Hodge v. The Bank of New York Mellon
(3:22-cv-02252)
District Court, N.D. Texas
OCT 7, 2022 | REPUBLISHED BY LIT: OCT 8, 2022
With the dissolution of the TRO, and taking Judge Starr’s analysis as true, if this case is about bad faith and judge shoppin’, then attorney Jason Leboeuf should be facing discipline by Judge Starr, but we’re not seein’ that happen…
Judge Brantley Starr’s Fired Up About Foreclosure Defense Lawyer Jason Leboeuf and His Client
The Court hereby ORDERS plaintiff Hodge to file a complaint that conforms to federal pleading standards by October 11, 2022 at 5:00 PM. (Ordered by Judge Brantley Starr on 10/7/2022)
Foreclosure: Victor Frank is Listed on PACER as Acting Pro Se. His Lawyer is Actually Crooked Clay Vilt. https://t.co/oFFizi5LWq
— lawsinusa (@lawsinusa) October 8, 2022
ORDER
Before the Court is the defendants’ Emergency Motion to Dissolve Temporary Restraining Order [Doc. No. 3].
For the reasons explained below, the Court GRANTS the motion to dissolve the temporary restraining order (“TRO”).
Michael Hodge has sued the defendants (collectively, “the Bank”) four times to stop the foreclosure sale of a property at 1014 Wind Ridge Drive, Duncanville, Texas 75137.
In this fourth suit, Hodge succeeded in obtaining a TRO from the Texas state court.
The Bank removed to this Court and moved to dissolve the TRO.
When a party removes a case to federal court, any previous state-court TRO in that action “shall remain in full force . . . until dissolved . . . by the district court.”1
If a defendant moves to dissolve a state-court TRO, the plaintiff “must demonstrate a substantial likelihood of success on the merits” to prevail.2
This Court will uphold a TRO only if a plaintiff can “establish
[1] that he is likely to succeed on the merits,
[2] that he is likely to suffer irreparable harm in the absence of preliminary relief,
[3] that the balance of equities tips in his favor,
and
[4] that an injunction is in the public interest.”3
“[I]f a party fails to meet any of the four requirements, the court cannot grant the TRO ”4
The Bank argues that res judicata bars Hodge’s claims because after Hodge voluntarily dismissed his prior claims against the Bank and asserted that he “no longer desires to pursue his causes of action against defendants at this time,” he nonetheless sued them again, on the next business day, asserting—what the Bank argues to be—the same claims.5
Although this Court does not reject the Bank’s res-judicata argument,6 the Court chooses to decide this motion on the third TRO factor.
Hodge fails to demonstrate that the balance of equities tips in his favor.
Specifically, Hodge has filed four lawsuits seeking to prevent the Bank from foreclosing on the property.
His naked attempts at judge shopping evince unclean hands—a doctrine that “defeat[s] an undeserving plaintiff’s claim for equitable relief.”7
More specifically, a litigant has unclean hands where he is “tainted with inequitableness or bad faith relative to the matter in which he seeks relief.”8 With unclean hands from his attempts at judge shopping, Hodge cannot demonstrate that the balance of equities warrant any form of injunctive relief. The Court will not uphold the TRO.
This Court GRANTS the Bank’s motion and DISSOLVES the TRO.
IT IS SO ORDERED this 11th day of October, 2022.
1 28 U.S.C. § 1450.
2 OSR Patent LLC v. Siragusa, No. 4:18-CV-774-ALM-KPJ, 2018 WL 10436624, at *2 (E.D. Tex. Nov. 21, 2018);
see also Fed. R. Civ. P. 65(b)(4).
3 Tex. Midstream Gas Services, LLC v. City of Grand Prairie, 608 F.3d 200, 206 (5th Cir. 2010).
4 Greer’s Ranch Cafe v. Guzman, 540 F. Supp. 3d 638, 645 (N.D. Tex. 2021) (O’Connor, J.).
5 Doc. No. 3 at 3–4.
6 See Derr v. Swarek, 766 F.3d 430, 441 (5th Cir. 2014)
(“If the plaintiff chooses to extinguish his rights forever he is entitled to do so, and the defendant will reap the benefit of a res judicata bar to any attempt by the plaintiff to re-litigate the dismissed claims.”).
7 Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 379 (5th Cir. 2004);
see also Lassiter v. City of Philadelphia, 716 F.3d 53, 57 (3d Cir. 2013)
(“[J]udges have the power to sua sponte raise equitable defenses like the doctrine of unclean hands.”).
