Akerman

Forensic Loan Auditor Lassberg Avoids Foreclosure Despite Losing Her Lawsuit in 2015

Discover how LIT sheds light on the inconsistent and questionable application of Texas laws concerning homes secured by predatory loans.

Frisco Independent School District vs. Leslie Claire Lassberg, A/K/A Claire Lassberg, ET AL.

471-06003-2022

NOV 2, 2022 | REPUBLISHED BY LIT: APR 24, 2024
APR 24, 2024

This case would be non-suited after Lassberg claimed she was seeking assistance from the Texas Homeowners Assistance Program, which has now ended. It was a pandemic-related scheme, not a repayment of mortgage and taxes since 2010 repayment scheme.

Above is the date LIT Last updated this article.

Lassberg v. Bank of America, N.A.

(4:13-cv-00577)

District Court, E.D. Texas

MAY 16, 2014 | REPUBLISHED BY LIT: APR 22, 2024
APR 22, 2024

Above is the date LIT Last updated this article.

MEMORANDUM OPINION AND ORDER1

Pending before the Court are Defendants’ Motion for Summary Judgment (Dkt. #51) and Plaintiff’s Motion for Partial Summary Judgment (Dkt. #53).

The Court, having considered the relevant pleadings, finds that Defendants’ Motion for Summary Judgment should be granted and Plaintiff’s motion should be denied.

BACKGROUND

On or about December 22, 2004, Plaintiff Leslie Lassberg obtained a loan from WMC Mortgage Corporation (“WMC”) in the amount of $137,600.00 to purchase property located at 7113 Stoneridge Drive, Frisco, Texas 75034 (the “Property”).

In securing the loan, Plaintiff executed a Deed of Trust pledging the Property as security.

The Deed of Trust names MERS as a beneficiary, and, in that capacity, MERS assigned the Deed of Trust to Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) on December 18, 2012.

Defendant Bank of America, N.A. (“Bank of America”) is the current loan servicer.

Plaintiff defaulted under the terms of the Note and Deed of Trust by not timely making her

1 On October 27, 2014, the undersigned entered a report and recommendation in this case as the United States Magistrate Judge to whom this case was referred.

This case is now assigned to the undersigned as the United States District Judge, and this memorandum opinion and order is issued accordingly.

monthly payments.

Plaintiff first defaulted on the loan in January of 2007.

Plaintiff made her last mortgage payment on or about April 25, 2011, which brought her loan current through August of 2010.

Plaintiff’s loan is currently forty-five (45) months in arrears.

On June 1, 2007, Plaintiff filed for Chapter 13 Bankruptcy in Case No. 07-41168, in the United States Bankruptcy Court for the Eastern District of Texas, Sherman Division (the “Bankruptcy Case”).

On March 14, 2013, the Bankruptcy Case closed and on September 3, 2013, Plaintiff filed the instant suit in the 429th Judicial District Court of Collin County, Texas.

On September 30, 2013, Defendants removed this action to this Court.

On March 7, 2014, Plaintiff filed her Amended Complaint. Plaintiff contends that Defendants lack capacity to enforce the terms of their mortgage because they were not the “holder” of the mortgage note, and that MERS did not have the authority to assign the debt.

Plaintiff has sued Defendants for:

(1) violations of the Texas Local Government Code;

(2) quiet title;

(3) violations of Texas Civil Practices and Remedies Code;

and

(4) invasion of privacy.

Based on these alleged violations, Plaintiff seeks damages of an unspecified amount, injunctive and declaratory relief, attorneys’ fees and costs.

On June 11, 2014, Defendants filed a Motion for Summary Judgment (Dkt. #51).

On June 30, 2014, Plaintiff filed a response (Dkt. #56).

On July 7, 2014, Defendants filed a reply (Dkt. #57).

On June 16, 2014, Plaintiff filed a motion for partial summary judgment (Dkt. #53).

On June 30, 2014, Defendants filed a response (Dkt. #55).

On July 22, 2014, Plaintiff filed an amended reply (Dkt. #65).

LEGAL STANDARD

The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses.

See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits “[show] that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The trial court must resolve all reasonable doubts in favor of the party opposing the motion for summary judgment.

Casey Enterprises, Inc. v. American Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981) (citations omitted).

The substantive law identifies which facts are material.

Anderson, 477 U.S. at 248.

The party moving for summary judgment has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

Id. at 247.

If the movant bears the burden of proof on a claim or defense on which it is moving for summary judgment, it must come forward with evidence that establishes “beyond peradventure all of the essential elements of the claim or defense.”

Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986).

But if the nonmovant bears the burden of proof, the movant may discharge its burden by showing that there is an absence of evidence to support the nonmovant’s case.

Celotex, 477 U.S. at 325; Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000).

Once the movant has carried its burden, the nonmovant must “respond to the motion for summary judgment by setting forth particular facts indicating there is a genuine issue for trial.”

Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at 248-49).

The nonmovant must adduce affirmative evidence.

Anderson, 477 U.S. at 257.

DISCUSSION AND ANALYSIS2

Defendants make the following arguments:

(1) that Plaintiff’s claims are barred by collateral estoppel and/or res judicata;

(2) Plaintiff’s claims are barred by judicial estoppel;

(3) MERS was the proper entity to assign the debt;

(4) Defendants are entitled to enforce the default provisions of the Deed of Trust;

and

(5) Plaintiff cannot succeed on the merits of her claims and, therefore, is not entitled to declaratory or injunctive relief.

MERS

Defendants move for summary judgment asserting that Plaintiff’s suit largely rests on the faulty theory that MERS’s role in the Deed of Trust and Assignment render the security instruments invalid.

Defendants assert that these arguments have no merit whatsoever as courts have routinely dismissed similar claims, including numerous times in the Eastern District of Texas stating that theories such as Plaintiff’s have “[b]een rejected by courts across the country. . .”

Plaintiff argues that the role of MERS is relevant because she has alleged that Bank of America is not the real party in interest and is not entitled to enforce the Note and Deed of Trust.

The Court agrees with Defendants that MERS, as the nominee for the originating lender, and its successors and assigns, had the authority to foreclose on the Deed of Trust and the authority to transfer its rights and interests to another entity, which would then be able to foreclose if the Note was in default.

Under the Texas Property Code, a mortgagee may authorize a mortgage servicer to service a mortgage and conduct a foreclosure sale.

See Tex. Prop. Code § 51.0025.

Here, the Deed of Trust identified MERS as the beneficiary and the nominee for the original lender and its

2 On September 18, 2014, the Court entered an Amended Order Granting in Part Defendants’ Objections to Plaintiff’s Expert Disclosures and Motion to Exclude Experts (Dkt. #72). Based upon this Order, the Court excluded significant portions of Plaintiff’s expert affidavits.

successors and assigns.

MERS is a mortgagee under the Texas Property Code. See Tex. Prop. Code § 51.0001(4).

As a mortgagee, MERS could authorize another entity to service the loan and foreclose.

Allen v. Chase Home Finance, LLC, No. 4:11-cv-223, 2011 WL 2683192, at *3 (E.D. Tex. June 10, 2011).

The Court finds that, as a matter of law, the allegations regarding Defendants’ lack of authority to foreclose because MERS did not have the authority to transfer the Note have no basis in law.

Martins v. BAC Home Loans Serv., L.P., 722 F.3d 249, 255 (5th Cir. 2013);

Casterline v. OneWest Bank, F.S.B., 537 F. App’x 314, 317 (5th Cir. 2013);

Wigginton v. Bank of New York Mellon, 488 F. App’x 868, 870 (5th Cir. 2012).

“Under Texas law, a non judicial foreclosure may be initiated by the current mortgagee including: the grantee, beneficiary, owner, or holder of a security instrument; a book entry system; or the last person to whom the security interest has been assigned of record.”

Farkas v. GMAC Mortg., L.L.C., 737 F.3d 338, 342 (5th Cir. 2013) (citing Tex. Prop. Code § 51.0001(4)).

“[T]he mortgage servicer need not hold or own the note and yet would be authorized to administer a foreclosure.”

Martins, 722 F.3d at 255;

Casterline, 537 F. App’x at 318;

Hall v. BAC Home Loans Serv., L.P., 541 F. App’x 430, 433 (5th Cir. 2013);

Epstein v. U.S. Bank Nat. Ass’n, 540 F. App’x 354, 356 (5th Cir. 2013).

This Court has also found on multiple occasions that MERS has the authority to transfer a note.

See Glaser v. Wells Fargo Bank, N.A., No. 4:12-CV-289-DDB, 2013 WL 676662, at *2 (E.D. Tex. Feb. 25, 2013);

see also Martin v. Wells Fargo Bank, N.A., No. 4:11-CV-442, 2013 WL 694009, at *4 (E.D. Tex. Feb. 26, 2013);

Hilger v. Bank of America, N.A., No. 4:12-CV-214, 2013 WL 676538, at *3 (E.D. Tex. Feb. 25, 2013);

Mason v. Bank of America, N.A., No. 4:12-CV-291, 2013 WL 1313773, at *2-3 (E.D. Tex. Feb. 25, 2013);

Gloria v. Bank of New York Mellon, No. 4:12-CV-76, 2013 WL 639049, at *5-6 (E.D. Tex. Feb. 21, 2013).

The Court agrees that the summary judgment evidence shows MERS, as nominee for WMC, assigned the Deed of Trust to Wells Fargo.

Therefore, the Court finds that Defendants’ motion for summary judgment should be granted to the extent that Plaintiff challenges MERS’s authority to transfer the loan to Wells Fargo.

Plaintiff has failed to raise a material fact issue.

Various opinions within the Fifth Circuit have rejected Plaintiff’s argument that MERS’s assignment of the mortgage was invalid and, without any factual distinctions by Plaintiff here, the Court declines to revisit the issue.

