Bandit Lawyer Hagger Abandons Client as Judge Hanen Issues Particularly Unpersuasive Opinion

The home was sold at foreclosure despite TRO and the sale had to be rescinded.

The original mortgage was less than $75,000 and at the time of the alleged default, only 13 yrs left on note.

LIT has always maintained, to apply removal on the value of the asset (home), not the debt owed, is dead wrong, although you’ll find hundreds of orders allowing this to happen in Texas federal courts.

Judge Hanen says the son has no standing, yet the mortgage was paid from 2014-2023 by who, Jesus Christ Our Lord and Savior, or more realistically Walker?

Answer: the mail will go to the home the deceased has lived in since 2006 and we assume from 2014 onwards, where Walker resides. This part of the opinion is very obtuse.

The Chapter 51.002 has been manipulated in opinions every which way, too many to list here and Judge Hanen’s order is no different.

Indeed, Judge Pulliam opinion in an article which we just published contradicts Judge Hanen and many of his judicial colleagues, see:

“Judge Pulliam Remands Foreclosure Case: In Texas, a Substitute Trustee May be Individually Liable
The facts alleged, though scant, are sufficient to assert Trustee committed bad faith misconduct by failing to provide proper prior notice.”

If this federal judge came into public service to apply the law and serve the people, this opinion takes him to task.

Alas, when it comes to foreclosure cases, judges in Texas are owned by Banks and Wall St.

This manipulated and manufactured opinion is no different than the thousands before it.

We note Kew v. Bank of Am., N.A., No. CIV. A. H-11-2824, 2012 WL 1414978, at *6 (S.D. Tex. Apr. 23, 2012) gets another mention, yet Kew has just had her trial reset to mid-2025 in Harris County District Court…well, family with doctors get special dispensation.

LIT will call the courts out – but unless the people stand up for their own civil and human rights, you’ll be slaughtered for greed.

We’ll be live streamin’ proof of that event when it’s scheduled.

Subscribe to be kept informed about LITAMO 2025 – it’s free to sign up.

Civil Action 4:24-cv-2112

01-10-2025

MICHAEL CHATMAN WALKER, Plaintiff, v. SELECT PORTFOLIO SERVICING and WILMINGTON SAVINGS FUND SOCIETY FSB, not in its individual capacity but solely as owner trustee, and their successors and assigns, Defendant.

ANDREW S. HANEN UNITED STATES DISTRICT JUDGE

Pending before the Court is Defendants Select Portfolio Servicing, Inc. (“SPS”) and Wilmington Savings Fund Society FSB’s (“Wilmington”) Motion to Dismiss.

(Doc. No. 4).

SPS and Willington are collectively referred to as “Defendants.”

Plaintiff Michael Chatman Walker (“Plaintiff or “Walker”) failed to respond.

Having considered the briefings and applicable law, the Court hereby GRANTS Defendant’s motion.

(Doc. No. 4).

I. Background

This is a dispute involving real property located at 21130 Grandin Wood Court Humble, Texas 77338 (the “Property”).

(Doc. No. 1-2 at 4).

On January 27, 2006, Sherold Chatman, Plaintiffs mother, executed a Noted and a Deed of Trust with lender Bank of America, N.A. in the amount of $79,939.00.

(Id.).

Bank of America assigned the Deed of Trust to Wilmington.

(Doc. No. 4 at 2).

SPS services the loan for Wilmington.

(Id.).

At least at the time this suit was filed, Plaintiff resides at the Property.

(Doc. No. 1-2 at 4).

The parties dispute whether this assignment was properly recorded.

(Doc. No. 1-2 at 5); (Doc. No. 4 at 2).

Plaintiffs mother died on September 25, 2014.

(Doc. No. 1-2 at 4).

Plaintiff alleges that he is “currently attempting to resolve he [sic] estate of his mother.”

(Id. at 5).

Defendant alleges that Ms. Chatman’s estate defaulted on the loan by failing to make the September 1,2023 payment and each subsequent payment.

(Doc. No. 4 at 2).

