     Case: 13-50407       Document: 00512382457         Page: 1     Date Filed: 09/23/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 23, 2013

                                     No. 13–50407                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



ANGIE HUDSON,

                                                  Plaintiff - Appellant,
v.

JP MORGAN CHASE BANK, N.A.; LONG BEACH MORTGAGE COMPANY;
THE BANK OF NEW YORK TRUSTEE UNDER THE POOLING AND
SERVICING AGREEMENT SERIES 2000–5,

                                                  Defendants - Appellees.



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:13–CV–174


Before STEWART, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Angie Hudson (“Hudson”) appeals the district court’s
dismissal of her claims against Defendant-Appellee JP Morgan Chase Bank,
N.A. (“JPMC”) and dismissal for failure to prosecute and comply with the court’s
order. We AFFIRM.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                              I.
       On June 21, 2000, Hudson sold her home, located at 1002 Hidden Hills
Drive, Dripping Springs, Texas 78620, to her mother, Aloma Kennedy. Kennedy
then executed a deed of trust with America’s Wholesale Lender. This deed was
later assigned to the Bank of New York (“BONY”).1 On July 8, 2005, Hudson
entered into a second deed of trust with Long Beach Mortgage Company (“Long
Beach”), thereby encumbering the same property that was the subject of
Kennedy’s first deed of trust.2 During that time, Long Beach was a subsidiary
of Washington Mutual.3 Subsequently, JPMC acquired the deed of trust from
Washington Mutual.
       Eventually, JPMC initiated foreclosure proceedings, and Hudson filed suit
in state court against JPMC, Long Beach, and BONY to enjoin those
proceedings.4 Hudson alleged violations of Texas Local Government Code §
192.007, the Real Estate Settlement Procedures Act (“RESPA”), the Truth in
Lending Act (“TILA”), and the Texas Debt Collection Act (“TDCA”), and also
petitioned the court for a quiet title action. JPMC removed the action to the
district court on March 1, 2013 and later filed a motion to dismiss all of Hudson’s
claims against it under Federal Rule of Civil Procedure 12(b)(6). The district



       1
         For reasons stated later in this opinion, we note that BONY was not a party to the
proceedings below when the district court entered its judgment. Therefore, we have no
jurisdiction over BONY as no final judgment has been rendered with regard to BONY. See 28
U.S.C. § 1291 (“The courts of appeals . . . shall have jurisdiction of appeals from all final
decisions of the district courts of the United States . . . .”) (emphasis added).
       2
        None of the facts allege that Hudson re-acquired the property before entering into the
second deed of trust.
       3
      Although Long Beach is still listed as a defendant in this case, it was never served and
JPMC asserts that it no longer exists.
       4
         We see no reason for Hudson to have included BONY in the suit considering that the
deed of trust upon which JPMC foreclosed was not the same deed as that executed in favor of
BONY.

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court granted the motion. The court gave Hudson twenty days to amend her
complaint. After Hudson failed to amend, the district court entered an order
dismissing all of Hudson’s claims for want of prosecution and failure to comply
with its previous order directing her to amend her complaint within twenty days.
Neither BONY nor Long Beach has been served by Hudson. Despite the lack of
service, BONY’s counsel filed a notice of appearance after the district court
entered judgment against Hudson. Hudson appeals.
                                        II.
      We review a district court’s dismissal under Federal Rule of Civil
Procedure 12(b)(6) de novo. Sullivan v. Leor Energy, LLC, 600 F.3d 542, 546
(5th Cir. 2010) (citation omitted). Because motions to dismiss under 12(b)(6) are
“viewed with disfavor and [] rarely granted[,]” courts construe facts in the light
most favorable to the nonmoving party. Turner v. Pleasant, 663 F.3d 770, 775
(5th Cir. 2011) (internal quotation marks omitted) (citation omitted). Dismissal
is proper only if the complaint fails to plead sufficient “facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Nevertheless, the complaint must allege enough facts to move the claim
“across the line from conceivable to plausible.” Id. Determining whether a claim
is plausible is “a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009) (citation omitted).
                                        III.
      As a threshold matter, we note that Hudson has waived a number of
issues, one of which provides an alternative basis upon which to affirm the
district court’s judgment. Hudson’s brief fails to discuss her claims under
RESPA and TILA; therefore, she has waived those claims, and we therefore will
not consider them on appeal. See Procter & Gamble Co. v. Amway Corp., 376
F.3d 496, 499 n.1 (5th Cir. 2004) (“Failure adequately to brief an issue on appeal

