Henry v. Ditech Financial LLC et al, No. 4:2018cv04414 - Document 25 (S.D. Tex. 2019)
Court Description: MEMORANDUM OPINION AND ORDER Granting 17 MOTION for Summary Judgment on the Pleadings, 7 MOTION to Dismiss (Signed by Judge Sim Lake) Parties notified.(gkelner, 4)
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Henry v. Ditech Financial LLC et al Doc. 25 Case 4:18-cv-04414 Document 25 Filed on 06/14/19 in TXSD Page 1 of 17 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT June 14, 2019 FOR :HE SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk HOUSTON DIV ISION ANTWAN HENRY , Plaintiff, CIVIL ACTION NO . H -18-4414 CARRINGTON MORTGAGE SERVICES , LLC; THE BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE CWABS , INC ., ASSET-BACKED CERTIFICATES , SERIES 2006-57 and DITECH FINANCIAL LLC F/K/A GREEN TREE SERV ICING , LLC ; Defendants . MEMODAHnUM OPINION AND ORDER Plaintiff Antwan Henry (uplaintiff'') filed suit against Ditech Financial LLC t''Ditech''l, Carrington Mortgage Services PAcarrington'o , and the Bank of New York Mellon as Trustee for the Certificate Holders of the CWABS , Inc . A sset-Backed Certificates, Series 2006-5 ('%BONYM'') (collectively uDefendants'') in the 80th Judicial District Court of Harris County , Texas , alleging that Defendants are improperly attempting to foreclose on his real property located at 11939 Canyon Valley Drive , Tomball, Texas 77377 Dockets.Justia.com Case 4:18-cv-04414 Document 25 Filed on 06/14/19 in TXSD Page 2 of 17 (the uProperty'') Ditech timely removed the action to this court .l Pending before the court are Carrington and BONYM 'S Dismissal Motion (ucartington/BoNYM's Motion'') (Docket Entry No. and Defendant Ditech the Financial LLC 'S Motion for Judgment on Pleadings (uDitech's Motion'') (Docket Entry For the reasons explained below, 50th Carrington/BoNYM's Motion and Ditech 's Motion will be granted . 1. Factual and Procedural Backqround On June 27, 2005, Plaintiff executed a $167,200.00 Adjustable Rate Note (the l'Note'') with Network Funding, L .P . (the ''Original Lender'') to purchase the Property.z The Note was secured by a Deed of Trust ,3 which granted the Original Lender a lien on the Property with a power o f sa1e .4 The beneficiary of the Deed of Trust was lsee Notice of Removal, Docket Entry No . 2See Note, Exhibit to Carrington/BoNYM's Motion, Docket Entry No . 7 , p . 16 . 3The Deed o f Trust originally contained a scriveners error , but the error was subsequently corrected by an affidav it recorded in the Harris County Real Property Records . See Deed of Trust, Exhibit 2 to Carrington/BoNYM's Motion, Docket Entry No. 7, p. 21 (listing the mortgage identification number for the Loan as 1001504-060590071-6); Mortgagee's Affidavit, Exhibit 4 to Carrington/BoNYM's Motion, Docket Entry No. 7, p. 43 (correcting that the actual mortgage identification number for the Loan is 1001504-0605900071-6). 4See Deed of Trust , Exhibit 2 to Carrington/BoNYM's Motion, Docket Entry No . 7, pp . 21-22 , 30 . The Note and Deed of Trust are referred to collectively herein as the uLoan .'' - 2- Case 4:18-cv-04414 Document 25 Filed on 06/14/19 in TXSD Page 3 of 17 Mortgage Electronic Registration Systems, Inc . ('AMERS'') MERS assigned its interest in the Deed of Trust to BONYM on November 4, 2011 .6 Loan servicing was transferred to Green Tree Servicing LLC ('AGTS''), Ditech's predecessor entity , effective September 14, 2 014 .1 Plaintiff filed su it against BONYM and GTS , among others, in this court on August 29, 2014 (the '12014 Action'o , pleading claims and allegations similar to those in this action .8 Plaintiff nonsuited the 2014 A ction after the court denied his request for a temporary injunction to bar foreclosure .g on January 6, 2015 (the day after the court denied Plaintiff's motion for a temporary injunction in the 2014 Action), Plaintiff filed for bankruptcy protection under Chapter 13 of the Bankruptcy Code in the Southern District of Texasx D The bankruptcy court dismissed Plaintiff's Ssee id . at 21 . 6See A ssignment of Deed of Tru st, Exhibit 6 to Carrington/BoNYM's Motion, Docket Entry No. 7, p. 50. Psee Loan Modification Agreement, Exh ibit 11 to Carrington/BoNYM's Motion, Docket Entry No. 7. p. 101 (listing the uLender'' as GTS). 