See, e.g., Richardson v. CitiMortgage, Inc., No. 6:10CV119, 2010 WL 4818556, at *5 (E.D. Tex. Nov. 22, 2010)

(rejecting the plaintiffs’ attack on MERS, and noting that “[u]nder Texas law, where a deed of trust, as here, expressly provides for MERS to have the power of sale, then MERS has the power of sale”)

(citing Athey v. MERS, 314 S.W.3d 161, 166 (Tex.App.-Eastland 2010));

Allen, 2011 WL 2683192, at *3–4;

Anderson v. CitiMortgage, Inc., No. 4:10-cv-398, 2011 WL 1113494, at *1–2 (E.D. Tex. Mar. 24, 2011);

see also Santarose v. Aurora Bank FSB, No. H-10-720, 2010 WL 2232819, at *5 (S.D. Tex. 2010)

(rejecting the argument that MERS lacked standing to foreclose and was not a real party in interest);

Wiggington, 2011 WL 2669071, at *3.

Similarly, courts have consistently held that a borrower does not have standing to challenge assignment from MERS to which the borrower was a non-party.

Adams v. Bank of America, N.A., No. 4:10-cv-709, 2011 WL 5080217, at *4 (E.D. Tex. Oct. 26, 2011);

Defranceschi v. Wells Fargo Bank, N.A., No. 4:10-cv-455-Y, 2011 WL 3875338, at *5 (N.D. Tex. Aug. 31, 2011);

McAllister v. BAC Home Loans Servicing, LP, No. 4:10-cv-504, 2011 WL 2200672, at *5 (E.D. Tex. Apr. 28, 2011);

Eskridge v. Fed. Hom Loan Mortgage Corp., No. H-10-663, 2011 WL 2163989 (W.D. Tex. Feb. 24, 2011);

Schieroni v. Deutsche Bank National Trust Company, No. H-10-663, 2011 WL 3652194, at *6 (S.D. Tex. Aug. 18, 2011).

Based on the governing authority here, the Court can identify no facts that would state a sufficient claim to challenge whether a third party has authority to act on behalf of MERS.

Standing to Challenge the Assignment of Deed of Trust Defendants further assert that Plaintiff lacks standing to challenge the assignment from MERS to Wells Fargo, asserting that Plaintiff was not a party to the assignment, has no evidence the assignment was void, and has no evidence she faced any risk of competing claims for payment under the Note.

Plaintiff asserts that summary judgment for the Defendants in this case is improper, as the evidence demonstrates that Bank of America and Wells Fargo, which stands as trustee of the MSAC 2005-WMC3 Trust, are not the real parties in interest and lack sufficient standing to enforce the Deed of Trust and foreclose on the Property.

More specifically, Plaintiff asserts that the evidence in this case shows that the Deed of Trust was never properly transferred into the MSAC 2005-WMC3 Trust (“WMC3 Trust,”) and Bank of America and Wells Fargo, as trustee of the WMC3 Trust, have no legal authority to assert a claim based on the Deed of Trust.

Plaintiff argues that according to the Pooling and Servicing Agreement (“PSA”) for the WMC3 Trust, the transfer of the Deed of Trust to the WMC3 Trust must have been accomplished on or before the closing date of the WMC3 Trust, which was May 6, 2005.

Plaintiff asserts that these requirements from the PSA also mean the WMC3 Trust is unable to have any other assets placed into the WMC3 Trust after the closing date.

Plaintiff asserts that all assignments or endorsements executed after the WMC3 Trust’s closing date are void, as they violate the express terms of the WMC3 Trust PSA.

Plaintiff points out that the Assignments of Deed of Trust in this case, which purported to transfer the Deed of Trust into the WMC3 Trust, were not executed until December 18, 2012, and recorded on December 20, 2012, more than seven years after the closing date of the WMC3 Trust.

The Fifth Circuit recently clarified an exception to the general rule regarding standing to challenge an assignment.

Specifically, the Fifth Circuit stated that a mortgagor may challenge an assignment “on any ground that renders the assignment void.”

Reinagel v. Deutsche Bank Nat. Trust Co., 735 F.3d 220, 224-25 (5th Cir. 2013).

However, after clarifying the “void” versus “voidable” requirement, the Fifth Circuit went on to state that “even assuming that the [plaintiffs] are third-party beneficiaries, the fact that the assignments violated the PSA—a separate contract—would not render the assignments void ”

Id. at 228;

see also Calderon v. Bank of Am., N.A., 941 F. Supp. 2d 753, 765-66 (W.D. Tex. 2013);

Washington v. JP Morgan Chase, No. SA-11-CV-763-XR, 2013 WL 636054, at *8-9 (W.D. Tex. Feb. 20, 2013);

Sigaran v. U.S. Bank Nat. Ass’n, No. H 12-3588, 2013 WL 2368336, at *3 (S.D. Tex. May 29, 2013).

Because the lone challenge asserted by Plaintiff would merely render the assignment voidable, she lacks standing to make that challenge, and her claims fail as a matter of law.

See also Farkas, 737 F.3d at 342.

An assertion that the person who executed the assignment lacked authority to do so renders the assignment merely voidable, not void.

Reinagel, 735 F.3d at 226; Epstein, 540 F. App’x at 357.

A homeowner’s challenges to the authority of the person who executed the assignment, a challenge to the authenticity of the signature on the assignment, and a challenge to the assignment on the basis that it was contrary to the terms of a Pooling and Service Agreement, are all grounds that make an assignment voidable, but not void.

Reinagel, 735 F.3d at 226-28.

As a voidable assignment, only the parties to the assignment, not Plaintiff, can challenge it.

The Fifth Circuit recently rejected the very claim asserted by Plaintiff in this case that the assignment of a loan to the Trust violated the Trust’s PSA because the transfer of a loan occurred after the Trust’s closing date, citing Reinagel.

See Gonzales v. Bank of America, N.A., 574 F. App’x 441, 444 (5th Cir. 2014).

Plaintiff has raised no factual issues that would allow her to challenge the assignment in this case.

Defendants are entitled to summary judgment.3 All of Plaintiff’s claims regarding violations of the PSA fail as a matter of law.

Statutory Violations of Texas Local Government Code § 192.007

Plaintiff asserts that Defendants violated section 192.007 of the Texas Government Code by not filing the assignment.

Defendants move for summary judgment asserting that the assignment was filed, and citing to Reinagel.

735 F.3d at 227 n.27.

Plaintiff does not respond to this argument.

The Court agrees that Plaintiff’s claim fails as a matter of law.

Suit to Quiet Title and Trespass to Try Title

“To prevail in a trespass-to-try-title action, Plaintiffs must usually

(1) prove a regular chain of conveyances from the sovereign,

(2) establish superior title out of a common source,

(3) prove title by limitations,

or

(4) prove title by prior possession coupled with proof that possession was not abandoned.”

Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004) (citation omitted).

“The pleading rules are detailed and formal, and require a plaintiff to prevail on the superiority of his title, not on the weakness of a defendant’s title.”

Id. (citation omitted).

A suit to quiet title is an equitable remedy to clarify ownership by removing clouds on the title.

See Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 618 (Tex. 2007).

To establish a claim for suit to quiet title, Plaintiff must show the following:

(1) an interest in specific property;

(2) that title to the property is affected by a claim by the defendant;

and

(3) that the claim, although facially

3 Plaintiff’s reliance upon New York law is misplaced.

See Svoboda v. Bank of America, N.A., 571 F. App’x 270, 273 (5th Cir. 2014).

valid, is invalid or unenforceable.

Sadler v. Duvall, 815 S.W.2d 285, 293, n.2 (Tex. App.–Texarkana 1991, pet. denied).

An adverse claim, to constitute a cloud on the title removable by the court, must be one that is valid on its face but is proved by extrinsic evidence to be invalid or unenforceable.

Id.

Defendants assert that Plaintiff does not establish the strength of her own title as MERS was the beneficiary and nominee of the original lender in the Deed of Trust and MERS assigned the right to foreclose to Wells Fargo.

Defendants further assert that Plaintiff does not plead that she tendered, or offered to tender, the full amount owed on the Note, and Plaintiff can offer no summary judgment evidence showing she had superior title to the Property.

The summary judgment record is clear: Defendants’ interest in the Property was valid and enforceable.

The Court has already rejected Plaintiff’s other claims.

Thus, Plaintiff has no basis for an action based upon trespass to try title or quiet title.

Fraudulent Lien Claim

Plaintiff alleges that Defendants Bank of America and Wells Fargo violated Section 12.002 of the Texas Civil Practices & Remedies Code by causing to be filed an appointment of substitute trustee and the Assignment.

Defendants move for summary judgment on this claim asserting the following:

(1) that the appointment of substitute trustee and the Assignment do not fall within the confines of Chapter 12;

and

(2) that Plaintiff fails to meet any of the required elements of this claim.

Plaintiff argues that Defendants caused to be drafted an appointment of substitute trustee and caused it to be filed of record knowing full well that Wells Fargo as Trustee did not own the Plaintiff’s Note and Deed of Trust.

Plaintiff also alleges that Bank of America also knew that the Plaintiff’s Note and Deed of Trust did not actually make this trust pool of loans because of non-compliance with the PSA.

Plaintiff also relies upon her verified complaint to support that there is a fact question regarding Defendants’ intent.

Texas Civil Practice and Remedies Code Section 12.002(a) prohibits a person from making, presenting, or using a document with knowledge the document is a fraudulent lien against real property.4

To establish a claim under Section 12.002(a), a plaintiff must show

(1) the defendant made, presented, or used a document with knowledge it was a fraudulent lien,

(2) the defendant intended that the document be given legal effect,

and

(3) the defendant intended to cause plaintiff physical injury, financial injury, or mental anguish.

Merritt v. Davis, 331 S.W.3d 857, 860-61 (Tex. App–Dallas 2011, pet. denied);

Golden v. Wells Fargo Bank, N.A., 557 F. App’x 323, 326-27 (5th Cir. 2014)

(quoting Henning v. OneWest Bank, FSB, 405 S.W.3d 950, 964 (Tex. App.–Dallas 2013, no pet.)

