                                                          . FILED IN
    RECEIVED IN
                                                     The Court of Appeals
  The Court of Appeals
      Sixth District
                             ORIGINAL                    Sixth D&M

     MAR 1 6 2015 „                                     MAR 1 6 2015
                             06-14-00105-CV
 Texarkana. Texas > •*                                Texarkana, Texas
DeDra Autrey, Cleric                                Debra K. Autrey, ^Gferk
                         IN THE COURT OF APPEALS
                              SIXTH DISTRICT
                            TEXARKANA, TEXAS




                            PLETZE BROWN JR.,
                               APPELLANT


                                   V.


                           CITI MORTGAGE, INC.
                                APPELLEE




                           BRIEF OF APPELLANT




       ON APPEAL FROM THE COUNTY COURT AT LAW, NO. 2
       DALLAS COUNTY, TEXAS, CASE NUMBER CC-14-04645-B




                                                 Pletze Brown
                                                 2412PoincianaPlace
                                                 Dallas, TX 75212
                                                 APPELLANT, PRO-SE
               IDENTITY OF PARTIES AND COUNSEL



            The following is a list of all parties and all counsel in this
matter:


     Appellant in this matter is Joe Pletze Brown, and Appellee in the

underlying case is Citi Mortgage, Inc.

     The    County Court Judge in this matter is the Honorable Fifer

King, Judge of the County Court at Law, No. 2 Dallas County, Texas.

       The real party in interest, Appellee CITI MORTGAGE, INC is

represented by counsel as indicated:

 Lauren Christoffel
 Barrett, Daffin, Frappier, Turner & Engel
 15000 Surveyor Blvd, Ste lOOAddison, Tx 75001-4417




                                         (ii)
                         TABLE OF CONTENTS


                                                Page


Identity of Parties and
Counsel                                            »


Table of Contents                                  iii

Index of Authorities                            iv-vi

Statement of the Case                          vii

Any Statement Regarding Oral Argument          viii

Issues Presented For Review                    1

Statement of Facts                            1,2

Summary of the Argument                        2

Argument                                       2-5

Prayer                                       ...8

Certificate of Compliance                      9

Certificate of Service                         10

APPENDIX                                       11

   A. August 28, 2009 Acceleration of Debt

    B. KINGMAN VS BANK OF NEW YORK,
       US DISTRICT COURT, NDTX, DALLAS
       DIVISION, CV. NO. 3.13-CV-1688-L




                                -in-
                      INDEX OF AUTHORITIES


CASES:


PAGE


Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d
 845, 848 (Tex. 2005)

Kingman v US Bank Of New York Bank Of New
York. Northern District of Texas CV.
NO. 3;13-CV-1688-L

Traveiers Ins. Co. v. Joachim, 315 S.W.3d 860,
863 (Tex. 2010).

RULES


Federal Rules of Civil Procedure


Rule 12(b)(6)


Texas Civil Practices and Remedies Code


C.P.R.C. § 16.035

16.036

16.062




                                 -vi-
                     STATEMENT OF THE CASE



         This is an appeal of the granting of a Summary judgment for
the Appellee by the County Court at Law No 2Court and affirmed by
the    County Court at      Law,   No      2. The Appellant   presented
documentation that the Appellee's were not the rightful owners of the

property and challenged Texas/Federal (4) Four Statute of Limitations

to accelerate the Deed of trust.

      The County Court at Law, No. 2 ruled against the Appellant

without addressing the issue , and despite Appellant having Statutory

Texas Law and Federal Court Rulings, which are on point to Appellant's

claims. This Court's Ruling is needed to preserve the Texas Statutory

and Federal Rulings and integrity of the Court System.