8see Henry v . Bank of America , N .A . et al ., No . 4 :14-cv -2497, Docket Entry No . 1 . gsee Memorandum Opinion and Order (January 5, 20152, Exhibit 8 to Carrington/BoNYM's Motion, Docket Entry No. 7, pp. 91-947 Notice of Voluntary Dismissal (January 16, 20151, Exhibit 9 to Carrington/BoNYM's Motion, Docket Entry No. 7, pp. 96-97. losee Voluntary Petition, Exhibit 12 to Carrington/BoNYM's (continued.- ) Case 4:18-cv-04414 Document 25 Filed on 06/14/19 in TXSD Page 4 of 17 petition shortly thereafter when Plaintiff failed to comply with the bankruptcy court 's orders x l GTS and Plaintiff entered into a Loan Modification Agreement effective September 1, 2015 .12 In the Loan Modification Agreement , Plaintiff acknowledged that he was in defaultx 3 The Loan Modification Agreement was recorded in the Harris County Real Property Records .ld servicing transferred from GTS'S successor entity , Ditech , to Carrington effective August 16 , 2017 .15 one year after About the Loan Modification Agreement was executed, Plaintiff filed another voluntary bankruptcy petition , and his petition was again dismissed shortly thereafter for Plaintiff 's failure to follow the bankruptcy court's ordersx6 lol- .continued) Motion , Docket Entry No . p . 112 . llsee Order of Dismissal (January 22, 20152, Exhibit 13 to Carrington/BoNYM's Motion, Docket Entry No. 7, p . 119 . l2see Loan Modification Agreement , Exhibit 11 to Carrington/BoNYM's Motion, Docket Entry No. 7, pp. 101-04. l3see id . at 101 (111 am in default under the loan documents . zz) l4see id . at 110 . Hsee Carrington/BoNYM's Motion, Docket Entry No. p . 2. l6see Voluntary Petition for Individuals Filing for Bankruptcy , Exhibit 14 to Carrington/BoNYM's Motion, Docket Entry No. 7, p. 1217 Order of Dismissal Eseptember 24, 2018), Exhibit 15 to Carrington/BoNYM 's Motion, Docket Entry No. 7, p . 128. - 4- Case 4:18-cv-04414 Document 25 Filed on 06/14/19 in TXSD Page 5 of 17 Plaintiff filed his Complaint in this action in the 80th Judicial District Court of Harris County , Texas, on October 15, 2018 .17 Plaintiff's Complaint alleges a number of claims against some or a11 of Defendants , including quiet title and violations of the Real Estate Settlement Procedures Act ('%RESPA'') and associated claims for declaratory reliefx8 Ditech timely removed the action on November 2o, 2018 .19 Carrington and BONYM filed their Motion on December 2018 , arguing that the court should dismiss Plaintiff's claims against them because Plaintiff 's claims lack merit.zo Plaintiff responded to Carrington/BoNYM's Motion on December 2018 .21 Ditech filed its Motion on January 22, 2019, also arguing that Plaintiff's claims against should be dismissed .zz Plaintiff responded to Ditech 's Motion on February 8, 2019 .23 l7See Plaintiff's Original Petition (Complaint) (ucomplaint''), Exhib it A to Notice of Removal, Docket Entry No . 1-1 . l8see id . at 33-43 . l9see Notice of Removal, Docket Entry No . 1 . 20see Carrington/BoNYM's Motion, Docket Entry No. 2lsee Plaintiff's Response to E7) Motion to Dismiss ('Aplaintiff's Response to Carrington/BoNYM 's Motion'o , Docket Entry No . l2 . 22see Ditech 's Motion , Docket Entry No . 17 . 23see Plaintiff's Opposition to (17) Defendant Ditech Financial LLC'S Motion for Judgment on the Pleadings CAplaintiff's Response to Ditech's Motion'o , Docket Entry No. l9. Case 4:18-cv-04414 Document 25 Filed on 06/14/19 in TXSD Page 6 of 17 II . Standard of Review A motion brought pursuant to Federal Ru le of Civil Procedure 12(c) should be granted there is no issue of material fact and if the pleadings show that the moving party is entitled to judgment as a matter of law . Greenberg v . General M ills Fun Group , Inc w 478 F.2d 254, 256 (5th Cir. 1973). A motion for judgment on the pleadings is subject to the same standard as a motion to dismiss for failure to state a claim . See In re Great Lakes Dredge & Dock - Co., LLC, 624 F.3d 201, 209 (5th 2010); Guidry v . American Public Life Insurance Co ., 5l2 F.3d 177, 180 (5th Cir. 2007); Jones v . Greninger, 188 F.3d 324 (5th Cir. 1999) (per curiam). The court must accept the factual allegations of the complaint as true, view them in a light most favorable to the p laintiff, and draw a11 reasonable inferences in the plaintiff 's favor . Ramm inq v . United States, 281 F.3d 158, 16l (5th Cir . 