LIT UPDATE
Oct 4, 2023
FEB 14, 2024
16118 Chamomile CT, Houston, TX 77083 still in Chapman’s name as at Feb. 13, 2024 and last sale was in 2013 per Realtor.com
16118 Chamomile CT, Houston, TX 77083 still in Chapman’s name as at Oct. 4, 2023.
FINAL JUDGMENT. Case terminated on 6/7/23.
(Signed by Judge Alfred H Bennett) Parties notified.
(GabrielleLyons, 4) (Entered: 06/07/2023)
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:21-cv-03711
| Chapman v. NewRez LLC Assigned to: Judge Alfred H Bennett Referred to: Magistrate Judge Yvonne Y Ho
Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 11/11/2021 Date Terminated: 06/07/2023 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 06/07/2023 | 81 | FINAL JUDGMENT. Case terminated on 6/7/23.(Signed by Judge Alfred H Bennett) Parties notified.(GabrielleLyons, 4) (Entered: 06/07/2023) |
| 07/06/2023 | 82 | NOTICE of Appearance by Rachael E. Thompson on behalf of Bank of America, N.A., filed. (Thompson, Rachael) (Entered: 07/06/2023) |
| 07/07/2023 | 83 | Unopposed MOTION for Connie Flores Jones to Withdraw as AttorneyMotions referred to Yvonne Y Ho. by Bank of America, N.A., filed. Motion Docket Date 7/28/2023. (Attachments: # 1 Proposed Order)(Jones, Connie) (Entered: 07/07/2023) |
| 07/10/2023 | 84 | ORDER GRANTING 83 Unopposed MOTION for Connie Flores Jones to Withdraw as Attorney. (Signed by Magistrate Judge Yvonne Y Ho) Parties notified. (RachelWillborg, 4) (Entered: 07/10/2023) |
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| Transaction Receipt | |||
| 10/04/2023 21:52:19 |
Chapman v. NewRez LLC
(4:21-cv-03711)
District Court, S.D. Texas
NOV 11, 2021 | REPUBLISHED BY LIT: NOV 16, 2021
MAR. 13, 2023 FEB 14, 2024
Mar. 11, 2023: Objections to Memorandum and Recommendations
FINAL JUDGMENT. Case terminated on 6/7/23.
(Signed by Judge Alfred H Bennett)
First case; Bank of America, N.A. vs Aleta Renee Chapman (2012-2013 : Nonsuited by BOFA)
Pending are two motions to dismiss, one filed by Defendant Bank of America, N.A. (“Bank of America”), and another filed by Defendants U.S. Bank Trust National Association and Selene Finance (“Selene Defendants”). Dkts. 43, 49. Both motions invoke Federal Rule of Civil Procedure 12(b)(6). After carefully considering the motions, Chapman’s responses, Dkts. 45, 50, the replies, Dkt. 46, 54 and the controlling law, it is recommended that the motions to dismiss be granted.
Background
This dispute arises from a series of conveyances of a deed of trust for a specific property (“the Property”). In 2002, Chapman purchased the Property from Fieldstone Mortgage Company (“Fieldstone”). Dkt. 33 ¶ 14. The beneficiary of the associated deed of trust was an entity called Mortgage Electronic Registration Systems, Inc. (“MERS”). Id. ¶ 15. Then, in 2004, Chapman refinanced her property through another loan servicer called Countrywide Home Loans (“Countrywide”). Id. ¶ 16. Chapman made payments on the mortgage until 2012, when she fell on hard times and ultimately filed for bankruptcy. Id. ¶ 19.
Sometime after Chapman refinanced her home, Countrywide apparently assigned her mortgage to Bank of America. Id. ¶ 17. When Chapman failed to make payments on her mortgage, Bank of America filed suit and sought to foreclose on the property. Id. But Bank of America voluntarily dismissed the foreclosure suit and then assigned the mortgage to another servicer—Green Tree Servicing, LLC (“Green Tree”). Id. ¶¶ 17, 18.
During Chapman’s bankruptcy proceedings, she brought an adversary action against Green Tree and Bank of America, alleging that they had no interest in the Property. Dkt. 43-5 at 2, 6-10.1 The various servicers of the mortgage then recorded a series of corrective assignments for the deed of trust. See Dkt. 33 at 6; Dkt. 43-6 at 2-3 (MERS assigns to Bank of America); 43-7 at 2-3 (Bank of America assigns to Green Tree). On June 16, 2015, the bankruptcy court found that, given the set of corrective assignments, Green Tree and its servicer, Fannie Mae, held a valid deed of trust securing a promissory note on the Property, and the Court denied Chapman any relief. Dkt. 43-9 at 2; see also Dkt. 43-8 at 52-53 (bankruptcy court finding that the deed of trust was valid but unrecorded and rendering judgment for Bank of America and Green Tree). The district court affirmed the bankruptcy court’s ruling. Dkt. 43-10 at 2-4.
After the bankruptcy proceeding concluded, the Property underwent two more assignments. In 2021, Green Tree assigned the deed of trust to Newrez LLC (d/b/a Shellpoint Mortgage Servicing) (“Shellpoint”), Dkt. 49-12 at 2, who in 2022 assigned it to the Selene Defendants, see Dkt. 49-13 at 2.
In the interim, Chapman sued Shellpoint in state court on October 29, 2021, alleging that Shellpoint failed to send her a notice of trustee sale and thus failed to satisfy a condition precedent to foreclose on the Property. See L.L.C. v. Hannie Development Inc., 972 F.3d 684, 688 n.9 (5th Cir. 2020).
1 The Court takes judicial notice of the bankruptcy court proceedings as they are a matter of public record. See Colonial Oaks Assisted Living Lafayette,
Dkt. 1-2 ¶¶ 12-16, 19. Shellpoint timely removed to this Court on the basis of diversity jurisdiction. See Dkt. 1 ¶¶ 4-6.
After Chapman’s counsel withdrew, see Dkt. 10, Chapman was granted leave to amend her allegations, which mooted Shellpoint’s and Chapman’s pending summary judgment motions. Dkt. 31 at 3 & n.1. Proceeding pro se, Chapman filed an amended complaint that added as defendants U.S. Bank Trust National Association, Bank of America, and Selene Defendants. Dkt. 33. Bank of America and Selene Defendants filed the underlying motions to dismiss that are ripe for resolution. Dkts. 43, 49.
Legal Standard
To survive dismissal under Rule 12(b)(6), a party must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). When conducting this inquiry, the Court can consider documents referenced and incorporated in the complaint and any facts for which judicial notice is appropriate. See Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011) (affirming judicial notice of publicly available documents containing matters of public record when resolving Rule 12(b)(6) motion).
Analysis
Bank of America and the Selene Defendants advance similar arguments in support of dismissal, Dkt. 43; Dkt. 49, including that Chapman’s factual allegations in her first amended complaint fail to state a plausible claim, Dkt. 43 at 12-13; Dkt. 49 at 10-11. Because the Court agrees that Chapman has not pleaded sufficient facts to satisfy Rule 12(b)(6), there is no need to resolve the other grounds for dismissal.