                                   -VII-
                           STATEMENT REGARDING ORAL ARGUMENT




                  Appellant request oral argument concerning these issues because

              the foreclosure Laws involved are subject to Law of the Case Doctrine

              and oral argument would further contribute to the abuse of discretion

              arguments. Appellant believes that a strong public          interest would be
     s
              served by the granting of oral argument in this case, but leaves it to

         **   'the discretion of this Honorable Court.




PV




                                                 VII




                                                •jja-tttfrtdliriftrrirr i m\ -^ - - —^^-*^^>*w*
                    ISSUES PRESENTED FOR REVIEW


                                POINT ONE
  APPELLEE CITIMORTGAGE DOES NOT HAVE STANDING TO
  ENFORCE SECURITY INTEREST IN SUBJECT PROPERTY AND
  DEFENDANT'S COUNTER CLAIM FOR SUMMARY JUDGMENT

                                POINT TWO


       THE APPELLEES OVERLOOKED KINGMAN VS BANK
   OF NEW YORK, UNITED STATES DISTRICT COURT, NDTX,
   DALLAS DIVISION, CV. NO. 3.13-CV-1688-L, WHICH HELD
  THAT AN ALLEGATION THAT MORE THAN FOUR YEARS HAVE
    ELAPSED SINCE THE NOTE SECURED BY THE DEED WAS
   ACCELERATED IS SUFFICIENT AT A MOTION TO DISMISS
                        STAGE


                           STATEMENT OF FACTS


n Appellant Brown's case, On April 12, 2010, in JP Court,       Precinct 5,

Place 1 Dallas County, Cause No. JE10002870, CitiMortgage filed a

Forcible detainer against Appellant's s home. On April 22, 2010 - said

Case was appealed from JP Court to County Court at Law 2, Case No.

CC-10-02701-A. On April 3, 2013 Citi Mortgage Inc filed a forcible

detainer,   Cause    No.   JE   13-00913-P   on   Appellant's   Home   and

subsequently, on August 22, 2014, CitiMortgage filed a third       forcible

detainer ,Cause No. JE1452708-P, on Appellant's same home.




                                    (1)
                                       SUMMARY OF ARGUMENT




                     A trial court clearly abuses its discretion if "it reaches a decision so

               '.arbitrary and unreasonable as to amount to a clear and prejudicial

                error of law. In Appellant's case the Court failed to follow the

                mandates of The Texas Supreme Court and numerous Texas Court of

                Appeals.
wa

**                                             ARGUMENTS


                                                POINT ONE
                     APPELLEE CITIMORTGAGE DOES NOT HAVE STANQINJ&TO
                     ENFORCE SECURITY INTEREST IN SUBJECT PROP%RT,*>AND
r                    DEFENDANT'S COUNTER CLAIM FOR SUMMARY JUDGMENT
8*      '•''     .    ' '• '

                On August 28, 2009 Appellee CitiMortgage accelerated the maturity of
it* '          "the debt.(Appendix "A"). Almost 5 years later Appellee , On August
!.:            "22, 2014, filed a Complaint for eviction.
1               Appellant alleges that the statute of limitations renders Appellee's

                deed of trust unenforceable. The relevant statute of limitations is

f.              C.P.R.C. § 16.035, which provides:
»••
•JL-'




                                                      (2)


!W*


                                                    -;2Btx-*t :_   ••^kJM'.
                                                                                     .^   z.A*^-*a*iite££
w(a) A person must bring suit for the recovery of real property under a
real property lien or the foreclosure of a real property lien not later
than four years after the day the cause of action accrues.
(b) A sale of real property under a power of sale in a mortgage or deed
of trust that creates a real property lien must be made not later than
four years after the day the cause of action accrues.
(c) The running of the statute of limitations is not suspended against a
bona fide purchaser for value, a lien holder, or a lessee who has no
notice or knowledge of the suspension of the limitations period and
who acquires an interest in the property when a cause of action on an
outstanding real property lien has accrued for more than four years,
except as provided by:
(1) Section 16.062, providing for suspension in the event of death; or
(2) Section 16.036, providing for recorded extensions of real property
liens.

(A) On the expiration of the four-year limitations period, the
real property lien and a power of sale to enforce the real
property lien become void." (Emphasis added).


A void judgment is subject to collateral attack. Travelers Ins. Co. v.

Joachim, 315 S.W.3d 860, 863 (Tex. 2010). A trial court's judgment is

void if the court lacked jurisdiction over the subject matter of the

claim. Id. A trial court has jurisdiction over the subject matter of a

claim only if the claimant has standing to assert the claim. Joachim,

315 S.W.3d at 865. —The issue of standing focuses on whether a

party has a sufficient relationship with the lawsuit so as to have a

justiciable interest' in its outcome . . . .Austin Nursing Ctr.f Inc. v.