2001); Jones, 188 F .3d at 324 . When a federal court rev iews the sufficiency of a complaint , before the reception of any ev idence either by affidavit or adm issions, 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 (2002) (quoting Scheuer v . Rhodes, 94 S . Ct. 1683, 1686 (1974)) To avoid dism issal a plaintiff must allege M enough facts to state a claim to relief that is plausible on its face .''' Doe v . Myspace , Inc ., 528 F .3d 413, 4l8 (5th Cir. 2008) (quoting Bell Atlantic Corp . v . Twombly, 1955, 1974 (2007)). Plausibility requires Case 4:18-cv-04414 Document 25 Filed on 06/14/19 in TXSD Page 7 of 17 ''more than an unadorned , the -defendant-unlawfully -ham ed-me accusation .'' Ashcroft v . Iqbal, 129 S. Ct . 1937, 1949 (2009). 'A claim has facial plausibility when the p laintiff p leads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged .'' a comp laint defendant 's pleads facts that liability , are stops possibility and p lausib ility merely short Id . ''Where consistent with of the line a between of entitlement to relief .'' Id . (quoting Twombly, 127 S. Ct. at 1966) (internal quotation marks omitted). The court will unot accept as true conclusory allegations, unwarranted factual inferences , or lega l conclusions .'' Gentilello v . Rege, 627 F.3d 540, 544 (5th Cir . 2010). When considering a motion to dismiss courts are generally ulim ited to the comp laint, any documents attached to the complaint, and any documents attached to the motion to dism iss that are central to the claim and referenced by the comp laint .'' Lone Star Fund V (U .S.), L .P . v . Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing Collins v. Morgan Stanlev Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)). In addition, the court may take judicial notice of matters of public record, including pleadings filed in state court . See Joseph v . Bach & Wasserman , L .L .C ., 487 Fed. App'x 173, 178 (5th Cir . 2012). 111 . Analysis In two separate motions another by Ditech one by Carrington and BONYM and Defendants argue that they are entitled to Case 4:18-cv-04414 Document 25 Filed on 06/14/19 in TXSD Page 8 of 17 judgment on the pleadings bqcause Plaintiff has failed to plead plausible claims for relief . Because the two motions address overlapping issues , the court will consider them together . For the reasons explained below , the claims in Plaintiff 's Complaint fail as a matter of law and Defendants are entitled to judgment on the pleadings . A. Quiet Title (First Cause of Action) A suit to remove cloud or to quiet title ex ists M to enab le the holder of the feeblest equity to remove from his way to legal title any unlawfu l hindrance hav ing the appearance of better right .''' Essex Crane Rental Corp . v . Carter, (Tex . App . S .W .3d 366, 388 Houston (1st Dist.) 2012, pet . denied) (quoting Bell v . Ott, 606 S.W .2d 942, 952 (Tex . Civ . App . Waco 1980, writ ref'd n .r.e .)). The plaintiff has the burden of proof to establish his superior equ ity and right to relief . plaintiff must show an interest Id . a To do so ''the specific property , title to the property is affected by a claim by the defendant, and (3) the claim , although facially valid, is invalid or unenforceable .'' Vernon v . Perrien, 39O S .W .3d 47, 61-62 (Tex . App . E1 Paso 2012, no pet .) (citation omitted). The plaintiff must recover on the strength of his own title , not on the weakness of the defendant's title . Hurd v . BAC Home Loans Servicing , LP, 88O F. Supp. 2d (N .D . Tex . 