Bank of New York Mellon (BONYM)

Dickey and Sharon Couch Battle The Catholic Bandit in High-Stakes Eviction Case Before Judge Reed O’Connor

Fight for Homeownership: Couple Takes on Adverse Possession Claim with Help from Legal Counsel to Stop Eviction Drama

Couch v. The Bank of New York Mellon

(4:24-cv-00085)

District Court, N.D. Texas

JAN 25, 2024 | REPUBLISHED BY LIT: MAR 7, 2024
MAR 7, 2024

Above is the date LIT Last updated this article.

FINDINGS OF FACT & CONCLUSIONS OF LAW

MAR 5, 2024 | REPUBLISHED BY LIT: MAR 7, 2024

The following are the findings of fact and conclusions of law of the undersigned District Judge based on the Preliminary Injunction Hearing held on March 5, 2024 at 9:00 AM in the Second Floor Courtroom of the Eldon B. Mahon United States Courthouse.

Any finding of fact that should instead be a conclusion of law is hereby adopted as such. Likewise, any conclusion of law that should instead be a finding of fact is hereby adopted as such.

1.                  Plaintiffs Dickey Roland Couch and Sharon Gale Couch (“Plaintiffs” or the “Couches”) brought this declaratory judgment action to quiet title against Defendant The Bank of New York Mellon (“Defendant” or the “Bank”).

2.                  The Couches seek judicial declaration that the Bank has no claim to the real property located at 9845 Ray White Road, Keller, Texas 76248 in Tarrant County (the “Property”) based on allegations that the Couches have adversely possessed the Property beyond the five-year statutory possession period provided under the Texas Civil Practice and Remedies Code.

In addition to declaratory judgment, the Couches request injunctive and monetary relief as well as attorney’s fees and costs for their claim to quiet title.

3.                  The Couches are husband and wife who are citizens of the State of Texas. They have resided in the Property as their homestead and have paid property taxes on the Property since at least 2001. As of the filing of this action, Plaintiffs continue to reside at and remain in sole possession of the Property together.

4.                  The Bank is a major bank holding company incorporated in the State of Delaware and headquartered in the State of New York. It is the Trustee for NovaStar Mortgage Funding Trust, Series 2005-4 NovaStar Home Equity Loan, Asset-Backed Certificates, Series 2005-4.

5.                  On or about September 23, 2005, Plaintiff Dickey Couch signed a Texas Home Equity Note (the “Note”) borrowing $150,000 from NovaStar Mortgage, Inc. (“NovaStar”). On or about the same day, the Couches executed a Texas Home Equity Security Instrument (the “Deed of Trust”) to Mortgage Electronic Registration Systems, Inc. (“MERS”) as mortgagee to secure repayment of the Note.

6.                  Between the Years 2005 and 2014, the Bank became the mortgagee under the Deed of Trust as well as the holder and owner of the Note.

7.                  On or about April 2, 2014, the Couches received a Notice of Default and Intent to Accelerate (the “Notice of Default”) from the Bank, which provided that if the Note was accelerated, the Bank would proceed to schedule a foreclosure of the Property.

8.                  On or about July 7, 2014, Plaintiff Dickey Couch filed an action against the Bank and Ocwen Loan Servicing, LLC (“Ocwen”) in the 96th Judicial District Court of Tarrant County (Cause No. 096-272989-14) (the “First Action”), alleging that the Notice of Default was improper.

On or about August 4, 2014, the Bank and Ocwen removed the First Action to the Fort Worth Division of the U.S. District Court for the Northern District of Texas, styled as Couch v. Ocwen Loan Servicing, LLC et al., No. 4:14-cv-614.

On or about August 5, 2014, the Bank filed a counterclaim against Plaintiff Dickey Couch and third-party complaint against Plaintiff Sharon Couch which sought judicial foreclosure on the Property.

The Bank’s counterclaim declared the Note accelerated.

9.                  On or about August 3, 2015, the District Court entered a Final Judgment in the First Action, decreeing that the Bank and Ocwen were entitled to conduct a non-judicial foreclosure sale of the Property on or after November 1, 2015.

10.              On or about November 4, 2019, after receiving a Notice of Foreclosure Sale and Notice of Posting and Sale of the Property from the Bank, the Couches filed another action against the Bank as well as PHH Mortgage Corporation (“PHH”) in the 352nd Judicial District Court of Tarrant County (Cause No. 352-313053-19) (the “Second Action”), seeking temporary and permanent injunctive relief preventing the foreclosure sale of the Property.

On or about November 5, 2019, the Bank and PHH removed the Second Action to the Fort Worth Division of the U.S. District Court for the Northern District of Texas, styled as Couch et al. v. PHH Mortgage Corporation et al., No. 4:19-cv-935.

On or about November 6, 2019, the Bank filed a counterclaim against the Couches for declaratory judgment to enforce the Final Judgment entered in the First Action, as well as an alternative claim for judicial foreclosure.

11.              On or about March 8, 2021, the District Court entered an Amended Final Judgment in the Second Action that authorized the Bank to proceed with judicial foreclosure of the Property.

The Amended Final Judgment further decreed that:

(i) the subject loan was valid and enforceable;

(ii) the Deed of Trust reflected the Bank’s valid security interest in the Property;

(iii) all right, title, and interest of the Couches in the Property was subject to foreclosure;

and

(iv) the Bank was authorized to foreclose on the Property in compliance with the Note and the Deed of Trust.

12.              On or about July 3, 2023, the Bank posted the Property for sale in an August 1, 2023 Constable’s Sale and purchased the Property at the Constable’s Sale—thereby acquiring title to the Property.

On or about September 13, 2023, the Constable’s Deed on the Property acquired by the Bank was recorded in the official public records of Tarrant County, Texas as Instrument No. D223165212.