I. Chapman inadequately pleaded the slander of title claim.
To state a claim for slander of title, a plaintiff must allege “(1) the utterings and publishing of disparaging words; (2) that they were false; (3) that they were malicious; (4) that special damages were sustained thereby; (5) that the plaintiff possessed an estate or interest in the property disparaged; and
(6) the loss of a specific sale.” Emeribe v. Wells Fargo Bank, N.A., 2013 WL 140617, at *3 (S.D. Tex. Jan. 10, 2013) (citing Williams v. Jennings, 755 S.W.2d 874, 879 (Tex. App.—Houston [14th Dist.] 1988, writ ref’d)). For the last element, a plaintiff must allege that “a pending transaction was defeated by the slander.” K&N Builder Sales, Inc. v. Baldwin, 2013 WL 1279292, at *7 (Tex. App.—Houston [14th Dist.] Mar. 28, 2013, pet. denied) (citing A.H. Belo Corp. v. Sanders, 632 S.W.2d 145, 146 (Tex. 1982)).
Here, however, Chapman has not alleged that a sale or transaction was frustrated by any actions taken by Bank of America or the Selene Defendants.
At most, the complaint asserts that Chapman was “receiving solicitations to purchase the subject property.” Dkt. 33 ¶ 35. That is not enough to suggest that a specific sale was lost due to any slander of title. See, e.g., Halliburton Co. v. Can-Tex Energy Corp., 2001 WL 737542, at *3 (Tex. App.—Dallas July 2, 2001, pet. denied) (holding evidence was insufficient when the purchaser did not “refuse[] to buy” the property because of the allegedly slanderous lien). The absence of these critical allegations means that Chapman has not stated a plausible basis for relief on her slander of title claim. See, e.g., Smith v. MTGLQ Investors, LP, 2019 WL 13193219, at *3 (S.D. Tex. Aug. 23, 2019)(dismissing claim when pro se plaintiff failed to allege loss of specific sale, citing Van Duzer v. U.S. Bank Nat’l Ass’n, 582 F. App’x 279, 284 (5th Cir. 2014) (per curiam)); Balgobin v. JPMorgan Chase Bank, N.A., 2019 WL 1046835, at*4 (S.D. Tex. Feb. 15, 2019) (dismissing similar pro se claim for failure to include this allegation), report and recommendation adopted, 2019 WL 1045841 (S.D. Tex. Mar. 5, 2019).
II. Chapman inadequately pleaded her civil conspiracy claim.
Likewise, Chapman fails to allege facts supporting the elements of her claim against Bank of America and the Selene Defendants for civil conspiracy. Civil conspiracy is a derivative tort that requires defendant’s participation in some other underlying tortious conduct. Meadows v. Hartford Life Ins. Co.,492 F.3d 634, 640 (5th Cir. 2007) (citing Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996)). For this claim, Chapman must allege “(1) two or more persons; (2) an objective to be accomplished; (3) a meeting of the minds on the objective; (4) one or more unlawful overt acts; and (5) damages as a proximate result of the conduct.” Murray v. Earle, 405 F.3d 278, 293 (5th Cir. 2005). To allege a meeting of the minds, a plaintiff must assert “specific intent to agree to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means.” Anderson v. Bank of Am., N.A., 2014 WL 12587072, at *5 (S.D. Tex. Jan. 27, 2014) (citing, inter alia, Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005)), report and recommendation adopted, 2014 WL 12587073 (S.D. Tex. Feb. 25, 2014).
For the meeting-of-the-minds requirement, Chapman merely asserts in conclusory fashion that “[d]efendants have worked in concert to assert illegal and non-equitable claims and interests in the subject property.” Dkt. 33 ¶ 69. She alleges no facts that “provide plausible grounds to suggest” an unlawful agreement was made. See Deelen v. Klein Indep. Sch. Dist., 2015 WL 10767059, at *5 (S.D. Tex. Mar. 31, 2015) (rejecting similarly “formulaic recitation of an element of a conspiracy claim”); see also, e.g., Angel v. La Joya Indep. Sch. Dist., 717 F. App’x 372, 380 (5th Cir. 2017) (affirming dismissal of civil conspiracy claim where plaintiff’s assertions of concerted action were conclusory). Chapman’s allegations “are inadequate to allege the meeting of the minds necessary to sustain a civil conspiracy claim.” Breitling v. LNV Corp., 2015 WL 5896131, at *8 (N.D. Tex. Oct. 5, 2015) (dismissing analogous pro se claim in mortgage dispute).
III. Dismissal of Chapman’s slander of title and conspiracy claims defeats her request for declaratory relief.
Chapman’s failure to state a claim against Bank of America and Selene Defendants for slander of title or civil conspiracy forecloses her further request for a declaration that would determine whether those defendants are entitled to foreclose on her Property. See Dkt. 33 ¶¶ 44-52. When, as here, “a declaratory judgment action is filed in state court and is subsequently removed to federal court, it is converted to one brought under the federal Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202.” Bell v. Bank of Am. Home Loan Servicing, 2012 WL 568755, at *8 (S.D. Tex. Feb. 21, 2012). “The Declaratory Judgment Act is a procedural device that creates no substantive rights ….” Id. Declaratory relief therefore must be premised on another cause of action. See Reyes v. N. Texas Tollway Auth., 861 F.3d 558, 565 n.9 (5th Cir. 2017) (explaining that requests for declaratory relief “are not freestanding; they must be supported by some underlying cause of action”).
Dismissal of Chapman’s other claims against Bank of America and the Selene Defendants eliminates the basis for her declaratory judgment claim. Accordingly, her declaratory judgment claim likewise should be dismissed.
Recommendation
For the foregoing reasons, it is RECOMMENDED that the Court GRANT Defendant Bank of America’s motion to dismiss (Dkt. 43), and further GRANT the Selene Defendants’ motion to dismiss (Dkt. 49).
The parties have fourteen days from service of this Report and Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Failure to file timely objections will preclude appellate review of factual findings and legal conclusions, except for plain error. Ortiz v. City of San Antonio Fire Dep’t, 806 F.3d 822, 825 (5th Cir. 2015).
Signed on February 27, 2023, at Houston, Texas.