2012)9 Ventura v . Welàs Fargo Bank, - 8- Case 4:18-cv-04414 Document 25 Filed on 06/14/19 in TXSD Page 9 of 17 N.A ., Civil Action No. 4 :17-075-A, 2017 WL 1194370, at *2 (N .D. Tex . March 2017; Martin v . Amerman, 133 S.W .3d 262, 265 (Tex. 2004) (citation omitted). Plaintiff p leads a quiet title claim against all Defendants alleging that their claim to the Property is ''invalid , unenforceab le and without m erit'' and that Defendants uhave no estate, title, claim, lien, or interest in the (Property) .''24 Plaintiff bases his claim on the weakness of Defendants ' title , rather than the strength of his own title . Plaintiff also contests the validity MERS'S assignment to BONYM . façially valid assignments cannot be ''Eulnder Texas law, challenged for want authority excep t by the defrauded assignor .'' Reinaqel v . Deutsche Bank National Trust Co., 735 F.3d 220, 228 (5th Cir . 2013) Plaintiff therefore lacks standing to challenge MERS 'S assignment to BONYM , or any other assignment of the Deed of Trust , because he is the borrower and not the defrauded assignor . Furthermore, the documents attached to Carrington/BoNYM's Motion show that the Deed of Trust created a valid lien (of which BONYM is the beneficiary) that remains on the Property . Ditech is no longer the mortgage servicer for the Loan and Ditech is not attempting to enforce the lien . Carrington is the current mortgage servicer and claims no interest in the Property independent of its 24see Comp laint, Exhibit A to Notice of Removal, Docket Entry No. 1-1, pp. 33-34 f! 260-66. Case 4:18-cv-04414 Document 25 Filed on 06/14/19 in TXSD Page 10 of 17 right to enforce the lien on BONYM 'S behalf . For these reasons , Plaintiff's quiet title claim against Defendants fails as a matter of law . B. Cancellation of Instrument (Third Cause of Action) Plaintiff's Comp laint also alleges a ucancellation of instrument'' claim against Defendants in which Plaintiff alleges that the Certificate Holders of the CWABS , Inc . A sset-Backed Certificates , Series 2006-5, of which BONYM is the Trustee , do not exist .25 Plaintiff fails to prov ide any facts to support this assertion . Public records conclusively establish that CWABS , Inc . Asset-Backed Certificates, Series 2006-5 does ex ist .26 Plaintiff's ucancellation of instrument'' claim does allegations against Carrington or Ditech . not contain specific For these reasons, Plaintiff's ncancellation of instrument'' claim fails as a matter of law . 25see id. at 38 lf 293-98. 26see Carrington/BoNYM's Motion, Docket Entry No. 7, p. 10 (citing CWABS Asset-Backed Certificates Trust 2006-5, Annual Report (F o r m 1 0 -K ) (M a r . 2 7 , 2 0 0 7 ) , https://- .sec.gov/Archives/edgar/data/1354827/00009051480700270 6/efc7-0808 6058375fm10k .txt). CWABS Asset-Backed Certificates Trust 2006-V is registered with the SEC under CIK# 1354827. See EDGAR Page https://- for CWABS Asset -Backed Certificates Trust 2006-5, .sec.gov/cgi-bin/browse-edgar?clK=l3s48z7&ou er=exclud e&action=getcompany &Find=search . Case 4:18-cv-04414 Document 25 Filed on 06/14/19 in TXSD Page 11 of 17 C. Request for Accounting (Fourth Cause of Action) uWhen a party can obtain adequate relief at 1aw through the use of standard discovery procedures , such as requests for production and interrogatories, a trial court does not err in not ordering an accounting .'' T .F .W . Management . Inc . v . Westwood Shores Property Owners Association, App. Houston S .W .3d 717-18 (Tex . (14th Dist.) 2002, pet. denied). Plaintiff requests an accounting on the ground that he udoes not owe the amount that Defendants have demanded .''z7 Plaintiff does not allege any facts suggesting that standard discovery techniques will be inadequate to determine the amount he owes under the Loan . The court therefore declines to order an accounting in this action . D. Violation s of the Fair Debt Collection Practices Act (**FDCPA'') (Fifth Cause of Action) Plaintiff pleads a claim for v iolations of the FDCPA against Ditech and Carrington . Plaintiff alleges that D itech and Carrington failed to send him various notices required by 15 U .S .C . 5 1692g (a) of the FDCPA and that Ditech and Carrington improperly ucontinued debt collection attemp ts w ithout verifying or validating the alleged debt .''28 Plaintiff also alleges that he timely disputed al1 notices sent by Ditech and Carrington and demanded that they 27See Complaint , Exhibit A to Notice of Removal , Docket Entry No. 1-1, p. 39 ff 305-07. 