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North Texas Mers Usdc

North Texas Mers Usdc

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Published by A. Campbell
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Categories:Types, Research, Law
Published by: A. Campbell on Feb 21, 2012
Copyright:Attribution Non-commercial

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09/11/2013

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U.S.
DlSTRICT
COURTNORTHERN
DlSTRICT OF TEXAS
FILED
IN
THE
UNITED STATES
DISTRICT
COURTNORTHERN
DISTRICT
OF
TE S
FORT
WORTH
DIVISION
DEC
2
2
2011
CLERK,
U.S.
DISTRICT
COURT
JANE
McCARTHY
I
by
____
- = - - ~ - - - - - -
Deputy
Plaintiff
l
VS.
§§§§
§
§§§§§§§
NO.
4:11-CV-356-A
BANK
OF
AMERICA,
NAI
BAC
HOME
LOANS
SERVICINGI
LP
I
and
FEDERAL
HOME
LOAN MORTGAGE
CORPORATION
Defendants.
MEMORANDUM
OPINION
and
ORDER
Now
pending
in
the
above-captioned
action
are the
motions
of
defendants
Bank
of
America
l
N.A.
("BOA
II
)I
BAC
Horne
Loans
Servicing
l
LP
f/k/a
Countrywide
Horne
Loans
Servicing
("BAC
II
)I
and
Federal
Horne
Loan
Mortgage
Corporation
("Freddie
Mac
ll
)
to
dismiss
the
complaint
of
plaintiff
l
Jane
McCarthYI
for
failure
to
state
a
claim.
After
having
considered
the
parties
l
filings
l
the
record
l
and
applicable
legal
authorities
l
the court
has concluded
that
the
motions
should
be
denied.
I.
Background
The
background
of
this
case
is
as follows:
Plaintiff
Jane
McCarthy
institutedthis
action
by
a
pleading
in
the
District
 
Court
of Tarrant
County,
Texas,
67th
Judicial
District
Court,
on
May
4,
2011,
against
BOA,
BAC,
and
Freddie
Mac
(collectively,
"defendants"),
as
Cause
No.
67
-252640
-11. Defendants
removed
the
case
to
this
court
on
May
27,
2011.
BOA
and
BAC
filed
a
motion
to
dismiss
on
July
5,
2011,
that
was
directed
at
plaintiff's
state
court
petition.
The
court
denied
the
motion
to
dismiss
and
granted
leave
to
plaintiff
to
file
an
amended
complaint.
Plaintiff's
amended
complaint
("Complaint")
asserted
the
following
claims
against
defendants:
(1)
breach
of
contract;
(2)
violations
ofthe
Texas
Finance
Code
and
the
Texas
Deceptive
Trade
Practices
Act
("DTPA");
(3)
unreasonable
collection;
(4)
negligent misrepresentation
and
gross negligence;
and
(5)
suit
to
quiet
title.
Plaintiff
seeks
actual
and
exemplary
damages,
an
order for
an
accounting,
and
declaratory
and
injunctive
relief
to
maintain possession
and
regain
title
to
the
property.
Plaintiff
made
the
following
allegationsin
the
Complaint:
On May
28,
2004,
plaintiff
executed
a
note
payable
to
Countrywide
Home
Loans,
Inc.
("Countrywide")
and
a
deed
of
trust
covering
plaintiff's
property
at
4617
Cougar
Ridge
Road
in
Fort
Worth,
Texas,
76126.
1
Compl.
at
3.
The
deed
of
trust
designated
1
Although plaintiff references in her complaint the deed
of
trust as "Exhibit A, attached heretoand incorporated herein for all purposes," the deed
of
trust is not attached as Exhibit A to the Complaint.Instead, plaintiff attaches a letter from Bank
of
America, N.A., dated March 7, 2011, as Exhibit A.However, a copy
of
the deed
of
trust was attached to plaintiffs original state court pleading as an exhibit.(continued
..
)
2
 
Countrywide,
or
any
holder
of
the
note
who
is
entitled
to
receive
payment
of
the
note,
as
the
"Lender."
The
function
of
the
deed
of
trust
was
described
as
follows:
"This
Security
Instrument
secures
to
Lender:
(i)
the
repayment
of
the
Loan
and
all
renewals,
extensions
and
modifications
of
the
Note;
and
(ii)
the
performance
of
Borrower's covenants
and
agreements under
this
Security
Instrument
and
the
Note." Notice
of
Removal,
Ex.
I,
Ex.
A
at
3.
2
It
named
Mortgage
Electronic Registration
Systems,
Inc.
("MERS"),
solely
as Countrywide's
nominee,
as
beneficiary
under
the
deed
of
trust.
The
limited capacity
and
function
of
MERS
was
explained
in
the
deed
of
trust
as
follows:
Borrower
understands
and
agrees
that
MERS
holds
only
legal
title
to
the
interests
granted
by Borrower
in
this
Security
Instrument,
but,
if
necessary
to
comply
with
law
or
custom,
MERS
(as
nominee
for
Lenderand
Lender's
successors
and
assigns)
has
the
right:
toexercise
any
or
all
ofthose
interests,
including,
but
not
limited to,
the
right to
foreclose
and
sell
the
Property;
and
to
take
any
action
required
of
Lender
including,
but not
limited to, releasing
and
canceling
this
Security
Instrument.Id.
The
note
made
no
reference
to
MERS.
MERS
purported
to
assign the
note
and
deed
of
trust
to
BOA.
However,
MERS
did
not
l( ... continued)Consequently, the court will treat the text
of
the deed
of
trust as part
of
plaintiffs complaint for motionto-dismiss purposes.2The term "Security Instrument" refers to the deed
of
trust given
by
plaintiff to Countrywide assecurity for payment
of
the promissory note given
by
plaintiff to Countrywide in
May
2004; the
word
"Borrower" refers
to
plaintiff; the word "Loan" refers to the debt evidenced
by
the note, plus addedcharges due under the note, and all sums due under
the
deed
of
trust.
3

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