Lovato, 171 S.W.3d 845, 848 (Tex. 2005).




                                  (3)
                             POINT TWO


       THE APPELLEES OVERLOOKED KINGMAN VS BANK
   OF NEW YORK, UNITED STATES DISTRICT COURT, NDTX,
   DALLAS DIVISION, CV. NO. 3:13-CV-1688-L, WHICH HELD
  THAT AN ALLEGATION THAT MORE THAN FOUR YEARS HAVE
    ELAPSED SINCE THE NOTE SECURED BY THE DEED WAS
   ACCELERATED IS SUFFICIENT AT A MOTION TO DISMISS
                        STAGE


Under Kingman v. The Bank Of New York. Northern District of Texas

CV. NO. 3;13-CV-1688-L, United States District Court, N.D. Texas,

Dallas Division, July 31, 2013   MEMORANDUM OPINION AND ORDER,

SAM A. LINDSAY, the District Judge held:

      Before the court is Defendant's Motion to Dismiss Pursuant
     to Rule 12(b)(6) (Doc. 7), filed on May 9, 2013, and
      Defendant's Motion for Dismissal     of Plaintiff's Amended
     Complaint Pursuant to Rule 12(b)(6) (Doc. 15), filed June
     24, 2013. After carefully considering the motion, briefing,
     pleadings, and applicable law, the court vacates the order
     of reference to the magistrate judge (Doc. 12) of
     Defendant's Motion to Dismiss Pursuant to Rule 12(b)(6)
     (Doc. 7), denies as moot Defendant's Motion to Dismiss
     Pursuant to Rule 12(b)(6) (Doc. 7) in light of Defendant's
     later filed motion to dismiss Plaintiff's Amended Complaint,
     and denies Defendant's Motion for Dismissal of Plaintiff's
     Amended Complaint Pursuant to Rule 12(b)(6) (Doc. 15).

                        ( Attached Appendix B)




                                 (4)
                      A. Statute of Limitations
     Appellant contends that Appellee's allegation that the
     statute of limitations has run on Defendant's time to
     foreclose on the Property is baseless. Appellant contends
     that dismissal    of this   action   is   appropriate   because
     Appellee does not allege when the loan was accelerated
     and instead relies on speculation that it has been four
     years since the loan was accelerated. The court disagrees
     and concludes that Appellee 's allegation, that more than
     four years have elapsed since the Note secured by the
     Deed was accelerated, is sufficient at this stage. The
     court will therefore deny Defendant's motion to
     dismiss on this ground. (Exhibit "B")

Dallas Federal Judge, Sam A. Lindsay, held in the Kingman vs. Bank of
New York, that the Defendant contended that dismissal of this action

is appropriate because Plaintiff does not allege when the loan was
accelerated and instead relies on speculation that it has been four

years since the loan was accelerated. The court disagreed and
concluded that Plaintiff's allegation, that more than four years have

elapsed since the Note secured by the Deed was accelerated, is
sufficient at this stage". Clearly on point with Appellantt's   Complaint

allegation. In sum, Appellant has stated a claim for relief at this stage.

Appellant is entitled to discovery. This Court should reverse Appellee's

case and order the case to proceed to trial.




                                   (5)
       B. APPELLEE'S COMPLAINT ALLEGES MORE THAN
      FOUR YEARS ELAPSED SINCE THE DEED OF TRUST WAS
                            ACCELERATED
Appellant, in his Complaint, argues that, upon information and belief

Plaintiff is informed and believes and based thereon alleges that more

than four years has elapsed since the note secured by the deed of

trust was accelerated(Exhibit "A"):

Upon information and belief, Appellant would show the Court that:

enforcement of the deed of trust is barred by the statute of limitations.

Plaintiff is informed and believes and based thereon alleges that more

than four years has elapsed since the note secured by the deed of

trust was accelerated. Therefore, under Texas Civil Practices and

Remedies Code, §16.035, Appellee        is barred from exercising the

enforcement powers under the deed of trust.