(quoting Tex. Civ. Prac. & Rem. Code § 12.002(a)).

“The party asserting a claim under Section 12.002 has the burden to prove the requisite elements of the statute.”

Aland v. Martin, 271 S.W.3d 424, 430 (Tex. App.–Dallas 2008, no pet.).

Under § 12.001(3), a “lien” is defined as “a claim in property for the payment of a debt and includes a security interest.”

The Court agrees that the assignment, appointment of substitute trustee, and foreclosure notices are not liens, and section 12.002 is not applicable to this case.

Garcia v. Bank of New York Mellon, 3:12-CV-0062-D, 2012 WL 692099, at *3 (N.D. Tex. Mar. 5, 2012);

4 Section 12.002 of the Texas Civil Practice and Remedies Code provides that:

(a) A person may not make, present, or use a document or other record with: (1) knowledge that the document or other record is a fraudulent court record or a fraudulent lien or claim against real or personal property or an interest in real or personal property; (2) intent that the document or other record be given the same legal effect as a court record or document of a court created by or established under the constitution or laws of this state or the United States or another entity listed in Section 37.01, Penal Code, evidencing a valid lien or claim against real or personal property or an interest in real or personal property; and (3) intent to cause another person to suffer: (A) physical injury; (B) financial injury; or (C) mental anguish or emotional distress.

Tex. Civ. Prac. & Rem. Code § 12.002.

Jaimes v. Fed. Nat’l Mortg. Ass’n, 930 F. Supp. 2d 692, 697 (W.D. Tex. 2013).

Moreover, Plaintiff provides no factual basis for recovery under this section, with respect to the requisite intent required for such a violation. Defendants are entitled to summary judgment on this claim.5

Claim for Invasion of Privacy

Plaintiff alleges the cause of action of invasion of privacy by misappropriation against Defendants MERS and Merscorp.

Plaintiff alleges that her “personal identifying information” was used “without her consent.”

Misappropriation of likeness requires proof of three elements:

“(i) that the defendant appropriated the plaintiff’s name or likeness for the value associated with it, and not in an incidental manner or for a newsworthy purpose;

(ii) that the plaintiff can be identified from the publication;

and

(iii) that there was some advantage or benefit to the defendant.”

Meadows v. Hartford Life Ins. Co., 492 F.3d 634, 638 (5th Cir. 2007).

“[T]o establish a claim for misappropriation, something unique about the person’s name must exist or the tortfeasor must cash in on goodwill associated with the plaintiff’s name.”

Id. at 639 (internal quotation marks omitted).

Moreover, the tort of misappropriation of name or likeness creates property rights only where the failure to do so would result in excessive exploitation of its value.

Id.

Excessive exploitation refers to preventing the value reduction of one’s property rights in his name or likeness due to the tortfeasor’s use of these.

Id.

Defendants assert that there no evidence in support of Plaintiff’s claim, and Plaintiff offers none in her Amended Complaint.

Defendants assert that Plaintiff merely speculates that “investors” seeking to access information from the Merscorp website, in general, do so by using “the borrower’s

5 Plaintiff’s lack of standing to challenge the assignment is another basis for dismissing the § 12.002 claim.

See Vickery v. Wells Fargo Bank, N.A., No. 11–cv–0243, 2013 WL 321662, at *9 (S.D. Tex. Jan. 28, 2013).

last name and social security number,” but Plaintiff makes no attempt to show that the alleged misuse of her personal information is anything more than incidental use of information related to the transfer of security instruments related to borrower debt.

Plaintiff asserts that she has stated that MERS and Merscorp used her personal identifying information, including her social security number, without her consent or permission, and that they have done so solely for their own commercial benefit, and that these allegations are verified.

Plaintiff also asserts that her verified allegations state her belief that MERS used Plaintiff’s personal identifying information to create and increase revenues for its own for-profit business and that Defendants charge a fee for each time a person logs into the system, and derive a commercial benefit from the Plaintiff’s personal information, all without her consent.

Plaintiff further argues that her claim is based around the fact that MERS and Merscorp’s use of Plaintiff’s personal information was not authorized, and was used for the Defendants’ commercial gain. MERS and Merscorp were not parties to the underlying loan transaction with the lender, and while MERS is listed on the Deed of Trust, there are no provisions wherein Plaintiff agreed to allow the use of her personal information so that MERS and Merscorp could establish and operate a for-profit business enterprise.

The Court agrees with Defendants that there is no basis for this claim.

Plaintiff alleges no factual allegations that would make this claim plausible, and also fails to provide summary judgment evidence that demonstrates that Defendants’ use of Plaintiff’s likeness in a publication provides Defendants some advantage or benefit that they would otherwise not be entitled to.

Summary judgment should be granted on this claim.

Declaratory and Other Equitable Relief

Defendants also move for summary judgment on Plaintiff’s claims for declaratory relief and for an accounting.

The federal Declaratory Judgment Act states, “[i]n a case of actual controversy within its jurisdiction, … any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.”

28 U.S.C. § 2201.

Federal courts have broad discretion to grant or refuse declaratory judgment.

Torch, Inc. v. LeBlanc, 947 F.2d 193, 194 (5th Cir. 1991).

“Since its inception, the Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants.”

Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995).

The Declaratory Judgment Act is “an authorization, not a command.”

Public Affairs Assocs., Inc. v. Rickover, 369 U.S. 111, 112 (1962).

It gives federal courts the competence to declare rights, but does not impose a duty to do so.

Id.

The Declaratory Judgment Act is a procedural device that creates no substantive rights, and requires the existence of a justiciable controversy.

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-241 (1937);

Lowe v. Ingalls Shipbuilding, 723 F.2d 1173, 1179 (5th Cir. 1984).

Thus, the Act provides no relief unless there is a justiciable controversy between the parties.

The Fifth Circuit stated as follows:

In order to demonstrate that a case or controversy exists to meet the Article III standing requirement when a plaintiff is seeking injunctive or declaratory relief, a plaintiff must allege facts from which it appears there is a substantial likelihood that he will suffer injury in the future.

Based on the facts alleged, there must be a substantial and continuing controversy between two adverse parties.

The plaintiff must allege facts from which the continuation of the dispute may be reasonably inferred.

Additionally, the continuing controversy may not be conjectural, hypothetical, or contingent; it must be real and immediate, and create a definite, rather than speculative threat of future injury.

Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief … if unaccompanied by any continuing, present adverse effects.

To obtain equitable relief for past wrongs, a plaintiff must demonstrate either continuing harm or a real and immediate threat of repeated injury in the future.

Similar reasoning has been applied to suits for declaratory judgments.

Bauer v. Texas, 341 F.3d 352, 358 (5th Cir. 2003) (citations and quotations omitted).

At the present time, there is no actual controversy between the parties that would allow for declaratory relief, and this claim should be denied.

Furthermore, Plaintiff is not entitled to these equitable remedies, including injunctive relief, because she has no viable cause of action.

The Court finds that there are no genuine issues of material fact, and all of Plaintiff’s claims against Defendants should be dismissed.

CONCLUSION

It is therefore ORDERED that Defendants’ Motion for Summary Judgment (Dkt. #51) is hereby GRANTED and Plaintiff’s case is DISMISSED with prejudice.

It is further ORDERED that Plaintiff’s Motion for Partial Summary Judgment (Dkt. #53) is hereby DENIED.

Ron Clark
Senior District Judge, U.S. District Court, EDTX

Ron Clark was sworn in as United States District Judge for the Eastern District of Texas on 11/22/2002. He served as Chief Judge from 1/1/2015 to 2/28/2018 when he took Senior status. One of fewer than 100 attorneys certified in Civil Trial Law and in Civil Appellate Law by the Texas Board of Legal Specialization, he spent twenty-three years trying cases and as appellate counsel in state and federal courts. During that time he also served three terms in the Texas House of Representatives. He authored the Texas Municipal Law and Procedure Manual, 2d, 3d, and 4th editions, and was a contributor to Rayburn on Condemnation (1990).

Judge Clark holds a J.D. from the University of Texas School of Law, where he was Editor-in-Chief of the American Journal of Criminal Law. He is a Phi Beta Kappa graduate of the University of Connecticut, where he received a B.A. in Economics with High Honors and an M.A. in Economics. After graduating from the Army Airborne and Ranger schools, he served as a platoon leader and then as tank company executive officer in the 2nd Armored Division.

U.S. District Court
Eastern District of TEXAS [LIVE] (Sherman)
CIVIL DOCKET FOR CASE #: 4:13-cv-00577-ALM

Lassberg v. Bank of America, N.A. et al
Assigned to: District Judge Amos L. Mazzant, III
Demand: $181,000

Case in other court:  15-40196
429th Judicial District Court, Collin County, TX, 429-03494-2013

