The $2.5M Home Break-In: Felon Anthony Welch n’ Co-Conspirator Eno Williams are “Serial Squatters”

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Longoria Memorandum Opinion by Justice Longoria

Pro se appellants Eno Williams and Anthony Welch filed two notices of appeal challenging the county court’s order granting summary judgment in favor of appellee JPMorgan Chase Bank, N.A. (JPMC) and the county court’s subsequent order vacating an order granting appellants’ motion to dismiss.

By order of this Court, this matter was severed into two appellate cause numbers: number 13-20-00333-CV, challenging the order vacating the order of dismissal, and number 13-20-00384-CV, challenging the summary judgment order.

We address both appellate cause numbers in this single opinion.1

In what we construe and renumber as three issues, appellants argue the county court:

(1) did not have jurisdiction to proceed with summary judgment on a forcible detainer case because of:

(a) a restraining order

and

(b) pending title litigation;

(2) erred in failing to grant appellants’ motion to dismiss;

and

(3) erred in granting summary judgment “given the existence of genuine issues of material facts.”

We affirm.

I.             Background2

This case arises out of an eviction suit. JPMC purchased 2003 Darby Lane, Fresno, Texas (the Property) at a foreclosure sale.

Appellants did not surrender possession of the Property to JPMC.

Appellants brought suit in state district court challenging the validity of the foreclosure sale.

On December 11, 2019, appellants obtained an ex parte temporary restraining order in state district court which stated:

[JPMC], their agents, servants[,] and employees, from [sic] directly or indirectly restrained and are hereby commanded forthwith to desist and refrain from doing any of the following acts from the date of entry of this Order until and to the 14th day after entry or until further order of this Court:

1 On September 10, 2020, this Court issued a letter notifying appellants that their notice of appeal in appellate cause number 13-20-00384-CV was untimely.

See TEX. R. APP. P. 38.6(a).

However, having reviewed the clarification order from the county court, we now determine appellants’ notice of appeal in cause number 13-20-00384-CV is timely.

We address both cause numbers together for judicial efficiency.

2 This case is before this Court on transfer from the Fourteenth Court of Appeals in Houston pursuant to a docket-equalization order issued by the Supreme Court of Texas.

See TEX. GOV’T CODE ANN. § 73.001.

1.    Foreclosing on [appellants’] property;

2.    Issuance and service of a writ of possession;

3.    Evicting anyone from the residence;

4.    Entering and taking possession of the home or otherwise interfering with [appellants’] right to the quiet enjoyment and use of the home;

5.    Proceeding with or attempting to sell or foreclose upon the home;

6.    Attempting to purchase, transfer, assign or collect on the mortgage;

7.    Bond is set at $100.00;

and

8.    Hearing on whether this Temporary Restraining Order should become a Temporary Injunction is scheduled for 18 Dec., 2019 at 9:00am in the 268th District Court.[3]

JPMC contends that no restraining order was served on it, nor did it have notice of the restraining order being entered.

On December 17, 2019, JPMC sent written notice to appellants, instructing them to vacate the Property, which appellants refused.

On January 7, 2020, JPMC filed a forcible detainer action in the justice court.4

JPMC obtained a forcible detainer judgment in its favor and appellants appealed the justice court judgment.

JPMC filed a summary judgment motion which was granted by the county court.

This appeal ensued.

3 In their appellate brief appendix, appellants attached an order purporting to extend the temporary restraining order until January 8, 2020.

This order does not appear in the clerk’s record and cannot be considered on appeal.

See Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex. App.—Dallas 2005, pet. denied)

(“[A]n appellate court cannot consider documents . . . cited in the brief and attached as appendices if they are not formally included in the record on appeal.”);

Reeves v. Hous. Lighting & Power Co., 4 S.W.3d 374, 378 (Tex. App.—Houston [1st Dist.] 1999, pet. denied)

(noting that an appellate court must hear and determine the case on the record as filed and cannot consider documents that are attached as exhibits or appendices to briefs or motions).

4 On January 7, 2020, JPMC removed appellants’ state district court suit to federal district court. JPMC’s motion to dismiss was granted in federal court on June 5, 2020.