U.S. District Court
Northern District of Texas (Dallas)
CIVIL DOCKET FOR CASE #: 3:22-cv-02252-X-BT
| Hodge v. The Bank of New York Mellon et al Assigned to: Judge Brantley Starr Referred to: Magistrate Judge Rebecca Rutherford
Cause: 28:1332 Diversity-Notice of Removal |
Date Filed: 10/06/2022 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 10/11/2022 | 9 | ORDER: The Court GRANTS Defendants’ Emergency Motion to Dissolve TRO [Doc. No. 3]. (Ordered by Judge Brantley Starr on 10/11/2022) (chmb) (Entered: 10/11/2022) |
| 10/11/2022 | 10 | AMENDED COMPLAINT against Michael L Hodge filed by Michael L Hodge. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information – Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (LeBoeuf, Jason) (Entered: 10/11/2022) |
| PACER Service Center | |||
|---|---|---|---|
| Transaction Receipt | |||
| 10/12/2022 13:18:35 |
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
Plaintiff Michael Hodge (“Plaintiff” herein) presents this Response and Brief in Opposition to Defendants’ Emergency Motion to Dissolve Temporary Restraining Order (“Defendants’ Motion”) and respectfully shows the Court as follows:
I. SUMMARY
1. Defendants assert that this Court should dissolve the temporary restraining order issued on October 4, 2022 by the Texas state court because Plaintiff cannot demonstrate a substantial likelihood of success on the merits due to claim preclusion, or res judicata.
However, res judicata does not bar Plaintiff’s claims as Plaintiff’s claims arose after the previous lawsuit was filed and the conduct of Defendants for which Plaintiff complains is ongoing.
II. BASIC FACTS
2. Plaintiff filed a previous lawsuit on May 2, 2022 against Defendants for violation of the Real Estate Settlement Procedures Act and breach of contract based on Defendants’ alleged failure to respond to a qualified written request sent to them March 30, 2022.
(See Defendants’ Motion, its Exhibit 2 at paragraphs 19, 23).
Plaintiff had also filed a Plaintiff’s First Amended and Application for Injunctive Relief the same day, May 2, 2022.
(See Exhibit 1).
While the operative petition for which the Court’s analysis is actually the Plaintiff’s First Amended Petition and not the Original Petition examined by Defendants in Defendants’ Motion, Plaintiff’s First Amended Petition is very similar to the Original Petition.
(Compare Defendants’ Motion, its Exhibit 2 with Exhibit 1 to Plaintiff’s Response).
3. Plaintiff filed a joint stipulation of dismissal with prejudice of the previous lawsuit on September 30, 2022.
(Defendants’ Motion, its Exhibit 8).
As with the previous litigation between the parties, no award of attorney fees was granted upon the dismissal of the lawsuit.
4. Plaintiff filed a new Plaintiff’s Original Petition and Application for Injunctive Relief on October 3, 2022 asserting new claims based on new facts in County Court at Law No. 2 of Dallas County, Texas under cause number CC-22-05517-B.
(See Plaintiff’s Petition, Exhibit 1 to Defendants’ Notice of Removal).
Defendants prepared to foreclose on Plaintiff’s Property on October 4, 2022, so Plaintiff obtained a temporary restraining order precluding the foreclosure sale.
(Defendants’ Motion, its Exhibit 13).
5. Defendants removed the case to this Court on October 6, 2022 and now seek to dissolve the 14-day temporary restraining order so that they can proceed with foreclosure of the Property by posting it for a November 1, 2022 sale date, instead of a December 6, 2022 sale date.
III. ARGUMENT AND AUTHORITIES
6. Res judicata does not apply to Plaintiff’s claims against Defendants.
Defendants’ sole basis for asserting that Plaintiff’s temporary restraining order should be dissolved is based on res judicata.
However, res judicata does not apply in this case, where the activity that Plaintiff complains of, improperly charging attorney fees for adverse litigation and adding them to the Plaintiff’s loan balance, and charging fees for forced place insurance when Plaintiff already has insurance on the Property, is ongoing.
7. “A substantially single course of activity may continue through the life of a first suit and beyond. The basic claim-preclusion result is clear: a new claim or cause of action is created as the conduct continues.”
18 Wright & Miller, Federal Practice & Procedure § 4409 (3d ed.)
(citing Lawlor v. National Screen Service Corp., 349 U.S. 322, 327–329 (1955) ).
“[A] party who sues a tortfeasor is ordinarily not barred by a prior judgment from seeking relief for discrete tortious action by the same tortfeasor that occurs subsequent to the original action.”
Aspex Eyewear, Inc. v. Marchon Eyewear, Inc., 672 F.3d 1335, 1342 (Fed. Cir. 2012);
see also Lawlor, 349 U.S. at 328
(noting that a prior judgment “cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been sued upon in the previous case”).
“The Fifth Circuit has “held that ‘subsequent wrongs’ by a defendant constitute new causes of action” for res judicata purposes in cases where the subsequent wrongs “occurred either after the plaintiffs had filed their prior lawsuit or after the district court had entered judgment in the prior lawsuit.””