                                  (6)
Under   Kingman v. The Bank Of New York, the Northern District of

Texas CV. NO. 3;13-CV-1688-L, Federal Court, the act of alleging in a

complaint that more than four years have elapsed since the deed of

trust was accelerated, states a sufficient claim, Appellant Brown has

alleged a Claim for relief. The County Court inadvertently overlooked

precedent federal law that proves Appellant has sufficiently stated a

claim for relief at the Motion to Dismiss stage. This Court should

reverse the Lower Court's granting of Summary Judgment and remand

the case back to Court for dismissal of the Appellee's case against

Appellant.




                                 (7)
                                PRAYER




    This Court should grant this appeal and remand the case back with

instructions that the district court should proceed with Appellant's

Complaint allow the case to proceed to trial.

March 12, 2015                                  Respectfully submitted,




                                                     Pletze Brown^Jr.




                                   (8)
                  CERTIFICATE OF COMPLIANCE

   This document complies with the typeface requirements of Tex. R. App.

P. 9.4(e) because it has been prepared in a conventional typeface no smaller

than 12-point for text and 10-point for footnotes. This document also

complies with the word-count limitations of Tex. R. App. P. 9.4(i), if

applicable, because it contains 1930 words, excluding (excluding any

caption, identity of parties and counsel, statement regarding oral argument,

table of contents, index of authorities, statement of the case, statement of

issues presented, statement of jurisdiction, statement of procedural history,

signature, proof of service, certification, certificate of compliance, and

appendix)exempted by Tex. R. App. P. 9.4(i)(l).

Signed this the l^dav of March, 2015.

                                                  Pletze Brown Jr




                                     (9)
                    CERTIFICATE OF SERVICE


     Pletze Brown, hereby certify that I mailed a true and correct copy of

the foregoing APPEAL BRIEF addressed to Appellee CITI MORTGAGE,

INC'S Counsel of Record:


 Lauren Christoffel
 Barrett, Daffin, Frappier, Turner & Engel
 15000 Surveyor Blvd, Ste lOOAddison, Texas 75001-4417



                                           Iwz^l^MjjJfi
                                            Pletze Brown




                                  (10)
APPENDIX




   (11)
APPENDIX "A"




     (12)
  Case 15-03003-hdh Doc 5 Filed 02/11715                 Entered 02/11/15 15:09:44 Page 2 of 6



COMPANY, which was later transferred to CitiMortgage, on real estate with all improvements described
as follows:

                   BEING LOT 22, BLOCK GG, AMENDED PLAT GREENLEAF
                   VILLAGE PHASE ONE, AN ADDITION TO THE CITY OF
                   DALLAS, TEXAS, ACCORDING TO THE MAP OR SAID
                   ADDITION AS RECORDED IN VOLUME 2002144, PAGE 1586,
                   MAP RECORDS OF DALLAS COUNTY, TEXAS.

           (hereinafter, the "Property").

           3.      Prior to the filing of this petition, Mortgagor was in default according to the terms and
conditions of the Note and Deed •of-Trust. According-to the books and records of CitiMortgage,

Mortgagor was seriously delinquent on the obligation for the Property. Mortgagor was contractually due
for the May 1, 2009, payment and all subsequent payments. As of October 6, 2009, the approximate
outstanding balance onthe note was $112,806.40, plus attorney's fees and cost.
           4.      Pursuant to the Deed of Trust and state law, CitiMortgage served on Mortgagor a Notice

of Default andIntent to Accelerate via certified mail on July 2, 2009. The Notice stated the total default

of $4,039.69 and provided Mortgagor thirty (30) days to cure the default. Mortgagor failed to cure the
default.

           5.      In accordance with the Deed of Trust and state law, CitiMortgage sent to Mortgagor, via

certified mail, a Notice ofAcceleration of the Debt together with a Notice of Substitute Trustee's Sale on

August 28,2009, posting theproperty for theOctober 6, 2009, foreclosure sale.
           6.       CitiMortgage proceeded with the foreclosure sale and the Property was sold to

CitiMortgage onOctober 6, 2009. A Substitute Trustee's Desd was recorded onNovember 13,-2009,
providing notice of the completed saleof the Property to CitiMortgage.

           7.     ' From 2009 to 2014 CitiMortgage and Mortgagor were involved in numerous pending

eviction lawsuits. After confirming in August 2014 that all pending eviction actions were dismissed, on

August 13, 2014, CitiMortgage sent to Mortgagor and all occupants ofthe Property Notice to Vacate the

Premises.