__________________________
Yvonne Y. Ho
United States Magistrate Judge
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:21-cv-03711
| Chapman v. NewRez LLC Assigned to: Judge Alfred H Bennett Referred to: Magistrate Judge Yvonne Y Ho
Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 11/11/2021 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 09/21/2022 | 47 | NOTICE of Serving First Request for Production of Documents, First Request for Admissions, and First Set of Interrogatories of Defendant Newrez, LLC by Aleta Renee Chapman, filed. (gkelner, 4) (Entered: 09/21/2022) |
| 09/22/2022 | 48 | MOTION for Extension of Time Designate Experts by Selene Finance, filed. Motion Docket Date 10/13/2022. (Attachments: # 1 Proposed Order Order Granting Motion to Extend Time for Defendants to Designate Experts)(Sanders, Jason) (Entered: 09/22/2022) |
| 09/26/2022 | 49 | MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Selene Finance, U.S. Bank Trust National Association, filed. Motion Docket Date 10/17/2022. (Attachments: # 1 Exhibit A Note-R, # 2 Exhibit B Unrecorded DOT-R, # 3 Exhibit C Bankruptcy Docket Sheet, # 4 Exhibit D Adversary Docket Sheet, # 5 Exhibit E Adversary 2nd Amended Complaint-R, # 6 Exhibit F May 11 Corrective Assignment-R, # 7 Exhibit G May 13 Corrective Assignment-R, # 8 Exhibit H June 16 Hearing Transcript, # 9 Exhibit I June 16 Judgment, # 10 Exhibit J Order & Final Judgment, # 11 Exhibit K Recorded DOT 11-04-R, # 12 Exhibit L 2021 Assignment-R, # 13 Exhibit M 2022 Assignment-R)(Sanders, Jason) (Entered: 09/26/2022) |
| 10/03/2022 | 50 | RESPONSE to 43 MOTION to Dismiss 33 Amended Complaint/Counterclaim/Crossclaim etc. , filed by Aleta Renee Chapman. (jdav, 4) (Entered: 10/03/2022) |
| 10/04/2022 | 51 | PROPOSED ORDER re: 50 Response, filed.(jguajardo, 4) (Entered: 10/04/2022) |
| 10/04/2022 | 52 | Unopposed MOTION for Continuance by Selene Finance, U.S. Bank Trust National Association, filed. Motion Docket Date 10/25/2022. (Attachments: # 1 Proposed Order Order Granting the Selene Defendants’ Unopposed Motion to Continue)(Sanders, Jason) (Entered: 10/04/2022) |
| 10/06/2022 | 53 | ORDER REFERRING CASE to Magistrate Magistrate Judge Yvonne Y Ho(Signed by Judge Alfred H Bennett) Parties notified.(gkelner, 4) (Entered: 10/07/2022) |
| 10/11/2022 | 54 | REPLY in Support of 49 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , filed by Selene Finance, U.S. Bank Trust National Association. (Attachments: # 1 Proposed Order Order Granting The Selene Defendants’ Motion to Dismiss)(Sanders, Jason) (Entered: 10/11/2022) |
| 10/19/2022 | 55 | ORDER granting 52 Motion for Continuance; Motion-related deadline set re: 52 Unopposed MOTION for Continuance. Discovery due by 4/7/2023. Dispositive Motion Filing due by 4/21/2023. Joint Pretrial Order due by 7/14/2023. Docket Call set for 8/11/2023 at 01:30 PM in Courtroom 9A before Judge Alfred H Bennett, Jury Trial set for 8/14/2023 at 09:00 AM in Courtroom 9A before Judge Alfred H Bennett.(Signed by Judge Alfred H Bennett) Parties notified.(ledwards, 4) (Entered: 10/19/2022) |
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| 10/19/2022 15:13:00 |
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:21-cv-03711
Create an Alert for This Case on RECAP
| Chapman v. NewRez LLC Assigned to: Judge Alfred H Bennett
Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 11/11/2021 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 08/05/2022 | 35 | AMENDED SCHEDULING ORDER Granting 32 Joint MOTION to Amend. ( Amended Pleadings due by 8/2/2022., Pltf Expert Report due by 9/1/2022., Deft Expert Report due by 9/22/2022., Discovery due by 11/1/2022., Dispositive Motion Filing due by 11/15/2022., Non-Dispositive Motion Filing due by 11/15/2022., Joint Pretrial Order due by 2/10/2023., Docket Call set for 3/10/2023 at 01:30 PM in Courtroom 9C before Judge Alfred H Bennett, Jury Trial set for 3/13/2023 at 09:00 AM before Judge Alfred H Bennett)(Signed by Judge Alfred H Bennett) Parties notified.(ledwards, 4) (Entered: 08/05/2022) |
| 08/11/2022 | 36 | RETURN of Service of SUMMONS Executed as to Bank of America, N.A. served on 8/8/2022, answer due 8/29/2022, filed.(jdav, 4) (Entered: 08/11/2022) |
| 08/11/2022 | 37 | RETURN of Service of SUMMONS Executed as to U.S. Bank Trust National Association served on 8/5/2022, answer due 8/26/2022, filed.(jdav, 4) (Entered: 08/11/2022) |
| 08/11/2022 | 38 | RESPONSE to Shellpoint’s First Request for Admissions, First Set of Interrogatories and First Requests for Production of Documents, filed by Aleta Renee Chapman. (jdav, 4) (Entered: 08/11/2022) |
| 08/12/2022 | 39 | ANSWER to 33 Amended Complaint/Counterclaim/Crossclaim etc. by NewRez LLC, filed.(McKleroy, Michael) (Entered: 08/12/2022) |
| 08/15/2022 | 40 | RETURN of Service of SUMMONS Executed as to Selene Finance served on 8/12/2022, answer due 9/2/2022, filed.(jdav, 4) (Entered: 08/15/2022) |
| 08/25/2022 | 41 | MOTION for Extension of Time Respond to Plaintiff’s First Amended Petition for Damages and Demand for Jury Trial by Selene Finance, U.S. Bank Trust National Association, filed. Motion Docket Date 9/15/2022. (Attachments: # 1 Proposed Order Granting Mot2Extend Time to Respond)(Sanders, Jason) (Entered: 08/25/2022) |
| 08/26/2022 | 42 | ORDER granting 41 Motion for Extension of Time; Motion-related deadline set re: 41 MOTION for Extension of Time Respond to Plaintiff’s First Amended Petition for Damages and Demand for Jury Trial..(Signed by Judge Alfred H Bennett) Parties notified.(ledwards, 4) (Entered: 08/28/2022) |
| 08/29/2022 | 43 | MOTION to Dismiss 33 Amended Complaint/Counterclaim/Crossclaim etc. by Bank of America, N.A., filed. Motion Docket Date 9/19/2022. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Proposed Order)(Jones, Connie) (Entered: 08/29/2022) |
| 08/29/2022 | 44 | CORPORATE DISCLOSURE STATEMENT by Bank of America, N.A., filed.(Jones, Connie) (Entered: 08/29/2022) |
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| Transaction Receipt |
AMENDED COMPLAINT with Jury Demand against NewRez LLC, U.S. Bank Trust National Association, Bank of America, N.A., Selene Finance, Unknown Parties in Interest 1-10 filed by Aleta Renee Chapman.