28see id. at 40-41 f! 316-25. Case 4:18-cv-04414 Document 25 Filed on 06/14/19 in TXSD Page 12 of 17 verify the debt .29 Defendants argue that Plaintiff has failed to plead sufficient facts supporting his FDCPA claim and that Defendants do not qualify as debt collectors under the FDCPA . The allegations in Plaintiff's FDCPA claim fall short of the plausib ility standard articulated in Igbal and Twomblv . Plaintiff fails to allege any facts showing that any of Defendants engaged in misconduct . Plaintiff does not plead facts explaining how the notices sent by Carrington and Ditech were deficient . Therefore , even if Carrington and Ditech qualify as udebt collectors'' under the FDCPA , Plaintiff's FDCPA claims against Carrington and Ditech fail as a matter of law . E. Violations of RESPA (Sixth Cause of Action) RESPA requires a loan serv icer to respond by certain deadlines to a ''qualified written request'' from a borrower . See 12 U .S .C . 5 2605(e). For purposes of RESPA, a uqualified written request'' is defined as '%a written correspondence , other than notice on a payment coupon or other payment medium supplied by the servicer ,'' that identifies, specifically or in a way that enables the loan serv icer to identify , the name and account at issue, and that ''includes a statement of the reasons for the belief of the borrower, to the extent applicable , that the account is in error or provides sufficient detail to the zgsee id. at 41 !! 320, 323. - 12 - servicer regarding other Case 4:18-cv-04414 Document 25 Filed on 06/14/19 in TXSD Page 13 of 17 information sought by the borrower.'' See id . 5 2605 (e)(1)(B). recover against a lender or servicer that fails to comply with RESPA 'S requirements, the borrower must allege either that actual damages resulted from the RESPA violations or (2) that the defendant engaged in a upattern or practice of noncompliance'' entitling the Plaintiff to up to $2,000 in statutory damages. 12 U.S.C . 5 2605(f) (1) (A)-(B); Oden v . JpMorqan Chase Bank , N .A ., No. H-l2-0861, 2012 WL 1610782, at (S.D . Tex . May 2012); Gipson v . Deutsche Bank National Trust Companv , C .A . No . 3 :13-CV- 4820-L (BH), 2015 WL 11120538, at *24 (N .D . Tex. Oct. 27, 2015) To support his RESPA claim against Ditech and Carrington Plaintiff alleges that he ''mailed to EDitech and Carrington) a Qualified Written Request (QWR) under RESPA, requesting information about the servicing of the loan and asserting that (Ditech and Carrington) had made an error about the amount due.''30 Plaintiff alleges that Ditech and Carrington failed to respond to his qualified written requests, which caused him damages .3l Plaintiff's Complaint alleges that he sent While qualified written requests to Ditech and Carrington , Plaintiff's Complaint fails to explain what actual damages Plaintiff su ffered as a resu lt of Carrington and Ditech 's alleged failure to respond . 39see id. at 41-42 f$ 326, 330. 3lsee id. at 41-42 $! 327-28, 331-32. - 13 - Nor does Case 4:18-cv-04414 Document 25 Filed on 06/14/19 in TXSD Page 14 of 17 Plaintiff allege that Ditech and Carrington engaged in a upattern or practice of noncomp liance'' entitling Plaintiff to statutory damages. Because Plaintiff 's Comp laint fails to p lead facts showing that Plaintiff suffered actual damages , Plaintiff's RESPA claim against Ditech and Carrington will be dismissed . F. '*unconscionable Inducement'' (Seventh Cause of Action) In his uunconscionable inducement'' claim against Ditech , Plaintiff alleges that Ditech nprocured an inflated appraisal'' and that the Loan Modification Agreement between Plaintiff and Ditech (then GTS) nis unconscionable because it is not understandable by the 'least sophisticated consumer .'v3z Plaintiff fails to cite to any applicable law creating an uunconscionable inducement'' cause of action under Texas Law .33 Plaintiff has also failed to plead sufficient facts to allow a fact finder to plausibly conclude that the Loan Modification Agreement was unconscionable . Plaintiff's uunconscionable inducement'' claim against Ditech will therefore be dismissed . 32see id. at 42 !! 334-35. 331n re Halliburton Co., 80 S.W .3d 566 (Tex . 