13.              On or about September 12, 2023, the Bank filed suit to evict the Couches from the Property in Tarrant County Justice of the Peace Court No. 3 (Cause No. JP03-23- E00072606) (the “Eviction Action”).

On or about October 9, 2023, the Tarrant County Justice of the Peace Court ordered a Judgment of Possession in favor of the Bank.

14.              After the Couches appealed the Eviction Action to Tarrant County Court at Law No. 1 (Cause No. 2023-007641-1), the Tarrant County Court at Law entered a Judgment of Possession in favor of the Bank on or about January 23, 2024.

15.              On or about January 22, 2024, the Couches filed the present action against the Bank to quiet title on the Property in Tarrant County Court at Law No. 1 (Cause No. 2024- 000558-1), based on the allegations that the Couches have adversely possessed the Property for a period greater than the five-year statutory adverse possession period provided under the Texas Civil Practice and Remedies Code.

On January 25, 2024, the Bank removed this action to the Fort Worth Division of the U.S. District Court for the Northern District of Texas, styled as Couch et al. v. The Bank of New York Mellon, No. 4:24-cv-00085.

The Couches now move to preliminarily enjoin the Bank throughout the duration of the present action

(i) from evicting the Couches from the Property

and

(ii) from selling the Property.

16.              A preliminary injunction should not be granted unless the movant demonstrates, by a clear showing:

(1) a substantial likelihood of prevailing on the merits;

(2) a substantial threat of irreparable harm if the injunction is not granted;

(3) that the threatened injury outweighs any harm that may result from the injunction to the nonmovant;

and

(4) that the injunction will not undermine public interests.1

The movant must clearly carry the cumulative burden of persuasion on all four enumerated elements in order for the requested injunctive relief to be granted.2

Stated otherwise, if the movant fails to meet any one of the four requirements, a court cannot grant a preliminary injunction.3

17.              Under the Texas Civil Practices & Remedies Code, a party must bring suit to recover real property held by another in peaceable and adverse possession under title or color of title within three, five, or ten years of the date the cause of action accrues.4

A party claiming title by adverse possession must demonstrate

(1) actual

and

(2) visible possession

1 Roho, Inc. v. Marquis, 902 F.2d 356, 358 (5th Cir. 1990).

2 Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008); Miss. Power & Light Co. v. United Gas Pipe Line, 760 F.2d 618, 621 (5th Cir. 1985); Greer’s Ranch Café v. Guzman, 540 F. Supp. 3d 638, 645 (N.D. Tex. 2021) (O’Connor, J.).

3 Speed v. Am.’s Wholesale Lender, No. 3:14-CV-3425-L, 2014 WL 4755485, at *1 (N.D. Tex. Sept. 24, 2014).

4 Coates Energy Tr. v. Frost Nat. Bank, No. 04-11-00838-CV, 2012 WL 5984693, at *8 (Tex. App.—San Antonio November 28, 2012, pet denied) (citing Tex. Civ. Prac. & Rem. Code §§ 16.024 (three years), 16.025 (five years), 16.026 (ten years)).

that is

(3) under a claim of right,

(4) hostile to another’s claim to the property,

and

(5) peaceable for the applicable limitations period.5

18.              The law is well-settled in Texas that, for adverse possession purposes, the statute of limitations does not run against the mortgagee (or lien holder) out of possession and in favor of an adverse claimant until the mortgagee acquires title to land at the foreclosure sale.6

This is because the mortgagee (or lien holder) has no right to eject the adverse possessor until it actually acquires title.7

19.              In the present action, the Bank did not acquire title to the Property until the judicial foreclosure sale of the Property occurred on August 1, 2023.

Therefore, for purposes of the adverse possession claim to quiet title on the Property brought by the Couches in the present action, the applicable statute of limitations did not begin to run until August 1, 2023.

20.              To qualify as adverse possessors under the Texas Civil Practice and Remedies Code, the Couches are required to possess the Property adversely to the Bank’s title for a minimum of three years, among the other enumerated requirements.

Until August 1, 2023, the Couches remained the rightful title owners of the Property.

Therefore, the Couches’ ownership was not hostile against the Bank’s title until August 1, 2023.

21.              Following the judicial foreclosure sale of the Property on August 1, 2023, the Bank has merely owned the Property for a period approximating seven months.

As such, the Couches could not have adversely possessed the Property for a period equal to the minimum

5 Luminant Mining Co., L.L.C. v. PakeyBey, 14 F.4th 375, 380 (5th Cir. 2021) (citation omitted).

6 Texas Cap. Bank, N.A. v. Hoppe, No. 14-98-00621-CV, 2000 WL 1125425, at *2 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (citing Warnecke v. Broad, 161 S.W.2d 453, 455 (Tex. 1942)); see also Hardy v. JPMorgan Chase Bank, Nat. Ass’n, No. A-14-CA-360-SS, 2014 WL 2700800, at *5 (W.D. Tex. June 13, 2014); Hu v. Stewart, No. 4:20-CV-294, 2021 WL 308975, at *2 (S.D. Tex. Jan. 29, 2021), aff’d sub nom. Hu v. NewRez, L.L.C., No. 21-20112, 2022 WL 613155 (5th Cir. Mar. 2, 2022).

7 Ibid.

adverse possession threshold of three years under the Texas Civil Practice and Remedies Code.8

22.              For the foregoing reasons, the Couches fail to demonstrate, by a clear showing, that they are substantially likely to prevail on the merits of their cause of action to quiet title on the Property through adverse possession.

Since the Couches fail to carry their burden of persuasion on the first enumerated element, they are not entitled to injunctive relief.

23.              Accordingly, it is ORDERED that Plaintiffs Dickey Couch and Sharon Couch’s Motion for Preliminary Injunction should be and is hereby DENIED.

SO ORDERED on this 5th day of March, 2024.