Cause: 28:1332 Diversity-Notice of Removal

Date Filed: 09/30/2013
Date Terminated: 01/08/2015
Jury Demand: Plaintiff
Nature of Suit: 290 Real Property: Other
Jurisdiction: Diversity
Plaintiff
Leslie C. Lassberg
also known as
Clare Lassberg
represented by Carl Donald Hughes (SUSPENDED) , Jr
Carl Hughes, PC
P O Box 610326
Dallas, TX 75261
214/761-9342
Fax: 888-247-1127
Email: carlhughes@aol.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
V.
Defendant
Bank of America, N.A.
as successor by merger to BAC Home Loans Servicing, LP
represented by Nathan Templeton Anderson
McGlinchey Stafford, PLLC – Dallas
Three Energy Square
6688 North Central Expressway, Suite 400
Dallas, TX 75206
214-445-2445
Fax: 214-445-2450
Email: nathan.andersonecf@gmail.com
ATTORNEY TO BE NOTICEDDavid Christopher Romness
McGlinchey Stafford, PLLC – Dallas
2711 N Haskell Ave
LB25 Suite 2750
Dallas, TX 75204
214-445-2413
Fax: 214-445-2450
Email: dromness@mcglinchey.com
ATTORNEY TO BE NOTICED
Defendant
Wells Fargo Bank, N.A.
as trustee for the Certificate holders of Morgan Stanley ABS Capital I Inc. Trust 2005-WMC3, Mortgage Pass-Through Certicates, Series 2005-WMC3
represented by Nathan Templeton Anderson
(See above for address)
ATTORNEY TO BE NOTICEDDavid Christopher Romness
(See above for address)
ATTORNEY TO BE NOTICED
Defendant
Merscorp Holdings, Inc.
formerly known as
Merscorp Inc.
represented by Nathan Templeton Anderson
(See above for address)
ATTORNEY TO BE NOTICEDDavid Christopher Romness
(See above for address)
ATTORNEY TO BE NOTICED
Defendant
Mortgage Electronic Registration Systems, Inc.
as nominee for WMC Mortgage Corporation and its Successors and Assigns; and the Successors and Assigns of MERS
represented by Nathan Templeton Anderson
(See above for address)
ATTORNEY TO BE NOTICEDDavid Christopher Romness
(See above for address)
ATTORNEY TO BE NOTICED
Defendant
Barrett Daffin Frappier Turner & Engel, L.L.P.
in its capacity as an agent and alleged Substitute Trustee for Bank of America, N.A., as successor by merger to BAC Home Loans Servicing, LP, in its capacity as agent and servicer for Wells Fargo BAnk, N.A.
TERMINATED: 05/30/2014
represented by Robert F Maris
Maris & Lanier
12336 Brittany Circle
Dallas, TX 75230
214-415-3827
Email: rmaris@marislanier.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDMatthew Wiley Lindsey
Akerman LLP – Dallas
2001 Ross Avenue
Suite 3600
Dallas, TX 75201
(214) 720-4324
Fax: (214) 981-9339
Email: mlindsey@hinshawlaw.com
ATTORNEY TO BE NOTICED
Defendant
Stonebrook Estates Homeowners Association, Inc.
TERMINATED: 05/30/2014
represented by Robert Michael Blend
The Blend Law Firm
14131 Midway Rd
Suite 1240
Addison, TX 75001
972/233-1900
Fax: 972/233-1910
Email: rblend@blendfirm.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Defendant
Charles A. Ward
TERMINATED: 05/30/2014
represented by Clay Peebles
The Peebles Law Firm
1604 Devon Court
Southlake, TX 76092
817-251-1040
Fax: 817-251-1441
Email: cd@peebleslaw.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Defendant
JPMorgan Chase Bank NA
as Trustee on behalf of the Holders of the Truman Capital Mortgage Loan Trust 2004-2
formerly known as
Chase Manhattan Bank, as Trustee of IMC Home Equity Loan Trust 1997-6 Under The Pooling and Servicing Agreement Dated as of October 1, 1997
Defendant
John & Jane Does 1-50
as unknown Claimants of 7113 Stoneridge Drive, Frisco, Texas 75034
Defendant
Trusts 1-50
as unknown Claimants of 7113 Stoneridge Drive, Frisco, Texas 75034
Defendant
Corporations 1-50
as unkown Claimants of 7113 Stoneridge Drive, Frisco, Texas 75034
Defendant
7113 Stoneridge Drive Frisco Texas 75034

 

Date Filed # Docket Text
09/30/2013 1 NOTICE OF REMOVAL by Wells Fargo Bank, N.A., Bank of America, N.A., Merscorp Holdings, Inc., Mortgage Electronic Registration Systems, Inc. from 429th Judicial District Court of Collin County Texas, case number 429-03494-2013. (Filing fee $ 400 receipt number 0540-4336791), filed by Wells Fargo Bank, N.A., Bank of America, N.A., Merscorp Holdings, Inc., Mortgage Electronic Registration Systems, Inc.. (Attachments: # 1 Exhibit A: State Court Records, # 2 Exhibit B: Collin CAD Summary, # 3 Civil Cover Sheet, # 4 Supplement Civil Cover Sheet)(Romness, David) (Entered: 09/30/2013)
09/30/2013 2 CORPORATE DISCLOSURE STATEMENT filed by Bank of America, N.A., Merscorp Holdings, Inc., Mortgage Electronic Registration Systems, Inc., Wells Fargo Bank, N.A. (Anderson, Nathan) (Entered: 09/30/2013)
09/30/2013 3 ***COMPLAINT FILED IN STATE COURT***

COMPLAINT against All Defendants, filed by Leslie C. Lassberg.(baf, ) (Entered: 09/30/2013)

