Fulcrum Enterprises, LLC v. Bank of America, N.A. et al, No. 4:2013cv01930 - Document 23 (S.D. Tex. 2014)
Court Description: MEMORANDUM OPINION AND ORDER granting 16 MOTION for Summary Judgment. (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 FULCRUM ENTERPRISES, LLC, Plaintiff, v. BANK OF AMERICA, N.A., Successor by Merger to BAC HOME LOANS SERVICING, LP f/k/a COUNTRYWIDE HOME LOANS SERVICING, LPi MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.i and FEDERAL NATIONAL MORTGAGE ASSOCIATION a/k/a FANNIE MAE, Defendants. § § § § § § § § § § § § § § § § § CIVIL ACTION NO. H-13-1930 MEMORANDUM OPINION AND ORDER Plaintiff Fulcrum Enterprises, LLC action against defendants ("Fulcrum") Bank of America, N .A., brought this successor by merger to BAC Home Loans Servicing LP f/k/a Countrywide Home Loans Servicing, LP ("Bank of America"), Mortgage Electronic Registration Systems, Inc. ("MERS"), and Federal National Mortgage Association ("Fannie Mae") (collectively "Defendants") in the 400th Judicial District Court of Fort Bend County, Texas, where it was filed under Cause No. court. 13-DCV-207036. Defendants removed the action to this Pending before the court is Defendants' Motion for Summary Judgment (Docket Entry No. 16). For the reasons explained below, Defendants' Motion for Summary Judgment will be granted. ------------ I. Factual and Procedural Background On April 10, 2003, Glenn Lewis and Barbara Lewis executed a Deed of Trust Corporation note. 1 on their ("Beazer") property on a to secure Beazer Mortgage $156,000 purchase money promissory The Deed of Trust identified Beazer as the Lender and MERS as "the beneficiary under this Security Instrument" who was "acting solely as assigns.,,2 Brokers a nominee Lender and Lender's successors and Beazer assigned the Note and Deed of Trust to American Conduit assignment for were the same recorded day.3 The in Official the Deed Fort Bend County, Texas, on April 16, 2003. 4 of Trust Public and Records the of The loan eventually fell into default in late 2009. 5 lDeed of Trust, Exhibit 1 to Plaintiff's Response to Defendants' Motion for Summary Judgment and Memorandum in Support Thereof ("Response"), Docket Entry No. 19-3, pp. 2-4, 12-13; see also Note, Exhibit A-1 to Defendants' Motion for Summary Judgment, Docket Entry No. 16-2. (Page citations are to the pagination imprinted at the top of the page by the federal court's electronic filing system.) 2Deed of Trust, Exhibit 1 to Response, Docket Entry No. 19-3, p. 2; see also id. at 4. 3Assignment of Lien, Exhibit 2 to Plaintiff's First Amended Original Complaint Request For a Permanent Injunction and Jury Demand ("Amended Complaint"), Docket Entry No. 10-2. 4Id. at 3; Deed of Trust, Exhibit 1 to Response, Docket Entry No. 19-3, p. 15. 5Declaration of Nicole Bensend in Support of Motion for Summary Judgment, attached to Defendants' Motion for Summary Judgment, Docket Entry No. 16-1, p. 2 ~ 6. Fulcrum has not argued, and has produced no evidence to suggest, that the loan did not fall into default in late 2009. -2 - Fulcrum purchased the Lewis's property at a trustees sale conducted by the Lake Olympia Civic Association and received a Trustee's Deed dated June 13, that the sale was warranties, "where-is, 2011. 6 as-is, The Trustee's Deed stated with no representations or taken subject to superior liens, if any.,,7 Fulcrum subsequently leased the property to Innocent A. Akani and Ruth C. Akani on October 2, 2011. 8 The lease was to run from October 17, 2011, to April 30, 2012, and would automatically renew on a month- to-month basis thereafter. 