Predatory Targeting: Elder Abuse Allegations Surface in Deutsche Bank Foreclosure Comparison in Texas Courts

LIT COMPARISON

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— lawsinusa (@lawsinusa) February 13, 2024

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— lawsinusa (@lawsinusa) December 19, 2023

Deutsche Bank National Trust Company v. Garza

(4:22-cv-03627)

District Court, S.D. Texas

OCT 20, 2022 | REPUBLISHED BY LIT: DEC 27, 2023

NOTICE OF BANKRUPTCY DISMISSAL

COMES NOW, Deutsche Bank National Trust Company, as Trustee for Soundview Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 (“Deutsche Bank” or “Plaintiff”), and files this Notice of Bankruptcy Dismissal and respectfully shows unto the Court as follows:

1.                  On November 30, 2022, Defendant Adelina Garza n/k/a Adelina Roman (“Defendant”) filed a voluntary petition under Chapter 13 of the United States Bankruptcy Code under Case No. 22-33528 (“Bankruptcy Case”) in the United States Bankruptcy Court for the Southern District of Texas.

2.                  On December 13, 2022, Defendant filed a Notice of Suggestion of Bankruptcy. See ECF Doc. No. 9.

3.                  On December 15, 2022, this Court entered an Order Staying Case. See ECF Doc. No. 11.

4.                  On July 19, 2023, the Bankruptcy Court signed an Order of Dismissal (the “Dismissal Order”) dismissing the Bankruptcy Case. A true and correct copy of the Dismissal Order is attached hereto as Exhibit A.

5.                  On October 4, 2023, the Bankruptcy Court signed an Order Closing Case (the “Closing Order”) discharging the Chapter 13 Trustee and closing the case. A true and correct copy of the Closing Order is attached hereto as Exhibit B.

WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully notifies the Court and files this Notice of Bankruptcy Dismissal.

Respectfully submitted,

ADF’s 30-Year Legacy Faces a Test: LIT Highlights Elder Abuse and Liberty Case as a Crucial Cause – Laws In Texas https://t.co/HyagH2NJ26 @ADFLegal @DeutscheBank @SenatorLankford @Reuters @amyklobuchar @ewarren @ChuckGrassley

— lawsinusa (@lawsinusa) December 26, 2023

PLAINTIFF’S ORIGINAL COMPLAINT (DEUTSCHE BANK NATIONAL TRUST COMPANY)

OCT 20, 2022 | REPUBLISHED BY LIT: DEC 27, 2023

COMES NOW, Deutsche Bank National Trust Company, as Trustee for Soundview Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 (“Deutsche Bank” or “Plaintiff”), and files this Original Complaint against Adelina Garza n/k/a Adelina Roman (“Roman” or “Defendant”), and shows:

I.                   PARTIES

1.                  Plaintiff is appearing through the undersigned counsel.

2.                  Defendant, Adelina Garza n/k/a Adelina Roman, is an individual and may be served with process at her residence, 415 King Street, Houston, Texas 77022 or at such other place as she may be found. Summons is requested.

II.                PROPERTY

3.                  This proceeding concerns the following real property and improvements commonly known as 415 King Street Houston, Texas 77022 (the “Property”) and more particularly described as:

LOT 15, IN BLOCK C, OF LINDALE EXTENSION, SECTION 1, A SUBDIVISION IN HARRIS COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN VOLUME 557, PAGE 78 OF THE DEED RECORDS OF HARRIS COUNTY, TEXAS.

III.             DIVERSITY JURISDCTION AND VENUE

4.                  This Court has jurisdiction over the controversy because there is complete diversity between Plaintiff and Defendant, and the amount in controversy exceeds $75,000.00. See 28 U.S.C. § 1332.

5.                  Plaintiff is a national banking association and the trustee of a trust. When determining the citizenship of the real parties in interest for purposes of diversity jurisdiction, it is the citizenship of the trustee which controls, not the citizenship of the beneficiaries of the trust. Navarro Sav. Assoc. v. Lee, 446 U.S. 458, 464-66 (1980); Mfrs. & Traders Tr. Co. v. HSBC Bank U.S.A., Nat’l Ass’n, 564 F. Supp. 2d 261 (S.D.N.Y. 2008). When the trustee has the power to sue or be sued in its own name (and does so), it is the real party in interest. Navarro, 446 U.S. at 464– 66; Rivas v. Deutsche Bank N.A., Rivas v. United States Bank Nat’l Ass’n, 2015 U.S. Dist. LEXIS 74505 **3–4 (S.D. Tex. 2015). A national banking association is considered a citizen of the state in which it is located. 28 U.S.C. § 1348. Its location is determined by the state of its main office, as established in the bank’s articles of association. Wachovia Bank, NA v. Schmidt, 546 U.S. 303, 318 (2006). According to its articles of association, Deutsche Bank has its main office in California. See Lewis v. Deutsche Bank Nat’l Tr. Co., No. 3:16-CV-133, 2017 U.S. Dist. LEXIS 57025 (S.D. Tex. 2017). Therefore, Plaintiff is a citizen of California for diversity purposes.