(Entered: 07/29/2022)
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:21-cv-03711
Create an Alert for This Case on RECAP
| Chapman v. NewRez LLC Assigned to: Judge Alfred H Bennett
Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 11/11/2021 Jury Demand: Plaintiff Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Plaintiff | ||
| Aleta Renee Chapman | represented by | Aleta Renee Chapman 16118 Chamomile Ct Houston, Tx 77083 PRO SEBrandy Michelle Alexander Alexander Law, PLLC 2502 La Branch St Houston, TX 77004 832-360-2318 Fax: 346-998-0886 Email: brandyalexander@alexanderpllc.com TERMINATED: 03/07/2022 LEAD ATTORNEY ATTORNEY TO BE NOTICED |
| V. | ||
| Defendant | ||
| NewRez LLC formerly known as New Penn Financial, LLC doing business as Shellpoint Mortgage Servicing |
represented by | Michael J McKleroy , Jr Akerman LLP 2001 Ross Avenue Suite 3600 Dallas, TX 75201 214-720-4319 Email: michael.mckleroy@akerman.com LEAD ATTORNEY ATTORNEY TO BE NOTICEDAlfredo Ramos Akerman, LLP 1300 Post Oak Blvd. Ste. 2300 Houston, TX 77056 713-623-0887 Email: fred.ramos@akerman.com ATTORNEY TO BE NOTICED |
| Defendant | ||
| U.S. Bank Trust National Association solely as Owner Trustee for RCF 2 Acquisition Trust |
||
| Defendant | ||
| Bank of America, N.A. successor in interest to Countrywide Bank, a division of Treasury Bank, N.A. |
||
| Defendant | ||
| Selene Finance | ||
| Defendant | ||
| Unknown Parties in Interest 1-10 collectively referred to as Defendants |
||
| Date Filed | # | Docket Text |
|---|---|---|
| 03/24/2022 | 16 | MOTION to Compel Action by Defendant by Aleta Renee Chapman, filed. Motion Docket Date 4/14/2022. (JosephWells, 4) (Entered: 03/24/2022) |
| 04/08/2022 | 17 | MOTION for Summary Judgment by NewRez LLC, filed. Motion Docket Date 4/29/2022. (Attachments: # 1 Exhibit, # 2 Proposed Order)(McKleroy, Michael) (Entered: 04/08/2022) |
| 04/11/2022 | 18 |
RESPONSE to 13 MOTION for Extension of Time to Respond and/or Amend Responses to Discovery filed by NewRez LLC. (Attachments: # 1 Exhibit, # 2 Proposed Order)(McKleroy, Michael) (Entered: 04/11/2022) |
| 04/13/2022 | 19 | TRANSCRIPT re: Initial Conference held on February 11, 2022 before Judge Alfred H Bennett. Court Reporter/Transcriber Mayra Malone. Ordering Party Aleta Chapman Release of Transcript Restriction set for 7/12/2022., filed. (Malone, Mayra) (Entered: 04/13/2022) |
| 04/14/2022 | 20 | RESPONSE to 15 MOTION for Extension of Time to Amend Pleadings and Addition of New Parties filed by NewRez LLC. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1-A, # 3 Exhibit 1-B, # 4 Exhibit 1-C, # 5 Exhibit 1-D, # 6 Proposed Order)(McKleroy, Michael) (Entered: 04/14/2022) |
| 04/14/2022 | 21 | RESPONSE to 16 MOTION to Compel Action by Defendant filed by NewRez LLC. (Attachments: # 1 Proposed Order)(McKleroy, Michael) (Entered: 04/14/2022) |
| 04/14/2022 | 22 | Notice of Filing of Official Transcript as to 19 Transcript. Party notified, filed. (ShannonHolden, 4) (Entered: 04/14/2022) |
| 04/29/2022 | 23 | RESPONSE in Opposition to 17 MOTION for Summary Judgment , filed by Aleta Renee Chapman. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(jdav, 4) (Entered: 04/29/2022) |
| 04/29/2022 | 24 | MOTION for Summary Judgment by Aleta Renee Chapman, filed. Motion Docket Date 5/20/2022. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Exhibits, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit)(jdav, 4) (Entered: 04/29/2022) |
| 05/04/2022 | 25 | REPLY in Support of 17 MOTION for Summary Judgment , filed by NewRez LLC. (Attachments: # 1 Exhibit)(McKleroy, Michael) Modified on 5/4/2022 (JosephWells, 4). (Entered: 05/04/2022) |
| 05/17/2022 | 26 | REBUTTAL to 18 Shellpoint’s Response to Chapman’s Motion to Extend Time to Amend Pleadings and Addition of New Parties, filed by Aleta Renee Chapman. (olindor, 4) (Entered: 05/17/2022) |
| 05/17/2022 | 27 | REBUTTAL to 25 Shellpoint’s REPLY in Support of Motion for Summary Judgment, filed by Aleta Renee Chapman. (olindor, 4) (Entered: 05/17/2022) |
| 05/17/2022 | 28 | Amended Opposition to 17 Shellpoint’s Summary Judgment Motion , filed by Aleta Renee Chapman. (olindor, 4) (Entered: 05/17/2022) |
| 05/20/2022 | 29 | RESPONSE in Opposition to 24 MOTION for Summary Judgment, filed by NewRez LLC. (Attachments: # 1 Exhibit)(McKleroy, Michael) (Entered: 05/20/2022) |
| 06/06/2022 | 30 | REBUTTAL to 29 Response in Opposition to Motion, filed by Aleta Renee Chapman. (JacquelineMata, 4) (Entered: 06/06/2022) |
| 07/07/2022 | 31 | ORDER granting 13 Motion for Extension of Time; Motion-related deadline set re: 13 MOTION for Extension of Time to Respond and/or Amend Responses to Discovery, 16 MOTION to Compel Action by Defendant.; denying 16 Motion to Compel. Plaintiff may file amended responses to Defendant’s discovery requests within 30 days from the entry of this Order. Additionally, Plaintiff may file an amended complaint and add additional parties within 21 days from the entry of this Order.1 The parties are further ordered to submit a new joint proposed scheduling order within 30 days from the entry of this Order..(Signed by Judge Alfred H Bennett) Parties notified.(ledwards, 4) (Entered: 07/11/2022) |
| 07/29/2022 | 32 | Joint MOTION to Amend by NewRez LLC, filed. Motion Docket Date 8/19/2022. (Attachments: # 1 Exhibit)(McKleroy, Michael) (Entered: 07/29/2022) |
| 07/29/2022 | 33 | AMENDED COMPLAINT with Jury Demand against NewRez LLC, U.S. Bank Trust National Association, Bank of America, N.A., Selene Finance, Unknown Parties in Interest 1-10 filed by Aleta Renee Chapman. (Attachments: # 1 Exhibit)(JacquelineMata, 4) (Entered: 07/29/2022) |
| 07/29/2022 | 34 | AMENDED CERTIFICATE OF INTERESTED PARTIES by Aleta Renee Chapman, filed.(JacquelineMata, 4) (Entered: 07/29/2022) |
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| 07/30/2022 22:29:24 |
Order on Motion to Compel AND Order on Motion for Extension of Time
NewRez LLC fka New Penn Financial LLC dba Shellpoint Mortgage Servicing (Shellpoint) responds in opposition to Aleta Renee Chapman’s motion for extension of time to respond to and/or amend responses to her discovery responses [dkt. 13] as follows:
I. ARGUMENT SUMMARY
1. Shellpoint served Ms. Chapman with written discovery requests, including requests for admissions, on February 1, 2022. Ms. Chapman served admittingly untimely responses on March 17, 2022, handwriting “denied” in response to each request, including each interrogatory and request for production of documents. She now moves for an extension of time to respond to the requests and/or to amend her responses. Construing her motion as a motion to undeem admissions, it must be denied because Ms. Chapman fails to demonstrate how the presentation of the merits of the case will be promoted if the admissions are undeemed.
II. RELEVANT FACTS
2. Ms. Chapman filed this suit to enjoin the November 2, 2021 foreclosure sale.
(orig. pet. at ¶¶ 21-22, dkt. 1-2.)
She sues for breach of contract, arguing Shellpoint “never sent [her] the notice of trustee sale.”
(Id. at ¶ 16, dkt. 1-2.)
She also sues for declaratory relief, claiming “[b]ecause [Shellpoint] failed to follow proper procedure to sell [her] property, [it] does not have standing to seek non-judicial foreclosure of the property on November 2, 2021.
(Id. at ¶ 17, dkt. 1-2.)
As a result, she seeks declarations to determine
“whether [Shellpoint] followed the proper procedure pursuant to the deed of trust, the Texas Property Code and the Texas Rules of Civil Procedure,”
and/or
“if [Shellpoint] has the authority to foreclosure [sic] and remove [her] from the property,”
and Shellpoint
“does not have the power of sale for the November 2, 2021 foreclosure for failure to send a current notice of sale.”
(Id. at ¶ 19, dkt. 1-2.)
3. Ms. Chapman also sues to permanently enjoin Shellpoint “from selling the property.”
(Id. at ¶ 24, dkt. 1-2.)