Reed O’Connor
UNITED STATES DISTRICT JUDGE

8 The Couches raise the theory that they became permissive tenants of the Property years prior to the August 1, 2023 Constable’s Sale—such that the applicable statute of limitations began to run from the date of the August 3, 2015 Final Judgment authorizing the Bank to conduct a non-judicial foreclosure sale of the Property.

However, the Couches cite no precedent in support the proposition that a permissive tenancy is created as a matter of law as soon as an opposing party obtains a judgment of non-judicial foreclosure.

A fortiori, the Couches fail to proffer evidence sufficient to show that their actual and visible possession of the Property under a claim of right was in any way hostile to a competing claim by the Bank at any point prior to the Bank’s acquisition of title on August 1, 2023.

Thus, even accepting their permissive tenancy theory on its face, the Couches still fail to carry their burden of persuasion for entitlement to injunctive relief on their claim to quiet title through adverse possession—and for the same reasons set forth in the foregoing findings and conclusions.

LIT: In contradiction of this order, see; Counce v. Yount-Lee Oil Co., 87 F.2d 572 (5th Cir. 1937); See; Bryant v. DiTech Fin., No. 23-10416, at *6 (5th Cir. Mar. 1, 2024) (“What it [Defendants] cannot do is win… without ever protecting its rights.”); See Burke v Deutsche Bank, et al’s Third Petition:  “Their late, late show is untimely and barred in Texas law and by the statute of limitations” (Burke has a similar history, with exception of being categorized as  a tenant in sufferance. That stated, Joanna Burke’s case and argument is notably different and which leads to a completely opposite conclusion as drawn here by Judge O’Connor – she enjoys clear title in Texas law due to the facts in her case and history of over 22 years in possession of her homestead, and any competing claims are extinguished).

DEFENDANT’S SUPPLEMENTAL BRIEF IN COMPLIANCE
WITH COURT’S ORDER AT ECF NO. 19

MAR 1, 2024 | REPUBLISHED BY LIT: MAR 7, 2024

Defendant The Bank of New York Mellon, f/k/a The Bank of New York, as Trustee for NovaStar Mortgage Funding Trust, Series 2005-4 NovaStar Home Equity Loan, Asset-Backed Certificates, Series 2005-4 (“Defendant” or “BNYM”) files this its Supplemental Brief in Compliance with Court’s Order at ECF No. 19 and respectfully shows the Court as follows:

I.                   BACKGROUND

1.                  This action relates to the judicial foreclosure of real property commonly known as 9845 Ray White Road, Keller, Texas 76248 (the “Property”).

(ECF No. 1, Exhibit E-2 at ¶¶ 3.1- 4.11.)

Plaintiffs Sharon and Dickey Couch (“Plaintiffs” or the “Couches”) challenge Defendant’s foreclosure and purchase of the Property and bring a quiet title claim.

(Id. at ¶¶ 5.1-5.11.)

2.                  Plaintiffs argue that they are the rightful title owners of the Property based on adverse possession.

This argument fails as a matter of law because the doctrine of adverse possession does not apply to lienholders, such as the Defendant.

Further, Defendant became the title owner only seven months ago, following a judicial foreclosure sale.

Therefore, there it is impossible that Plaintiffs could comply with any of the adverse possession thresholds.

Plaintiffs’ claims must be dismissed.

3.                  On March 8, 2021, Judge John McBryde entered an Amended Final Judgment allowing BNYM to proceed with judicial foreclosure of the Property.

(ECF No. 5, Exhibit W, Appx. at p. 480.)

4.                  Following the domestication of Judge McBryde’s Amended Final Judgment, a Constable’s Sale of the Property took place on August 1, 2023.

BNYM acquired title to the Property at the Constable’s sale.

(ECF No. 5, Exhibit X, Appx. at p.485.)

5.                  On October 9, 2023, BNYM filed suit to evict Plaintiffs from the Property in Justice Court No. 3, Cause No., JP03-23-E00072506 and obtained a Judgment of possession in favor of BNYM.

(ECF No. 5, Exhibit Y, Appx. at p. 488.)

6.                  On October 25, 2023, Plaintiffs filed an appeal to County Court at Law No. 1 of Tarrant County, Texas under Cause No. 2023-007641-1.

On January 23, 2024, County Court at Law No. 1 entered a Judgment of possession in favor of BNYM.

(ECF No. 5, Exhibit Z, Appx. at p.490)

7.                  On January 22, 2024, Plaintiffs filed this action against Defendant in the County Court at Law No. 1 of Tarrant County, Texas, as Cause No. 2024-000558-1 in the matter styled Sharon Couch and Dickey Couch v. The Bank of New York Mellon, f/k/a the Bank of New York as Successor in Interest to JPMorgan Chase Bank, N.A. as Trustee for NovaStar Mortgage Funding Trust, Series 2005-4, NovaStar Home Equity Loan Asset-Backed Certificates, Series 2005-4 (the “State Court Action”).

Defendant removed the State Court Action to this Court on January 25, 2024.

(ECF No. 1.)

8.                  Plaintiffs challenge in their Petition Defendant’s right to foreclose and its purchase of the Property.

(ECF No. 1, E-2, Petition at ⁋ 5.4.).

Plaintiffs claim that Defendant failed to initiate a foreclosure sale on the Property “before the applicable limitations period,” and in the alternative, that Defendant’s claim is “invalid or unenforceable because Defendant’s claim of title is barred by adverse possession.”

(Id. at ⁋⁋ 5.5-5.6.)

Based on these allegations, Plaintiffs bring a quiet title claim.

(Id. at ¶¶ 5.1-5.11.)

9.                  On February 1, 2024, Defendant filed its Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) arguing that Plaintiffs’ claims were all barred by res judicata.

(ECF No. 6.)