6.                  Defendant, Adelina Garza n/k/a Adelina Roman, is an individual and citizen of the state of Texas.

7.                  This Court has jurisdiction over this dispute under 28 U.S.C. § 1332 because there is complete diversity between Plaintiff and Defendant, and the amount in controversy exceeds $75,000.00. Due to Defendant’s conduct, as alleged herein, Plaintiff has the right to foreclose upon real property which secures a debt pursuant to a security instrument. In an action for declaratory or injunctive relief, the amount in controversy for jurisdictional purposes is measured by the “value of the right to be protected or the extent of the injury to be prevented.” Leininger v. Leininger, 705 F.2d 727, 729 (5th Cir. 1983). If unable to foreclose on the Property, Plaintiff stands to lose the value of the Property, plus any associated interest. Therefore, the value of the Property determines the amount in controversy.

See e.g., McDonald v. Deutsche Bank Nat’l Tr. Co., 3:11-CV-2691-B, 2011 U.S. Dist. LEXIS 146040, 2011 WL 6396628 (N.D. Tex. Dec. 20, 2011) (holding that declaratory requests in foreclosure “call[] into question the right to the property in its entirety and the amount in controversy is equal to the value of the property”).

According to the Harris County Central Appraisal District Website, the Property involved in this matter is valued at $188,799.00 as of the 2022 appraisal. Therefore, the amount in controversy is well in excess of $75,000.00.

10.              Venue is proper in the Southern District of Texas, Houston Division, because this suit concerns title to real property located in Harris County, Texas. See 28 U.S.C. §§ 124, 1391(b)(2).

IV.             FACTS

11.              The foregoing paragraphs are incorporated by reference for all purposes.

12.              On or about August 30, 2005, for value received, Adelina Roman, executed that certain Texas Home Equity Adjustable Rate Note (LIBOR Six-Month Index (As Published in the Wall Street Journal) – Rate Caps) (the “Note) originally payable to Aames Funding Corporation DBA Aames Home Loan (“Aames”) in the principal amount of $35,000.00 bearing an initial interest rate of 7.910% per annum. A true and correct copy of the Note is attached hereto as Exhibit A.

13.              Concurrently with the Note, Adelina Garza n/k/a Adelina Roman, executed that certain Texas Home Equity Security Instrument (First Lien) (the “Security Instrument” and together with the Note, the “Loan Agreement”), as grantor, granting a security interest in the Property. On December 2, 2005, the Security Instrument was recorded in the Official Public Records of Harris County, Texas, as Instrument Number Y9366973. A true and correct copy of the Security Instrument is attached hereto as Exhibit B.

14.              The Note was indorsed in blank by Aames, and there have been no other endorsements or allonges. Plaintiff has physical possession of the Note and is the current owner of the Note. A true and correct of the indorsed Note is attached hereto as Exhibit C.

15.              Under the terms of the Loan Agreement, Roman was required to pay when due the principal and interest on the debt evidenced by the Note, as well as any applicable charges and fees under the Note.

16.              The Loan Agreement further provides that should Roman fail to comply with any or all of the covenants and conditions of the Loan Agreement, then the lender may require immediate payment in full of all outstanding principal and accrued interest owed on the Note. The Loan Agreement further provides that the lender may enforce the Security Instrument by selling the Property according to law and in accordance with the provisions set out in the agreement

17.              Roman has failed to comply with the terms of the Loan Agreement. The Loan Agreement is currently due for the May 1, 2022, payment and all subsequent monthly payments. Notice of Default and Intent to Accelerate was provided to Roman in accordance with the Loan Agreement and the Texas Property Code. A true and correct copy of the Notice of Default and Intent to Accelerate is attached hereto as Exhibit D. The default was not cured, and the maturity of the debt was accelerated. A true and correct copy of the Notice of Acceleration of Loan Maturity is attached hereto as Exhibit E.

18.              Plaintiff is the current legal owner and holder of the Note and beneficiary of the Security Instrument. Plaintiff is also the mortgagee as that term is defined in § 51.0001(4) of the Texas Property Code.

19.              Plaintiff brings this suit for declaratory judgment and foreclosure so it may enforce its security interest in the Property.

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— lawsinusa (@lawsinusa) December 26, 2023

V.                CAUSE OF ACTION – DECLARATORY JUDGMENT

19.              The foregoing paragraphs are incorporated by reference for all purposes.

20.              Deutsche Bank has standing to enforce the Security Instrument as holder and owner of the Note. Hardaway v. Select Portfolio Servicing, Inc., No. 4:18-CV-1062, 2020 U.S. Dist. LEXIS 63172 at *8 (S.D. Tex. Apr. 10, 2020) (citing Everbank v. Seedergy Ventures, Inc., 499 S.W.3d 534, 541 (Tex. App.—Houston [14th Dist.] 2016, no pet.))