09/30/2013 4 ANSWER to 3 Complaint filed by Barrett Daffin Frappier Turner & Engel, L.L.P. (Maris, Robert) (Entered: 09/30/2013)
10/02/2013 5 ORDER AND ADVISORY re 1 Notice of Removal, filed by Mortgage Electronic Registration Systems, Inc., Merscorp Holdings, Inc., Wells Fargo Bank, N.A., Bank of America, N.A.. Signed by Magistrate Judge Amos L. Mazzant on 10/2/2013. (baf, ) (Entered: 10/02/2013)
10/04/2013 6 State Court Records Filed by Bank of America, N.A., Merscorp Holdings, Inc., Mortgage Electronic Registration Systems, Inc., Wells Fargo Bank, N.A. . (Attachments: # 1 Exhibit A: State Court Records, Part 1 of 2, # 2 Exhibit A: State Court Records, Part 2 of 2)(Romness, David) (Entered: 10/04/2013)
10/07/2013 7 ACKNOWLEDGMENT OF RECEIPT by Carl Hughes, attorney for plaintiff, Leslie C. Lassberg as to Notice of ECF Requirement. (baf, ) (Entered: 10/08/2013)
11/20/2013 8 MOTION to Dismiss by Barrett Daffin Frappier Turner & Engel, L.L.P.. (Attachments: # 1 Text of Proposed Order)(Maris, Robert) (Entered: 11/20/2013)
11/20/2013 9 ORDER that no later than December 4, 2013, Attorney Carl D. Hughes, Jr. shall file the appropriate admissions paperwork with the Clerk of the Court. If Counsel no longer represents Plaintiff in this matter, Counsel shall provide the Court with a contact address for Leslie C. Lassberg. Signed by Magistrate Judge Amos L. Mazzant on 11/20/2013. (baf, ) (Entered: 11/20/2013)
11/21/2013 10 MOTION to Dismiss Pursuant to Rule 12(b)(6) by Bank of America, N.A., Merscorp Holdings, Inc., Mortgage Electronic Registration Systems, Inc., Wells Fargo Bank, N.A.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(Romness, David) (Entered: 11/21/2013)
12/16/2013 11 Unopposed MOTION for Extension of Time to File Response/Reply as to 8 MOTION to Dismiss 10 MOTION to Dismiss Pursuant to Rule 12(b)(6) by Leslie C. Lassberg. (Attachments: # 1 Text of Proposed Order Granting Motion)(Hughes, Carl) (Entered: 12/16/2013)
12/20/2013 12 ORDER GOVERNING PROCEEDINGS – Rule 16 Management Conference set for 3/10/2014 at 3:15 PM in Ctrm A01 (Sherman – Annex) before Magistrate Judge Amos L. Mazzant. Signed by Magistrate Judge Amos L. Mazzant on 12/20/2013. (baf, ) (Entered: 12/20/2013)
12/20/2013 13 ORDER – GRANTING 11 Motion for Extension of Time to File Response/Reply re 10 MOTION to Dismiss Pursuant to Rule 12(b)(6)8 MOTION to Dismiss . Responses due by 1/15/2014. Signed by Magistrate Judge Amos L. Mazzant on 12/20/2013. (baf, ) (Entered: 12/20/2013)
01/15/2014 14 Unopposed MOTION for Extension of Time to File Response/Reply as to 8 MOTION to Dismiss 10 MOTION to Dismiss Pursuant to Rule 12(b)(6) by Leslie C. Lassberg. (Attachments: # 1 Text of Proposed Order)(Hughes, Carl) (Entered: 01/15/2014)
01/16/2014 15 ORDER GRANTING 14 Motion for Extension of Time to File Response/Reply re 10 MOTION to Dismiss Pursuant to Rule 12(b)(6)8 MOTION to Dismiss . Responses due by 2/4/2014. Signed by Magistrate Judge Amos L. Mazzant on 1/16/2014. (baf, ) (Entered: 01/16/2014)
01/24/2014 16 NOTICE of Discovery Disclosure by Barrett Daffin Frappier Turner & Engel, L.L.P. (Maris, Robert) (Entered: 01/24/2014)
01/30/2014 17 NOTICE of Attorney Appearance by Clay Peebles on behalf of Charles A. Ward (Peebles, Clay) (Entered: 01/30/2014)
01/31/2014 18 NOTICE of Discovery Disclosure by Bank of America, N.A., Merscorp Holdings, Inc., Mortgage Electronic Registration Systems, Inc., Wells Fargo Bank, N.A. (Romness, David) (Entered: 01/31/2014)
02/04/2014 19 MOTION to Remand to State Court Due to Lack of Subject Matter Jurisdiction by Leslie C. Lassberg. (Attachments: # 1 Text of Proposed Order Granting Motion to Remand)(Hughes, Carl) (Entered: 02/04/2014)
02/04/2014 20 RESPONSE in Opposition re 8 MOTION to Dismiss filed by Leslie C. Lassberg. (Hughes, Carl) (Entered: 02/04/2014)
02/04/2014 21 RESPONSE in Opposition re 8 MOTION to Dismiss and Brief in Support of Response filed by Leslie C. Lassberg. (Hughes, Carl) (Entered: 02/04/2014)
02/04/2014 22 RESPONSE in Opposition re 10 MOTION to Dismiss Pursuant to Rule 12(b)(6) and Brief in support of Response filed by Leslie C. Lassberg. (Hughes, Carl) (Entered: 02/04/2014)
02/06/2014 23 NOTICE of Discovery Disclosure by Charles A. Ward (Peebles, Clay) (Entered: 02/06/2014)
02/06/2014 24 NOTICE of Discovery Disclosure by Stonebrook Estates Homeowners Association, Inc. (Blend, Robert) (Entered: 02/06/2014)
02/07/2014 25 Unopposed MOTION for Extension of Time to Complete Discovery Initial Disclosures by Leslie C. Lassberg. (Attachments: # 1 Text of Proposed Order Granting Three (3) Day Extension of Time to Serve Plaintiff’s Initial Disclosures)(Hughes, Carl) (Entered: 02/07/2014)
02/10/2014 26 NOTICE of Discovery Disclosure by Leslie C. Lassberg (Hughes, Carl) (Entered: 02/10/2014)
02/11/2014 27 ORDER GRANTING 25 Motion for Extension of Time to Complete Discovery. Signed by Magistrate Judge Amos L. Mazzant on 2/11/2014. (baf, ) (Entered: 02/11/2014)
02/11/2014 28 REPLY to Response to Motion re 10 MOTION to Dismiss Pursuant to Rule 12(b)(6) filed by Bank of America, N.A., Merscorp Holdings, Inc., Mortgage Electronic Registration Systems, Inc., Wells Fargo Bank, N.A.. (Romness, David) (Entered: 02/11/2014)
02/13/2014 29 ORDER – DENYING AS MOOT 8 Motion to Dismiss; DENYING AS MOOT 10 Motion to Dismiss. It is further ORDERED that Plaintiff shall file an amended complaint that addresses the issues raised by Defendants’ motions on or before 2/27/2014. Signed by Magistrate Judge Amos L. Mazzant on 2/13/2014. (baf, ) (Entered: 02/13/2014)
02/14/2014 30 REPORT of Rule 26(f) Planning Meeting. (Attachments: # 1 Text of Proposed Order (Ex. A))(Hughes, Carl) (Entered: 02/14/2014)
02/18/2014 31 RESPONSE in Opposition re 19 MOTION to Remand to State Court Due to Lack of Subject Matter Jurisdiction filed by Bank of America, N.A., Merscorp Holdings, Inc., Mortgage Electronic Registration Systems, Inc., Wells Fargo Bank, N.A.. (Attachments: # 1 Text of Proposed Order)(Romness, David) (Entered: 02/18/2014)
02/27/2014 32 MOTION for Extension of Time to Amend 29 Order on Motion to Dismiss,,, by Leslie C. Lassberg. (Attachments: # 1 Text of Proposed Order)(Hughes, Carl) (Entered: 02/27/2014)
02/28/2014 33 Amended MOTION for Extension of Time to Amend 29 Order on Motion to Dismiss,,, 32 MOTION for Extension of Time to Amend 29 Order on Motion to Dismiss,,, by Leslie C. Lassberg. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Text of Proposed Order)(Hughes, Carl) (Entered: 02/28/2014)
03/05/2014 34 SCHEDULING ORDER: Docket Call and Final Pretrial Conference set for 3/12/2015 at 9:00 AM by video conference before Judge Ron Clark. Amended Pleadings due by 6/2/2014 for Plaintiff and by 6/16/2014 for Defendant. Discovery due by 8/25/2014. Expert Witness List due by 5/19/2014 for Plaintiff and by 6/16/2014 for Defendant. Joinder of Parties due by 4/21/2014. Proposed Jury instructions/Form of Verdict due by 2/26/2015. Jury Selection/Jury Trial set for 3/16/2015 at 9:00 AM in Ctrm A01 (Sherman – Annex) before Judge Ron Clark. Motions to Dismiss, Motions for Summary Judgment, or other dispositive motions due by 6/16/2014. Motions to Transfer due 3/17/2014. Joint Final Pretrial Order due by 2/26/2015. The Scheduling Conference set for 3/10/2014, is CANCELLED. Motions in Limine due 2/26/2015. Signed by Magistrate Judge Amos L. Mazzant on 3/5/2014. (baf, ) (Entered: 03/05/2014)
03/06/2014 35 ORDER GRANTING 33 Motion for Extension of Time to Amend Complaint. Signed by Magistrate Judge Amos L. Mazzant on 3/6/2014. (baf, ) (Entered: 03/06/2014)
03/07/2014 36 AMENDED COMPLAINT against All Defendants, filed by Leslie C. Lassberg. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24)(Hughes, Carl) (Entered: 03/07/2014)
03/21/2014 37 MOTION to Dismiss Pursuant to Rule 12(b)(6) by Bank of America, N.A., Merscorp Holdings, Inc., Mortgage Electronic Registration Systems, Inc., Wells Fargo Bank, N.A.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(Romness, David) (Entered: 03/21/2014)
03/24/2014 38 REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 19 MOTION to Remand to State Court Due to Lack of Subject Matter Jurisdiction filed by Leslie C. Lassberg. Signed by Magistrate Judge Amos L. Mazzant on 3/24/2014. (baf, ) (Entered: 03/24/2014)
04/07/2014 39 RESPONSE in Opposition re 37 MOTION to Dismiss Pursuant to Rule 12(b)(6) filed by Leslie C. Lassberg. (Hughes, Carl) (Entered: 04/07/2014)
04/10/2014 40 OBJECTION to 38 Report and Recommendations by Leslie C. Lassberg. (Hughes, Carl) (Entered: 04/10/2014)
04/14/2014 41 REPLY to Response to Motion re 37 MOTION to Dismiss Pursuant to Rule 12(b)(6) filed by Bank of America, N.A., Merscorp Holdings, Inc., Mortgage Electronic Registration Systems, Inc., Wells Fargo Bank, N.A.. (Romness, David) (Entered: 04/14/2014)
04/15/2014 42 REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE re 37 MOTION to Dismiss Pursuant to Rule 12(b)(6). Signed by Magistrate Judge Amos L. Mazzant on 4/15/2014. (pad, ) (Entered: 04/15/2014)
04/17/2014 43 RESPONSE to 40 Objection to Report and Recommendations filed by Bank of America, N.A., Merscorp Holdings, Inc., Mortgage Electronic Registration Systems, Inc.. (Romness, David) (Entered: 04/17/2014)
04/22/2014 44 RESPONSE to 43 Response to Non-Motion (Plaintiff’s Reply to Defendants’ Response to Plaintiff’s Objections to Report and Recommendation, re: Plaintiff’s Motion to Remand) by Leslie C. Lassberg. (Hughes, Carl) (Entered: 04/22/2014)
05/16/2014 45 ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE DENYING 37 Motion to Dismiss, filed by Mortgage Electronic Registration Systems, Inc., Merscorp Holdings, Inc., Wells Fargo Bank, N.A., Bank of America, N.A.. Signed by Judge Ron Clark on 5/15/2014. (baf, ) (Entered: 05/16/2014)
05/19/2014 46 Unopposed MOTION for Extension of Time to Complete Discovery Plaintiff’s Rule 26 Expert Disclosures by Leslie C. Lassberg. (Attachments: # 1 Exhibit “A” (Affidavit Investigative Report of Joseph R. Esquivel, Jr.), # 2 Text of Proposed Order Granting Ten (10) Day Extension to Supplement Expert Disclosures)(Hughes, Carl) (Entered: 05/19/2014)
05/20/2014 47 NOTICE of Discovery Disclosure by Leslie C. Lassberg Plaintiff’s Rule 26 Expert Disclosures (Attachments: # 1 Exhibit “A” (Affidavit Investigative Report of Joseph R. Esquivel, Jr.), # 2 Text of Proposed Order Granting Ten (10) Day Extension to Supplement Expert Disclosures)(Hughes, Carl) (Entered: 05/20/2014)
05/29/2014 48 NOTICE of Discovery Disclosure by Leslie C. Lassberg Plaintiff’s Supplemental Rule 26 Expert Disclosures (Hughes, Carl) (Entered: 05/29/2014)
05/30/2014 49 ANSWER to 36 Amended Complaint,, by Bank of America, N.A., Merscorp Holdings, Inc., Mortgage Electronic Registration Systems, Inc., Wells Fargo Bank, N.A..(Romness, David) (Entered: 05/30/2014)
05/30/2014 50 ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE – DENYING 19 Motion to Remand to State Court filed by Leslie C. Lassberg, re 38 Report and Recommendations. It is further ORDERED that Defendant Barrett Daffin Frappier Turner & Engel, LLP, Stonebrook Estates Homeowners Association, Inc., and Charles A. Ward are DISMISSED WITH PREJUDICE. Signed by Judge Ron Clark on 5/30/2014. (baf, ) (Entered: 05/30/2014)
06/11/2014 51 First MOTION for Summary Judgment by Bank of America, N.A., Merscorp Holdings, Inc., Mortgage Electronic Registration Systems, Inc., Wells Fargo Bank, N.A.. (Attachments: # 1 Exhibit A, # 2 Exhibit A-1, # 3 Exhibit A-2, # 4 Exhibit A-3, # 5 Exhibit A-4, # 6 Exhibit B, # 7 Exhibit C, # 8 Exhibit D, # 9 Text of Proposed Order)(Romness, David) (Entered: 06/11/2014)
06/16/2014 52 NOTICE of Discovery Disclosure by Bank of America, N.A., Mortgage Electronic Registration Systems, Inc., Wells Fargo Bank, N.A. DEFENDANTS NOTICE OF DISCOVERY DISCLOSURE (Anderson, Nathan) (Entered: 06/16/2014)
06/16/2014 53 First MOTION for Partial Summary Judgment by Leslie C. Lassberg. Responses due by 7/7/2014 (Attachments: # 1 Exhibit “A” Plaintiff’s Amended Complaint (Verified by Leslie Lassberg), Doc#36, including exhibits 1-24, # 2 Exhibit A-1, # 3 Exhibit A-2, # 4 Exhibit A-3, # 5 Exhibit A-4, # 6 Exhibit A-5, # 7 Exhibit A-6, # 8 Exhibit A-7, # 9 Exhibit A-8, # 10 Exhibit A-9, # 11 Exhibit A-10, # 12 Exhibit A-11, # 13 Exhibit A-12, # 14 Exhibit A-13, # 15 Exhibit A-14, # 16 Exhibit A-15, # 17 Exhibit A-16, # 18 Exhibit A-17, # 19 Exhibit A-18, # 20 Exhibit A-19, # 21 Exhibit A-20, # 22 Exhibit A-21, # 23 Exhibit A-22, # 24 Exhibit A-23, # 25 Exhibit A-24, # 26 Exhibit “B” Affidavit of J. Esquivel, # 27 Exhibit “C” Affidavit of D. Emholtz, # 28 Exhibit C-(A thru O) Affidavit of D. Emholtz Exhibits, # 29 Exhibit “D” The Pooling and Servicing Agreement for the MSAC 2005-WMC3 Trust, # 30 Exhibit “E” The Prospectus Supplement for the MSAC 2005-WMC3 Trust)(Hughes, Carl) (Additional attachment(s) added on 6/20/2014: # 31 Text of Proposed Order) (baf, ). (Entered: 06/16/2014)
06/27/2014 54 Opposed MOTION Exclude Experts Esquivel and Emholtz by Bank of America, N.A., Merscorp Holdings, Inc., Mortgage Electronic Registration Systems, Inc., Wells Fargo Bank, N.A.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(Romness, David) (Entered: 06/27/2014)
06/30/2014 55 RESPONSE to Motion re 53 First MOTION for Partial Summary Judgment filed by Bank of America, N.A., Merscorp Holdings, Inc., Mortgage Electronic Registration Systems, Inc., Wells Fargo Bank, N.A.. (Attachments: # 1 Text of Proposed Order)(Romness, David) (Entered: 06/30/2014)
06/30/2014 56 RESPONSE in Opposition re 51 First MOTION for Summary Judgment by Bank of America, N.A., Merscorp Holdings, Inc., Mortgage Electronic Registration Systems, Inc., Wells Fargo Bank, N.A.; filed by Leslie C. Lassberg. (Attachments: # 1 Exhibit “A” Plaintiff’s Amended Complaint (Verified by Leslie Lassberg), Doc#36, including exhibits 1-24, # 2 Exhibit A-1, # 3 Exhibit A-2, # 4 Exhibit A-3, # 5 Exhibit A-4, # 6 Exhibit A-5, # 7 Exhibit A-6, # 8 Exhibit A-7, # 9 Exhibit A-8, # 10 Exhibit A-9, # 11 Exhibit A-10, # 12 Exhibit A-11, # 13 Exhibit A-12, # 14 Exhibit A-13, # 15 Exhibit A-14, # 16 Exhibit A-15, # 17 Exhibit A-16, # 18 Exhibit A-17, # 19 Exhibit A-18, # 20 Exhibit A-19, # 21 Exhibit A-20, # 22 Exhibit A-21, # 23 Exhibit A-22, # 24 Exhibit A-23, # 25 Exhibit A-24, # 26 Exhibit “B” Affidavit of J. Esquivel, # 27 Exhibit “C” Affidavit of D. Emholtz, # 28 Exhibit C-(A thru O) Affidavit of D. Emholtz Exhibits, # 29 Exhibit “D” The Pooling and Servicing Agreement for the MSAC 2005-WMC3 Trust, # 30 Exhibit “E” The Prospectus Supplement for the MSAC 2005-WMC3 Trust, # 31 Text of Proposed Order)(Hughes, Carl) (Entered: 06/30/2014)
07/07/2014 57 REPLY to Response to Motion re 51 First MOTION for Summary Judgment filed by Bank of America, N.A., Merscorp Holdings, Inc., Mortgage Electronic Registration Systems, Inc., Wells Fargo Bank, N.A.. (Romness, David) (Entered: 07/07/2014)
07/10/2014 58 ***DEFICIENT DOCUMENT – ATTORNEY MUST REFILE***