II.            Jurisdiction

By their first issue, appellants argue that the county court did not have jurisdiction to hear JPMC’s forcible detainer action because there was a “restraining order and pending lawsuit in district court to determine title” to the Property.

See TEX. PROP. CODE ANN. § 24.004(a)

(providing that a justice court has exclusive jurisdiction over forcible detainer suits);

Crumpton v. Stevens, 936 S.W.2d 473, 476 (Tex.App.—Fort Worth 1996, no writ)

(noting that a county court has no jurisdiction over an appeal unless the justice court had jurisdiction).

Without jurisdiction, appellants argue the county court erred in not granting their motion to dismiss.

JPMC argues that a title determination was not required to determine the right to possession because the landlord-tenant relationship between the parties provided an independent basis for possession.

We agree with JPMC.

A.           Temporary Restraining Order

Appellants first argue that the county court lacked jurisdiction because the state district court had entered a temporary restraining order preventing JPMC from going forward with litigation.

In response, JPMC argues it was not proper for the district court to restrain a justice court or county court in the manner alleged by appellants, and even if it were proper, JPMC was never served with the temporary restraining order, “nor did the temporary restraining order prohibit the filing [of] a forcible detainer action.”

A temporary restraining order is a stopgap, placeholding measure—it serves to preserve the status quo for up to fourteen days, just until a litigant’s application for temporary injunction can be heard.

See TEX. R. CIV. P. 680

(providing that the term of a temporary restraining order shall not exceed fourteen days, and if granted ex parte, “the application for a temporary injunction shall be set down for hearing at the earliest possible date . . . and when the application comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a temporary injunction and, if he does not do so, the court shall dissolve the temporary restraining order”);

see also Town of Flower Mound v. Eagleridge Operating, LLC, No. 02-18-00392-CV, 2019 WL 3955197, at *8 (Tex. App.—Fort Worth Aug. 22, 2019, no pet.) (mem. op.).

Appellants argue that the JPMC violated the temporary restraining order by filing the required notice to vacate during the time the order was in still effect, and therefore, the notice is void.

See TEX. PROP. CODE ANN. § 24.005(b)

(“If the occupant is a tenant at will or by sufferance, the landlord must give the tenant at least three days’ written notice to vacate before the landlord files a forcible detainer suit   ”).

Appellants direct us to no relevant authority,5 and we find none, indicating that a notice to vacate issued in violation of a temporary restaining order is void.

See TEX. R. APP. P. 38.1(i).

Instead, the remedy for the violation of a temporary restraining order is punishment by contempt proceedings.

Green Oaks, Ltd. v. Cannan, 749 S.W.2d 128, 131 (Tex. App.—San Antonio 1987), writ denied sub nom. Cannan v. Green Oaks Apts., Ltd., 758 S.W.2d 753 (Tex. 1988).

It is true that a court may punish a contempt by fine or imprisonment in order to vindicate its

5 We note that appellants cite Marroquin v. D & N Funding, Inc., 943 S.W.2d 112, 114 (Tex. App.— Corpus Christi–Edinburg 1997, no pet.) for the proposition that a “restraining order issued by [a] district court preventing [an] eviction suit from being filed is [the] same relief as [an] automatic stay from [a] bankruptcy court preventing [an] action against [a] debtor, action taken is void.”

However, appellants have misconstrued Marroquin, which specifically explains that a stay is automatically issued in a bankruptcy proceeding and any action taken against the debtor is void.

See id. at 115.

Marroquin does not draw any connection between a restraining order and the automatic bankruptcy stay as appellants assert in their brief. See id.

authority.

See TEX. GOV’T CODE ANN. § 21.002.

But in addition, a litigant injured by a contempt may file a civil suit for damages.

See Cannan, 749 S.W.2d at 131 (citing Edrington v. Pridham, 65 Tex. 612, 617–618 (1886); Beverly v. Roberts, 215 S.W. 975, 976 (Tex. App.—Amarillo 1919, no writ)).

No such remedy was sought by appellants, and we note the remedy of contempt would be unavailable in any event because JPMC was never notified of the restraining order.