9 On June 5, 2012, MERS assigned the Note and Deed of Trust to Bank of America. 10 The assignment was recorded in the Official Public Records of Fort Bend County, Texas, on June 7, 2012. 11 On or about March 12, 2013, a notice was posted indicating that the 6Trustee's Deed, Exhibit 3 to Amended Complaint, Docket Entry No. 10-3. 7Id. at 3. 8Residential Lease, Exhibit 4 to Amended Complaint, Docket Entry No. 10-4, p. 15. Fulcrum alleges in its Amended Complaint and its Response that it leased the property on October 11, 2011. Amended Complaint, Docket Entry No. 10, p. 8 ~ 26; Response, Docket Entry No. 19, p. 11 ~ 22. However, the lease was signed on October 2, 2011, with a commencement date of October 17, 2011. Residential Lease, Exhibit 4 to Amended Complaint, Docket Entry No. 10-4, pp. 2, 15. The date referenced in Fulcrum's pleadings does not appear anywhere in the lease attached to the Amended Complaint. See id. at 2-15. 9Residential Lease, Entry No. 10-4, p. 2. Exhibit 4 to Amended Complaint, Docket 10Assignment of Deed of Trust, Exhibit A- 3 to Defendants' Motion for Summary Judgment, Docket Entry No. 16-4. -3- property would be sold at a substitute trustee's sale on April 2, 2013. 12 On April 2, $205,953.55. 13 2013, the property was sold to Fannie Mae for The Substitute Trustee's Deed identified MERS as the Original Mortgagee and Bank of America as the Current Mortgagee and the Mortgage Servicer. 14 On April 29, 2013, Fannie Mae sent the Akanis a notice to vacate the property.lS Fannie proceedings Mae in Justice of Fort Bend County, Texas. 2013, initiated subsequently the Peace Court, forcible detainer Precinct No.4, of An Eviction Citation was issued on May 7, commanding the Akanis to appear for trial on May 23, 2013. 16 The Akanis were served with the citation on May 13, 2013. 17 On 12Amended Complaint, Docket Entry No. 10, p. 9 ~ 28; Notice of Substitute Trustee's Sale, Exhibit 6 to Amended Complaint, Docket Entry No. 10-6. 13Substitute Trustee's Deed, Exhibit A-4 to Defendants' Motion for Summary Judgment, Docket Entry No. 16-5. l4Id. ISNotice to Vacate, Entry No. 10-8. Exhibit 8 to Amended Complaint, Docket 16Eviction Citation, Exhibit 10 to Amended Complaint, Docket Entry No. 10-10. l7Id. In a letter addressed to Fannie Mae's foreclosure counsel dated May 22, 2013, Fulcrum's counsel asserted that "[t]he detainer action. . scheduled for Thursday May 23, 2013 violates the Protecting Tenants at Foreclosure Act." May 22, 2013, Letter from G.P. Matherne to Barrett Daffin Frappier Turner & Engel, LLP, Exhibit 9 to Amended Complaint, Docket Entry No. 10-9. Although the letter does not indicate whether counsel was acting on behalf (continued ... ) -4- May 23, 2013, Fannie Mae obtained a Judgment adjudging that it was "entitled to possession of the premises" and ordering that it "have restitution, for which let writ issue, of the premises. illS On June 11, 2013, Fulcrum brought this action in the 400th Judicial District Court of Fort Bend County, Texas, where it was filed under Cause No. 13-DCV-207036. l9 Notice of Removal on July 2, 2013. 20 filed a motion to dismiss. 21 Defendants filed their On July 9, 2013, Defendants Fulcrum responded on July 29, 2013, and sought leave to file an amended complaint. 22 In an Order dated August 13, 2013, the court granted Fulcrum's motion for leave to file an amended complaint. 