MOTION for Extension of Time to File Response/Reply as to 55 Response to Motion, 54 Opposed MOTION Exclude Experts Esquivel and Emholtz by Leslie C. Lassberg. (Attachments: # 1 Text of Proposed Order)(Hughes, Carl) Modified on 7/11/2014 (baf, ). (Entered: 07/10/2014)

07/12/2014 59 Unopposed MOTION for Extension of Time to File Response/Reply as to 55 Response to Motion, 54 Opposed MOTION Exclude Experts Esquivel and Emholtz Amended Certificate of Conference by Leslie C. Lassberg. (Attachments: # 1 Text of Proposed Order)(Hughes, Carl) (Entered: 07/12/2014)
07/14/2014 60 ORDER GRANTING 59 Motion for Extension of Time to File Response/Reply re 53 First MOTION for Partial Summary Judgment and 54 Motion to Exlcude Experts. Responses and Replies due by 7/18/2014. Signed by Magistrate Judge Amos L. Mazzant on 7/14/2014. (baf, ) (Entered: 07/14/2014)
07/18/2014 61 RESPONSE to Motion re 54 Opposed MOTION Exclude Experts Esquivel and Emholtz filed by Leslie C. Lassberg. (Attachments: # 1 Text of Proposed Order)(Hughes, Carl) (Entered: 07/18/2014)
07/18/2014 62 ***DEFICIENT DOCUMENT – ATTORNEY MUST REFILE***

REPLY to Response to Motion re 53 First MOTION for Partial Summary Judgment filed by Leslie C. Lassberg. (Hughes, Carl) Modified on 7/21/2014 (baf, ). (Entered: 07/18/2014)

07/21/2014 63 ***DEFICIENT DOCUMENT – ATTORNEY MUST REFILE***

REPLY to Response to Motion re 53 First MOTION for Partial Summary Judgment (Amended Reply to Response) filed by Leslie C. Lassberg. (Hughes, Carl) Modified on 7/22/2014 (baf, ). (Entered: 07/21/2014)

07/22/2014 64 Unopposed MOTION for Leave to File Excess Pages in Plaintiff’s Amended Reply to Defendant’s Response to Plaintiff’s Motion for Partial Summary Judgment by Leslie C. Lassberg. (Attachments: # 1 Text of Proposed Order)(Hughes, Carl) (Entered: 07/22/2014)
07/22/2014 65 REPLY to Response to Motion re 53 First MOTION for Partial Summary Judgment 64 Unopposed MOTION for Leave to File Excess Pages in Plaintiff’s Amended Reply to Defendant’s Response to Plaintiff’s Motion for Partial Summary Judgment filed by Leslie C. Lassberg. (Hughes, Carl) (Entered: 07/22/2014)
07/23/2014 66 ORDER GRANTING 64 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Amos L. Mazzant on 7/23/2014. (baf, ) (Entered: 07/23/2014)
07/25/2014 67 REPLY to Response to Motion re 54 Opposed MOTION Exclude Experts Esquivel and Emholtz filed by Bank of America, N.A., Merscorp Holdings, Inc., Mortgage Electronic Registration Systems, Inc., Wells Fargo Bank, N.A.. (Romness, David) (Entered: 07/25/2014)
08/20/2014 68 ORDER GRANTING 54 Motion to Exclude Experts. Signed by Magistrate Judge Amos L. Mazzant on 8/20/2014. (baf, ) (Entered: 08/20/2014)
08/26/2014 69 ORDER GRANTING 46 Motion for Extension of Time to Complete Discovery. Signed by Magistrate Judge Amos L. Mazzant on 8/26/2014. (baf, ) (Entered: 08/26/2014)
09/03/2014 70 RESPONSE to 68 Order on Motion for Miscellaneous Relief Plaintiff’s Objections to Magistrate Judge’s Order Granting Defendants’ Objections to Plaintiff’s Disclosures and Motion to Exclude Experts by Leslie C. Lassberg. (Hughes, Carl) (Entered: 09/03/2014)
09/17/2014 71 RESPONSE to 70 Response to Non-Motion, filed by Bank of America, N.A., Merscorp Holdings, Inc., Mortgage Electronic Registration Systems, Inc., Wells Fargo Bank, N.A.. (Romness, David) (Entered: 09/17/2014)
09/18/2014 72 AMENDED ORDER GRANTING IN PART AND DENYING IN PART 54 Opposed MOTION Exclude Experts Esquivel and Emholtz filed by Mortgage Electronic Registration Systems, Inc., Merscorp Holdings, Inc., Wells Fargo Bank, N.A., Bank of America, N.A. Signed by Magistrate Judge Amos L. Mazzant on 9/18/2014. (baf, ) (Entered: 09/18/2014)
10/20/2014 73 ORDER setting TELEPHONIC Status Conference for 10/28/2014 at 2:30 PM before Magistrate Judge Amos L. Mazzant. Signed by Magistrate Judge Amos L. Mazzant on 10/20/2014. (baf, ) (Entered: 10/20/2014)
10/27/2014 74 REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 53 First MOTION for Partial Summary Judgment filed by Leslie C. Lassberg, 51 First MOTION for Summary Judgment filed by Mortgage Electronic Registration Systems, Inc., Merscorp Holdings, Inc., Wells Fargo Bank, N.A., Bank of America, N.A. Signed by Magistrate Judge Amos L. Mazzant on 10/27/2014. (baf, ) (Entered: 10/27/2014)
11/10/2014 75 OBJECTION to 74 Report and Recommendations dated October 27, 2014 by Leslie C. Lassberg. (Hughes, Carl) (Entered: 11/10/2014)
11/15/2014 76 ***PLEASE DISREGARD – FILED IN ERROR BY ATTORNEY – VACATION LETTER ONLY***

NOTICE by Leslie C. Lassberg Attorney Vacation Letter (Hughes, Carl) Modified on 11/17/2014 (baf, ). (Entered: 11/15/2014)