See Ex parte Chambers, 898 S.W .2d 257, 259 (Tex. 1995)

(“[O]ne must have knowledge or notice of an order which one is charged with violating before a judgment of contempt will obtain.”)

(citing Ex parte Conway, 419 S.W.2d 827, 828 (Tex. 1967)); see also In re Sullivan, No. 14-10-00328-CV, 2010 WL 2104184, at *1 (Tex. App.—Houston [14th Dist.] May 27, 2010, orig. proceeding) (mem. op. per curiam)

(“A criminal contempt conviction for violation of a court order requires proof beyond a reasonable doubt of, among other things, a willful intent to violate the order.”)

B.           Title Dispute

Appellants also argue that the county court did not have jurisdiction to proceed “in the face of appellant’s [sic] pending lawsuit in district court to determine title to the Property.”

A county court at law has no jurisdiction to adjudicate title in a de novo trial of a forcible detainer action from justice court.

Rice v. Pinney, 51 S.W.3d 705, 708–09 (Tex. App.—Dallas 2001, no pet.).

Rather, the only issue in a forcible detainer suit is who has the right to immediate possession of the property.

Id. at 709.

To prevail, it is unnecessary for the plaintiff to prove title to the property; plaintiff is only required to present sufficient evidence of ownership to demonstrate a superior right to immediate possession.

Id.

When the issue of immediate possession requires resolution of a title dispute, however, neither the justice court nor the county court at law have jurisdiction to render a judgment for possession.

Id. 708–09; aee Elwell v. Countrywide Home Loans, Inc., 267 S.W.3d 566, 568 (Tex. App.—Dallas 2008, pet. dism’d w.o.j.).

A justice court or county court at law is not deprived of jurisdiction merely by the existence of a title dispute; rather, it is deprived of jurisdiction only if “the right to immediate possession necessarily requires the resolution of a title dispute.”

Rice, 51 S.W.3d at 713 (citing Haith v. Drake, 596 S.W.2d 194, 196 (Tex. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.)).

In Martinez v. Beasley, this Court held:

[A] judgment of possession in a forcible detainer action is a determination only of the right to immediate possession of the premises, and does not determine the ultimate rights of the parties to any other issue in controversy relating to the realty in question.

Therefore, in this case, plaintiffs have the right to sue in the district court to determine whether the trustee’s deed should be cancelled, independent of defendant’s award of possession of the premises in the forcible detainer action, which determined the right to immediate possession of the premises, and nothing else.

An action in forcible detainer in the justice court is one thing, and an action in the district court to determine whether a trustee’s deed to the premises involved in the forcible detainer action should be set aside i[s] something else.

572 S.W.2d 83, 85 (Tex. App.—Corpus Christi–Edinburg 1978, no writ).

Here, the deed of trust executed by appellants and JPMC specifically states:

If the Property is sold at foreclosure, [appellants] or any person holding possession of the Property by, through or under [appellants] shall immediately surrender possession of the Property to the purchaser at such sale.

If possession is not surrendered, [appellants] or such person shall be a tenant at sufferance, liable to the extent allowed by law for reasonable rental for the use of the Property[] and may be removed by writ of possession in accordance with applicable law.

Based on the deed, appellants became tenants at sufferance and subject to a forcible detainer action when they refused to vacate the property after request.

Appellants did not argue in the county court that the foreclosure sale was invalid; instead, it made those arguments only in the state district court proceedings.

Accordingly, it was not necessary for the county court at law to determine the issue of title to the property, nor did it.

The county court merely determined who was entitled to immediate possession based on the deed of trust and foreclosure sale.

To hold, as appellants suggest, that the filing of a concurrent suit in district court challenging the validity of the foreclosure sale precludes a forcible detainer suit in justice court “would ignore the long-established legislative scheme of parallel resolution of immediate possession and title issues.”

Rice, 51 S.W.3d at 711; see Martinez, 572 S.W.2d at 85.

C.           Summary

We overrule appellants’ first issue.6

III.          Summary Judgment

In their third point of error, appellants argue that the county court erred in granting summary judgment in favor of JPMC because a genuine issue of material fact existed.