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                                                                                      (13)




                                     fliMiMTi I' I   Ti   • .. .£#s^a   fliatalfc^rifctitetfilfcl   «tfu
   KINGMAN HOLDINGS, LLC AS TRUSTEE OF THE DRAYTON
               DRIVE 8645 LAND TRUST,
                                       Plaintiff,
                                           v.

                THE BANK OF NEW YORK, AS TRUSTEE,
                                      Defendant.

                           Civil Action No. 3:13-CV-1688-L.

                   United States District Court, N.D. Texas, Dallas
                                        Division.


                                     July 31, 2013.


          MEMORANDUM OPINION AND ORDER


SAM A. LINDSAY, District Judge.


Before the court is Defendant's Motion to Dismiss Pursuant to Rule 12(b)(6) (Doc. 7),

filed on May 9, 2013, and Defendant's Motion for Dismissal of Plaintiffs Amended

Complaint Pursuant to Rule 12(b)(6) (Doc. 15), filed June 24, 2013. After carefully

considering the motion, briefing, pleadings, and applicable law, the court vacates the

order of reference to the magistrate judge (Doc. 12) of Defendant's Motion to Dismiss

Pursuant to Rule 12(b)(6) (Doc. 7), denies as moot Defendant's Motion to Dismiss

Pursuant to Rule 12(b)(6) (Doc. 7) in light of Defendant's later filed motion to dismiss

Plaintiffs Amended Complaint, and denies Defendant's Motion for Dismissal of

Plaintiffs Amended Complaint Pursuant to Rule 12(b)(6) (Doc. 15).
                                   L Background

 This is a mortgage foreclosure case that was originally brought by the trustee of the

 Drayton Drive 8645 Land Trust ("Plaintiff) on March 27, 2013, in the County Court at
 Law No. 4, Dallas County, Texas, against Defendant The Bank of New York, as Trustee

 ("Defendant"). In its Amended Complaint, the live pleading, Plaintiff alleges that it
 acquired the property at issue located at 8645 Drayton Drive, Dallas, Texas (the
 "Property") on January 17, 2012. Plaintiff further alleges that its predecessor acquired the
 Property on November 4, 2008, at a Home Owners Association lien foreclosure sale.111 In

addition, Plaintiff alleges that the Property was previously owned by Milton Carrero and

Herman Carrero (the "Carerros"), who took title to the Property on December 27, 2005.
Plaintiff acknowledges that, when the Carreros acquired the Property, there was a deed of

trust ("Deed") in favor of America's Wholesale Lender ("AWL") recorded in the county
records, and that an assignment of the Deed from AWL to Defendant was recorded on

August 4, 2011. Plaintiff further alleges that Defendant has taken steps to foreclose on the

Property by recording a notice of foreclosure with the Dallas County clerk indicating that
the borrowers are in default under the Deed.

Plaintiff has asserted a quiet title claim and seeks a declaratory judgment "and/or
injunctive relief to prevent Defendant from foreclosing on the Property. PL's Compl. 4.
Plaintiff alleges that more than four years have elapsed since the note ("Note") secured by
the Deed was accelerated. Plaintiff therefore contends that Defendant is barred by
 applicable statute of limitations under section 16.035 of the Texas Civil Practices and

 Remedies Code from exercising enforcement powers under the Deed.

 Defendants removed the action to federal court on May 2, 2013. On May 9, 2013,

 Defendants moved for dismissal of Plaintiffs claims pursuant to Federal Rule of Civil

 Procedure 12(b)(6). On May 30, 2013, Plaintiff filed its Amended Complaint. On June

 24, 2013, Defendant moved to dismiss Plaintiffs Amended Complaint. In support of its

 motion to dismiss Plaintiffs Amended Complaint, Defendant attaches to its motion a

 copy of the Declaration of Covenants, Conditions and Restrictions for Valley Ranch
 Phase III Homeowners Association ("Declaration of Covenants").

 For the reasons herein discussed, the court will deny as moot Defendants' original motion
 to dismiss. The court further concludes that dismissal of this action, based on the

pleadings, is premature. The court will therefore deny Defendant's motion to dismiss

Plaintiffs Amended Complaint.

