     Case: 13-10904       Document: 00512656542        Page: 1    Date Filed: 06/09/2014




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

                                                                                FILED
                                    No. 13-10904                             June 9, 2014
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
RASHIDA MITCHEM; LAKENDRICK BERRY,

                                                 Plaintiffs-Appellants,
v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION, a/k/a Fannie Mae;
BAC HOME LOANS SERVICING, L.P., formerly known as Countrywide
Home Loans Servicing, L.P.; E-LOAN INCORPORATED,

                                                 Defendants-Appellees.


                    Appeal from the United States District Court
                         for the Northern District of Texas
                                 No. 3:12-CV-1762



Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
           This appeal involves the foreclosure of real property in Dallas, Texas
owned by Plaintiffs-Appellants Rashida Mitchem and Lakendrick Berry
(“Plaintiffs”).    Plaintiffs challenge the district court’s dismissal of their claims
based upon its adoption of the Magistrate Judge’s Findings, Conclusions, and
Recommendation. We affirm the district court for the reasons that follow and




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                     No. 13-10904
those stated in the Magistrate Judge’s Findings, Conclusions, and
Recommendation.
      Plaintiffs purchased the subject property in January 2004. In October
2007, Plaintiffs refinanced their mortgage loan on the property with E-Loan
and executed a promissory note in the amount of $98,500, and a deed of trust
securing the note. In May 2010, Plaintiffs defaulted on the loan by failing to
make timely payments. On June 23, 2010, the note and deed of trust were
assigned to Defendant BAC Home Loans Servicing, L.P. (“BOA”). 1 On August
2, 2010, BOA foreclosed on the property due to Plaintiffs’ default. Defendant
Fannie Mae purchased the property at the foreclosure sale.
      In October 2012, Plaintiffs filed their First Amended Complaint,
asserting causes of action for (1) breach of contract, (2) wrongful foreclosure,
(3) tortious interference with contract, (4) quiet title, and (5) a suit for
declaratory judgment. On January 4, 2013, Defendants filed a motion to
dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Plaintiffs did not respond to the motion. The district court granted
the motion, and dismissed all of Plaintiffs’ claims with prejudice, by adopting
the Magistrate Judge’s Findings, Conclusions, and Recommendation.
      Plaintiffs appeal the dismissal of their claims for breach of contract and
declaratory relief. First, they argue that Defendant BOA was the “first
breacher” of the deed of trust because it failed to comply with certain provisions
of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq.
(“RESPA”), prior to Plaintiffs’ default. Second, Plaintiffs contend that the




1Bank of America (“BOA”) is BAC’s successor by merger in this matter. Therefore all claims
against BAC are considered as if they were asserted against BOA.


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                                         No. 13-10904
Magistrate Judge improperly treated the Defendant’s 12(b)(6) motion as a
motion for summary judgment.
         The Magistrate Judge concluded that the allegations in Plaintiffs’
complaint failed to raise a reasonable inference that any purported “first
breach” by BOA was material. 2 Plaintiffs admitted they ceased performing
their obligations under the deed of trust in May 2010, approximately two years
after the alleged breach occurred, by failing to submit timely payments. Thus,
the Magistrate Judge recommended dismissal of their claim for breach of
contract for failure to state a claim. 3 We agree with the Magistrate Judge’s
conclusion, and the district court did not err when it adopted the Magistrate
Judge’s recommendation.
         Plaintiffs next argue that the Magistrate Judge erred by treating the
12(b)(6) motion as a motion for summary judgment. This argument is without
merit. The Magistrate Judge was careful to consider only the pleadings when
it considered the motion to dismiss by looking at the documents attached to the
complaint, 4 the documents attached to the motion to dismiss which were
referred to in the complaint and central to Plaintiffs’ claim, 5 as well as taking
judicial notice of matters of public record. 6




2Plaintiffs alleged that Defendants failed to furnish timely notice of assignment of their loan,
and provided incomplete information about their escrow account.
3   See Mustang Pipeline co. v. Driver Pipeline Co., 134 S.W.3d 195, 196 (Tex. 2004).
4   In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
5Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir. 2000) (quoting Venture
Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)).
6   Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007).


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                               No. 13-10904
     We therefore AFFIRM the district court for the reasons stated above and
for the reasons stated by the Magistrate Judge in his Findings, Conclusions,
and Recommendation.
AFFIRMED.




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