Specifically, appellants contend that the issue of whether JPMC was served with the temporary restraining order or the extension of said order “created a genuine material fact issue.”

Appellants, however, provide no references to the record and no citations to authority to support their contention.

See TEX. R. APP. P. 38.1(i)

(requiring that briefs “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record”).

Accordingly, we overrule appellants’ third issue.

6 By what we construe as appellants’ second issue in appellate cause number 13-20-00333-CV, appellants assert that the county court erred in failing to grant their motion to dismiss based on lack of jurisdiction. Having determined the county court had jurisdiction, we overrule appellants’ second issue.

IV.          Conclusion

The judgment vacating the order of dismissal in appellate cause number 13-20- 00333-CV and the judgment granting JPMC’s summary judgment in appellate cause number 13-20-00384-CV are affirmed.

NORA L. LONGORIA
Justice

Delivered and filed on the 17th day of March, 2022.

DEFENDANT BARRETT DAFFIN FRAPPIER TURNER & ENGEL, LLP’S RULE 12(b)(6) MOTION TO DISMISS

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant BARRETT DAFFFIN FRAPPIER TURNER & ENGEL, LLP (“Barrett Daffin”), files this Motion to Dismiss in response to Plaintiff’s Original Petition to Enjoin and Restrain Foreclosure Sale, for Temporary and Permanent Injunctive Relief, and for Declaratory Relief (“Complaint”) [Doc. 1- 1].

In support of the foregoing, Barrett Daffin would respectfully show the Court the following:

I. SUMMARY

1.                  Barrett Daffin was retained by the JPMorgan Chase Bank, N.A. (“JPMC”) to assist in the foreclosure of certain real property commonly known as 2003 Darby Lane, Fresno, Texas 77545 (“Property”) due to Emmitt Johnson’s (“Plaintiff”) failure to pay his residential mortgage as contractually agreed.

2.                  Plaintiff brought this, the most recent lawsuit in the line of multiple suits to prevent foreclosure of their Property.1

However, no claims have been asserted against Barrett Daffin that arise out of any conduct other than Barrett Daffin’s legal representation of its client, JPMC, in protecting JPMC’s interest in the Property vis-à-vis the interest of Plaintiff.

Plaintiff’s petition is devoid of any specific actions taken by Barrett Daffin that would subject the law firm to liability for conduct outside of its scope of representation of JPMC in relation to the foreclosure of the Property.

3.                  Plaintiff has failed to assert any claims against Barrett Daffin that arise out of alleged conduct of Barrett Daffin outside of its capacity as legal counsel for JPMC. Given that attorneys are immune from suit by a client’s adversary for the legal services provided to the client in the adversarial process, Barrett Daffin asserts that Plaintiff has failed to state any claim upon which relief can be granted against Barrett Daffin.

II. STATEMENT OF FACTS

4.                  In December 2002, Plaintiff executed a note (the “Note”) in favor of Washington Mutual Bank (“WAMU”), secured by a deed of trust (“Deed of Trust”) in order to purchase or refinance and obligation on the Property.2

Due to the default under the terms of the loan agreement, Barrettt Daffin was retained by JPMC to proceed with the non-judicial foreclosure of the Property. On multiple occasions, the Plaintiff filed suit to forestall the foreclosure and continued to reside in the Property while not paying the mortgage.

See FN. 1.

Plaintiff has once again filed suit against various parties seeking to prevent the foreclosure of the Property.

1 Emmitt Johnson v. Barrett Daffin Frappier Turner & Engel, LLP, et al.; Civil Action No. 4:16-CV-00575 (S.D. Tex. 2016) (dismissed with prejudice as to all Defendants)

pending appeal before Fifth Circuit, Case No. 17-20035

and

Emmitt Johnson v. JPMorgan Chase; Civil Action No. 4:14-CV-01706 (S.D. Tex. 2014)

(summary judgment granted for JPMorgan Chase).

2 See generally Plaintiff’s Complaint, Doc. 1-1.

Barrett Daffin is protected from liability by attorney immunity and even if the doctrine of immunity was not applicable herein, Plaintiff’s suit fails to state a single viable cause of action against Barrett Daffin.