4. Shellpoint served Ms. Chapman’s counsel, Brandy Alexander, with requests for admissions, interrogatories, and requests for productions of documents on February 1, 2022.
(McKleroy decl. at ¶ 3, ex. A; disc. reqs., ex. A-1.)
The requests for admissions asked Ms. Chapman admit facts which, based on Shellpoint’s review of the loan file, should not be in dispute.
(McKleroy decl. at ¶ 3, ex. A.)
If Ms. Chapman did not admit a requested proposition, she was then asked to respond to an interrogatory and/or request for production of documents supporting the reasons for her denial.
(see generally disc. reqs., A-1.)
5. For example, Shellpoint attached a copy of payment histories showing the status of the loan through October 31, 2012 and January 4, 2022.
(disc. reqs. at rfa 11, 18 & exs. C, D, ex. A-1.)
Ms. Chapman was asked to admit the histories accurately reflected the status of the loan through the end date.
(Id. at rfa 11, 18, ex. A-1.)
If she did not admit these requests, she was asked to provide specific information (and produce supporting documents) regarding the reasons for not admitting the payment histories accurately reflected the status of the loan through the end date, the monthly installment she claims the loan was paid through as of the end date, what she contends the principal balance should have been as of the end date, and to identify any misapplied payments and/or charges.
(Id. at int. & rfp 12-17, 19-30, ex. A-1.)
6. Ms. Chapman was also asked about the notices provided to conduct a non-judicial foreclosure sale
—the notice of default,
opportunity to cure letter
and intent to accelerate notice
and the notice of acceleration
and foreclosure sale.
(Id. at rfa, int. & rfp at 31-38, exs. E, F, ex. A- 1.)
She was asked to admit the notices attached to the discovery requests were true and correct copies and that they were mailed to her at her last known address, postage prepaid
and,
if she failed to admit these things, to state the reasons (and produce supporting documents) for failing to admit them.
(Id. at rfa, int. & rfp at 31-38, ex. A-1.)
7. Ms. Chapman’s responses were due March 3, 2022.
Fed. R. Civ. P. 36(a)(3).
Late on March 4, 2022, Ms. Alexander moved to withdraw and Ms. Chapman’s counsel.
(mtn. for withdrawal, dkt. 10.)
The motion was granted March 7, 2022.
(order, dkt. 12.)
No other attorney has appeared to represent Ms. Chapman.
8. Ms. Chapman responded to the Shellpoint’s discovery requests for the first time on March 17, 2022.
(McKleroy decl. at ¶ 4, ex. A-1; disc. resp., ex. A-3.)
In response to each response, including the interrogatories and requests for production of documents, Ms. Chapman handwrote “denied.”
(disc. resp., ex. A-3.)
She has not provided any substantive responses to any of the interrogatories or requests for production of documents and has not produced any documents responsive to the requests for production.
(McKleroy decl. at ¶ 4, ex. A-1.)
9. Ms. Chapman filed her motion for extension of time to respond and/or amend responses to discovery on March 21, 2022.
(mtn. for extension, dkt. 13.)
She claims she and Ms. Alexander “had discussed possible responses” and Ms. Alexander “sent a draft on March 4th for answers to discovery, the due date,” but she and Ms. Alexander “could not agree on the propriety of some of the proposed answers.”
(Id. at p. 1, dkt. 13.)
Ms. Chapman contends she had no knowledge of “any of these dates or deadlines” until she received a letter from Shellpoint’s counsel on March 8, 2022.
(Id., dkt. 13.)
Her response attaches a copy of the same March 17, 2022 responses served on Shellpoint.
(compare dkt. 13-1 with disc. resp., ex. A-3.)
III. ARGUMENT & AUTHORITIES
A. Applicable legal standard.
10. Federal Rule of Civil Procedure 36 allows a party to request from any other party admissions to a broad range of factual matters, including the application of law to fact.
Fed. R. Civ. P. 36(a) (1);
In re Carney, 258 F.3d 415, 419 (5th Cir. 2001).
“Such breadth allows litigants to winnow down issues prior to trial and thus focus their energy and resources on disputed matters.”
Carney, 258 F.3d at 419.
For rule 36 to be effective in this regard, litigants must be able to rely on the fact that matters admitted will not later be subject to challenge.
Id.
11. A party served with a request for admission has 30 days to answer or object to the request.
Fed. R. Civ. P. 36(a)(3).
If a party fails to timely respond, the matter is deemed admitted and is “conclusively established” and can result in summary judgment against the non-responding party.
Fed. R. Civ. P. 36(b);
Carney, 258 F.3d at 420 n.6
(collecting cases granting summary judgment on basis of deemed admissions).
12. To obtain relief from deemed admissions, Ms. Chapman must file a motion to withdraw or amend them.
Fed. R. Civ. P. 36(b);
Allen v. Ocwen Loan Servicing, LLC, No. CV H- 15-1672, 2015 WL 12778694, at *2 (S.D. Tex. Dec. 24, 2015).
“In order to allow withdrawal of a deemed admission, rule 36(b) requires that a trial court find that withdrawal or amendment:
(1) would serve the presentation of the case on its merits,
but
(2) would not prejudice the party that obtained the admissions in its presentation of the case.”
Carney, 258 F.3d at 419.
Even when these two factors are established, the court still has discretion to deny a request for leave to withdraw an admission.
Carney, 258 F.3d at 419.
B. Undeeming admissions will not promote presentation of the merits.
13. In determining whether withdrawal would serve the presentation of the case on the merits, a court should consider
“whether denying withdrawal would have the practical effect of eliminating any presentation of the merits of the case.”
Le v. Cheesecake Factory Restaurants, Inc., No. 06-20006, 2007 WL 715260, at *2 (5th Cir. Mar. 6, 2007).
“Even where the presentation of the merits of a case would be eliminated, other factors considered are whether the plaintiff has demonstrated that the merits would be served by advancing evidence showing ‘the admission is contrary to the record of the case,” or that the admission “is no longer true because of changed circumstances or [that] through an honest error a party has made an improvident admission.'”
Id.
14. Ms. Chapman’s motion fails to establish how the presentation of the merits of the case will be promoted by undeeming the admissions, or even attempt to do so.1
Nor does she point to any evidence suggesting any admission, if left standing, would be inaccurate.
Le, 2007 WL 715260, at *2 (citing with approval Branch Banking & Trust Co. v. Deutz-Allis Corp., 120 F.R.D. 655, 658-59 (E.D. N.C. 1988)
(denying withdrawal because the movants for withdrawal proffered “no affidavit, verified pleading, or other evidence . . . to suggest the admission, if left standing, would render an unjust result under the law.”));
see also RE/MAX Int’l, Inc. v. Trendsetter Realty, LLC, No. CIV.A. H-07-2426, 2008 WL 2036816, at *4 (S.D. Tex. May 9, 2008)
(finding first element not met where “[t]here is no showing that the deemed admissions would be contrary to the record of the case.
There is no showing that the deemed admissions are no longer true because of changed circumstances or that the substance of the admissions is the product of an honest error regarding the underlying facts of the dispute.”)
Ms. Chapman’s refusal to respond to any of Shellpoint’s interrogatories and requests for production shows no such evidence exists.
15. The record of the case—as demonstrated by Shellpoint’s summary judgment motion—demonstrates her deemed admissions are consistent with the evidence.
(msj, dkt. 17.)