Also on February 1, 2023, Plaintiffs file a Brief in Support of Motion for Temporary Restraining order requesting this Court restrain Defendant from evicting Plaintiffs and selling the Property to a third party.

(ECF No. 4.)

10.              On February 28, 2024, this Court entered a Memorandum Opinion & Order granting in part and denying in part Defendant’s Motion to Dismiss.

(ECF No. 19.)

The Court dismissed with prejudice Plaintiffs’ quiet title claim based on statute of limitations as barred by res judicata.

Id.

The Court denied Defendant’s Motion to Dismiss based on Plaintiffs’ alternative argument that they may they have acquired title to the Property though adverse possession.

Id.

11.              Further, the Court’s Order granted Plaintiffs’ Motion for Temporary Restraining order and requested supplemental briefing on the Plaintiffs’ remaining quiet title claim as to the alleged adverse possession in preparation for the Temporary Injunction hearing on March 5, 2024.

(ECF No. 19.)

II.                SUPPLEMENTAL BRIEF

B.        Plaintiffs’ Request for a Temporary Injunction fails.

12.              “To obtain a temporary injunction, the applicant must plead and prove three elements:

“(1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim.”

EXFO Am. Inc. v. Herman, No. 4:12-CV-201, 2012 U.S. Dist. LEXIS 65706, at *3 (E.D. Tex. May 10, 2012) (citing Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002)).

13.              Plaintiffs have not shown a probable right to the relief sought.

Plaintiffs’ sole claim is for quiet title based on the doctrine of adverse possession.

Plaintiffs argue in their Petition that they have acquired title to the Property based on the doctrine of adverse possession.

(ECF No. 1, E-2, Petition at ⁋ 5.6.)

To support this contention, Plaintiffs argue that their adverse possession claim accrued the day the foreclosure judgment was entered in 2015.

(ECF No. 1, E-2, Petition at ⁋ 5.9.)

14.              Plaintiffs restate this contention in their Supplemental Brief filed this day .

(ECF No. 20, pp.2-3, ¶2.4.)

Plaintiffs, however, cite to no legal authorities in support of this proposition because this is simply an erroneous statement of the law.

(Id.)

15.              Plaintiffs’ quiet title claim fails as the statute of limitations for their quiet title claim did not begin until Defendant acquired title to the Property through the judicial foreclosure sale on August 1, 2023.

Further, Plaintiffs’ claim fails as they have not met the minimum three-year period to adversely possess the Property.

16.              “The law is well-settled in Texas that, for adverse possession purposes, the statute of limitations does not run against the mortgagee out of possession and in favor of an adverse claimant  until  the  mortgagee  acquires  title  to  land  at  the  foreclosure  sale.”

Tex. Capital Bank, N.A. v. Hoppe, No. 14-98-00621-CV, 2000 Tex. App. LEXIS 5331, at *2 (Tex. App.—Houston [14th Dist.] 2000, pet. denied)

(citing Warnecke v. Broad, 138 Tex. 631, 161 S.W.2d 453 (1942)).

17.              “Under sections 16.024 through 16.026 of the Texas Civil Practices & Remedies Code, a party must bring suit to recover real property held by another in peaceable and adverse possession under title or color of title within three, five, or ten years of the date the cause of action accrues.”

Coates Energy Tr. v. Frost Nat’l Bank, No. 04-11-00838-CV, 2012 Tex. App. LEXIS 9718, at *23 (Tex. App.—San Antonio November 28, 2012, pet denied)

(citing to Tex. Civ. Prac. & Rem. Code §§ 16.024 (three years), 16.025 (five years), 16.026 (ten years)).

18.              In this case, Defendant did not acquire title to the Property until the judicial foreclosure sale occurred on August 1, 2023.

Tex. Capital Bank, N.A. v. Hoppe, No. 14-98-00621- CV, 2000 Tex. App. LEXIS 5331, at *2 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).

Therefore, the statute of limitations for Plaintiffs’ adverse possession claim did not begin until August 1, 2023.

19.              To be considered adverse possessors under the Texas Civil Practice and Remedies Code § 16.024, Plaintiffs would be required to have hostile possession for a minimum of three years, among other requirements.

Up until August 1, 2023, Plaintiffs were the rightful title owners of the Property; therefore, their ownership was not hostile and their adverse possession claims fails.

20.              Following the judicial foreclosure sale on August 1, 2023, Defendant has only owned the Property for seven months.

Therefore, it is impossible that Plaintiffs have adversely possessed the property for three years, the minimum threshold under Section 16.024 of the Texas Civil Practice and Remedies Code to be considered adverse possessors.

Accordingly, Plaintiffs’ claim for quiet title fails as a matter of law and they are not entitled to injunctive relief.

B.        The Court lacks jurisdiction to interfere with the Final Judgment entered in the eviction proceedings.

21.              Under the Rooker-Feldman doctrine, “federal district courts lack jurisdiction to entertain collateral attacks on state court judgments, such as where the losing party in a state court action seeks what in substance would be appellate review of the state judgment.”

Weaver v. Tex. Cap. Bank N.A., 660 F.3d 900, 904 (5th Cir. 2011).

22.              Prior to the filing of the Current Action, on October 9, 2023, BNYM filed suit to evict Plaintiffs from the Property in Justice Court No. 3, Cause No. JP03-23-E00072506 and obtained a Judgment of possession in favor of BNYM.

(ECF No. 7, Exhibit Y, Appx at p.488.)

Subsequently, on October 25, 2023, Plaintiffs filed an appeal to County Court at Law No. 1 of Tarrant County, Texas under Cause No. 2023-007641-1.

On January 23, 2024, County Court at Law No. 1 entered a Judgment of possession in favor of BNYM.

(ECF No. 7, Exhibit Z, Appx at p. 490.)

The state court stated that after considering the testimony and evidence, BNYM was entitled to judgment.