III.

ARGUMENT AND AUTHORITIES

The Applicable Standard for a 12(B)(6) Motion.

5.                  To survive a Rule 12(b)(6) motion to dismiss, a complaint must include facts that “raise a right to relief above the speculative level,” and into the “realm of plausible liability.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 and 1966 n.5 (2007).

Even though the complaint is to be construed liberally and in the light most favorable to the nonmoving party, a plaintiff must plead enough facts to state a claim that is at least plausible on its face.

Id. at 1973-74.

Although detailed factual allegations are not necessary, a “plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

Id. at 1964-65 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932 (1986)).

A complaint must allege enough facts to move past possibility and on to plausibility of “entitlement to relief.”

Id. at 1966.

This standard is referred to as the “flexible plausibility standard.”

See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009).

Barrett Daffin is Immune from Suit.

6.                  In general, attorneys are immune from suit by their client’s adversaries for conduct undertaken in their capacity as attorneys.

An attorney enjoys “qualified immunity,” with respect to non-clients, for actions taken in connection with representing a client in adversarial circumstances.

See, e.g., Butler v. Lilly, 533 S.W.2d 130, 131-34 (Tex. Civ. App.—Houston [1st Dist.] 1976, writ dism’d). Dismissal under Rule 12(b)(6) is proper where the facts alleged by

Plaintiff, even if true, would not entitle Plaintiff to a legal recovery.

See Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 408 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)

(affirming trial court’s dismissal of claims against attorney on ground that because of attorney’s immunity from suit, plaintiff failed to allege a claim or plead a cause of action for which relief could be granted).

7.                  The doctrine of attorney immunity provides attorneys an opportunity to practice their profession, without a conflict between advocating zealously for their clients’ best interests as deemed necessary and proper and their own personal exposure to liability from non-parties in the discharge of their duties within the scope of their client’s representation.

Campbell v Mortgage Electronic Registration Systems Inc., 2012 WL 1839357, at *5-6 (Tex. App. – Austin, May 18, 2012, pet. denied.) (mem. op.)

(Attorneys hired to assist a mortgage beneficiary in the non-judicial foreclosure of real property were immune from the borrowers’ suit for wrongful foreclosure.)

In simplest terms, attorneys have a right to “practice their profession, to advise their clients and interpose any defense or supposed defense, without making themselves liable for damages.”

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

8.                  Barrett Daffin is no stranger to being improperly joined in litigation given its role as foreclosure counsel on behalf of its mortgagee clients.

The Fifth Circuit has affirmed multiple judgments dismissing Barrett Daffin from litigation in which Barrett Daffin was improperly joined in cases brought against the firm in connection with its legal defense of mortgagees, as is the case herein.

See e.g., Lassberg v. Bank of America, N.A., 2016 WL 4446074 (5th Cir. August 23, 2016) (unpublished);

Trang v. Taylor Bean, 2015 WL 78772 (5th Cir. January 7, 2015) (unpublished);

Rojas v. Wells Fargo Bank, N.A., 571 Fed. Appx. 274 (5th Cir. June 6, 2014)(unpublished);3

L’Amoreaux v. Wells Fargo Bank, N.A.; 755 F.3d 748 (5th Cir. 2014);4

and Iqbal v. Bank of America, N.A., 559 Fed. Appx. 363, 364 (5th Cir. Mar. 18, 2014).5

9.                  Texas state courts have also specifically held that Barrett Daffin is protected from liability to claims (similar to Plaintiff’s claims) as attorneys representing mortgagees in a non- judicial foreclosure proceeding are protected by attorney immunity. See, e.g., Givens v. Midland Mortgage Co., 393 S.W.3d 876, 880 (Tex. App.—Dallas 2012, no pet.)

(affirming summary judgment in favor of Barrett Daffin on attorney immunity);

see also Campbell v. Mortgage Elec. Registration Sys., Inc., 2012 WL 1839357 (Tex. App.—Austin May 18, 2012, pet. denied) (mem. op.)

(holding that attorney’s representation of mortgagee in non-judicial foreclosure is protected by attorney immunity).