1 Her motion instead attempts to explain she did not timely respond because of an apparently lack of communication with her former attorney and/or her own ignorance of procedural rules and deadlines once she represented herself.
These explanations are irrelevant and misguided.
She cannot blame the lack of response to Ms. Alexander, her own chosen attorney.
“Each party is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the attorney.”
Link v. Wabash R. Co., 370 U.S. 626, 633-34 (1962).
As a result, a party “cannot now avoid the consequences of the acts or omissions of this freely selected agent.”
Id. at 634;
Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd. P’ship, 507 U.S. 380, 396 (1993)
(“[W]e have held that clients must be held accountable for the acts and omissions of their attorneys.”);
see also Sealed Appellant v. Sealed Appellee, 452 F.3d 415, 419 (5th Cir. 2006)
(“It is well-established, however, that a party is bound by the acts of his attorney.”)
Nor can she blame her own ignorance in proceeding pro se.
“Additionally, courts have continuously held that ignorance of the law and inadvertent noncompliance, including missed deadlines and defective pleadings, are inexcusable even when the plaintiff is proceeding pro se.”
Edwards v. Biotronics Kidney Ctr., No. 1:09-CV-348, 2010 WL 27214, at *2 (E.D. Tex. Jan. 5, 2010)
(citing McNeil v. United States, 508 U.S. 106, 113 (1993)
(“[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.”)
The summary judgment evidence establishes Ms. Chapman was in default,
Shellpoint mailed her notice of her default,
opportunity to cure
and notice of its intent to accelerate the loan
if she failed to do so,
and Shellpoint’s foreclosure counsel,
Barrett Daffin Frappier Turner & Engel, LLP,
mailed her notice the loan was accelerated and a non-judicial foreclosure sale was scheduled for November 2, 2022.
(compare disc. reqs. at rfa 11, 18, 25, 28, 31-32, 35-36 & exs. C-F, ex. A-1 with msj at ¶¶ 6-7, ex. A (Mitchell decl. at ¶¶ 9-10) & ex. C ([BDFTE] decl. at ¶ 3), dkt. 17.)
16. Even if Ms. Chapman sustained her burden, the court should nevertheless exercise its discretion to deny her motion because her refusal to respond to any of the interrogatories and requests for production of documents demonstrates a lack of good faith.
IV. PRAYER
For all of these reasons, this court should deny Ms. Chapman’s motion for extension of time to respond to and/or amend her responses to discovery and grant Shellpoint any and all other relief to which it shows itself justly entitled.
Date: April 11, 2022
Respectfully submitted,
/s/ Michael J. McKleroy, Jr.
Michael J. McKleroy, Jr.
SBN: 24000095, FBN: 576095
michael.mckleroy@akerman.com
–Attorney in Charge
C. Charles Townsend
SBN: 24028053, FBN: 1018722
charles.townsend@akerman.com
Alfredo Ramos
SBN: 24110251, FBN: 3687680
fred.ramos@akerman.com
AKERMAN LLP
2001 Ross Avenue, Suite 3600
Dallas, Texas 75201
Telephone: 214.720.4300
Facsimile: 214.981.9339
ATTORNEYS FOR DEFENDANT NEWREZ LLC dba SHELLPOINT MORTGAGE SERVICING
Foreclosure Defense Lawyer Brandy Alexander Bails Again, and Judge Bennett approves WITHOUT a Hearing
Less than 24 hrs after our last tweet re the need for discovery and potential settlement, the McK. subs into the case…
We’re thinkin’ we’re gonna settle but we need some discovery. Based on Alexander’s past cases, that will take a long, long time and she refuses to have a magistrate judge interfere again, like in that last case….
JOINT DISCOVERY/CASE MANAGEMENT PLAN UNDER FEDERAL RULE OF CIVIL PROCEDURE 26(f)
1. State when the parties conferred as required by Rule 26(f), and identify the counsel who conferred.
Brandy M. Alexander, counsel for Ms. Chapman, and Alfredo Ramos, counsel for Shellpoint, conferred on January 21, 2022.
2. List the cases related to this one that are pending in any state or federal court with the case number and court.
None.
3. Briefly describe what the case is about.
Ms. Chapman sued to enjoin a November 2, 2021 foreclosure sale. She alleges she did not receive proper notice of the sale. Based on this allegation, she alleges claims for breach of contract and seeks declaratory relief.
Shellpoint denies the allegations and denies Ms. Chapman is entitled to any relief.
4. Specify the allegation of federal jurisdiction.
The court has diversity jurisdiction over the claims because the citizenship of the parties is completely diverse and the amount in controversy exceeds $75,000.
5. Name the parties who disagree and the reasons.
None.
6. List anticipated additional parties that should be included, when they can be added, and by whom they are wanted.
None.
7. List anticipated interventions.
None.
8. Describe class-action issues.
None.
9. State whether each party represents that it has made the initial disclosures required by Rule 26(a). If not, describe the arrangements that have been made to complete the disclosures.
The parties will exchange initial disclosures before February 4, 2022.
10. Describe the proposed agreed discovery plan, including:
A. Responses to all the matters raised in Rule 26(f).
(i) Rule 26(f)(3)(A). No changes should be made in the timing, form, or requirement for disclosure under Rule 26(a). The parties will make their initial disclosures within the time required by Rule 26(a)(1)(C).
(ii) Rule 26(f)(3)(B). The parties will conduct discovery on the contentions, claims, theories of recovery, damages and defenses pleaded in this case. There is no need to conduct discovery in phases. Discovery can reasonably be completed by June 10, 2022.
(iii) Rule 26(f)(3)(C). Any disclosure or discovery of electronic files should be produced in printed form.
(iv) Rule 26(f)(3)(D). The need to resolve issues of privileges is not anticipated. Any claims of privilege will be asserted pursuant to the rules.
(v) Rule 26(f)(3)(E). There should be no changes to the limitations on discovery under either the federal or local rules.
(vi) Rule 26(f)(3)(F). It is not anticipated any orders under Rule 26(c) or 16(b) or (c) should be issued at this time.
B. When and to whom the plaintiff anticipates it may send interrogatories.
Ms. Chapman anticipates she will serve interrogatories to Shellpoint within 60 days.
C. When and to whom the defendant anticipates it may send interrogatories.
Shellpoint anticipates it will serve interrogatories to Ms. Chapman within 30 days.
D. Of whom and by when the plaintiff anticipates taking oral depositions.
Ms. Chapman anticipates it will depose Shellpoint within 60 days of its responses to written discovery. In the event Shellpoint’s responses to written discovery reveals the need to depose third parties, Ms. Chapman anticipates it will depose such third parties within 90 days of its responses to written discovery.
E. Of whom and by when the defendant anticipates taking oral depositions.
Shellpoint anticipates it will depose Ms. Chapman within 60 days of her responses to written discovery. In the event Ms. Chapman’s responses to written discovery reveals the need to depose third parties, Shellpoint anticipates it will depose such third parties within 90 days of her responses to written discovery.
F. When the plaintiff (or the party with the burden of proof on an issue) will be able to designate experts and provide the reports required by Rule 26(a)(2)(B), and when the opposing party will be able to designate responsive experts and provide their reports.
Parties seeking affirmative relief will designate expert(s) and provide the reports Rule 26(a)(2)(B) requires by March 11, 2022.
Parties not seeking affirmative relief will designate expert(s) and provide the reports Rule 26(a)(2)(B) requires by April 1, 2022.