YETI Coolers, LLC v. Wal-Mart Stores, Inc., 2018 WL 7246691, *2 (W.D. Tex. August 29, 2018) quoting Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 314 (5th Cir. 2004).
8. Plaintiff’s previous lawsuit did not deal with actual charges and whether they were proper or not.
The previous lawsuit was based on the failure of Defendants to actually and timely provide a proper accounting of Plaintiff’s loan to Plaintiff when requested.
The current lawsuit is based on the actual charges to Plaintiff’s loan that Defendant now says Plaintiff is liable.
Those charges are on ongoing, existing now past the date on which Plaintiff had filed his previous lawsuit and the date Plaintiff had dismissed his previous lawsuit.
As such, they are not barred by res judicata.
Davis, 383 F.3d at 314.
9. Substantial likelihood on the merits.
The likelihood of the merits of Plaintiff’s lawsuit are also clear on the face of Plaintiff’s Petition. Pursuant to Texas law, “a party may recover its attorneys’ fees when it is authorized to do so by statute or when the parties’ contract so provides.”
AU Pharm., Inc. v. Boston, 986 S.W.2d 331 (Tex.App.-Texarkana 1999, no writ)).
The Texas Supreme Court addressed language contained in a Deed of Trust and found that in an action by a borrower against a lender for declaratory judgment, fraud, and Texas statutory violations, the attorney fees sought to be recovered by lender did not fall within the scope of the attorney fee provision of the deed of trust as additional debt of the borrower secured by the deed of trust.
Wells Fargo Bank NA v. Murphy, 458 S.W.3d 912, 915 (Tex.2015).
Defendants’ ongoing conduct of charging litigation fees to Plaintiff’s loan is a violation of Texas law and a breach of the contract between the parties.
Therefore, Plaintiff has a substantial likelihood of success on the merits, and the restraining order should not be dissolved.
IV. CONCLUSION & PRAYER
Plaintiff obtained a temporary restraining order in Texas state court.
The restraining order expires on its own accord on October 18, 2022.
Plaintiff has a substantial likelihood on the merits of his claims against Defendants that are not barred by res judicata.
Defendants request for relief in its motion are not warranted.
Therefore, Plaintiff respectfully prays that the Court deny Defendants’ request for relief, and not dissolve the temporary restraining order.
Respectfully submitted,
/s/ Jason A. LeBoeuf
Jason A. LeBoeuf
Texas Bar Number 24032662
Email: jason@leboeuflawfirm.com
LEBOEUF LAW FIRM, PLLC
675 Town Square Blvd.,
Suite 200 Building 1A
Garland, Texas 75040
T: 214.206.7423
F: 214.730.5944
ATTORNEY PLAINTIFF
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing document was served upon all counsel of record via the Court’s electronic filing system pursuant to the Federal Rules of Civil Procedure on this 8th day of October, 2022.
/s/ Jason A. LeBoeuf Counsel for Plaintiff
U.S. District Court
Northern District of Texas (Dallas)
CIVIL DOCKET FOR CASE #: 3:22-cv-02252-X-BT
| Hodge v. The Bank of New York Mellon et al Assigned to: Judge Brantley Starr Referred to: Magistrate Judge Rebecca Rutherford
Cause: 28:1332 Diversity-Notice of Removal |
Date Filed: 10/06/2022 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Plaintiff | ||
| Michael L. Hodge | represented by | Jason Andrew LeBoeuf LeBoeuf Law Firm, PLLC 675 Town Square Blvd, Suite 200 Building 1A Garland, TX 75040 214-206-7423 Fax: 214-730-5944 Email: jason@leboeuflawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing |
| V. | ||
| Defendant | ||
| The Bank of New York Mellon formerly known as The Bank of New York, as Trustee, as Indenture Trustee for the Noteholders of the CWABS Inc., Asset-Backed Notes, Series 2006-SD2 |
represented by | C Charles Townsend Akerman LLP 2001 Ross Avenue, Suite 3600 Dallas, TX 75201 214-720-4300 Fax: 214-981-9339 Email: charles.townsend@akerman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good StandingMatthew W Lindsey Akerman LLP 2001 Ross Avenue Ste 3600 Dallas, TX 75201 214-720-4324 Email: matthew.lindsey@akerman.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing |
| Defendant | ||
| NewRez LLC doing business as Shellpoint Mortgage Servicing |
represented by | C Charles Townsend (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good StandingMatthew W Lindsey (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing |
| Date Filed | # | Docket Text |
|---|---|---|