23 On September 6, 2013, Fulcrum filed 17 ( ... continued) of Fulcrum or the Akanis, the Amended Complaint states that counsel sent the letter on behalf of Fulcrum. Amended Complaint, Docket Entry No. 10, p. 10 ~ 32. Fulcrum also states that it attempted to provide the letter via facsimile but was unable to do so. Id. l8Judgment, Exhibit A- 5 to Judgment, Docket Entry No. 16-6. Defendants' Motion for Summary 19P1aintiff's Original Petition for Declaratory Judgment, Application for Temporary Restraining Order & Request for Disclosure, Exhibit A to Defendants' Notice of Removal, Docket Entry No. 1-1, p. 5. 20Defendants' Notice of Removal, Docket Entry NO.1. 2lDefendants' Motion to Dismiss, Docket Entry No.3. 22Plaintiff's Response to Defendants' Motion to Dismiss Including Its Brief in Support Thereof and Motion for Leave to File an Amended Complaint, Docket Entry NO.7. 230rder, Docket Entry No.9. -5- its Amended Complaint. 24 Defendants filed an answer on September 23, 2013. 25 Defendants filed the pending Motion for Summary Judgment on December 23, 2013. 26 On February 21, 2014, noting that Fulcrum had not filed a response, the court entered an Order requiring Fulcrum to respond to the pending motion by March 10, 2014.27 its Response on March 10, 2014. 28 Fulcrum filed Defendants filed their reply on March 21, 2014. 29 II. Standard of Review Summary judgment is appropriate if the movant establishes that there is no genuine dispute about any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Disputes about material facts are genuine Uif the evidence is such that a reasonable jury could return a verdict for the nonmoving party. II (1986) . Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 The moving party is entitled to judgment as a matter of law if Uthe nonmoving party has failed to make a sufficient showing 24Amended Complaint, Docket Entry No. 10. 25Defendants' Answer to Plaintiff's Amended Complaint, Docket Entry No. 11. 26Defendants' Motion for Summary Judgment, Docket Entry No. 16. 270rder, Docket Entry No. 17. 28Response, Docket Entry No. 19. 29Defendants' Reply to Plaintiff's Summary Judgment Response ( UReply"), Docket Entry No. 20. -6- on an essential element of her case with respect to which she has the burden of proof." 2552 Celotex Corp. v. Catrett, 106 S. Ct. 2548, (1986). A party moving for summary judgment "must 'demonstrate the absence of a genuine issue of material fact,' but need not negate the elements of the nonmovant' s case." 37 F.3d 1069, 1075 (5th Cir. 1994) Little v. Liquid Air Corp. , (en banc) (per curiam) (quoting "If the moving party fails to meet Celotex, 106 S. Ct. at 2553). this initial burden, the motion must be denied, regardless of the nonmovant's response." this burden, Id. If, however, the moving party meets "the nonmovant must go beyond the pleadings" and produce evidence that specific facts exist over which there is a genuine 2553-54) issue for trial. Id. (citing Celotex, 106 S. Ct. at The nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986) . In reviewing the evidence "the court must draw all reasonable inferences in favor of the nonmoving party, credibility determinations or weigh Sanderson Plumbing Prods., Inc., the 120 S. and it may not make evidence." Ct. 2097, Reeves v. 2110 (2000). Factual controversies are to be resolved in favor of the nonmovant, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." 37 F.3d at 1075. -7- Little, III. Analysis In addition to seeking declaratory and injunctive relief, Fulcrum alleges four causes of action in its Amended Complaint: (1) wrongful foreclosure, (2) violations of Civil Practice and Remedies Code, § 12.002 of the Texas (3) violations of the Protecting Tenants at Foreclosure Act ("PTFA"), and (4) quiet title. 30 A. Fulcrum's Claim for Wrongful Foreclosure "Texas law requires foreclosure claim foreclosure sale proceedings, price (3) l and a show that that a there (2) 2013) (1) a defect wrongful "contractual the Waltner v. Aurora Loan Servs. , 12-50929, 2013 WL 6858124 (5thCir. 