11/24/2014 77 RESPONSE to 75 Objection to Report and Recommendations filed by Bank of America, N.A., Merscorp Holdings, Inc., Mortgage Electronic Registration Systems, Inc., Wells Fargo Bank, N.A.. (Romness, David) (Entered: 11/24/2014)
01/07/2015 78 TRANSFER ORDER CIVIL CASES ASSIGNED TO JUDGE RON CLARK – IT IS HEREBY ORDERED that all civil cases currently assigned to Judge Ron Clark, in the Sherman Division of the Eastern District of Texasshall be transferred to the Honorable Amos Mazzant, effective immediately. Signed by Judge Ron Clark on 1/5/2015. (baf, ) (Entered: 01/07/2015)
01/08/2015 79 MEMORANDUM OPINION AND ORDER – GRANTING 51 Motion for Summary Judgment and DENYING 53 Motion for Partial Summary Judgment. Plaintiff’s case is DISMISSED WITH PREJUDICE. Signed by Judge Amos L. Mazzant, III on 1/7/2015. (baf, ) (Entered: 01/08/2015)
01/08/2015 80 FINAL JUDGMENT – Pursuant to the Memorandum Opinion and Order entered on this date, it is CONSIDERED, ORDERED and ADJUDGED that this case is hereby DISMISSED withprejudice. Signed by Judge Amos L. Mazzant, III on 1/7/2015. (baf, ) (Entered: 01/08/2015)
02/09/2015 81 NOTICE OF APPEAL as to 79 Memorandum & Opinion, 80 Judgment by Leslie C. Lassberg. Filing fee $ 505, receipt number 0540-5049103. (Hughes, Carl) (Entered: 02/09/2015)
02/12/2015 82 AMENDED NOTICE OF APPEAL as to 81 Notice of Appeal by Leslie C. Lassberg (Hughes, Carl) (Entered: 02/12/2015)
09/14/2016 83 MANDATE of USCA as to 81 Notice of Appeal filed by Leslie C. Lassberg (pad, ) (Entered: 09/15/2016)

 


 

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04/22/2024 07:17:05

Lassberg v. Bank of Am., N.A., 660 F. App’x 262 (5th Cir. 2016)

AUG 23, 2016 | REPUBLISHED BY LIT: APR 8, 2024

LESLIE C. LASSBERG, also known as Clare Lassberg, Plaintiff-Appellant, v. BANK OF AMERICA, N.A., as Successor by Merger to BAC Home Loans Servicing, L.P.;

WELLS FARGO BANK, N.A., as Trustee for the Certificate Holders of Morgan Stanley ABS Capital I Inc. Trust 2005-WMC3, Mortgage Pass-Through Certificates, Series 2005-WMC3;

MERSCORP HOLDINGS, INCORPORATED, formerly known as Merscorp, Incorporated;

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INCORPORATED, as Nominee for WMC Mortgage Corporation and its Successors and Assigns; and the Successors and Assigns of MERS;

JPMORGAN CHASE BANK, N.A., as Trustee on behalf of the Holders of the Truman Capital Mortgage Loan Trust 2004-2, formerly known as Chase Manhattan Bank, as Trustee of IMC Home Equity Loan Trust 1997-6 Under The Pooling and Servicing Agreement Dated as of October 1, 1997;

JOHN ; JANE DOES 1-50, as unknown Claimants of 7113 Stoneridge Drive, Frisco, Texas 75034;

TRUSTS 1-50, as unknown Claimants of 7113 Stoneridge Drive, Frisco, Texas 75034;

CORPORATIONS 1-50, as unknown Claimants of 7113 Stoneridge Drive, Frisco, Texas 75034;

BARRETT DAFFIN FRAPPIER TURNER ; ENGEL, L.L.P., in its Capacity as an Agent and Alleged Substitute Trustee for Bank of America, N.A., as Successor by Merger to BAC Home Loans Servicing, L.P., in its Capacity as Agent and Servicer for Wells Fargo Bank, N.A.; STONEBROOK ESTATES HOMEOWNERS ASSOCIATION, INCORPORATED;

CHARLES A. WARD;

7113 STONERIDGE DRIVE FRISCO TEXAS 75034,

Defendants-Appellees.

PER CURIAM

Appeals from the United States District Court for the Eastern District of Texas

USDC No. 4:13-CV-577

Before STEWART, Chief Judge, PRADO, and SOUTHWICK, Circuit Judges. PER CURIAM:

Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Leslie Lassberg obtained a mortgage from WMC Mortgage Corporation to purchase a property.

The mortgage was subsequently assigned to Wells Fargo, and Lassberg now asserts a variety of claims seeking to prevent Wells Fargo’s servicer from foreclosing on the property.

The district court granted summary judgment to Defendants on all claims. We affirm.

I.

In December 2004, Leslie Lassberg obtained a loan of $137,600 from WMC Mortgage Corporation (“WMC”), which she used to purchase a property located in Frisco, Texas (the “Property”).

Lassberg executed a promissory note (the “Note”) payable to WMC and executed a security instrument (the “Deed of Trust”) pledging the Property as collateral and providing a right for WMC to foreclose on the Property.

The Deed of Trust named Mortgage Electronic Registration Systems, Inc. (“MERS”) as “nominee” for WMC and WMC’s successors and assigns, and it named MERS “the beneficiary” under the Deed of Trust.

In December 2012, MERS assigned (the “Assignment”) the Deed of Trust to Wells Fargo Bank, N.A. as trustee for the MSAC 2005-WMC3 Trust (the “WMC3 Trust”).

On August 9, 2013, Wells Fargo executed an Appointment of Substitute Trustee (the “Appointment”), appointing seventeen individuals  in its place as substitute trustees.

Bank of America, N.A. services the mortgage for Wells Fargo.

Lassberg first defaulted on the Note in 2007 and has not made a payment since April 2011.

In June 2007, Lassberg sought bankruptcy protection under Chapter 13 of the U.S. Bankruptcy Code in the U.S. Bankruptcy Court for the Eastern District of Texas.

The bankruptcy case was closed in March 2013.

In September 2013, Lassberg filed this lawsuit in Texas state court, seeking an injunction prohibiting Defendants from foreclosing upon the Property.

Defendants removed the case to federal court based on diversity jurisdiction, arguing that although Defendants Barrett Daffin Frappier Turner & Engel, L.L.P. (“Barrett Daffin”), Stonebrook Estates Homeowners Association, Inc. (“Stonebrook”), and Charles Ward are citizens of Texas, they do not destroy complete diversity, even though Lassberg is also a citizen of Texas, because Lassberg could assert no cause of action against Barrett Daffin and Stonebrook and Ward are “mere nominal defendants.”

Lassberg contested removal by filing a motion to remand and also filed a First Amended Complaint in federal court, asserting claims against various Defendants

(1) for violations of Chapter 12 of the Texas Civil Practice and Remedies Code (the “False Lien Statute”);

(2) for violations of Chapter 192 of the Texas Local Government Code;

(3) to quiet title;

and

(4) for invasion of privacy.

Each claim was based on Lassberg’s contentions that Wells Fargo and Bank of America lacked authority to foreclose on the Property because MERS had no authority to assign any interest to Wells Fargo and that the putative assignment by MERS was untimely under the pooling and services agreement (“PSA”) that governs the WMC3 Trust.

The district court denied the motion to remand and ultimately granted Defendants’ motion for summary judgment with respect to all of Lassberg’s claims.

II.

We review de novo a district court’s denial of a motion to remand and its decision on improper joinder.

We also review de novo an order granting summary judgment. Summary judgment is proper when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

In determining whether a genuine dispute of material fact exists, we “must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party.”

Kling Realty Co., Inc. v. Chevron USA, Inc., 575 F.3d 510, 513 (5th Cir. 2009).

Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 (5th Cir. 1995) (en banc).

Fed. R. Civ. P. 56(a).

Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001).

III.

Lassberg contends that there is no complete diversity in this case because Barrett Daffin, Stonebrook, and Ward are all citizens of Texas who were properly joined.

The district court disagreed, holding that Barrett Daffin was the legal representative or agent of Bank of America and accordingly is protected by qualified immunity and that Stonebrook and Ward were only nominal parties against whom no claims have been asserted.

Under the improper joinder doctrine, “the presence of an improperly joined, non-diverse defendant does not defeat federal removal jurisdiction premised on diversity.”

A defendant is improperly joined when “there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against [that] defendant.”

In making this determination, “the court may ‘pierce the pleadings’ and consider summary judgment-type evidence to determine whether the plaintiff has a basis in fact for the claim.”

Whether  removal was proper is determined based on the claims in the state court complaint.

A party to a complaint is “nominal” and thus disregarded for diversity purposes if “in the absence of [that party], the Court can enter a final judgment consistent with equity and good conscience which would not be in any way unfair or inequitable to the plaintiff.”

Borden v. Allstate Ins. Co., 589 F.3d 168, 171 (5th Cir. 2009).

Kling Realty Co., 575 F.3d at 513 (quoting Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc)).

Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 (5th Cir. 2007).

Cavallini v. State Farm Mut. Auto. Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995);

see also McDonal v. Abbott Labs., 408 F.3d 177, 183 n.6 (5th Cir. 2005)

(“A district court should ordinarily resolve [claims of] improper joinder by conducting a Rule 12(b)(6)-type analysis.”).

Acosta v. Master Maint. & Constr. Inc., 452 F.3d 373, 379 (5th Cir. 2006)

(quoting Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen & Assistants’ Local 349, 427 F.2d 325, 327 (5th Cir. 1970)).

In regard to Defendants Ward and Stonebrook, Lassberg’s complaint did not assert any claims against these parties.

We therefore agree with the district court that Ward and Stonebrook are nominal parties and were improperly joined.

In regard to Barrett Daffin, the district court found that Lassberg failed to bring a viable claim against Barrett Daffin because it was protected by qualified immunity.

Under Texas law, the doctrine of qualified immunity has “long authorized attorneys to ‘practice their profession, to advise their clients and interpose any defense or supposed defense, without making themselves liable for damages.'”