2002), does not create a cause of action for uunconscionable inducement .'' Halliburton addresses the unconscionab ility of an arb itration clause in an employment agreement as a defense to enforcement of that agreement . See id . at 571-72 . The Michigan case cited by Plaintiff, Clark v. Daimlerchrysler Corp w 706 N .W.2d 471 (2005), also involved unconscionability as a defense to contract enforcement and does not create a cause of action for ''unconscionable inducement .'' - 14 - Case 4:18-cv-04414 Document 25 Filed on 06/14/19 in TXSD Page 15 of 17 G. **Dual Tracking'' (Eighth Cause of Action) Plaintiff pleads a claim against Ditech and Carrington for udual tracking ,'' in which he alleges that Ditech and Carrington uwhile serv icing a federally related mortgage loan , failed to notify Plaintiff in writing of an assignment , sale , or transfer of the servicing of the loan , and did not provide such notice at settlement.''34 Plaintiff cites 12 U .S.C. 5 2605(f) of RESPA as the basis of his ''dual tracking'' claim .35 Section 2605(f) articulates the types of damages provided by RESPA and how costs are to be allocated in RESPA actions. ''Damages and costs'') be referencing See 12 U .S .C. 2605 (f) (entitled Plaintiff's ''dual tracking'' claim appears to U .S .C. 5 2605(b)(1), which requires ''Eelach servicer of any federally related mortgage loan Etol notify the borrower in writing of any assignment , sale , or transfer of the servicing of the loan to any other person .'' U .S .C . 5 2605 (b)(1) . As discussed above , to recover under RESPA , a borrower must show either that he su ffered actual damages or that the servicer's upattern or practice of noncompliance'' entitle the borrower to statutory damages . Plaintiff 's Complaint fails to explain what actual damages Plaintiff suffered as a result of Carrington and Ditech's alleged noncomplaince with 2605 (b)(1) of RESPA . 34see Complaint , Exhibit A to Notice of Removal, Docket Entry No. 1-1, p. 42 !! 338-39. 35see id . at 42 . - 1 5- Case 4:18-cv-04414 Document 25 Filed on 06/14/19 in TXSD Page 16 of 17 Plaintiff's udual tracking'' claim also fails to allege that Ditech and Carrington engaged in a npattern or practice of noncompliance'' entitling Plaintiff to statutory damages . Plaintiff 's udual tracking'' claim against Carrington and Ditech will therefore be dism issed . IV . Conclusion and Qrder For the reasons exp lained above, Plaintiff has failed to p lead sufficient facts to state p lausible claims for relief in his substantive claims against BONYM , Carrington , and Ditech . Defendants have satisfied their burden to show that there are no issues of material fact with respect to Plaintiff's claims and that Defendants are entitled to judgment as a matter of law. Plaintiff also seeks declaratory relief in connection with his substantive claims .36 When a1l substantive underlying claims have been dismissed, a claim for declaratory judgment cannot survive. Acers v . Aurora Loan Services, LLC, 787 F . Supp . 2d 451, 457 (E .D . 36See id. at 34-38 $6 269-91 (Second Cause of Action). Plaintiff seeks declarations that: (1) MERS lacked authority to assign its interest in the Loan to BONYM; (2) BONYM has no interest in the Property; and (3) Plaintiff has the right to prepay the Loan . A s discussed above , Plaintiff lacks standing to contest the assignment from MERS to BONYM and BONYM has a valid interest in the Property . Plaintiff's right to prepay the Loan is not in dispute . See Ditech 's Motion , Docket Entry No . 17, p . 4 ; Note , Exhibit 1 to Carrington/BoNYM 's Motion, Docket Entry No . 7, p . 17 (explicitly granting Plaintiff the right to make payments on the principal of the Loan before they are due). - 16 - Case 4:18-cv-04414 Document 25 Filed on 06/14/19 in TXSD Page 17 of 17 Tex. 2011). substantive Because the court will dismiss all of Plaintiff's claim s, Plaintiff's Second Cause of Action for Declaratory Relief is also subject to dismissal. Carrington/BoNYM's Dismissal Motion (Docket Entry No. therefore GKANVED . is Defendant Ditech Financial LLC 'S Motion for Judgment on the Pleadings (Docket Entry No . is also GKANTED . SIGNED at Houston , Texas, on this 14th day of u , 2019 . e F SIM LAKE UNITED STATES DISTRICT JUDGE
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