2013)). for In a grossly inadequate selling at *6 1 (5th Cir. Dec. 31, (citing Miller v. BAC Horne Loans Servicing, L.P., 717,726 claim was wrongful causal connection between the defect and the grossly inadequate selling price." L.L.C., No. plaintiff bringing a Fulcrum argues that it may assert a foreclosure standing" by 726 F.3d the on the party basis of a lack of seeking to foreclose. 31 Although Fulcrum acknowledges that under Texas Law MERS may "serve as an agent and nominee for lenders so that it [can] oversee and conduct foreclosures,,,32 it argues that MERS lacked authority to 30Amended Complaint, Docket Entry No. 10, pp. 17-33 31Id. at 17 ~ 49. 32Id. at 21 ~ 58. -8- ~~ 47-76. assign the Note Specifically, and Deed of Trust to Bank of America. 33 Fulcrum argues that "there are no situations that would allow a reasonable deduction that because MERS may have been Beazer/American Brokers Conduit's nominee, Beazer/American Broker's Conduit ipso facto had agreed that MERS has a contractual right to assign its interest in the Lewis Deed of Trust and Note to [Bank of America] . ,,34 The record contradicts Fulcrum's argument. The Deed of Trust specifically states under the heading "TRANSFER OF RIGHTS IN THE PROPERTY" that" [t] he beneficiary under this Security Instrument is MERS (solely as nominee for Lender and Lender's successors and assigns) and the successors and assigns of MERS.,,35 of Trust, by acknowledging that MERS may have Thus, the Deed "successors and assigns," implicitly recognizes the authority of MERS to assign its interests to another party. Moreover, "'Texas recognizes assign- ment of mortgages through MERS and its equivalents as valid and enforceable.'" No. 13-40061, Singha v. BAC 2014 WL 1492301, at Home *2 Loans Servicing, (5th Cir. Apr. 17, L.P., 2014) (quoting Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 253 (5thCir. 2013)). 33Id. at 22-23 ~~ 59-62. 34Id. at 23 ~ 61. 35Deed of Trust, Exhibit 1 to Response, Docket Entry No. 19-3, p. 4. -9- The Deed of Trust further states that MERS holds "legal title to the interests granted by Borrower in this Security Instrument" and that "MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the MERS Property." 36 America. 37 Cf. id. deed of trust. validly assigned these rights to Bank of ("Here, MERS was an original beneficiary of the MERS, then, had the right to and did assign its interest in that instrument to BAC."); Fowler v. U.S. Bank, Nat. Ass'n, No. H-13-3241, 2014 WL 850527, at *15 (S.D. Tex. Mar. 4, 2014) . In addition, for opinions of this court, the reasons explained in several prior Fulcrum lacks standing to challenge the validity of the assignment based on the assignor's alleged lack of authority.38 2014 WL See Van Duzer v. U.S. Bank Nat. Ass'n, No. H-13-1398, 357878, at *8 countrywide Home Loans, (S.D. No. Tex. Jan. H-13-0282, 31, 2014); Felder v. 2013 WL 6805843, at *18 36Id. 37Assignment of Deed of Trust, Exhibit A- 3 to Defendants' Motion for Summary Judgment, Docket Entry No. 16-4. 38Fulcrum attempts to avoid the reasoning of these opinions and establish standing by arguing that MERS' alleged lack of authority renders the assignment void rather than voidable. This argument has no merit. See Jimenez v. Deutsche Bank Nat. Trust Co., No. 13-50403, 2014 WL 241893, at *1 (5th Cir. Jan. 23, 2014) (rejecting the argument that a homeowner has standing to challenge an allegedly forged assignment executed by an unauthorized agent) ; see also Singha, 2014 WL 1492301, at *3; Golden, 2014 WL 64459, at *2; Reinagel, 735 F.3d at 227. -10- (S.D. Tex. Dec. 20, 2013); Morlock, L.L.C. v. JPMorgan Chase Bank, N.A., No. H-13-0734, 2013 WL 5781240, at *13 2013); (S.D. Tex. Oct. 25, see also Golden v. Wells Fargo Bank, N.A., No. 2014 WL 644549, at *2 (5th Cir. Feb. 20, 2014) facially valid assignments cannot be ("[U]nder Texas law, challenged authority except by the defrauded assignor." 