This doctrine protects attorney actions conducted as “part of discharging his [or her] duties in representing his [or her] client” but not against actions performed outside the attorney’s scope of representation.

Renfroe v. Jones & Assocs., 947 S.W.2d 285, 287 (Tex. App.—Fort Worth 1997, writ denied)

(quoting Kruegel v. Murphy, 126 S.W. 343, 345 (Tex. Civ. App.—Dallas 1910, writ ref’d)).

Id. at 288.

Lassberg argues Barrett Daffin is not protected by qualified immunity because it sent the notice of foreclosure in its capacity as substitute trustee under the Deed of Trust and not merely in its capacity as attorney for Bank of America.

Lassberg, however, has not pointed to any evidence suggesting that  Barrett Daffin was ever appointed as substitute trustee by Bank of America.

In addition, the foreclosure notice does not provide any evidence that Barrett Daffin was acting as a substitute trustee.

Instead, it clearly states:

“This law firm [Barrett Daffin] represents BANK OF AMERICA, N.A. . . . We have been authorized by the Mortgage Servicer to initiate legal proceedings in connection with the foreclosure of a Deed of Trust associated with your real estate loan.”

As Barrett Daffin was acting in a representational capacity, we find it is protected by qualified immunity and was therefore improperly joined.

Our conclusion is further supported by two unpublished decisions in which we held that Barrett Daffin was protected by qualified immunity for actions taken in connection with foreclosure proceedings.

See Rojas v. Wells Fargo Bank, N.A., 571 F. App’x 274, 278 (5th Cir. 2014);

Iqbal v. Bank of Am., N.A., 559 F. App’x 363, 365-66 (5th Cir. 2014)

(“[Barrett Daffin] was retained to assist in the foreclosure, and the actions complained of by the [plaintiffs] are within the scope of their representation.

The [plaintiffs] argue that attorney immunity applies only in the litigation context, but that stance is not in line with Texas law.”).

IV.

The district court concluded that Lassberg did not have standing to challenge the Assignment for having been executed after the closing date specified in the PSA.

It based this conclusion on the rule established in Reinagel v. Deutsche Bank National Trust Co. that non-parties to a pooling and services agreement have “no right to enforce its terms unless they are its intended third-party beneficiaries.”

Moreover, even if a non-party is an intended third-party beneficiary, a violation of the PSA only renders an assignment voidable, not void.

And “the law is settled in Texas that an obligor cannot defend against an assignee’s efforts to enforce the obligation on a  ground that merely renders the assignment voidable at the election of the assignor.”

735 F.3d 220 (5th Cir. 2013).

Id. at 228.

Id.; see also Farkas v. GMAC Mortg., L.L.C., 737 F.3d 338, 342 (5th Cir. 2013).

Reinagel, 735 F.3d at 225 (quoting Tri-Cities Const., Inc. v. Am. Nat’l Ins. Co., 523 S.W.2d 426, 430 (Tex. Civ. App. 1975)).

Lassberg argues Reinagel does not apply here because she is not asserting a claim for breach of the PSA but rather is pointing to a breach of the PSA “as evidence that the loan was not transferred to the securitization trust.”

Failure to adhere to the PSA, she contends, would render the putative transfer void under New York trust law, which governs the PSA. New York Estate Powers and Trusts Law Section 7-2.4 states that “[e]very. . . act of the trustee in contravention of the trust . . . is void.”

Lassberg’s appeal to New York trust law is misplaced.

Our Court addressed a similar argument in Ferguson v. Bank of New York Mellon Corp. where we rejected the plaintiffs’ challenge to the validity of a mortgage assignment based on New York trust law.

We observed that “New York courts have not applied Section 7-2.4 in the manner the [plaintiffs] would hope but instead have treated a trustee’s act in violation of the trust as voidable but not void.”

The Second Circuit has also explained that the weight of authority in New York indicates that acts by a trustee in contravention of the terms of a trust are generally “not void but merely voidable by the beneficiary.”

802 F.3d 777 (5th Cir. 2015).

Id. at 782.

Id.

Rajamin v. Deutsche Bank Nat’l Tr. Co., 757 F.3d 79, 88-90 (2d Cir. 2014).

Lassberg’s appeal to New York law therefore does not change the applicability of Reinagel to this case.

Even assuming the Assignment is invalid under the PSA, as Lassberg alleges, this would merely make the Assignment voidable by the assignor MERS and would not give Lassberg standing to challenge the validity of the foreclosure initiated by the assignee Wells Fargo.

We conclude therefore that Lassberg lacks standing to challenge the Assignment.

V.

The district court rejected Lassberg’s claim that Bank of America and Wells Fargo violated Section 12.002 of the Texas Civil Practice and Remedies Code because the documents that Lassberg argues were fraudulent or defective—the Assignment and the Appointment—are not “liens” as defined in the statute. Section 12.002(a) provides that “[a] person may not make, present, or use a document or other record with . . . knowledge that the document or other record is a fraudulent court record or a fraudulent lien or claim against real or personal property or an interest in real or personal property.”

Section 12.001(3) defines a “lien” as “a claim in property for the payment of a debt and includes a security interest.”

To prevail under this statute, a plaintiff must demonstrate the fraudulent action was conducted with “intent to cause another person to suffer” “physical injury,” “financial injury,” or “mental anguish or emotional distress.”

Tex. Civ. Prac. & Rem. Code § 12.002(a).

Tex. Civ. Prac. & Rem. Code § 12.001(3).

Tex. Civ. Prac. & Rem. Code § 12.002(a)(3)(A)-(C).

Lassberg argues that some courts have held that a document may violate Section 12.002 even if it is not a “lien,” so long as the document “create[s] a fraudulent claim against real or personal property or an interest in real or personal property.”

One recent district court case noted that an assignment of a deed of trust could fall within this definition, and a Texas appellate court held that a document substituting a trustee could do so.

Lassberg thus  contends that the Assignment was prepared after the closing date specified in the PSA in order to fraudulently establish a claim against the Property and that the Appointment was prepared for the same purpose even though Wells Fargo did not own the Deed of Trust when the Appointment was executed.

See Martinez v. Wells Fargo Bank, N.A., No. SA-12-CV-789-XR, 2013 WL 1562759, at *7 (W.D. Tex. Apr. 12, 2013).

Id. at *7.

Bernard v. Bank of Am., N.A., No. 04-12-00088-CV, 2013 WL 441749 (Tex. App.—San Antonio Feb. 6, 2013, no pet.).

Even if Lassberg is correct, however, that the Assignment and the Appointment qualify as “liens” under the False Lien Statute, Lassberg fails to provide any evidence or explanation for how either document was executed with the intent to cause Lassberg to suffer physical injury, financial injury, or mental anguish.

In the district court case that Lassberg cites for the proposition that an assignment of a deed of trust may constitute a “lien,” a disputed assignment was not even enough to state a claim upon which relief could be granted in the absence of some evidence indicating that the assignment was executed with an intent to cause harm.

Here, Lassberg’s loan was long delinquent, and there is no evidence that the foreclosure was intended to cause injury.

Lassberg’s claim under Section 12.002 thus fails and summary judgment was properly granted to Defendants.

Martinez, 2013 WL 1562759, at *8.

VI.

Lassberg’s complaint asserted that MERS violated her common law right to privacy by using her “personal identifying information” without her permission, allegedly by allowing users of MERS’s website to locate the names of investors in her mortgage using her name and social security number.

The district court rejected this claim, holding that Lassberg had failed to show that MERS had unlawfully misappropriated Lassberg’s name or likeness, which would require “excessive exploitation” of the value associated with her name or likeness.

Lassberg now argues that although she provided her social security  number to her lender, she did not agree for the information to be used by MERS for its own financial gain.

A misappropriation claim under Texas law requires

“[1] that the defendant appropriated the plaintiff’s name or likeness for the value associated with it, and not in an incidental manner or for a newsworthy purpose;

[2] that the plaintiff can be identified from the publication;

and

[3] that there was some advantage or benefit to the defendant.”

Lassberg’s allegations against MERS do not amount to the “publication” of her personal information;

she does not allege that MERS took advantage of the value associated with her “name or likeness;”

and she has submitted no evidence that she could be “identified” by MERS’s use of the information.

Accordingly, we conclude the district court properly granted summary judgment on this issue.

Matthews v. Wozencraft, 15 F.3d 432, 437 (5th Cir. 1994)

(citing J. Hadley Edgar & James B. Sales, Texas Torts and Remedies § 53.06[2]).

VII.

The district court held that Lassberg has no basis for an action based on quiet title because MERS was the beneficiary and nominee on the Deed of Trust and MERS assigned the right to foreclose to Wells Fargo.

“[T]he elements of the cause of action to quiet title are that the plaintiff must show

(1) an interest in a specific property,

(2) title to the property is affected by a claim by the defendant,

and

(3) the claim, although facially valid, is invalid or unenforceable.”

Lassberg now appears to argue that because the Assignment was invalid under the terms of the PSA, Wells Fargo’s purported interest in the Note is invalid and unenforceable.

However, as we noted above, absent a challenge to the Assignment by trust beneficiaries, Wells Fargo’s interest in  the Deed of Trust is valid and enforceable against Lassberg, and thus Lassberg’s quiet title claim fails.

U.S. Nat’l Bank Ass’n v. Johnson, No. 01-10-00837-CV, 2011 WL 6938507, at *3

(Tex. App.—Houston [1st Dist.] Dec. 30, 2011, no pet.). ——–

VIII.

Lassberg appeals the district court’s denial of her claims for declaratory and injunctive relief because she argues the Assignment to Wells Fargo was invalid.

As we have already concluded the Assignment was valid, we deny Lassberg’s claims for equitable relief.

IX.

The district court’s grant of summary judgment to Defendants is AFFIRMED.

Barrett Daffin’s motion to dismiss appeal, which argues that Barrett Daffin, Stonebrook, and Ward were untimely added as appellees, is DENIED as moot.

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