The state court ordered that BNYM shall have judgment for possession of the Property.

(Id.)

23.              Plaintiffs’ request for preliminary injunction must be denied because this Court lacks jurisdiction to intervene in any state court forcible detainer action.

Knoles v. Wells Fargo Bank, N.A., 513 Fed. App’x 414, 416, 2013 WL 617010, 2 (5th Cir. 2013).

The Rooker-Feldman doctrine bars cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the federal district court proceedings commenced and inviting district court review and rejection of those judgments.

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005).

When a litigant loses in state court, they are barred from subsequently bringing that same claim in federal court.

(Id.)

24.              The Rooker-Feldman doctrine bars the review of state court eviction proceedings.

Sherman v. Johnson, No. 22-30693, 2023 U.S. App. LEXIS 18821 at *1 (5th Cir. 2023).

Here, a Final Judgment of possession was entered in favor of BNYM by the state court.

(ECF No. 7, Exhibit Z, Appx at p. 490.)

Plaintiffs now seek a preliminary injunction from this Court enjoining Defendant from evicting Plaintiff and from selling the Property.

A preliminary injunction against Defendant restraining it from evicting Plaintiffs would be a direct bar to their eviction pursuant to the Judgment entered by the County Court at Law No. 1, Tarrant County, Texas and is barred under the Rooker-Feldman doctrine.

Price v. Porter, 351 F. App’x 925, 926 (5th Cir. 2009).

25.              It is evident that Plaintiffs are directly attacking the state court judgment entered in the eviction proceedings and their underlying claims herein are inextricable intertwined with the state court judgment of possession.

The Rooker-Feldman doctrine precludes this Court from interfering with a state court proceeding and the Court has no authority to grant the injunctive relief requested.

Chamberlain v. 625 Orleans, LP, No. 1:11-CV-140, 2011 U.S. Dist. LEXIS 45876 at *11 (E.D. Tex. Apr. 18, 2011);

see also Bradley v. PNC Bank, N.A., No. 4:14CV37, 2014 U.S. Dist. LEXIS 136649, at *16 (E.D. Tex. Sep. 26, 2014)

(denying plaintiff’s request for injunctive relief to restrain eviction since the court lacked authority to exercise subject-matter jurisdiction over a collateral attack on a state court judgment).

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests that the Court deny Plaintiffs’ request for preliminary injunction and grant it all other relief to which it is entitled.

Respectfully submitted,

By:   /s/ Mark D. Cronenwett

MARK D. CRONENWETT
Texas Bar No. 00787303 mcronenwett@mwzmlaw.com

MACKIE WOLF ZIENTZ & MANN, P. C.
14160 North Dallas Parkway, Suite 900
Dallas, TX 75254
Telephone: (214) 635-2650
Facsimile: (214) 635-2686

Attorneys for Defendant

CERTIFICATE OF SERVICE
I hereby certify that on March 1, 2024, a true and correct copy of the foregoing was served via ECF service on the following:

Debra Edmondson
P.O. Box 92801
325 Miron Dr., Ste. 100
Southlake, Texas 76092

Attorneys for Plaintiffs

/s/ Mark D. Cronenwett
MARK D. CRONENWETT

Eviction case involving Mark Cronenwett for Mackie Wolf.

ORDER: The parties are ORDERED to comply with the following expedited briefing schedule on Defendant’s Motion for Judgment on the Pleadings (ECF No. 22 ): on or before March 13, 2024, Plaintiffs shall file their Response in Opposition to the Motion; and on or before March 18, 2024, Defendant may file its Reply in Support of the Motion. (Ordered by Judge Reed C. O’Connor on 3/5/2024) (saw) (Entered: 03/05/2024)

U.S. District Court
Northern District of Texas (Fort Worth)
CIVIL DOCKET FOR CASE #: 4:24-cv-00085-O

Couch et al v. The Bank of New York Mellon
Assigned to: Judge Reed C. O’Connor

Case in other court:  County Court at Law No. 1, Tarrant County, TX, 24-000558-1

Cause: 28:1332 Diversity-Breach of Contract

Date Filed: 01/25/2024
Jury Demand: None
Nature of Suit: 290 Real Property: All Other Real Property
Jurisdiction: Diversity

 

Date Filed # Docket Text
03/05/2024 26 FINDINGS OF FACT AND CONCLUSIONS OF LAW: It is ORDERED that Plaintiffs Dickey Couch and Sharon Couch’s Motion for Preliminary Injunction should be and is hereby DENIED. (Ordered by Judge Reed C. O’Connor on 3/5/2024) (saw) (Entered: 03/05/2024)
03/05/2024 27 ORDER: The parties are ORDERED to comply with the following expedited briefing schedule on Defendant’s Motion for Judgment on the Pleadings (ECF No. 22 ): on or before March 13, 2024, Plaintiffs shall file their Response in Opposition to the Motion; and on or before March 18, 2024, Defendant may file its Reply in Support of the Motion. (Ordered by Judge Reed C. O’Connor on 3/5/2024) (saw) (Entered: 03/05/2024)

 


 

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03/07/2024 05:42:48

U.S. District Court
Northern District of Texas (Fort Worth)
CIVIL DOCKET FOR CASE #: 4:24-cv-00085-O