10.              Recently, the Texas Supreme Court spoke to the issue and held that “attorneys are immune from civil liability to non-clients ‘for actions taken in connection with representing a client in litigation.’”

Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015) (quoting Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 405 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)).

So long as an attorney’s complained-of conduct was performed in the course

3 In Rojas v. Wells Fargo Bank, N.A., the Fifth Circuit held, Barrett Daffin Frappier Turner & Engel, L.L.P. was improperly joined because attorneys are generally immune from suits brought under Texas law against them by their adversaries if the action arises out of the duties involved in representing a client.

See Chapman Children’s Trust at 440-441; Bradt at 71-72.

We have previously held that Barrett Daffin Frappier Turner & Engel, L.L.P. has immunity for its acts as foreclosure counsel.

See Iqbal at *2.

4 In L’Amoreaux v. Wells Fargo Bank, N.A., the Fifth Circuit held with respect to Barrett Daffin, [T]he L’Amoreauxes must allege that Barrett Daffin knowingly made or presented a document that reflected a false lien or interest in the property.

Here, aside from a single sentence in their complaint in which the L’Amoreauxes baldly assert that the defendants acted knowingly, there is no evidence to suggest that this is the case.

See Rios v. City of Del Rio, Tex. 444 F.3d 417 420 (5th Cir. 2006)

(‘[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.”

5 In Iqbal v. Bank of America, N.A., the Fifth Circuit held, “Barrett Daffin Frappier Turner & Engel, L.L.P. was retained to assist in the foreclosure, and the actions complained of by the Iqbals are within the scope of their representation.

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

Iqbal v. Bank of America, N.A, 2014 WL 1017101, at *2 (5th Cir. Mar. 18, 2014) (unpublished)(citing Campbell at *5-6 (Tex.App. – Austin, May 18, 2012, pet. denied.).

and scope of his representation of his client and also required the office, professional training, skill, and authority of an attorney—immunity bars any and all claims against the attorney.

Byrd, 467 S.W.3d at 481.

11.              As illustrated above, Texas has a strong public policy of protecting attorneys form the claims of third parties in an effort to facilitate zealous legal representation.

Barrett Daffin’s conduct on behalf of JPMC does not expose Barrett Daffin to liability to a third parties such as Plaintiff.

As such, Plaintiff has failed to assert any cause of action against Barrett Daffin upon which Plaintiff could conceptually obtain relief.

Plaintiff Failed to State a Claim against Barrett Daffin

A.        Declaratory Relief

12. Even if Plaintiff’s claims were not barred by attorney immunity, Plaintiff’s claim for declaratory judgment fail. Plaintiff’s Complaint seeks declaratory judgment from Defendants regarding the ownership of the Note/ Deed of Trust and standing for foreclosure. 6

A declaratory judgment action is merely a vehicle that allows a party to obtain an ‘early adjudication of an actual controversy’ arising under other substantive law.”

Capital One v. Swisher-35, Ltd., 2008 WL 4274499, at *2 (N.D. Tex. Sept. 17, 2008) (quoting Collin County, Tex. v. Homeowners Ass’n for Values Essential to Neighborhoods, 915 F.2d 167, 170 (5th Cir. 1990)).

“In a declaratory judgment action, the controversy between the parties relates to the ‘underlying cause of action of the defendant against the plaintiff.’” Id.

Thus, the Declaratory Judgment Act can provide no relief to a plaintiff unless a justiciable controversy exists between the parties.

Kazmi v. BAC Home Loans Servicing, L.P., 2012 WL 629440, at *15 (E.D. Tex. Feb. 3, 2012) report and recommendation adopted, 2012 WL 629433 (E.D. Tex. Feb. 27, 2012), 517 Fed. Appx 228 (5th Cir. 2013) (per curiam) (unpublished).

6 See Paragraphs 18-38, Plaintiff’s Complaint, Doc. 1-1.

13.              Plaintiff’s complaint states “Plaintiff has named Defendant BDFTE as a party for the purposes of placing Defendant BDFTE on express and actual notice of this action and to further bind said Defendant to any rulings in this case.”