13-50158, by want of (quoting Reinagel v. Deutsche Bank Nat'l Trust Co., 735 F.3d 220,228 (5th Cir. 2013))). The summary judgment evidence before the court includes a facially valid assignment 39 under which "the transfer is presumptively valid and contradicting evidence 'must be clear, cogent, and convincing beyond reasonable controversy.'" Morlock, L.L.C. v. JP Morgan Chase Bank, N.A., No. 12-20623, 2013 WL 2422778, at *2 (5th Cir. June 4, 2013) (quoting Ruiz v. Stewart Mineral Corp., 202 S.W.3d 242, 248 (Tex. App.-Tyler 2006, pet. denied)). Fulcrum has failed meets to standard. produce Nor has any contradictory evidence that Fulcrum produced any evidence of a inadequate selling price. 40 this grossly The court therefore concludes that 39Assignment of Deed of Trust, Exhibit A- 3 to Defendants' Motion for Summary Judgment, Docket Entry No. 16-4. 4°Defendants have produced a printed report from the Fort Bend Central Appraisal District's website showing the appraised value of the property at $180,820. Fort Bend Appraisal District Property Detail Sheet, Exhibit B to Notice of Removal, Docket Entry No. 1-3, p. 2. The property was sold to Fannie Mae for $205,953.55. Substitute Trustee's Deed, Exhibit 7 to Amended Complaint, Docket Entry No. 10-7. This was not grossly inadequate. Cf. Martins, 722 F.3d at 256; Water Dynamics, Ltd. v. HSBC Bank USA, Nat'l Ass'n, 509 F. App'x 367, 369 (5th Cir. 2013). -11- Defendants are entitled to judgment as a matter of law on Fulcrum's claim for wrongful foreclosure. B. Fulcrum's Claims Under § 12.002 of the Texas Civil Practice and Remedies Code A claim under Section 12.002(a) has three elements: [T]he defendant (1) made, presented, or used a document with knowledge that it was a fraudulent lien or claim against real or personal property or an interest in real or personal property, (2) intended that the document be given legal effect, and (3) intended to cause the plaintiff physical injury, financial injury, or mental anguish. Golden, 2014 WL 644549, at *3 (quoting Henning v. OneWest Bank FSB, 405 S.W.3d 950, 964 (Tex. App.-Dallas 2013, quotation marks omitted). America violated Code by § no pet.)) (internal Fulcrum argues that MERS and Bank of 12.002 of the Texas Civil Practice and Remedies "making [,] presenting [,] or using a document or other record with knowledge that the document or other record is [a] fraudulent court record or a fraudulent lien or claim against real property or an interest in real property.H4I The documents that Fulcrum alleges to be fraudulent are the Deed of Trust and the Assignment to Bank of America. 42 Fulcrum's claim as to the Assignment rests on the allegation that MERS lacked authority to execute the Assignment. 4IAmended Complaint, Docket Entry No. ~ 10, p. 24 As explained ~ 64, p. 27 65. 