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constitutes waiver of that argument.”) (collecting citations). Hudson has also
failed to brief the district court’s dismissal of her suit for want of prosecution and
failure to comply with a court order. Accordingly, Hudson has waived any
challenge she may have had to those portions of the district court’s judgment.
See id. We now proceed to the arguments Hudson has chosen to raise on appeal.
A.    Texas Local Government Code § 192.007
      Hudson first contends that the district court erred in holding that she
lacked standing to bring suit under Tex. Loc. Gov’t Code § 192.007. We disagree.
Hudson again fails to challenge a number of the district court’s reasons for
dismissing this claim—specifically, that § 192.007 does not provide a private
right of action and does not impose a recordation requirement on JPMC.
Accordingly, we need not consider her challenge to these issues. See James, 719
F.3d at 459 n.9 (citations omitted). Even if Hudson had not waived these
arguments, we nevertheless affirm the district court’s judgment on this issue.
      Section 192.007(a) states as follows:
             To release, transfer, assign, or take another action
             relating to an instrument that is filed, registered, or
             recorded in the office of the county clerk, a person must
             file, register, or record another instrument relating to
             the action in the same manner as the original
             instrument was required to be filed, registered, or
             recorded.

      Id. We need not address whether § 192.007(a) provides Hudson a private
right of action because regardless of whether Hudson has standing, § 192.007
does not impose upon JPMC a duty to record the assignment of the deed of trust.
See Reinagel v. Deutsche Bank Nat’l Trust Co., 722 F.3d 700, 705 n.27 (5th Cir.
2013) (“[T]his obscure provision . . . is best read as a procedural directive to
county clerks, not as a prerequisite to the validity of assignments.”). See also
Bittinger v. Wells Fargo Bank NA, 744 F. Supp. 2d 619, 625 (S.D. Tex. 2010)


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(“Under Texas law there is no requirement that the deed of trust assignment be
recorded.”); In re Cowin, 492 B.R. 858, 889 (Bankr. S.D. Tex. 2013) (quoting Hill
v. U.S. Bank, NA (In re Perry), No. 11–35205, 2013 WL 504859, at *3 (Bankr.
S.D. Tex. Feb. 8, 2013)) (“[T]he absence of recordation in compliance with section
192.007 of the Texas Local Government Code does not affect the validity of the
assigned deed of trust between the homeowner and the lender.”) (internal
quotation marks omitted).
      Because the validity of JPMC’s deed of trust is not affected by its failure
to comply with § 192.007, Hudson’s allegations as to JPMC’s lack of authority to
foreclose are without merit. Therefore, we affirm the district court’s dismissal
of this claim. See Broyles v. Chase Home Fin., No. 3:10–CV–2256G, 2011 WL
1428904, at *2 (N.D. Tex. Apr. 13, 2011) (citing Denson v. First Bank & Trust of
Cleveland, 728 S.W. 2d 876, 877 (Tex.App.—Beaumont 1987, no writ)) (“Texas
courts have consistently held that recordation is not necessary for liens, deeds,
or deeds of trust to be enforceable against the parties to those instruments.”)
(citing Denson v. First Bank & Trust of Cleveland, 728 S.W. 2d 876, 877 (Tex.
App.—Beaumont 1987, no writ) and Shaw v. Jackson, 227 S.W. 520, 522 (Tex.
Civ. App.—Beaumont 1920, no writ)).
      B.    Texas Debt Collection Act
      Similarly, Hudson challenges the district court’s holding that she lacked
standing to assert a claim under the TDCA. Hudson contends that not only does
she have standing, but JPMC violated the TDCA when it attempted to collect
payment from her under the deed of trust. We decline to determine whether
Hudson has standing as we find her claim under the TDCA to lack merit.
      Hudson contends that JPMC violated Tex. Fin. Code § 392.301(a)(8).5
Section 392.301(a)(8) prohibits debt collectors from “threatening to take an

      5
        Hudson cites to § 392.301(8); however, we assume she intended to cite to §
392.301(a)(8) since there is no § 392.301(8). Tex. Fin. Code. § 392.301(8).

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action prohibited by law” when attempting to collect on a debt.                       Id. at §
392.301(a)(8). Essentially, Hudson alleges that JPMC has failed to provide
adequate proof that it is the proper holder of the deed of trust.6 This argument
fails, however, as we have previously held that “the mortgage servicer need not
hold or own the note and yet would be authorized to administer a foreclosure.”
Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 255 (5th Cir. 2013)
(citation omitted); see also Wheeler v. JPMorgan Chase Bank, Nat’l Ass’n, No.
4:13–cv–364, 2013 WL 3965304, at *3 (S.D. Tex. Aug. 1, 2013)(“[T]he chain of
assignments is itself sufficient to establish standing to foreclose, even without
the original note.” (citation omitted)). Here, contrary to Hudson’s allegations,
JPMC has provided documentation demonstrating that it received the deed of
trust from Washington Mutual who was the successor in interest to Long
Beach—the party with whom Hudson executed the deed of trust.                               Any
misgivings Hudson may have about the chain of assignments are not supported
by the allegations in her complaint. Accordingly, the district court did not err
in dismissing Hudson’s claim under the TDCA.
C.     Quiet Title Action
       Hudson also fails to plead a cognizable quiet title action. “A suit to quiet
title or to remove a cloud can be maintained only by a person owning an interest
in the property involved.” Bell v. Ott, 606 S.W.2d 942, 953 (Tex. App.—Waco
1980, writ ref’d. n.r.e.). Hudson alleges that she sold the property at issue to her
mother.     At no point in her complaint does she mention re-acquiring the
property. However, construing the facts in the light most favorable to Hudson,
we assume that she has some level of interest in the property because she was



