     Case: 12-10277       Document: 00512152040         Page: 1     Date Filed: 02/22/2013




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

                                                                            FILED
                                                                         February 22, 2013

                                     No. 12-10277                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



SCOTT TURNER,

                                                  Plaintiff-Appellant
v.

AMERICAHOMEKEY INCORPORATED; US BANK NA; MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS INCORPORATED, (MERS),

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 No. 3:11-CV-860


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Pro se plaintiff Scott Turner filed suit against multiple defendants seeking
to quiet title to certain real property and obtain associated declaratory relief.
After concluding that Turner’s complaint did not state a claim upon which relief
could be granted, the district court dismissed the suit with prejudice. Turner
now appeals, arguing that the district court erred in concluding that his


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-10277

complaint failed to state a claim. Alternatively, Turner asserts that if his
complaint was inadequate, the district court erred in failing to allow him to
amend it. For the reasons that follow, we AFFIRM.
              I. FACTUAL AND PROCEDURAL BACKGROUND
         In September 2004, Scott Turner (“Turner”) and his wife, Toni Turner,
obtained a loan for a home in Dallas, Texas. To finance the loan, the Turners
signed both a promissory note and a deed of trust, both of which defined the
Turners as the “Borrower” and AmericaHomeKey, Inc. (“AHK”), as the “Lender.”
Further, Mortgage Electronic Registration Systems, Inc. (“MERS”), was
identified as a beneficiary of the deed of trust, “solely as nominee for Lender . .
. and Lender’s successors and assigns.” The deed of trust provided that MERS
had the right “to take any action required of Lender,” including exercising “the
right to foreclose and sell the [p]roperty” and to release or cancel the deed of
trust.
         AHK subsequently transferred its interest in the note to U.S. Bank, N.A.
(“U.S. Bank”). Likewise, MERS, “as nominee for the lender, its successors and
assigns,” granted, assigned, and transferred to U.S. Bank “all rights accrued and
to accrue under” the deed of trust. Eventually, U.S. Bank initiated foreclosure
proceedings, though it is unclear whether the foreclosure process was ever
completed. In any event, after the foreclosure proceedings commenced, Turner
filed suit against the defendants in Texas state court. Turner’s complaint
alleged, inter alia, that AHK and U.S. Bank failed to provide all necessary
disclosures of the material terms of his mortgage loan; failed to inform him that
U.S. Bank had obtained a legal interest in the loan; and failed to notify him of
the foreclosure.     Turner also averred that MERS “failed to have written
Authorization for the principle [sic],” and that none of the defendants “have the
original note to prove that they are in fact the party authorize[d] to conduct the
foreclosure on [his] property.”

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       Joined by AHK and MERS, U.S. Bank timely removed the suit to federal
court. U.S. Bank and MERS then filed a motion to dismiss, alleging that Turner
failed to state a claim upon which relief could be granted.1 The district court
granted the motion, and also dismissed sua sponte Turner’s claims against AHK.
Recognizing that Turner was acting pro se, however, it expressly granted him
“leave to file an amended complaint.”
       On September 15, 2011, Turner filed an amended complaint that narrowed
his lawsuit to an action seeking to quiet title to his property and obtain related
declaratory relief. The complaint asserted that, to foreclose, U.S. Bank and
MERS “were required to provide proof that they were the owner[s] and holder[s]
of the promissory note”; that “[a] broken chain of title invalidates the claim(s) on
the promissory note”; and that “[i]f the defendants’ [sic] cannot produce the
original note and produce a valid chain of custody in the form of a valid
assignment back to the holder of the note, the court lacks jurisdiction over the
case.”2 Turner averred that U.S. Bank and MERS were noncompliant with these
last “requirements,” because when the original note was transmitted to MERS,
MERS scanned it to create an “eNote,” and then shredded the original document.
Turner argued that this resulted in cancellation of the debt, such that the deed
of trust under which the defendants asserted an interest in his mortgage,
“although appearing valid on it’s [sic] face,” “is in fact invalid and of no force or
effect.” Turner thus sought a declaration from the district court that U.S. Bank
and MERS do not own the note and therefore have no interest in, or right to
foreclose on, his property. Additionally, Turner sought an order from the court
quieting title and compelling U.S. Bank “to transfer legal title and possession of


       1
       The motion also alleged, in connection with a fraud claim Turner had asserted, that
the complaint failed to meet the heightened pleading requirement of Rule 9(b).
       2
        Because Turner is the plaintiff in this action, it is unclear what he means by alleging
that “the court lacks jurisdiction.”

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                                    No. 12-10277

the subject property” to him.
      Once again, joined by AHK, U.S. Bank and MERS moved to dismiss for
failure to state a claim. The court granted the motion and dismissed Turner’s
action with prejudice. Turner now appeals, arguing that the court erred in
dismissing his claim. Alternatively, Turner argues that if his complaint failed
to state a claim, he should have been provided another opportunity to amend it
before his case was dismissed.
                                   II. ANALYSIS
A. Dismissal Under Rule 12(b)(6)
      (1) Standard of Review
      We review de novo a district court’s dismissal under Rule 12(b)(6) for
failure to state a claim. Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011).
“When considering a Rule 12(b)(6) motion, we liberally construe the complaint
in favor of the plaintiff and accept all well-pleaded factual allegations as true.”
Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248, 252 (5th Cir. 2011). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “Rule 12(b)(6),” however,
“authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”
Neitzke v. Williams, 490 U.S. 319, 326 (1989). A claim must be dismissed “if as
a matter of law ‘it is clear that no relief could be granted under any set of facts
that could be proved consistent with the allegations.’” Id. (quoting Hishon v.
King & Spalding, 467 U.S. 69, 73 (1984)).