G. List expert depositions the plaintiff (or the party with the burden of proof on an issue) anticipates taking and their anticipated completion date. See Rule 26(a)(2)(B) (expert report).
Ms. Chapman does not anticipate this case will involve experts, other than for attorneys’ fees. However, if the need for either party to designate other experts arises, Ms. Chapman anticipates those depositions can be completed within 60 days of the designation and production of the expert’s report.
H. List expert depositions the opposing party anticipates taking and their anticipated completion date. See Rule 26(a)(2)(B) (expert report).
Shellpoint does not anticipate this case will involve experts, other than for attorneys’ fees. However, if the need for either party to designate other experts arises, Shellpoint anticipates those depositions can be completed within 60 days of the designation and production of the expert’s report.
11. If the parties are not agreed on a part of the discovery plan, describe the separate views and proposals of each party.
None.
12. Specify the discovery beyond initial disclosures that has been undertaken to date.
None.
13. State the date the planned discovery can be reasonably completed.
June 10, 2022.
14. Describe the possibilities for a prompt settlement or resolution of the case that were discussed in your Rule 26(f) meeting.
Ms. Chapman and Shellpoint are discussing settlement. They need to conduct discovery to advance those discussions.
15. Describe what each party has done or agreed to do to bring about a prompt resolution.
The parties will exchange information and documents through discovery.
16. From the attorneys’ discussion with the client, state the alternative dispute resolution techniques that are reasonably suitable, and state when such a technique may be effectively used in this case.
The parties believe mediation may be suitable after the parties have had a reasonable time to conduct discovery.
17. Magistrate judges may now hear jury and non-jury trials. Indicate the parties’ joint position on a trial before a magistrate judge.
The parties do not consent to trial before a magistrate judge.
18. State whether a jury demand has been made and if was made on time.
Ms. Chapman requested a trial by jury in her original petition.
19. Specify the number of hours it will take to present the evidence in this case.
The parties believe it will take 6 hours to present the evidence in this case.
20. List pending motions that could be ruled on at the initial pretrial and scheduling conference.
None.
21. List other motions pending.
None.
22. Indicate other matters peculiar to this case, including discovery, that deserve the special attention of the court at the conference.
None.
23. Certify that all parties have filed Disclosure of Interested Parties as directed in the Order for Conference and Disclosure of Interested Parties, listing the date of filing for original and any amendments.
Ms. Chapman certifies she filed her disclosure of interested parties on January 28, 2022.
Shellpoint certifies it filed its disclosure of interested parties as directed by the court on November 16, 2021. (See Doc. No. 3.)
24. List the names, bar numbers, addresses and telephone numbers of all counsel.
Brandy M. Alexander
SBN 24108421, FBN: 3481068
2502 La Branch Street Houston,
Texas 77004
Telephone: 832-360-2318
Attorneys for plaintiff Aleta Renee Chapman
Michael J. McKleroy, Jr.
SBN: 24000095, FBN: 576095
C. Charles Townsend
SBN: 24028053, FBN: 1018722
Alfredo Ramos
SBN: 24110251, FBN: 3687680
2001 Ross Avenue, Suite 3600
Dallas, Texas 75201
Telephone: 214.720.4300
Attorneys for defendant Shellpoint Mortgage Servicing
Date: February 1, 2022 Respectfully submitted,
/s/ Brandy M. Alexander
Brandy M. Alexander
SBN 24108421, FBN: 3481068
brandyalexander@alexanderpllc.com
Alexander Law PLLC
2502 La Branch Street Houston,
Texas 77004
Telephone: 832-360-2318
Facsimile: 346-998-0886
ATTORNEY FOR PLAINTIFF ALETA RENEE CHAPMAN
and
/s/ Michael J. McKleroy, Jr.
Michael J. McKleroy, Jr.
SBN: 24000095, FBN: 576095
michael.mckleroy@akerman.com
–Attorney in Charge
C. Charles Townsend
SBN: 24028053, FBN: 1018722
charles.townsend@akerman.com
Alfredo Ramos
SBN: 24110251, FBN: 3687680
fred.ramos@akerman.com
AKERMAN LLP
2001 Ross Avenue, Suite 3600
Dallas, Texas 75201
Telephone: 214.720.4300
Facsimile: 214.981.9339
ATTORNEYS FOR DEFENDANT SHELLPOINT MORTGAGE SERVICING
Let’s see if this groundless response is acceptable to the Judge… https://t.co/xaavCb01rv pic.twitter.com/dSa7CoojK3
— LawsInTexas (@lawsintexasusa) January 31, 2022
ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 2/11/2022 at 09:30 AM in Courtroom 8C before Judge Alfred H Bennett. (Signed by Judge Alfred H Bennett) Parties notified.(RachelSalazaradi, 4) (Entered: 11/12/2021)
SHELLPOINT’S REMOVAL NOTICE
NewRez LLC fka New Penn Financial LLC dba Shellpoint Mortgage Servicing (Shellpoint) removes Aleta Renee Chapman’s state court action to this court pursuant to 28 USC §§ 1332 and 1441.
I. STATEMENT OF THE CASE
On October 29, 2021, Ms. Chapman sued Shellpoint in the case styled Aleta Renee Chapman v. NewRez LLC fka New Penn Financial, LLC dba Shellpoint Mortgage Servicing, and assigned case 21-DCV-288542 in the 268th District Court of Fort Bend County, Texas. (orig. pet., 1.) She sues to enjoin a scheduled November 2, 2021 trustee sale of the property located at 16118 Chamomile Court, Houston, Texas 77083
(Id. at ¶¶ 2, 8, & prayer, ex. 1.)
Chapman concedes Shellpoint sent an acceleration letter on September 10, 2021, but alleges it did not contain the notice of substitute trustee sale or otherwise identify the time, place and terms of the sale.
(Id. at ¶¶ 13, 15-16, ex. 1.)
Based on this allegation, Ms. Chapman claims Shellpoint breached the deed of trust by failing to provide proper notice of the sale.
(Id.)
She seeks monetary relief of not more than $100,000, a declaration as to whether Shellpoint followed the proper procedure to foreclose, temporary and permanent injunctions prohibiting Shellpoint or its successors from selling the property, and attorneys’ fees.
(Id. at ¶¶ 17-25, ex. 1.)
II. BASIS FOR DIVERSITY JURISDICTION
The court may exercise diversity jurisdiction pursuant to 28 USC § 1332(a) because the parties are completely diverse and the amount in controversy exceeds $75,000.
A. The parties are citizens of different states.
Diversity jurisdiction exists if there is “complete diversity between all named plaintiffs and all named defendants, and no defendant is a citizen of the forum State.” See Lincoln Prop. Co. Roche, 546 U.S. 81, 84 (2005).
Chapman is a citizen of Texas because that is where she resides. (orig. pet., ¶ 2, 1.)
See Preston v. Tenet Healthsystem Mem’l Med. Ctr., 485 F.3d 793, 797–98 (5th Cir. 2007).
Shellpoint is a citizen of Delaware and New York. Shellpoint is an assumed name of NewRez LLC, a Delaware limited liability company. The citizenship of a limited liability company is determined by the citizenship of each of its members.
Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008).
NewRez LLC has one member. Its sole member is Shellpoint Partners LLC, a Delaware limited liability company. Shellpoint Partners LLC has two members (1) NRM Acquisition LLC and (2) NRM Acquisition II LLC, both of which are Delaware limited liability They each have just one member.