42Id. pp. 31-33 at ~~ 24-28 74-78. ~~ 64-65; Response, -12- Docket Entry No. 19, above, MERS had authority under the Deed of Trust to execute the Assignment, Fulcrum lacks standing to challenge the Assignment on the basis of any alleged lack of authority, and Fulcrum has failed to produce any evidence Accordingly, Fulcrum's must fail. § impugning the Assignment's 12.002(a) claims regarding the Assignment See Johnlewis v. u.S. Bank, Nat. Ass'n, No. H-12-3360, 2013 WL 5304050, at *5 (S.D. Tex. Sept. 20, 2013) claim under 12.002(a) based § ~on Bank, (quoting Tex. R. Civ. P. N.A., No. Jan. 28, 2013) G-11-0243, (holding that a the allegation that MERS lacked authori ty to execute the Assignment" fact'" validity. had 91a.1)) 2013 WL ~ \ no basis in law or Vickery v. Wells Fargo i 321662, at *9 (S.D. Tex. (holding that because the plaintiff lacked standing to challenge the relevant assignment, law, maintain a claim for violations of Practice and Remedies Code") i ~she § cannot, as a matter of 12.002 of the Texas Civil Williams v. Bank of New York Mellon Trust Co., N.A., No. H-11-03139, 2012 WL 1425127, at *3 (S.D. Tex. Apr. 24, 2012) (holding that a plaintiff' s ~conclusory of fraud under section 12.002 of the Texas Civil allegation Practice and Remedies Code" failed to state a claim when based on an assignment that ~was notarized, filed, and recorded in the Fort Bend County Clerk's office, bear [ing] no indicia of fraud"). Fulcrum has likewise failed to present any evidence to impugn the validity of the Deed of Trust. Registration Sys., (S.D. Tex. June Inc., 30, Cf. Kiggundu v. Mortgage Elec. No.4: 11-1068, 2011) (~Defendants -13- 2011 WL 2606359, have presented at *7 summary judgment evidence that the Note and Deed of Trust on the subject property are valid, and Plaintiff Defendants F. App'x 330 on presented no competent Summary judgment therefore is granted evidence to the contrary. for has Plaintiff's (5th Cir. 2012). § 12.002 claim."), aff'd, 469 Moreover, with regard to both the Assignment and the Deed of Trust Fulcrum has failed to present any evidence that Defendants intended to cause it any injury. Golden, 2014 WL 644549, at *3 facts showing foreclosure, that their ("[Plaintiffs] property have not alleged any would even absent the assignment Cf. not be subject Therefore, . to they have failed to state a claim under Section 12.002."). Fulcrum relies heavily on the reasoning -=-T-=e:=..x=-::a:::.:s"-----"v.....:.'--_M:...:.=E:.::.R=S::....:C:::..;O=R=P_-'H=o=l-=d=i=n:..;;g~s"'_L.'_-,I~n=c=....=.... , WL 3353948 (S.D. Tex. July 3, to County, 2:12-CV-00131, No. 2013), in Nueces argue that a 2013 genuine dispute of material fact exists regarding the issue of whether the identification of constitutes false However, the a court MERS as "beneficiary" representation in Nueces for County in the purposes expre$sly Deed of of 12.002.43 § found Trust that the plaintiffs in that case had adequately established the intent-toharm element of a cause of action under § 12.002. Fulcrum has failed to do so here. 44 43See ~~ 39-63; Accordingly, See id. at *8-9. Defendants are Amended Complaint, Docket Entry No. 10, pp. 12 -24 Response, Docket Entry No. 19, pp. 22-33 ~~ 56-78. 44Fulcrum argues that Defendants have not produced any evidence "that negates the existence of a material element of [Fulcrum's] (continued ... ) -14- entitled to judgment as a matter of law on Fulcrum's claims under § C. 12.002 of the Texas Civil Practice and Remedies Code. Fulcrum's Claims Under the PTFA It is unclear from Fulcrum's Response whether it has abandoned its claims under the PTFA.45 Act of 2009, See Protecting Tenants at Foreclosure Pub. L. No. 111-22, (codified as amended at 12 U.S.C. § § 702,123 Stat. 1632,1660-61 5220 note). Nevertheless, the court concludes that this claim fails as a matter of law because the PTFA does not provide Fulcrum with a private right of action. See Mik v. Fed. Nat'l Mortg. Corp., 743 F.3d 149, 157-60 (6th Cir. 2014); Bey v. PEF Capital Properties, LLC, No. 3:12-CV-2371-L, 2013 WL 2094100, N.A., No. at *2 (N.D. Tex. May 15, 2013); Smith