See Paragraph 4 of Plaintiff’s Complaint [Doc. 1-1].

Other than this statement, Plaintiff alleges no specific cause of action against Defendant Barrett Daffin or any controversy that exists between Plaintiff and Barrett Daffin.

14.              Plaintiff seeks declaratory relief against “Defendants” however only alleges that Defendant JPMC has “failed to demonstrate that is has any legal ownership interest in either the Note or DOT or legal standing to institute a foreclosure” and “Defendant JPM has further failed to provide documentation substantiating any right of said Defendant to conduct a foreclosure sale of the Property.”

See Paragraph 26 of Plaintiff’s Complaint [Doc. 1-1].

Plaintiff’s only mention of Defendant Barrett Daffin is in seeking an injunction prohibit Barrett Daffin from taking any action as to the Property.

See Paragraph 27 of Plaintiff’s Complaint [Doc. 1-1].

15.              As foreclosure counsel for JPMC, Defendant Barrett Daffin’s authority to proceed with its representation in the foreclosure proceedings depends on the rights and status of its client’s interest as to the Property.

Barrett Daffin’s relationship to the Property is solely as counsel for the mortgagee and mortgage servicer.

Plaintiff has pled no facts or allegations against Barrett Daffin which would remove Barrett Daffin from the protection provided it by the attorney immunity doctrine.

Plaintiff has failed to state a claim against Barrett Daffin, therefore no actual controversy exists between Plaintiff and Barrett Daffin.

Accordingly, dismissal of Plaintiff’s request for declaratory relief pursuant to Rule 12(b)(6) is proper.

Injunctive Relief

16.              Plaintiff’s request for injunctive relief should be dismissed because it is a remedy, not a cause of action.

Under Texas law, a request for injunctive relief, absent a cause of action supporting entry of a judgment, is fatally defective and does not state a claim.

Cook v. Wells Fargo Bank, N.A., 2010 WL 2772445, at *4 (N.D. Tex. July 12, 2010) (citing Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002)

(holding that injunctive relief requires that the plaintiff first plead a viable underlying cause of action)).

As set forth above, Plaintiff has failed to adequately plead any cause of action against Barrett Daffin which should not be dismissed.

Therefore, dismissal of Plaintiff’s request for injunctive relief pursuant to Rule 12(b)(6) is proper.

CONCLUSION

17.              The Court should deny the Plaintiff an opportunity to amend because any amendment to their pleadings would be futile.

See SB. Intern., v. Jindal, 2007 WL 2410007, * at 3 (N.D. Tex. Aug. 23, 2007) (citing Foman v. Davis, 371 U.S. 178, 182 (1962));

see also Abruzzo v. PNC Bank, N.A., 2012 WL 3200871, at *3 (N.D. Tex. July 30, 2012)

(denying leave to amend with respect to claims that fail as a matter of law).

Plaintiff’s allegations do not give rise to a plausible cause of action against Barrett Daffin as qualified attorney immunity protects it from liability.

Even if all facts alleged by Plaintiff are assumed true, no viable cause of action exists against Barrett Daffin as Plaintiff has not pleaded “enough facts to state a claim to relief that is plausible on its face.”

Twombly, 550 U.S. at 570.

As such, Plaintiff’s claims against Barrett Daffin should be dismissed with prejudice pursuant to Rule 12(b)(6).

PRAYER

Pursuant the reasons set out herein, Barrett Daffin respectfully request that the Court dismiss Plaintiff’s Complaint against it for failure to state a claim upon which relief can be granted and further requests that the Court grant it any and all additional relief, whether at law or in equity, to which it may be justly entitled.

HOPKINS LAW, PLLC

By:      /s/ Mark D. Hopkins

Mark D. Hopkins, Attorney in Charge
State Bar No. 00793975
Southern District ID No. 20322

Shelley L. Hopkins
State Bar No. 24036497
Southern District ID No. 926469

3809 Juniper Trace, Suite 101
Austin, Texas 78738
(512) 600-4320
(512) 600-4326 Fax
mark@hopkinslawtexas.com
shelley@hopkinslawtexas.com

Attorneys for Barrett Daffin Frappier Turner & Engel, LLP