21.              Deutsche Bank requests a declaration from this Court that it is the owner and holder of the Note and beneficiary of the Security Instrument. Deutsche Bank requests a further declaration from this Court that, as owner and holder of the Note and beneficiary of the Security Instrument, Deutsche Bank is a mortgagee as that term is defined under Texas Property Code section 51.0001(4) and is authorized to enforce the power of sale in the Security Instrument through foreclosure of the Property.

22.              Deutsche Bank has been forced to hire the undersigned attorneys to seek a declaratory judgment as a result of Defendant’s failure to comply with the Loan Agreement.

Deutsche Bank is therefore entitled to and seeks judgment against Defendant for its reasonable attorney’s fees in this action, both through trial and in the event of a subsequent appeal, as provided by the Security Instrument, and by statute.

TEX. CIV. PRAC. & REM. CODE §§ 37.009; 38.001.

Plaintiff requests that the award of attorney’s fees be made not as a money judgment against the Defendant, but as further obligation under the subject Note and Security Instrument.

VI.   CAUSE OF ACTION – NON-JUDICIAL FORECLOSURE

23.              The foregoing paragraphs are incorporated by reference for all purposes.

24.              Because of a material breach of the Loan Agreement, Plaintiff seeks an order from this Court to enforce its security interest through non-judicial foreclosure pursuant to the terms of the Loan Agreement and Texas Property Code § 51.002.

25.              A public auction of the Property in conjunction with all other regularly scheduled non-judicial foreclosure sales on the first Tuesday of the month would provide the most practical, efficient, and effective means to enforce Plaintiff’s security interest in the Property.

Because the rights, responsibilities, and duties of Plaintiff and the trustee are well known under Texas Property Code § 51.002 and Texas case law, a public auction conducted in the same manner as a non- judicial foreclosure sale would meet all constitutional standards of due process and would be the most expedient means to put the Property back into the stream of commerce and the housing stock of the community.

26.              Deutsche Bank has been forced to hire the undersigned attorneys to seek an order allowing foreclosure as a result of Defendant’s failure to comply with the Loan Agreement.

Deutsche Bank is therefore entitled to and seeks judgment against Defendant for its reasonable attorney’s fees in this action, both through trial and in the event of a subsequent appeal, as provided by the Security Instrument, and by statute.

TEX. CIV. PRAC. & REM. CODE §§ 37.009; 38.001.

Plaintiff requests that the award of attorney’s fees be made not as a money judgment against the Defendant, but as further obligation under the subject Note and Security Instrument.

VII.          CAUSE OF ACTION – JUDICIAL FORECLOSURE

27.              The foregoing paragraphs are incorporated by reference for all purposes.

28.              In the alternative, for failure to cure the default of the Loan Agreement, Plaintiff seeks to enforce its security interest against the Property in an amount equal to the payoff at the time of judgment.

29.              Plaintiff seeks a judgment for judicial foreclosure together with an order of sale issued to the sheriff or constable of the county where the Property is located directing the sheriff or constable to seize and sell the Property in satisfaction of the Loan Agreement debt, pursuant to Texas Rules of Civil Procedure 309.

30.              Deutsche Bank has been forced to hire the undersigned attorneys to seek an order allowing foreclosure as a result of Defendant’s failure to comply with the Loan Agreement.

Deutsche Bank is therefore entitled to and seeks judgment against Defendant for its reasonable attorney’s fees in this action, both through trial and in the event of a subsequent appeal, as provided by the Security Instrument, and by statute.

TEX. CIV. PRAC. & REM. CODE §§ 37.009; 38.001.

Plaintiff requests that the award of attorney’s fees be made not as a money judgment against the Defendant, but as further obligation under the subject Note and Security Instrument.

VIII.    CONDITIONS PRECEDENT

31.              The foregoing paragraphs are incorporated by reference for all purposes.

32.              In accordance with Federal Rule of Civil Procedure 9(c), all conditions precedent have been performed or have occurred for Plaintiff to enforce its security interest against the Property.

IX.             PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that Defendant, Adelina Garza k/n/a Adelina Roman, be summoned to appear and answer, and that upon final hearing, the Court enter judgment granting declaring that

(1) Plaintiff is the owner and holder of the Note,

(2) Borrower is in default on his obligations on the Loan Agreement,

(3) Plaintiff as the owner and holder of the Note has standing and is authorized to enforce the power of sale through non-judicial foreclosure of the Property pursuant to the terms of the Loan Agreement and Texas Property Code § 51.002, or alternatively, by judicial foreclosure.

Plaintiff further requests attorneys’ fees and costs of suit, not as a money a judgment against Defendant, but as further obligation under the subject Note and Security Instrument, and all other relief, in law and in equity, to which Plaintiff is entitled.

Respectfully submitted,

By:  /s/ Sarah Sibley Cox

MARK D. CRONENWETT
Attorney in Charge
Texas Bar No. 00787303
Southern District Admission #21340
mcronenwett@mwzmlaw.com

SARAH SIBLEY COX
Of Counsel
State Bar No. 24043439
Southern District Admission #39086
scox@mwzmlaw.com

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

ATTORNEYS FOR PLAINTIFF