v. Bank of Am., 2:11CV120-MPM-JMV, 2012 WL 4320845, at *9 (N.D. Miss. 44 ( ... continued) claims." Response, Docket Entry No. 19, pp. 6-7 , 7. However, while Defendants "must 'demonstrate the absence of a genuine issue of material fact,'" they "need not negate the elements of the nonmovant's case." Little, 37 F.3d at 1075 (quoting Celotex, 106 S. Ct. at 2553). Fulcrum also argues that "no summary judgment evidence was submitted by Defendants." Response, Docket Entry No. 19, pp. 6-7 , 7; see also id. at 33 , 78. On the contrary, Defendants have produced competent summary judgment evidence in addition to citing relevant evidence already contained in the record. See Declaration of Nicole Bensend in Support of Motion for Summary Judgment, attached to Defendants' Motion for Summary Judgment, Docket Entry No. 16-1, p. 1 , 4; Exhibits A-C to Defendants' Motion for Summary Judgment, Docket Entry Nos. 16-2 to 16-8. Not only has Fulcrum failed to impugn the authenticity of any evidence produced by Defendants, much of the evidence produced is also attached to Fulcrum's Amended Complaint. See Exhibits 1-10 to Amended Complaint, Docket Entry Nos. 10-1 to 10-10. 45See Response, Docket Entry No. 19, p. 34 , 79. -15- Sept. No. 20, 2012) i 10-CV-1646 BEN Oct. I, 2010) Zalemba (BLM), Patriot i WL 5105755, at *1 v. HSBC Bank, USA, 2010 WL 3894577, Bank v. Monroe, (E.D. Tex. Oct. 27, 2011) at No. i Nat. *1-4 Ass'n., (S.D. Cal. 4:11CV626, 2011 Nativi v. Deutsche Bank Nat. Trust Co., No. 09-06096-PVT, 2010 WL 2179885, at *4 (N.D. Cal. May 26, 2010). The proper forum to invoke the PTFA would have been in the state court forcible detainer proceedings as a defense to eviction. 46 See Mik, 743 F.3d at 165-66i Blue Mountain Homes, LCC v. Short, No. 2:13-CV-0913-TLN-KJN, 2013 WL 1966224, at *2-3 (E .D. Cal. May 10, 2013)i Wells Fargo Bank v. Lapeen, 46Fulcrum contends in its Amended Complaint that "Fannie Mae wrongfully evicted [its] Tenant thereby causing [it] to lose revenue." Amended Complaint, Docket Entry No. 10, p. 2 ~ 4. Violations of the PTFA can be used to support a claim for wrongful eviction. See Mik, 743 F.3d at 167-68. However, Fulcrum has not produced any evidence to suggest that it, rather than Fannie Mae, was entitled to receive any payments under the lease after Fannie Mae purchased the property at a valid foreclosure sale. See Ezennia v. Wells Fargo Bank, N.A., No. H-10-5004, 2012 WL 1556170, at *8 (S.D. Tex. Apr. 27, 2012) (identifying the elements of a wrongful eviction action under Texas law) i Nativi v. Deutsche Bank Nat'l Trust Co., 167 Cal. Rptr. 3d 173, 193 (Cal. Ct. App. 6th Dist. 2014) ("[A] subordinate bona fide lease survives foreclosure for the remainder of the term by operation of the [PTFA] regardless of the state law to the contrary and, consequently, the bona fide tenants under that lease and the immediate successor in interest in the foreclosed property have a landlord-tenant relationship, al though the lease may be terminated as provided in the Act. ") i cf. Ford v. Cent. Loan Admin., No. 11-0017-WS-C, 2011 WL 4702912, at n.12 (S.D. Ala. Oct. 5, 2011) (concluding that an allegation of wrongful eviction under the PTFA did not support a landlord's negligence claim against its successor in interest because such a "contention does not show how [the successor in interest] breached any duty owed to [the landlord] (as opposed to her tenants, who are not named plaintiffs)"). Accordingly, to the extent that Fulcrum has attempted to allege a cause of action for wrongful eviction, Defendants are entitled to judgment on such claim as a matter of law. -16- No. C-11-01932-LB, 2011) i WL 2011 WL 2194117, at *2-4 Wescom Credit union v. Dudley, No. 4916578, at *2 (C.D. Cal. Nov. 22, (N.D. Cal. June 6, 10-8203-GAF-SSX, 2010). 