Bruce Blair v. Deutsche Bank Natl Trust Co. , 609 F. App'x 767 ( 2015 )

Case: 14-50041 Document: 00512991468 Page: 1 Date Filed: 04/02/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50041 United States Court of Appeals
Summary Calendar Fifth Circuit
FILED
April 2, 2015
BRUCE BLAIR, Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for
NovaStar Mortgage Funding Trust, Series 2006-4; MERSCORP HOLDINGS,
INCORPORATED; JUANITA STRICKLAND; NOVASTAR MORTGAGE,
INCORPORATED,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:13-CV-759
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
Bruce Blair challenges the foreclosure of his property on the grounds
that the foreclosing bank obtained his mortgage through an invalid assignment
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-50041 Document: 00512991468 Page: 2 Date Filed: 04/02/2015
No. 14-50041
and that it improperly included the mortgage in a securitized trust. For the
reasons that follow, we affirm the district court’s judgment for Defendants.
I.
Bruce Blair purchased a property in Austin in 2006 with $161,600 in
financing from a mortgage lender. The loan was secured with a deed of trust
in favor of Novastar Mortgage Inc., and Mortgage Electronic Registration
Systems, Inc. (MERS) was listed as the “nominee” or “beneficiary.” In 2009,
MERS transferred Blair’s mortgage to Deutsche Bank National Trust
Company. The loan was transferred into a securitized trust, Novastar
Mortgage Funding Trust, Series 2006-4.
Blair’s property was foreclosed upon by Deutsche Bank in 2012 because
Blair was delinquent on his loan. He brought this lawsuit in state court,
asserting various causes of action, including quiet title, breach of contract,
wrongful foreclosure, Texas Debt Collection Act violations, Texas Deceptive
Trade Practices Act violations, and filing fraudulent liens. Deutsche Bank
removed the case to federal court. Blair moved to remand, and Defendants
moved for judgment on the pleadings.
The district court denied Blair’s motion to remand, which argued that
the presence of a nondiverse Defendant—the substitute trustee, Juanita
Strickland—defeated diversity jurisdiction. The district court found that
Strickland was improperly joined for the purpose of defeating diversity
jurisdiction because there was “no reasonable basis for the Court to predict
Blair might prevail against Strickland.” The court concluded that the claims
against Strickland failed because Blair had not alleged Strickland’s interest in
the property and Blair lacked standing to challenge the assignment of his
mortgage. The court also granted Deutsche Bank and MERS’s motion for
judgment on the pleadings on the ground that Blair lacked standing. It
2
Case: 14-50041 Document: 00512991468 Page: 3 Date Filed: 04/02/2015
No. 14-50041
dismissed the lawsuit without affording Blair the opportunity to amend his
pleadings. Blair appeals.
II.
Blair challenges the district court’s ruling that he lacks standing to
contest the assignment of his mortgage to Deutsche Bank. We addressed a
similar issue in Reinagel v. Deutsche Bank Nat’l Trust Co., 735 F.3d 220, 225
(5th Cir. 2013). In that case, as in this one, homeowners challenged the
assignment of their mortgage and its inclusion in a trust in violation of the
Pooling and Servicing Agreement (PSA). We noted that while an obligor may
defend against foreclosure “on any ground which renders the assignment void,”
an obligor has no standing to challenge an assignee’s efforts to enforce an
obligation on “any ground which renders the assignment voidable only.” Id. at
225–26 (internal quotation marks omitted).
Blair argues that the assignment is void, and not merely voidable, on
three grounds. First, he notes that his mortgage was transferred into a trust
after the trust’s closing date, in violation of its PSA. He contends that New
York trust law governs the PSA, and that it renders that assignment void, not
merely voidable. New York courts however, “have treated ultra vires actions
by trustees as voidable and therefore susceptible of ratification.” Svoboda v.
Bank of Am., N.A., 571 F. App’x 270, 273 (5th Cir. 2014) (collecting New York
cases), cert. denied, 135 S. Ct. 679 (2014).
Second, Blair argues that Deutsche Bank cannot foreclose because it is
not the holder of the note. He contends that under Texas law, “transferring
the deed of trust without the note is a nullity.” We have held, however, that
third parties like Deutsche Bank do “not need to hold the note to foreclose” and
have “recognized MERS’s authority to assign its rights in the deed of trust
without also assigning the underlying note.” Morlock, L.L.C. v. JP Morgan
3
Case: 14-50041 Document: 00512991468 Page: 4 Date Filed: 04/02/2015
No. 14-50041
Chase Bank, N.A., 587 F. App’x 86, 88 (5th Cir. 2014) (citing Martins v. BAC
Home Loans Servicing, L.P., 722 F.3d 249, 255 (5th Cir. 2013)).
Third, Blair claims that because the deed of trust did not authorize
MERS to assign the mortgage to Deutsche Bank, the assignment is void. But
“we have repeatedly upheld MERS’ assignment of mortgages to other entities”
on the ground that MERS “qualifies as a mortgagee” under Texas law. Van
Duzer v. U.S. Bank Nat’l Ass’n, 582 F. App’x 279, 282 (5th Cir. 2014) (citing
Martins, 722 F.3d at 255). We therefore reject Blair’s argument that the
district court erred by holding that he lacks standing to challenge the
assignment of his mortgage. 1
III.
Finally, Blair argues that the dismissal of his case without leave to
amend was an abuse of discretion because he was not given the opportunity to
meet the more stringent federal pleading requirements after his case was
removed. He also notes that the district court failed to explain its decision not
to grant leave to amend.
“Where, as in the present case, the district court provides no explanation
for denying leave to amend, we affirm only where the reason for the denial is
‘readily apparent’ . . . [and] the record reflects ‘ample and obvious grounds for
denying leave to amend.’” Pervasive Software Inc. v. Lexware GmbH & Co. KG,
688 F.3d 214, 232 (5th Cir. 2012) (internal quotation marks omitted). Despite
1 Blair’s Notice of Appeal states his intent to appeal the district court’s denial of his
motion to remand. His appellate brief, however, only discusses the motion to remand in the
standard of review section, without challenging the substance of the district court’s ruling.
The district court denied Blair’s motion to remand on the same grounds on which it granted
Deutsche Bank and MERS’s motion for judgment on the pleadings. Because we agree that
Defendants have demonstrated that “there is no possibility of recovery by the plaintiff
against” Strickland, denial of Blair’s motion to remand was appropriate. See Smallwood v.
Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (finding improper joinder because
plaintiff was unable to establish cause of action against nondiverse party).
4
Case: 14-50041 Document: 00512991468 Page: 5 Date Filed: 04/02/2015
No. 14-50041
its lack of explanation, the district court’s grounds are apparent from the
record. Blair “made only a general request for leave to amend and did not
identify” how an amendment would cure the defects in his complaint. See id.
Nor did Blair provide the district court with a copy of his proposed amended
pleading. See W.D. Tex. R. CV-7(b) (“When a motion for leave to file a pleading,
motion, or other submission is required, an executed copy of the proposed
pleading, motion, or other submission shall be filed as an exhibit to the motion
for leave.”); Fed. R. Civ. P 15(a) (requiring leave of the court or the opposing
party’s written consent to amend a pleading more than 21 days after the
opposing party’s responsive pleading). Finally, well-established law prevents
Blair from establishing standing, and more specific allegations would not fix
that defect. The district court’s dismissal without leave to amend therefore
was not an abuse of discretion.
IV.
We therefore AFFIRM the district court’s judgment.
5