Couch et al v. The Bank of New York Mellon
Assigned to: Judge Reed C. O’Connor

Case in other court:  County Court at Law No. 1, Tarrant County, TX, 24-000558-1

Cause: 28:1332 Diversity-Breach of Contract

Date Filed: 01/25/2024
Jury Demand: None
Nature of Suit: 290 Real Property: All Other Real Property
Jurisdiction: Diversity
Plaintiff
Sharon Couch represented by Debra Suzanne Edmondson
The Edmondson Law Firm PLLC
325 Miron Drive, Suite 100
PO Box 92801
Southlake, TX 76092
817-416-5291
Email: debra@edmondsonlawfirm.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Plaintiff
Dickey Couch represented by Debra Suzanne Edmondson
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
V.
Defendant
The Bank of New York Mellon
as Trustee for NovaStar Mortgage Funding Trust, Series 2005-4 NovaStar Home Equity Loan, Asset-Backed Certificates, Series 2005-4
formerly known as
The Bank of New York, as Successor Trustee for JPMorgan Chase Bank, N.A.
represented by Mark D Cronenwett
Mackie Wolf Zientz & Mann PC
14160 N Dallas Parkway, Suite 900
Dallas, TX 75254
214-635-2650
Fax: 214-635-2686
Email: mcronenwett@mwzmlaw.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

 

Date Filed # Docket Text
01/25/2024 1 NOTICE OF REMOVAL filed by The Bank of New York Mellon, f/k/a The Bank of New York, as Trustee for NovaStar Mortgage Funding Trust, Series 2005-4 NovaStar Home Equity Loan, Asset-Backed Certificates, Series 2005-4. (Filing fee $405; receipt number ATXNDC-14342704) 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), # 2 Cover Sheet, # 3 Cover Sheet Supplement) (Cronenwett, Mark) (Entered: 01/25/2024)
01/25/2024 2 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by The Bank of New York Mellon, f/k/a The Bank of New York, as Trustee for NovaStar Mortgage Funding Trust, Series 2005-4 NovaStar Home Equity Loan, Asset-Backed Certificates, Series 2005-4. (Clerk QC note: No affiliate entered in ECF). (Cronenwett, Mark) (Entered: 01/25/2024)
01/25/2024 3 New Case Notes: A filing fee has been paid. File to: Judge O Connor. Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge. Clerk to provide copy to plaintiff if not received electronically. Attorneys are further reminded that, if necessary, they must comply with Local Rule 83.10(a) within 14 days or risk the possible dismissal of this case without prejudice or without further notice. (bdb) (Entered: 01/26/2024)
02/01/2024 4 MOTION for Temporary Restraining Order filed by Dickey Couch with Brief/Memorandum in Support. (Attachments: # 1 Declaration(s), # 2 Affidavit(s)) (Edmondson, Debra) (Entered: 02/01/2024)
02/01/2024 5 Motion to Dismiss for Failure to State a Claim filed by The Bank of New York Mellon (Attachments: # 1 Proposed Order) (Cronenwett, Mark) (Entered: 02/01/2024)
02/01/2024 6 Brief/Memorandum in Support filed by The Bank of New York Mellon re 5 Motion to Dismiss for Failure to State a Claim (Cronenwett, Mark) (Entered: 02/01/2024)
02/01/2024 7 Appendix in Support filed by The Bank of New York Mellon re 5 Motion to Dismiss for Failure to State a Claim (Attachments: # 1 Exhibit(s)) (Cronenwett, Mark) (Entered: 02/01/2024)
02/01/2024 8 ORDER: The Court ORDERS the parties to confer and file a joint notice on the docket no later than February 5, 2024, outlining an agreed briefing schedule for Plaintiff’s 4 Motion. (Ordered by Judge Reed C. O’Connor on 2/1/2024) (bdb) (Entered: 02/02/2024)
02/05/2024 9 NOTICE of Agreed Proposed Briefing Schedule on Plaintiffs’ Brief in Support of Motion for Temporary Restraining Order, re: 8 Order Setting Deadline/Hearing, filed by The Bank of New York Mellon (Cronenwett, Mark) (Entered: 02/05/2024)
02/06/2024 10 ORDER re: 4 Motion for Temporary Restraining Order and 5 Motion to Dismiss: Responses due by 2/9/2024. Replies due by 2/16/2024. (Ordered by Judge Reed C. O’Connor on 2/6/2024) (bdb) (Entered: 02/06/2024)
02/09/2024 11 RESPONSE filed by The Bank of New York Mellon re: 4 MOTION for Temporary Restraining Order (Cronenwett, Mark) (Entered: 02/09/2024)
02/09/2024 12 Brief/Memorandum in Support filed by The Bank of New York Mellon re 11 Response/Objection (Cronenwett, Mark) (Entered: 02/09/2024)
02/16/2024 13 RESPONSE filed by Dickey Couch, Sharon Couch re: 5 Motion to Dismiss for Failure to State a Claim (Glover, Joseph) (Entered: 02/16/2024)
02/16/2024 14 Brief/Memorandum in Support filed by Dickey Couch, Sharon Couch re 13 Response/Objection (Glover, Joseph) (Entered: 02/16/2024)
02/16/2024 15 Appendix in Support filed by Dickey Couch, Sharon Couch re 14 Brief/Memorandum in Support of Motion (Glover, Joseph) (Entered: 02/16/2024)
02/23/2024 16 NOTICE of of service of Initial Disclosures filed by The Bank of New York Mellon (Cronenwett, Mark) (Entered: 02/23/2024)
02/23/2024 17 REPLY filed by The Bank of New York Mellon re: 5 Motion to Dismiss for Failure to State a Claim (Cronenwett, Mark) (Entered: 02/23/2024)
02/23/2024 18 Pretrial Disclosures filed by Dickey Couch, Sharon Couch. (Glover, Joseph) (Entered: 02/23/2024)
02/28/2024 19 MEMORANDUM OPINION & ORDER: The Court GRANTS in part and DENIES in part the Motion to Dismiss (ECF No. 5 ) and GRANTS the Motion for TRO (ECF No. 4 ). This Temporary Restraining Order SHALL remain effective for fourteen days and expire at 11:59 PM on March 13, 2024. Counsel for Plaintiffs and Defendant are ORDERED to appear for a preliminary injunction hearing on Tuesday, March 5, 2024 at 9:00 AM in the Second Floor Courtroom of the Eldon B. Mahon United States Courthouse (501 West 10th Street, Fort Worth, Texas 76102). The parties are ORDERED to file supplemental briefing on the foregoing issues in advance of the preliminary injunction hearing, but not later than March 1, 2024. (Ordered by Judge Reed C. O’Connor on 2/28/2024) (saw) (Entered: 02/28/2024)
03/01/2024 20 Brief/Memorandum in Support filed by Dickey Couch, Sharon Couch re 19 Memorandum Opinion and Order,,,, Order Setting Deadline/Hearing,,, (Glover, Joseph) (Entered: 03/01/2024)
03/01/2024 21 ANSWER to Complaint filed by The Bank of New York Mellon. 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. Attorneys are further reminded that, if necessary, they must comply with Local Rule 83.10(a) within 14 days or risk the possible dismissal of this case without prejudice or without further notice. (Cronenwett, Mark) (Entered: 03/01/2024)
03/01/2024 22 MOTION for Judgment on the Pleadings Pursuant to Federal Rule of Civil Procedure 12(C), filed by The Bank of New York Mellon (Attachments: # 1 Proposed Order) (Cronenwett, Mark) (Entered: 03/01/2024)
03/01/2024 23 Brief/Memorandum in Support filed by The Bank of New York Mellon re 22 MOTION for Judgment on the Pleadings Pursuant to Federal Rule of Civil Procedure 12(C), (Cronenwett, Mark) (Entered: 03/01/2024)
03/01/2024 24 Supplemental Document by The Bank of New York Mellon as to 19 Memorandum Opinion and Order,,,, Order Setting Deadline/Hearing,,, Supplemental Brief in Compliance with the Court’s Order. (Cronenwett, Mark) (Entered: 03/01/2024)

