In the Fifth Circuit Court of Appeals decision, Smitherman v BayView Loan Servicing they answered a series of arguments and dismissed them all, Bank wins.
“D. Patrick Smitherman (“Smitherman”), proceeding pro se, appeals the district court’s dismissal of his lawsuit relating to the foreclosure of his property in Houston, Texas. The district court dismissed Smitherman’s complaint that included Texas state law quiet title and wrongful foreclosure claims, and requests for declaratory and injunctive relief. This is the fourth lawsuit filed by Smitherman that relates to his mortgage dispute with Appellee, Bayview, LLC (“Bayview”), or its predecessor in interest, Bank of America, N.A. (“Bank of America”). For the following reasons, we AFFIRM. “
However, we’ll look at Quiet Title response, where they claim the Plaintiff has to show why the title was “clouded” as much as the court has the power of equity in removing any cloud;
Request to Quiet Title.
Smitherman’s claim to quiet title was also properly dismissed. Smitherman sought to avoid a threatened foreclosure sale on his home by contending that a transfer of interest between Bayview and the third party purchaser at the foreclosure sale was invalid due to an improper assignment of the deed of trust on the property. Smitherman specifically alleged that Bank of America’s assignment of the note and deed of trust was invalid because
(1) it was not signed by Bank of America,
(2) Bayview signed as “attorney in fact” for Bank of America without showing that it possessed a valid power of attorney, and
(3) Bank of America did not have authority to assign the note and deed of trust to Bayview because the note and deed of trust were owned by the Federal Home Loan Mortgage Corporation.
A suit to quiet title is a request to invoke the court’s powers of equity in removing a “cloud” on the plaintiff’s title to the property. Ellis v. Waldrop, 656 S.W.2d 902, 905 (Tex. 1983). To quiet title in his favor, a plaintiff “must allege right, title, or ownership in himself . . . with sufficient certainty to enable the court to see he . . . has a right of ownership that will warrant judicial interference.” Turner v. AmericaHomeKey Inc., 514 F. App’x 513, 516 (5th Cir. 2013) (per curiam) (unpublished) (citing Wright v. Matthews, 26 S.W.3d 575, 578 (Tex. App.—Beaumont 2000, pet. denied)).
Importantly, the plaintiff in a quiet title action must recover on the strength of his title, not on the alleged weakness of the defendant’s title. Fricks v. Hancock, 45 S.W.3d 322, 327 (Tex. App.—Corpus Christi 2001, no pet.).
Notably, Smitherman seeks to support his claim to quiet title with a series of conclusory assertions that he is the alleged rightful owner of the property, and primarily focuses his argument on alleged weaknesses in Bayview’s title.
Smitherman’s approach is insufficient to amount to a viable claim to quiet title. See id. Smitherman acknowledges in his amended complaint that the note and deed of trust on the mortgage were validly executed, and that he has not made a mortgage payment since 2011.
These concessions alone show that he has no sound title to the property. See Smallwood v. Bank of Am. Nat’l Ass’n, 670 F. App’x 333, 334 (5th Cir. 2016) (per curiam) (unpublished). Smitherman “must allege right, title, or ownership in himself . . . with sufficient certainty to enable the court to see he . . . has a right of ownership that will warrant judicial interference.” See Turner, 514 F. App’x at 516 (quotation marks omitted).
The amended complaint “contained no assertions regarding the strength of [his] own title” but rather only discussed the weaknesses of Bayview’s interest in the property. See id.; see also Morlock, L.L.C. v. JP Morgan Chase Bank, N.A., 586 F. App’x 631, 633 (5th Cir. 2013)(per curiam) (unpublished) (“[T]he plaintiff has the burden of supplying the proof necessary to establish superior equity and right to relief.”) (emphasis in original).
Moreover, in Reinagel v. Deutsche Bank National Trust Co., this court held that the plaintiffs’ challenge to the validity of the assignment failed because they did not plead facts to support allegations that an unauthorized individual executed an assignment as an “authorized agent” and an “attorney in fact” for a corporation. See 735 F.3d 220, 226 (5th Cir. 2013).
This court additionally held that the plaintiffs could not challenge an assignment for being void that was alleged to be fraudulently executed on behalf of a corporation. Id. The alleged unauthorized assignment was deemed to be “not void, but merely voidable” at the election of the defrauded principal. Id.
Similar to the plaintiffs in Reinagel, Smitherman failed to plead facts that proved that the individual who executed the assignment on behalf of Bayview as an “attorney in fact” lacked authority to execute the assignment. See id.
Even if it was accepted as true that Bayview fraudulently misrepresented the scope of its authority, Smitherman cannot challenge the assignment as void. See id.
In sum, the district court was correct to dismiss Smitherman’s claim to quiet title.
Before STEWART, Chief Justice, HAYNES, and WILLETT