2010 Accordingly, Defendants are entitled to judgment as a matter of law on Fulcrum's PTFA claims. D. Fulcrum's Quiet-Title Cla~ Fulcrum's quiet-title claim is based on its contention that the Deed of Trust and subsequent Assignment to Bank of America are invalid. 47 The court has addressed nearly identical quiet-title claims in several prior opinions. See Fowler, 2014 WL 850527, 47Fulcrum also alleges a defect in the foreclosure sale proceedings by suggesting that Fannie Mae, rather than Bank of America, was the seller as well as the buyer at the foreclosure sale. Response, Docket Entry No. 19, pp. 12-13 n.5. Fulcrum has produced no evidence to support its allegation and acknowledges that there is no evidence before the court or "in the public record" that would support it. Id. Fulcrum states that "[g]iven the court's permission, [it] would like to [support its allegation] through discovery." Id. However, Fulcrum has had ample opportunity to conduct discovery both before and after the filing of Defendants' Motion for Summary Judgment. The evidence before the court forecloses any inference in support of Fulcrum's allegations. Cf. Banks v. Bank of Am., N.A., No. A-13-CA-426-SS, 2014 WL 1342860, at *2 (W.D. Tex. Apr. 3, 2014) ("To the extent [Plaintiff] challenges the authenticity of the attached copy of the Note, he offers nothing other than attorney argument and speculation to support his claims. As the Fifth Circuit has explained, \ [i]n Texas, existence of a note may be established by [a] photocopy of the promissory note, attached to an affidavit in which the affiant swears that the photocopy is a true and correct copy of the original note.'" (quoting Martins, 722 F.3d at 254)). The court therefore concludes that Fulcrum has failed to establish a genuine issue of material fact with regard to its allegation that "the owner of the note at the time of the foreclosure sale was Fannie Mae and not [Bank of America]." Response, Docket Entry No. 19, pp. 12-13 n.5. -17- at *12-13; Van Duzer, 2014 WL 357878, at *13-14; Felder, 2013 WL 6805843, at *20-21; Morlock, 2013 WL 5781240, at *10-11. For the reasons explained in those prior opinions, the court concludes that Defendants are entitled to judgment as a matter of law on Fulcrum s quiet-title claim. 48 l IV. Conclusions and Order For the reasons explained above, the court concludes that Fulcrum has failed to establish a genuine issue of material fact for trial with regard to any of its alleged claims for relief. The court therefore concludes that, even when drawing all reasonable inferences in favor of Fulcrum, Defendants are entitled to judgment as a matter of Defendants I law on all of Fulcrum's claims. Motion for Summary Judgment Accordingly, (Docket Entry No. 16) is GRANTED. SIGNED at Houston, Texas, on this 25th day of April, 2014. 7 SIM LAKE UNITED STATES DISTRICT JUDGE 48Because the court has concluded that Defendants are entitled to judgment as a matter of law on all of Fulcrum's substantive causes of action, no basis remains for the declaratory and injunctive relief requested in the Amended Complaint. See Morlock, 2013 WL 5781240, at *10-14; Morlock, L.L.C. v. JP Morgan Chase Bank, N.A., No. H-12-1448, 2012 WL 3187918, at *7 (S.D. Tex. Aug. 2, 2012), aff'd, No. 12-20623, 2013 WL 2422778 (5th Cir. June 4, 2013). Defendants are therefore entitled to summary judgment on Fulcrum's claims for declaratory and injunctive relief. -18-
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