 


 

PACER Service Center
Transaction Receipt
03/03/2024 10:35:12

PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

MAR 1, 2024 | REPUBLISHED BY LIT: MAR 7, 2024

Plaintiffs Dickey Couch and Roland Couch (“Plaintiffs” or the “Couches,” collectively) respectfully submit this supplement brief in support of our request for preliminary injunction with additional information regarding the claim for adverse possession.

I.          INTRODUCTION

1.1              The Plaintiffs are Dickey Roland Couch and Sharon Gale Couch (“The Couches” or “Plaintiffs,” hereinafter).

1.2              The Defendant is The Bank of New York Mellon f/k/a The Bank of New York, as trustee for Novastar Mortgage Funding Trust, Series 2005-4 Novastar Home Equity Loan Asset-Backed Certificates, Series 2005-4 (“BONYM” or “Defendant”, hereinafter).

1.3              Plaintiffs allege that Defendant has no claim to the property at 9845 Ray White Rd, Keller, Texas 76248, in Tarrant County (the “Property”) because Defendant failed to exercise its power of sale before the applicable limitations period of four (4) years required by Tex. Civ. Prac & Rem. Code passed and also because Plaintiffs have a claim of adverse possession.

1.4              On January 31, 2024, Plaintiffs learned there is a pending sale on the Property pursuant to the listing of the Property on www.Hubzu.com.

1.5              Plaintiffs ask the Court to take judicial notice of the Appendix in Support of Plaintiffs’ Response to Defendant’s Motion to Dismiss (ECF 15).

ARGUMENT

2.1               A preliminary injunction is appropriate if the Plaintiffs can establish that: (1) they are likely to succeed on the merits of their case; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tip in their favor; and (4) that an injunction is not against the public interest. Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008); Whirlpool Corp. v. Shenzhen Sanlida Elec. Tech. Co., Ltd., 80 F.4th 536, 543 (5th Cir. 2023) See Munaf v. Geren, 553

U.S. 674, 689-690 (2008); Amoco Production Co. v. Gambell, 480 U.S. 531, 542 (1987);

Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-312 (1982).

i.             Plaintiffs are likely to succeed on the merits of their case.

2.2               “In order to establish adverse possession as a matter of law, the claimant must show by undisputed evidence his actual peaceable and adverse possession of the property   “Bywaters v.

Gannon, 686 S.W.2d 593, 595 (Tex. 1985) (citations omitted). Peaceable possession is “possession of real property that is continuous and is not interrupted by an adverse suit to recover the property.” Tex. Civ. Prac. & Rem. Code §16.021(3). Adverse possession is “actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is

hostile to the claim of another person.” Tex. Civ. Prac. & Rem. Code § 16.021(1). A party claiming title by adverse possession must demonstrate “(1) actual and (2) visible possession that is (3) under a claim of right, (4) hostile to another’s claim to the property, and (5) peaceable for the applicable limitations period.” Tex. Civ. Prac. & Rem. Code § 16.021; see Nat. Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 193 (Tex. 2003).

2.3               If the party “cultivates, uses, or enjoys the property” and “pays applicable taxes on the property” while “claim[ing] the property under a duly registered deed[,]” the applicable limitations period is five years. Tex. Civ. Prac. & Rem. Code § 16.025(a); see Natural Gas Pipeline Co. v. Pool, 124 S.W.3d 188, 193 (Tex. 2003). The Couches claim the Property under a duly registered deed, they are the only party to use the Property since at least 2001, and they have been the only party to pay taxes on the property from at least 2001-2023. Therefore, the applicable statute of limitations period is five years.

2.4               The statute of limitations begins to run at the point that the right of action accrues.

Warnecke v. Broad, 138 Tex. 631, 634 161 S.W.2d 453, 454 (1942); Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp., 522 U.S. 192, 201 (1997). This language incorporates the standard rule that the limitations period commences when the Plaintiff has “a complete and present cause of action.” Rawlings v. Ray, 312 U.S. 96, 98 (1941); see also Clark v. Iowa City, 87U.S. 583, 589 (1875) (“All statutes of limitation begin to run when the right of action is complete

. . . .”). Unless Congress has stated otherwise, a cause of action does not become “complete and present” for limitations purposes until the plaintiff can file suit and obtain relief. See Reiter v. Cooper, 507 U.S. 258, 267 (1993). To satisfy the limitation statutes, “adverse possession” must be not only “an actual and visible appropriation of the land” but it also must be “commenced and continued under a claim of right inconsistent with and hostile to the claim of another.” Tex. Civ.