II. Rule 12(b)(6) — Failure to State a Claim

To defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure, a plaintiff must plead "enough facts to state a claim to relief that is

plausible on its face." Bell Atlantic Cow, v. Twomblv. 550 U.S. 544. 570 (20071: Reliable

Consultants. Inc. v. Earle. 517 F.3d 738. 742 C5th Cir. 20081: Guidrv v. American Pub.

Life Ins. Co.. 512 F.3d 177. 180 f5th Cir. 20071. A claim meets the plausibility test "when
the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged. The plausibility standard is not
akin to a probability requirement,' but it asks for more than a sheer possibility that a
defendant has acted unlawfully." Ashcroft v. Igbai 556 U.S. 662. 678 f2009) (internal
 citations omitted). While a complaint need not contain detailed factual allegations, it must

 set forth "more than labels and conclusions, and a formulaic recitation of the elements of

 a cause of action will not do." Twomblv, 550 U.S. at 555 (citation omitted). The "[fjactual

 allegations of [a complaint] must be enough to raise a right to reliefabove the speculative

 level ... on the assumption that all the allegations in the complaint are true (even if
 doubtful in fact)." Id. (quotation marks, citations, and footnote omitted). When the

 allegations of the pleading do not allow the court to infer more than the mere possibility
 of wrongdoing, they fall short of showing that the pleader is entitled to relief. Igbai, 556

 U.S. at 679.


 In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the

complaint as true and view them in the light most favorable to the plaintiff. Sonnier v.

State Farm Mutual Auto. Ins. Co.. 509 F.3d 673, 675 (5th Cir. 2007): Martin K. Ebv

Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464. 467 (5th Cir. 20041: Baker v.

Putnal 15 F.3d 190. 196 (5th Cir. 19961. In ruling on such a motion, the court cannot

look beyond the pleadings. Id; Spivey v. Robertson, 197 F.3d 772. 774 (5th Cir. 19991.

cert, denied, 530 U.S. 1229 (20001. The pleadings include the complaint and any
documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496. 498-99

(5th Cir. 2000). Likewise, "*[documents that a defendant attaches to a motion to dismiss

are considered part of the pleadings if they are referred to in the plaintiffs complaint and
are central to [the plaintiffs] claims.'" Id. (quoting Venture Assocs. Corp. v. Zenith Data

Sys. Corp., 987 F.2d 429. 431 (7th Cir. 1993)1. In this regard, a document that is part of
the record but not refcrred to in a plaintiffs complaint and not attached to a motion to
 dismiss may not be considered by the court in ruling on a 12(b)(6) motion. Gines v. D.R.

 Horton, Inc.. 699 F.3d 812. 820 & n.9 (5th Cir. 2012) (citation omitted).

 The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid

claim when it is viewed in the light most favorable to the plaintiff. Great Plains Trust Co.

v. Morgan Stanley Dean Witter, 313 F.3d 305. 312 (5th Cir. 20021. While well-pleaded

facts of a complaint are to be accepted as true, legal conclusions are not "entitled to the

assumption of truth." hibal 556 U.S. at 679 (citation omitted). Further, a court is not to

strain to find inferences favorable to the plaintiff and is not to accept conclusory

allegations, unwarranted deductions, or legal conclusions. R2 Invs. LDC v. Phillips, 401

F.3d 638. 642 (5th Cir. 2005) (citations omitted). The court does not evaluate the

plaintiffs likelihood of success; instead, it only determines whether the plaintiff has

pleaded a legally cognizable claim. United States ex rei Riley v. St. Luke's Episcopal

Hosp., 355 F.3d 370. 376 (5th Cir. 20041. Stated another way, when a court deals with a

Rule 12(b)(6) motion, its task is to test the sufficiency of the allegations contained in the

pleadings to determine whether they are adequate enough to state a claim upon which

relief can be granted. Mann v. Adams Realty Co., 556 F.2d 288. 293 (5th Cir. 19771: Doe

v. Hillsboro Indep. Sch. Dist.. 81 F.3d 1395. 1401 (5th Cir. 19961. rev'd on other

grounds, 113 F.3d 1412 (5th Cir. 19971 (en band. Accordingly, denial of a 12(b)(6)
motion has no bearing on whether a plaintiff ultimately establishes the necessary proof to
prevail on a claim that withstands a 12(b)(6) challenge. Adams. 556 F.2d at 293.
 III. Analysis