       6
         In addition, Hudson asserts that the deed of trust is unenforceable because of fraud.
However, as she fails to plead facts sufficient to “permit the court to infer more than the mere
possibility of misconduct,” we find this claim implausible. Harold H. Huggins Realty, Inc. v.
FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011).

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able to execute a deed of trust with Long Beach. Nevertheless, Hudson still fails
to provide sufficient evidence in support of her quiet title claim.
      A quiet title action “relies on the invalidity of the defendant’s claim to the
property.” Morlock, LLC v. JP Morgan Chase Bank, NA, No. 12–20623, 2013 WL
2422778, at *1 (5th Cir. June 4, 2013) (per curiam) (quoting Essex Crane Rental
Corp. v. Carter, 371 S.W.3d 366, 388 (Tex. App.—Houston [1st Dist.] 2012, pet.
denied)) (internal quotation marks omitted). Accordingly, Hudson must prove
that she has “superior equity and right to relief.” Id. at *1 (quoting Hahn v. Love,
321 S.W.3d 517, 531 (Tex.App.—Houston [1st Dist.] 2009, pet. denied))
(emphasis omitted)(internal quotation marks omitted). Ultimately, Hudson
“must prove and recover on the strength of [her] own title, not the weakness of
[her] adversary’s title.” Fricks v. Hancock, 45 S.W.3d 322, 327 (Tex.
App.—Corpus Christi 2001, no pet.) (citation omitted). Hudson has failed to
meet this burden.
      In Morlock, a recent case before this court, the plaintiff contested whether
the deed of trust had been properly assigned to the defendant. Morlock LLC,
2013 WL 2422778, at *2. We held that, because the plaintiff did not contest the
validity of the deed of trust or claim an interest superior to the defendant, there
was no valid quiet title action. Id. We concluded that the plaintiff’s claim failed
since it merely questioned the defendant’s “authority to enforce the [d]eed of
[t]rust.” Id. Likewise, Hudson’s claims center around whether JPMC was
properly assigned the deed of trust and thus able to foreclose on her property.
Moreover, she fails to prove and recover on the strength of [her] own title” to the
property. See Fricks, 45 S.W.3d at 327. Therefore, we agree with the district
court that Hudson failed to allege a cognizable quiet title action.
D.    BONY
      Finally, we note that, despite its lack of involvement before the district
court, BONY has filed a brief before this Court, requesting that the dismissal

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below be affirmed. Based on our review of the record, BONY was not a party to
the action when the district court dismissed the suit. See Fed. Sav. & Loan Ins.
Corp. v. Tullos-Pierremont, 894 F.2d 1469, 1472 (5th Cir. 1990) (“[S]ince no
service was obtained on [the defendant], nor did it make an appearance in the
district court, [that defendant] never became a party to the plaintiff’s suit.”)
(quoting Nagle v. Lee, 807 F.2d 435, 438 (5th Cir. 1987)). See also Ins. Co. of N.
Am. v. Dealy, 911 F.2d 1096, 1099 (5th Cir. 1990) (“Because [the defendant] was
never properly before the district court it did not have the requisite competence
to render a judgment against her.”).
       Consequently, we conclude that there has not been a final decision
involving BONY from which we can derive jurisdiction. See 28 U.S.C. § 1291
(“The courts of appeals . . . shall have jurisdiction of appeals from all final
decisions of the district courts of the United States.”). Accordingly, we refrain
from reaching any of Hudson’s claims against BONY herein as we have no
jurisdiction over those claims.7
                                             IV.
       For the foregoing reasons, we AFFIRM the district court’s dismissal of
Hudson’s claims against JPMC.              We further AFFIRM the district court’s
dismissal of Hudson’s suit for want of prosecution and failure to comply with the
court’s order.




       7
         This holding does not remove Hudson’s appeal from our jurisdiction. See Fed. Sav. &
Loan Ins. Corp., 894 F.2d at 1472 (“[S]ubsequent action regarding the unserved defendant,
such as a dismissal, does not prevent a section 1291 final judgment as to all served defendants
without a Rule 54(b) certification.”).

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