| 10/06/2022 | 1 | NOTICE OF REMOVAL filed by The Bank of New York Mellon fka The Bank of New York, as Trustee, as Indenture Trustee for the Noteholders of the CWABS Inc., Asset-Backed Notes, Series 2006-SD2, NewRez LLC dba Shellpoint Mortgage Servicing. (Filing fee $402; receipt number ATXNDC-13206646) In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the Judges Copy Requirements and Judge Specific Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms and Instructions found at www.txnd.uscourts.gov, or by clicking here: Attorney Information – Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Attachments: # 1 Exhibit(s) Index, # 2 Cover Sheet, # 3 Cover Sheet Supplement) (Townsend, C) (Entered: 10/06/2022) |
| 10/06/2022 | 2 | CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by NewRez LLC dba Shellpoint Mortgage Servicing, The Bank of New York Mellon fka The Bank of New York, as Trustee, as Indenture Trustee for the Noteholders of the CWABS Inc., Asset-Backed Notes, Series 2006-SD2. (Clerk QC note: Affiliate entry indicated). (Townsend, C) (Entered: 10/06/2022) |
| 10/06/2022 | 3 | Emergency MOTION to Dissolve TRO filed by NewRez LLC dba Shellpoint Mortgage Servicing, The Bank of New York Mellon fka The Bank of New York, as Trustee, as Indenture Trustee for the Noteholders of the CWABS Inc., Asset-Backed Notes, Series 2006-SD2 (Attachments: # 1 Exhibit(s) 1-13) (Townsend, C) Modified text on 10/7/2022 (ykp). (Entered: 10/06/2022) |
| 10/06/2022 | 4 | ELECTRONIC ORDER: Michael L. Hodge shall respond to Motion to Dissolve TRO [Doc. 3] by October 8, 2022 at 5:00 p.m. central. If The Bank of New York wishes to reply, it must do so by October 10, 2022 at 5:00 p.m. central. (Ordered by Judge Brantley Starr on 10/6/2022) (chmb) (Entered: 10/06/2022) |
| 10/06/2022 | 5 | New Case Notes: A filing fee has been paid. CASREF case referral set and case referred to Magistrate Judge Rutherford (see Special Order 3). Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge (Judge Rutherford). Clerk to provide copy to plaintiff if not received electronically. Motion(s) referred to Magistrate Judge Rebecca Rutherford. (ykp) (Entered: 10/07/2022) |
| 10/07/2022 | 6 | ELECTRONIC ORDER: The Court hereby ORDERS plaintiff Hodge to file a complaint that conforms to federal pleading standards by October 11, 2022 at 5:00 PM. (Ordered by Judge Brantley Starr on 10/7/2022) (chmb) (Entered: 10/07/2022) |
| 10/08/2022 | 7 | RESPONSE filed by Michael L. Hodge re: 3 MOTION dissolve TRO (Attachments: # 1 Exhibit(s)) (LeBoeuf, Jason) (Entered: 10/08/2022) |
| PACER Service Center | |||
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| Transaction Receipt | |||
| 10/08/2022 18:44:13 |
ORDER
BRANTLEY STARR, District Judge.
The Court considers the report of the United States Magistrate Judge in this action, which was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636.
In his complaint [Doc. No. 1-D], plaintiff Michael L. Hodge names the Bank of New York Mellon (“Mellon”) and Bayview Loan Servicing, LLC (“Bayview”) as defendants in this case.
On September 5, 2001, Hodge entered a loan with America’s Wholesale Lender (“Lender”) for $223,920.00 and simultaneously executed a deed of trust that granted a security interest in the property located at 1014 Wind Ridge Drive, Duncanville, Texas 75137.
The deed of trust names Mortgage Electronic Registration Systems, Inc. (“MERS”) as the nominee for Lender.
Over the next 11 years, Hodge received two loan modifications (filing for bankruptcy in between them) and the nominee changed first to Mellon and then to Bayview.
Hodge alleges, among other things, that Bayview failed to process loan modifications it promised him, failed to provide him with periodic statements, and failed to correct various errors Hodge was notifying Bayview of.
On November 2, 2018, Hodge filed this lawsuit in the 192nd Judicial District of Dallas County, Texas alleging violations of the Real Estate Settlement Procedures Act, the Truth in Lending Act, and promissory estoppel.
The case was subsequently removed to this court on November 15, 2018. On May 28, 2019, Bayview and Mellon filed a motion for summary judgment [Doc. No. 14] seeking to dismiss all of Hodge’s claims with prejudice.
On February 12, 2020, the Magistrate Judge entered proposed findings of fact and recommendations [Doc. No. 40] that the Court should dismiss this case with prejudice because Hodge has failed to meet its burden to identify a genuine dispute of material fact as to any of his claims.
Having received the Report of the United States Magistrate Judge, and no timely objections being filed, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge’s report as the findings and conclusions of the Court.
Accordingly, the Court hereby GRANTS Bayview and Mellon’s motion for summary judgment and DISMISSES all of Hodge’s claims with PREJUDICE.
IT IS SO ORDERED.
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