Prac. & Rem. Code § 16.021(1). No matter what the use and occupancy of the land may be, the possessor must intend to appropriate it. Wright v. Vernon Compress Co., 156 Tex. 474, 296 S.W.2d 517 (1956). BONYM obtained the right to foreclose on the Property on November 1, 2015, from the U.S. District Court for the Northern District of Texas. This began tolling the 5-year statute of limitations for adverse possession.

2.5                 A “claim of right” is defined as the claimant’s intention to appropriate or claim the land.

see Calfee v. Duke, 544 S.W.2d 640, 642 (Tex. 1976); Schuhardt Consulting Profit Sharing Plan v. Double Knobs Mt. Ranch, Inc., 426 S.W.3d 800, 807–808 (Tex. App.—San Antonio 2014, pet. denied) (claim of right depends on owner’s intent to claim land, so mere possession without such intent is not sufficient to support adverse possession). This claim is necessarily hostile or adverse to any claims to the land by other parties. A claim of right may be established by a public declaration of the claim or by open and visible acts. The verbal assertion of a claim is unnecessary. see Ramirez v. Wood, 577 S.W.2d 278, 287 (Tex. Civ. App.—Corpus Christi 1978, no writ).

2.6               There is no dispute that the Couches have actually, visibly, and peaceably possessed the Couch Property since at least 2001. Because the Couches enjoyed the Property under a duly registered deed and were the sole taxpayers on the Property through 2023, the applicable limitations period started on November 1, 2015, and ran through 2023, amounting to a period of 8 years. The Couches are likely to succeed on the merits of the case because the Couches have fulfilled all the elements to claim title to the Property through adverse possession.

ii.            Plaintiffs will suffer irreparable harm in the absence of preliminary relief.

2.7              The loss of a home will be irreparable harm. Euristhe v. Beckmann, No. 4:23-cv-00653-O- BP, 2023 U.S. Dist. LEXIS 113095 *11 (N.D. Tex. 2023); see Belknap v. Bank of America, N.A., G-12-198, 2013 U.S. Dist. LEXIS 201231, 2012 WL 3150271, at *3 (S.D. Tex. Aug. 1, 2012); see

also U.S. v. Goltz, SA-06-CA-503-XR, 2007 U.S. Dist. LEXIS 5322, 2007 WL295558, at *3

(W.D. Tex. Jan. 25, 2007) (loss of property is usually considered an irreparable injury). The Couches will suffer irreparable harm if a preliminary injunction is not issued because BONYM will not only sell the Property but evict the Couches as well while this case is being heard on the merits. This will deprive the Couches, a nearly 70-year-old couple of the home they have lived in for over 20 years, causing irreparable harm.

iii.  Plaintiffs can demonstrate that the balance of equities tip in their favor.

2.8              Plaintiffs seeking a preliminary injunction must demonstrate that the balance of equities tips in their favor. Vanderstok v. Garland, No. 23-10718, 2023 U.S. App. LEXIS 26499 *6 (5th Cir. 2023); see Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). Plaintiffs face losing the Property where they have lived for over twenty years while a preliminary injunction would only delay Defendant, a large banking conglomerate, from selling one of its numerous properties until the end of trial.

iv.    A preliminary injunction is not against the public interest.

2.9              Issuance of a preliminary injunction would not adversely affect the public interest as this is a matter relating to the ownership of one single family property which only affects the parties at suit; courts consider a preliminary injunction for a private foreclosure sale in favor of public interest and at worst neutral to public interest. See Opulent Life Church v. City of Holly Springs Miss., 697 F.3d 279, 298 (5th Cir. 2012); Euristhe v. Beckmann, No. 4:23-cv-00653-O-BP, 2023

U.S. Dist. LEXIS 113095 *12 (N.D. Tex. 2023); Maria Eugenia Enters. v. Wells Fargo Bank, N.A., Civil Action No. 3:19-CV-2729-BH, 2020 U.S. Dist. LEXIS 255868 *13 (N.D. Tex. 2020).

In fact

CONCLUSION

The Plaintiffs have established the need for a preliminary injunction to enjoin Defendant from evicting the Couches and selling the Couch Property while this case is at trial. Plaintiffs have a strong likelihood to succeed on the merits of their adverse possession claim. Plaintiffs will suffer irreparable harm if Defendant is not enjoined from evicting the Couches and selling the Couch Property. The balance of equities shifts in favor of the Plaintiffs because they are at risk of losing the only home they own, a home that they have lived in for over 20 years. And finally, a delayed private foreclosure sale is not adverse to the public interest. For these reasons, Plaintiffs ask the Court to issue a preliminary injunction enjoining Defendant and its agents from attempting to sell the Couch Property until the close of this suit.

Respectfully submitted,

/S/Debra Edmondson

Debra Edmondson
Texas State Bar No. 24045824
debra@edmondsonlawfirm.com

Joseph Glover
Texas State Bar No. 24131334
josephg@edmondsonlawfirm.com

The Edmondson Law Firm, P.L.L.C.
P.O. Box 92801
325 Miron Dr., Ste. 100
Southlake, TX 76092
Telephone: (817) 416-5291

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

On March 1, 2024, I electronically submitted the foregoing document with the clerk of court for the U.S. District Court, Northern District of Texas, along with all attorneys of record, using the electronic case filing system of the court.

/S/Debra Edmondson

Debra Edmondson

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