 A. Whether Plaintiff has Standing to Bring this Lawsuit
 Defendant contends that the Note and Deed are between it and Milton Carrero, that

 Plaintiff was not a party to the Note and Deed, and that Plaintiff therefore has no legal

 rights or interests in the Property and no standing to assert claims based on the Note and

Deed. For support, Defendant cites Stine v. Stewart, 80 S.W.3d 586. 589 (Tex. 20021:

MCI Telecommunications Corporation v. Tex. Utilities Electric Company, 995 S.W.2d

647.651 (Tex. 1999): and Bittinser v. Wells Fareo Bank, NA, 744 F. Supp. 2d 619. 625-

26 (S.D.Tex. 20101.


The issue in all of these cases was whether the plaintiffhad standing to bring a breach of

contract claim against the defendant as either a party, assignee, or third party beneficiary

to the contract. Here, Plaintiff has not asserted a breach of contract claim against

Defendant under (he Note or Deed. Thus, the cases cited by Defendant and the reasoning

in those cases arc inapplicable to the claims asserted in this case. Moreover, Plaintiff

alleges that it purchased the Property from the Carreros. Accordingly, Defendant is not

entitled to dismissal of Plaintiffs quiet title claim and request for declaratory judgment on
this ground.

B. Declaratory Judgment

1. Presence of Actual Controversy

Defendant contends that Plaintiff seeks a declaration that Defendant is barred from

exercising enforcement powers under the Deed but fails to allege any facts beyond the
conclusory, speculative assertion that Defendant has no right to foreclose on the Property.

Defendant further asserts that Plaintiff has the burden with respect to its request for

declaratory judgment and is attempting to improperly shift the burden to Defendant of

proving that it is the owner or holder of the original Note and Deed prior to foreclosing

on the Property. To support its contention that Plaintiff has the burden of proof as to its

request for declaratory judgment, Defendant cites Val-Com Acquisitions Trust v. Chase

Home Finance. Limited Liability Company, 434 F. App'x 395. 396 (5th Cir. Tex. 20111.

Based on the foregoing case, as well as Val-Com Acquisitions Trust v. SunTrust

Mortgage Company. No. 11-10055,2011 WL 3241929 (5th Cir. July 27, 2011); and Val-

Com Acquisitions Trust v. Chase Home Finance, Limited Liability Company, 428 F.

App'x 364, 365 (5th Cir. June 13, 2011), Defendant contends: "In cases where the

plaintiff-mortgagor seeks a declaration of the putative-mortgagee's right to foreclose, a

plaintiff who merely questions the authority of the putative-mortgagee to foreclose fails

to state a claim." Def.'s Br. 5.


Defendant's burden shifting argument is the same as that previously raised by Defendant's

counsel and rejected by this court in Preston v. Seterus, Inc., No. 3:12-CV-2395-L. 2013

WL 1091272 (N.D. Tex. Mar. 15.20131. As the court noted in Preston:

   Whether Plaintiffs have the ultimate burden of proof at trial on any of their claims

   is irrelevant here because, for purposes of Defendants' Rule 12(b)(6) motion,

   Plaintiffs have no burden of proof. Rather, the issue is whether Plaintiffs, based

   on their pleadings, have stated a claim upon which relief can be granted. While

   Val Com Acquisitions Trust and Misczak involved Rule 12(b)(6) motions, the

   issue in these cases was not the parties' burdens of proof but instead whether they
     had stated sufficient facts to state a claim to satisfy the actual case and

     controversy requirement for a federal declaratoryjudgment action.

