cir. 2013). In Reinagel the plaintiff-homeowners sought declaratory and injunctive relief on the basis that the assignee of their mortgage lacked standing to foreclose. Id. at 703-05. The Fifth Circuit analyzed the effect of two mortgage assignments challenged by the plaintiff-homeowners, noting that "the first instrument assigned only the deed of trust, whereas the second instrument assigned both the deed of trust and 'the certain note(s) described therein. '" Id. at 705. The court ultimately held that the second assignment was valid against the plaintiffs and "reaffirm [ed] that under Texas law, facially valid assignments cannot be challenged for want of authority except by the defrauded assignor." Here, the Assignment instrument in Reinagel, of Deed of Id. at 707-09. Trust, like the second assigns both the Deed of Trust and "the certain note(s) described therein with all interest, all liens, and any rights due or to become due thereto. 11108 Al though Morlock would have standing to See id. "defend at 703. \ on any ground l07Assignment of Deed of Trust, Exhibit B to Motion to Dismiss Docket Entry No. 13, p. 1. -34- t which renders the assignment void,'" its challenge based on the signer's alleged lack of authority would render the assignment, "like any other unauthorized contract, voidable at [] not void, but merely the election of the defrauded principal." Id. at 705-06 (quoting Tri-Cities Const., Inc. v. Am. Nat. Ins. Co., 523 s.w.2d 426, 430 Thus, writ) ) . accepted as (Tex. the true, challenge the . Civ. signer's does not App.-Houston "alleged furnish assignment." [1st lack of [Morlock] Dist.] 1975, authority, with a no even basis to rd. at 707. Morlock asserts that it is "concerned that if it pays Chase, it could be subject to double exposure for the payment of the Note if Chase is not entitled to payout. "109 Inc., 523 S. W. 2d at 430 See Tri-Cities Const., (" [T] he only interest or right which an obligor of a claim has in the instrument of assignment is to insure himself that he will not have to pay the same claim twice."). However, "[b]ecause Morlock is not a borrower under the purchase- money mortgage secured by the Deed of Trust, it does not stand to incur any liability under the note as a result of the foreclosure. Morlock v. JPMC, 2013 WL 2422778, at *2 n.4. "Tellingly, II [Morlock] has not even joined MERS or [Capstone Mortgage, L.P.] as a party in this case; any judgment in this case would thus not be binding upon them." Id. l09Plaintiff's First Amended Complaint, Docket Entry No. p. 3 ~ 8. -35- II, (c) Without a plausible cause of action under other substantive law, Morlock's claim for declaratory relief must fail as a matter of law. Morlock conspicuously fails to clearly assert a substantive cause of action in its First Amended Complaint, although its claim for declaratory judgment appears to be based loosely on a theory of wrongful foreclosure. In it's Response to Chase's Motion to Dismiss, Morlock asserts 110 that it is seeking "to determine the validity of liens against its own property" and "to remove a cloud on title," suggesting that it intends to assert a quiet-title claim against Chase. 111 For the reasons explained above, the court concludes that Morlock has failed to allege any facts that would support either claim. and continuing Accordingly, controversy between there is not "'a substantial two adverse parties'" and "[t]herefore, any request that Morlock is making for declaratory judgment must fail." See Morlock, L.L.C. v. JP Morgan Chase Bank, N.A., No. 2012 WL 3187918, 2012) (quoting Bauer v. Texas, 341 F.3d 352, 358 (5th Cir. 2003)). IV. H-12-1448, at *7 (S.D. Tex. Aug. 2, Morlock's Motion for Leave to Amend Complaint Morlock's Motion for Leave to Amend Complaint is included with its Response to Chase's Motion to Dismiss. 112 l1°rd. at 2-3 ~~ Morlock has already 6-11. 111Plaintiff's Response to Defendant's Rule 12 Motion, Docket Entry No. 15, pp. 6, 8 ~~ 29, 40. 112rd. at 8-9 ~~ 41-44. -36- amended its complaint once and has neither shown how another amendment would state a claim nor attached a copy of its proposed amended complaint. The court concludes that another amendment "cannot overcome the contents of the Deed of Trust [ or] the assignment of the Deed of Trust" and any amendment would therefore be futile. v. Morlock v. BOA, 2012 WL 1640895, at *2; see also Morlock Metlife, 2013 WL 4844713, at *2 (holding that "the district court did not abuse its discretion in denying leave to amend the complaint, as any amendment would have been futile"); Morlock v. JPMC, 2013 WL 2422778, at *2 n.5 ("Morlock fails to present any evidence or arguments to suggest that a second amended complaint would not have been futile."); Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872-73 (5th Cir. 2000) ("It is within the district court's discretion to deny a motion to amend if it is futile."); Morlock, LLC v. JPMorgan Chase Bank, N.A., No. 4:12-CV-03648, 2013 WL 5231498, at *5 (S.D. Tex. Sept. 13, 2013) ("[G]iven the contents of the public records relative to the Property at issue in this case, . . . Morlock cannot cure the defect in its pleadings with an amendment. In addition, given the rejection, by numerous courts, of the exact type of claims asserted by Morlock in this case, both before and after amendment, there is no reasonable likelihood that Morlock could, re 1 i e f . ") . through Therefore, amendment, state Morlock's Motion Complaint will be denied. -37- a viable for Leave claim to for Amend V. Conclusions and Order For the reasons explained above, Morlock's Motion to Remand (Docket Entry No. (Docket Entry No. 12) and Motion for Leave to Amend Complaint 15 at p. 8) are DENIED, Chase's Rule 12(b) (6) Motion to Dismiss (Docket Entry No. 13) is GRANTED, and this action will be dismissed with prejudice. SIGNED at Houston, Texas, on this 25th day of October, 2013. SIM LAKE UNITED STATES DISTRICT JUDGE -38-