Walker acknowledges that he received a Notice of Foreclosure from Defendants on February 7, 2024.

(Doc. No. 1-2 at 5).

Yet, Plaintiff states that he “does not recall receiving a notice of default from Defendants” and that Defendants “failed to send Plaintiff a notice of intent to accelerate.”

(Id.).

The Court notes that Plaintiff brought suit against the Defendants in his individual capacity and not as a representative of his mother’s estate.

Walker initiated this lawsuit in Texas state court alleging that Defendants violated Texas Property Code § 51.002 and seeking a Temporary Restraining Order (“TRO”) to enjoin Defendants from foreclosing on the Property.

(Id. at 5-6).

Defendant removed the suit to this Court. Plaintiff obtained a TRO before the case was removed.

(Doc. No. 1-5).

While the TRO has since expired, Defendants have not proceeded with foreclosure of the Property.

Defendants now move to dismiss Plaintiffs suit under Federal Rule of Civil Procedure 12(c).

Defendants state that they did properly notice the scheduled foreclosure sale, but even if a notice defect exists, “Walker lacks standing to assert this claim, property code chapter 51 does not provide a private right of action, and the claim is moot.”

(Doc. No. 4 at 1).

II. Legal Standard

“After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.”

Fed.R.Civ.P. 12(c).

A motion for judgment on the pleadings under Rule 12(c) is subject to the same standard as a motion to dismiss under Rule 12(b)(6).

Gentilello v. Rege, 627 F.3d 540, 544-545 (5th Cir. 2010).

A defendant may file a motion to dismiss a complaint for “failure to state a claim upon which relief may be granted.”

Fed.R.Civ.P. 12(b)(6).

Similarly, a plaintiff may file a Rule 12(b)(6) motion to dismiss a counterclaim.

See Kansas v. Nebraska, 527 U.S. 1020 (1999).

To defeat a motion to dismiss under Rule 12(b)(6), a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing Twombly, 550 U.S. at 556).

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

Id. (quoting Twombly, 550 U.S. at 556).

“Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief”

Id. (quoting Twombly, 550 U.S. at 557).

In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff.

Sonnier v. State Farm Mut. Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007).

The Court is not bound to accept factual assumptions or legal conclusions as true, and only a complaint that states a plausible claim for relief survives a motion to dismiss.

Iqbal, 556 U.S. at 678-79. When there are well-pleaded factual allegations, the court assumes their veracity and then determines whether they plausibly give rise to an entitlement to relief. Id.

III. Analysis

As noted above, Plaintiff claims Defendants violated Texas Property Code § 51.002.

(Doc. No. 1-2 at 5).

Plaintiff alleges that Defendants violated this statute when they failed to:

(1) send Plaintiff a notice of default and opportunity to cure at least twenty days before notice of sale was given;

and

(2) send Plaintiff a notice of intent to accelerate the debt. (Id.).

Plaintiff also seeks  injunctive relief.

Injunctive relief must be based on the merits of the underlying claim.

See City of El Cenizo, Texas v. Texas, 890 F.3d 164,176 (5th Cir. 2018).

Plaintiffs claims must be dismissed for the reasons below.

Texas Property Code § 51.002 contains two notice provisions. First, § 51.002(b) requires that notice of the foreclosure sale be given at least 21 days before the sale.

Second, § 51.002(d) requires that the debtor be informed that he is in default and given at least 20 days to cure the default before the 21-day notice is issued.

While the Court finds no binding precedent on point, it finds multiple decisions from this District and others within the Fifth Circuit to be particularly persuasive.

Thus, “because § 51.002 outlines the procedures for conducting a foreclosure sale, claims for violating its notice requirements are cognizable only after a foreclosure.”

Kew v. Bank of Am., N.A., No. CIV. A. H-11-2824, 2012 WL 1414978, at *6 (S.D. Tex. Apr. 23, 2012).

Since Defendants have not foreclosed on the Property, Plaintiffs statutory claim fails.