 Id. at *5. Thus, Defendant's burden shifting contention is without merit and misconstrues

 the case authority cited. Moreover, contrary to Defendant's assertion, Plaintiffs Amended

 Complaint does not appear to contest Defendant's status as the owner or holder of the

 original Note and Deed. Plaintiff instead alleges that Defendant does not have the right to

 enforce the Deed by administering a foreclosure of the Property because more than four

 years have elapsed since the Note secured by the Deed was accelerated. Plaintiff further

 alleges, and Defendant acknowledges, that Defendant has taken steps to foreclose on the
 Property pursuant to the Deed. Thus, unlike the cases relied on by Defendant, the facts as

 alleged in this case do not present a hypothetical or conjectural situation but instead

present an actual controversy because Plaintiff alleges that more than four years have

elapsed since the Note secured by the Deed was accelerated and that, as a result,
Defendant does not have the right to foreclose under the Deed. Plaintiff has therefore met

its burden of establishing the existence of an actual controversy for purposes of the
Declaratory Judgment Act.121 For all ofthese reasons, the court determines that Defendant
is not entitled to dismissal of Plaintiffs request for declaratory judgment on these
grounds.


2. Whether the Request for Declaratory Judgment is

Improper

Defendant contends (hat Plaintiffs declaratory judgment claim is improper "because it is
effectively trying to determine title to real property." Def.'s Br. 6. Defendant asserts that
 under Texas law, a declaratory judgment cannot be used to adjudicate title because

 section 22.01 sets forth the exclusive means and remedyfor a trespass to try title action.

 Plaintiff has asserted a quiet title claim, not a trespass to try title action. Moreover,

 Defendant fails to explain why this court cannot consider Plaintiffs request for

 declaratory judgment under the Federal Declaratory Judgment Act ("FDJA"), as it

 pertains to the dispute regarding the parties' rights and interests in the Property and

 Defendant's authority to foreclose, in light of its determination that Plaintiff has satisfied

the actual controversy requirement for relief under the FDJA. Accordingly, Defendant is

not entitled to dismissal of Plaintiffs request for declaratory judgment on this ground.

C. Defendant's Authority to Foreclose

1. Whether Defendant has a Superior Right or Interest

in the Property

Defendant contends, based on the Declaration of Covenants, that its rights or interest in

the Property are superior to those of Plaintiff. The Declaration of Covenants relied on by
Defendant is not referenced in or attached to Plaintiffs Amended Complaint.
Consequently, the court cannot consider the Declaration of Covenants in ruling on
Defendant's motion to dismiss pursuant to Rule 12(b)(6) because it is outside the

pleadings. Gines. 699 F.3d at 820. Thus, Defendant is not entitled to dismissal of

Plaintiffs claims on this ground.
 2. Equitable Right of Redemption

 Defendant contends that Plaintiff has no equitable right to redeem the Property. While the

 issue of redemption was raised in Plaintiffs Original Petition, there is no reference to it in

 the Amended Complaint. Accordingly, Defendant is not entitled to dismissal of Plaintiffs

 claims on this ground.


3. Statute of Limitations

Defendant contends that Plaintiffs allegation that the statute of limitations has run on

Defendant's lime to foreclose on the Property is baseless. Defendant contends that

dismissal of this action is appropriate because Plaintiff does not allege when the loan was

accelerated and instead relies on speculation that it has been four years since the loan was

accelerated. The court disagrees and concludes that Plaintiffs allegation, that more than

four years have elapsed since the Note secured by the Deed was accelerated, is sufficient

as this stage. The court will therefore deny Defendant's motion to dismiss on this ground.

D. Request for Injunctive Relief

Defendant contends that Plaintiffs request for injunctive relief should be denied because

it has no cognizable cause of action and it has not request any other valid remedy or

relief. Plaintiffs request for a temporary restraining order was denied on May 6, 2013,

based on the record before the court, but this does not preclude injunctive relief if

Plaintiff can later satisfy the elements required to grant injunctive relief. Further, given

that the court has determined that Defendant is not entitled to dismissal of Plaintiffs

claims at this juncture, a ruling on Plaintiffs request for injunctive relief would be

premature.




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IV. Conclusion

For the reasons herein stated, the court vacates the order of reference to the magistrate

judge (Doc. 12) of Defendant's Motion to Dismiss Pursuant to Rule 12(b)(6) (Doc. 7),

denies as moot Defendant's Motion to Dismiss Pursuant to Rule 12(b)(6) (Doc. 7) in light

of Defendant's later Hied motion to dismiss Plaintiffs Amended Complaint, and denies

Defendant's Motion for Dismissal of Plaintiffs Amended Complaint Pursuant to Rule

12(b)(6) (Doc. 15).                     -




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