New Residential Mortgage LLC, a Delaware limited liability company, is the sole member of both NRM Acquisition LLC and NRM Acquisition II LLC. New Residential Mortgage LLC has one member. Its sole member is New Residential Investment Corp., a Delaware corporation with its principal place of business in New York.
B. The amount in controversy exceeds $75,000.
When a defendant removes on the basis of diversity jurisdiction, the amount in controversy may be established by the specific “good faith” sum demanded by the plaintiff in its state court petition. 28 USC § 1446(c)(2). If the plaintiff does not state the amount of damages it seeks, the burden falls on the defendant to prove the value of the claims.
St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998).
The defendant must “establish by a preponderance of the evidence that the amount in controversy exceeds $75,000.”
Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
This requirement can be satisfied if the defendant shows “(1) it is apparent from the face of the petition that the claims are likely to exceed $75,000, or, alternatively, (2) the defendant sets forth ‘summary judgment type evidence’ of facts in controversy that support a finding of the requisite amount.”
Id. (citing Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999); Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995)).
“In actions seeking declaratory or injunctive relief the amount in controversy is measured by the value of the object of the ” Leininger v. Leininger, 705 F.2d 727, 729 (5th Cir. 1983); Farkas v. GMAC Mortg., LLC, 737 F.3d 338, 341 (5th Cir. 2013) (per curiam); see also Nationstar Mortg., LLC v. Knox, 351 Fed. App’x 844, 848 (5th Cir. 2009) (“
The object of this litigation is the property at 16118 Chamomile Court, Houston, Texas 77083, which is valued at $222,670 by the Fort Bend Central Appraisal District.
(appraisal dist. report, 8.)
See e.g., Hernandez v. Residential Accredit Loans Inc., Mortg. Asset-Backed Pass- Through Certificates, Series 2007-QS3, No. H-18-0724, 2018 WL 4033785, *3 (S.D. Tex. Aug. 23, 2018) (citing appraisal district report as evidence, held “[b]ecause plaintiffs . . . seek a declaration that the lien is void, and because the current market value of the property is $290,091.19 the amount in controversy exceeds the jurisdictional minimum of $75,000.”).
The amount in controversy exceeds $75,000, and the court may exercise diversity jurisdiction.
IV. PROCEDURAL REQUIREMENTS SATISFIED
Removal is timely under 28 USC § 1446(b) because it is filed within thirty days of Shellpoint’s receipt of service of the complaint. Venue is proper in this court because the United States District Court for the Southern District of Texas embraces the place in which the state court action was 28 USC § 1441(a). Notice has been sent to the state court regarding this removal. Pursuant to 28 USC § 1446(a), a true and correct copy of all of the process, pleadings, and orders on file in the state court action are attached as exhibits 1-5.
V. CONCLUSION
The parties are completely diverse and the amount in controversy exceeds $75,000. This court may exercise diversity jurisdiction.
Date: November 11, 2021
Respectfully submitted,
/s/ Michael J. McKleroy, Jr.
Michael J. McKleroy, Jr.
SBN: 24000095, FBN: 576095
michael.mckleroy@akerman.com
–Attorney in Charge
Charles Townsend
SBN: 24028053, FBN: 1018722
charles.townsend@akerman.com
Alfredo Ramos
SBN: 24110251, FBN: 3687680
fred.ramos@akerman.com
AKERMAN LLP
2001 Ross Avenue, Suite 3600
Dallas, Texas 75201
Telephone: 214.720.4300
Facsimile: 214.981.9339
ATTORNEYS FOR DEFENDANT SHELLPOINT MORTGAGE SERVICING
CERTIFICATE OF SERVICE
A true and correct copy of this document was served on November 11, 2021 as follows:
Brandy M. Alexander
Alexander Law PLLC
2502 La Branch Street
Houston, Texas 77004
VIA CM/ECF and First Class Mail
/s/ Michael J. McKleroy, Jr.
Michael J. McKleroy, Jr.
Bent Law: Raymond Washington Wants to Clean Up His Credit via Hill’s Illegal Reentry into Texas Court
Judge Al ‘Bent’ Bennett raises his hand to take this unlawful case from out of state law firm and unregistered with TX OCCC repeat offender.
LIT’s Legal Community Cribs n’ Dibs: Analyzin’ The Bent Chane of Title
The Chane of Investment in LLC’s has grown exponentially since 2019, once Judge Alfred H Bennett’s spouse ditched BP for real estate.
Judges and Lawyers Chane of Title to Land, Residential and Commercial Property Transfers and Sales
The Chane of real property recordings stops short at when the Bennett’s purchased from The Estate of Buster Dick, et al.
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:21-cv-03711
Create an Alert for This Case on RECAP
| Chapman v. NewRez LLC Assigned to: Judge Alfred H Bennett
Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 11/11/2021 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Plaintiff | ||
| Aleta Renee Chapman | represented by | Brandy Michelle Alexander Alexander Law, PLLC 2502 La Branch St Houston, TX 77004 832-360-2318 Fax: 346-998-0886 Email: brandyalexander@alexanderpllc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED |
| V. | ||
| Defendant | ||
| NewRez LLC formerly known as New Penn Financial, LLC doing business as Shellpoint Mortgage Servicing |
represented by | Alfredo Ramos Akerman, LLP 1300 Post Oak Blvd. Ste. 2300 Houston, TX 77056 713-623-0887 Email: fred.ramos@akerman.com ATTORNEY TO BE NOTICED |
| Date Filed | # | Docket Text |
|---|---|---|
| 11/11/2021 | 1 | NOTICE OF REMOVAL from 268th District Court, Fort Bend County, Texas, case number 21-DCV-288542 (Filing fee $ 402 receipt number 0541-27332221) filed by NewRez LLC fka New Penn Financial LLC dba Shellpoint Mortgage Servicing. (Attachments: # 1 Exhibit Exhibit Index, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Ramos, Alfredo) (Entered: 11/11/2021) |
| 11/12/2021 | 2 | ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 2/11/2022 at 09:30 AM in Courtroom 8C before Judge Alfred H Bennett. (Signed by Judge Alfred H Bennett) Parties notified.(RachelSalazaradi, 4) (Entered: 11/12/2021) |
| 11/16/2021 | 3 | CERTIFICATE OF INTERESTED PARTIES by NewRez LLC, filed.(Ramos, Alfredo) (Entered: 11/16/2021) |
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:21-cv-03711
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| Chapman v. NewRez LLC Assigned to: Judge Alfred H Bennett
Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 11/11/2021 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 11/11/2021 | 1 |
NOTICE OF REMOVAL from 268th District Court, Fort Bend County, Texas, case number 21-DCV-288542 (Filing fee $ 402 receipt number 0541-27332221) filed by NewRez LLC fka New Penn Financial LLC dba Shellpoint Mortgage Servicing. (Attachments: # 1 Exhibit Exhibit Index, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Ramos, Alfredo) (Entered: 11/11/2021) |
| 11/12/2021 | 2 |
ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 2/11/2022 at 09:30 AM in Courtroom 8C before Judge Alfred H Bennett. (Signed by Judge Alfred H Bennett) Parties notified.(RachelSalazaradi, 4) (Entered: 11/12/2021) |
| 11/16/2021 | 3 | CERTIFICATE OF INTERESTED PARTIES by NewRez LLC, filed.(Ramos, Alfredo) (Entered: 11/16/2021) |