See, e.g., Mahmood v. Bank of Am., N.A., No. 3:ll-CV-3054-M-BK, 2012 WL 527902, at *4 (N.D. Tex. Jan.18, 2012)

(“Plaintiffs requests for injunctive relief from this Court to prevent a foreclosure sale make apparent that no foreclosure sale had occurred at the time this suit was brought.

Accordingly, Plaintiffs claim under Chapter 51 of the Texas Property Code for what could only be wrongful foreclosure should also be dismissed.”);

Perez v. Midfirst Bank, 2019 WL 6687665, at *3 (S.D. Tex. Dec. 6, 2019)

(“[T]here is no claim under Section 51.002(d) where no foreclosure has taken place.”);

Ayers v. Aurora Loan Servs., LLC, 787 F.Supp.2d 451, 454 (E.D. Tex. 2011)

(“Plaintiff has not alleged an actual violation of the Texas Property Code because no foreclosure sale has occurred.

Perhaps Aurora had not adhered to all the notice requirements of § 51.002.

And perhaps if the property had been sold that sale could have been set aside.

But absent a sale, Plaintiff cannot state a claim under  these sections of the Property Code.”);

Caballero v. Wells Fargo Bank, N.A., No. 3-11-CV-1385-O-BD, 2011 WL 6039953, at *1 n. 2 (N.D. Tex. July 25, 2011)

(“To the extent plaintiff contends that defendant violated sections 51.002 and 51.0025(2) of the Texas Property Code by failing to issue proper notices in connection with the scheduled foreclosure sale of his property, those provisions apply only to the sale of real property pursuant to a power of sale.

Where, as here, no foreclosure sale has taken place, a plaintiff may not recover under those statutory provisions.”).

Moreover, Plaintiff does not have standing to bring suit under § 51.002.

As noted above, Ms. Chatman signed the Deed of Trust that was later assigned to Wilmington.

Ms. Chatman then passed away, allegedly leaving Plaintiff, her son, as her “only living heir.”

(Doc. No. 1-2 at 4).

Even ten years after his mother’s death, Walker states that he is “currently attempting to resolve he [sic] estate.”

(Id. at 5).

Ms. Chatman was the sole signature and borrower.

(Doc. No. 4. at 11, 28).

The Note executed with the Deed of Trust requires notices be provided only to Ms. Chatman.

(Id. at 10).

Similarly, the Texas Property Code provides that only “debtors” are entitled to notice of default, acceleration, and sale.

See Tex. Prop. Code §§ 51.002(b)(3), (d), (i).

Plaintiff brought this suit in his individual capacity, not as representative of his mother’s estate.

In fact, while Walker claims to be the sole heir of his mother’s estate, he has not claimed he is the executor of her will or otherwise the administrator of her estate.

Thus, even if Plaintiff is correct in stating that he is the only heir to his mother’s estate, he is not the “debtor” within the meaning of the Texas Property Code nor is he the signatory to the Note or Deed of Trust

See Oliver v. Pennymac Loan Servs., LLC, No. 3:23-CV-137, 2024 WL 1016121, at *3 (N.D. Tex. Feb. 21, 2024), report and rec. adopted, 2V14 WL 1018527 (N.D. Tex. Mar. 7, 2024).

Thus, Plaintiff was not entitled to receive  notices under the terms of those documents or Texas law and therefore lacks standing to bring his claim against Defendants for their purported violations of § 51.002.

The Court can and does consider Defendants’ exhibit because Plaintiff incorporated them into the complaint by reference.

See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 (5th Cir. 2002).

Additionally, since Plaintiff failed to demonstrate a viable, underlying claim for relief, Plaintiff is not entitled to injunctive relief.

See City of El Cenizo, 890 F.3d at 176 (5th Cir. 2018)

(finding a plaintiff is entitled to injunctive relief only when they are successful on the merits of their underlying claim).

IV. Conclusion

For the foregoing reasons, Defendant’s Motion to Dismiss is GRANTED. (Doc. No. 4). This matter is hereby dismissed with prejudice.