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      (2) Request to Quiet Title
      As noted, Turner’s complaint sought to quiet title to the property in his
favor. A suit to quiet title is an action in which the plaintiff seeks to remove
from his title a cloud created by an allegedly invalid claim. Jones v. Cont’l
Royalty Co., 115 F.2d 731, 731-32 (5th Cir. 1940); Thomson v. Locke, 1 S.W. 112,
115 (Tex. 1886) (explaining that quiet title suits “enable the holder of the
feeblest equity to remove from his way to legal title any unlawful [hindrance]
having the appearance of better right”). To quiet title in his favor, a plaintiff
“must allege right, title, or ownership in himself or herself with sufficient
certainty to enable the court to see he or she has a right of ownership that will
warrant judicial interference.” Wright v. Matthews, 26 S.W.3d 575, 578 (Tex.
App.—Beaumont 2000, pet. denied). Further, the plaintiff in a quiet title action
must “recover on the strength of his own title” rather than on the weakness of
the defendant’s. Humble Oil & Ref. Co. v. Sun Oil Co., 191 F.2d 705, 716 (5th
Cir. 1951); see also Fricks v. Hancock, 45 S.W.3d 322, 327 (Tex. App.—Corpus
Christi 2001, no pet.).
      In dismissing his suit, the district court explained that Turner’s complaint
was largely a series of conclusory assertions. Moreover, to the extent the
complaint was not conclusory, it failed to state a plausible claim to the relief
requested because it contained no assertions regarding the strength of Turner’s
own title. Instead, in an apparent attempt to shift to the defendants the burden
of demonstrating that foreclosure would be lawful, Turner’s complaint focused
entirely on the alleged weaknesses of the defendants’ interest in the property.
The court explained, in other words, that Turner’s complaint was based on the
mistaken view that the lawsuit was brought by the defendants to recover on the
note, rather than by Turner to quiet title. Because Turner failed to state a
plausible claim based on the strength of his own title, the court granted
defendants’ motion to dismiss.

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      On appeal, Turner does little more than baldly assert that the district
court erred in granting the defendants’ motion. Indeed, as he did in the lower
court, Turner neglects to advance any factual allegations whatsoever regarding
the strength of his title to the property. To the contrary, he continues to rely on
arguments and inapposite authority purportedly demonstrating the weaknesses
of defendants’ interest. This dearth of factual allegations alone is fatal to
Turner’s claim.      We also observe, however, that the record contains
documentation of the note’s transfer from AHK to U.S. Bank, and of the transfer
of the deed of trust from MERS—acting as AHK’s beneficiary—to U.S. Bank.
Aside from conclusory allegations, Turner has provided us with no reason to
question the validity of those transfers. Simply put, Turner has failed to identify
any error in the district court’s analysis, and we find none.
      (3) Request for Declaratory Relief
      To the extent Turner’s complaint sought various forms of declaratory relief
related to the foreclosure proceedings initiated by U.S. Bank, Turner’s appellate
brief fails to adequately challenge dismissal of those claims. See Fed. R. App. P.
28(a)(9)(A) (explaining that an appellant’s brief must contain his “contentions
and the reasons for them, with citations to the authorities and parts of the
record on which the appellant relies”). “Although we liberally construe briefs of
pro se litigants and apply less stringent standards to parties proceeding pro se
than to parties represented by counsel, pro se parties must still brief the issues
and reasonably comply with the standards of Rule 28.” Grant v. Cuellar, 59 F.3d
523 (5th Cir. 1995) (footnote omitted). Here, Turner’s brief merely quotes,
without citation, caselaw that is neither controlling nor persuasive. Again, he
has failed to identify any error in the district court’s conclusions, and our review
of the record reveals none.
      We therefore affirm the district court’s conclusion that Turner’s complaint
failed to state a claim upon which relief could be granted.

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      B. Opportunity to Amend
      Finally, Turner maintains that the district court should have provided him
another opportunity to amend his complaint before dismissing his suit with
prejudice. We review this contention under the abuse of discretion standard.
Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009). “Generally a district
court errs in dismissing a pro se complaint for failure to state a claim under Rule
12(b)(6) without giving the plaintiff an opportunity to amend.” Bazrowx v. Scott,
136 F.3d 1053, 1054 (5th Cir. 1998) (per curiam). Nevertheless, as we already
have explained, the district court did grant Turner leave to amend his original
complaint. Moreover, granting leave to amend is unnecessary “if the plaintiff
has alleged his best case.” Id. On appeal, Turner submits that permitting an
amendment would have allowed him to state a claim for relief. In support of this
proposition, however, he merely advances—verbatim—the arguments we have
discussed and rejected above. Because Turner has not explained what additional
material “facts he would have added or how he could have overcome the
deficiencies found by the district court if he had been granted an opportunity to
amend,” he has failed to show any error. Brewster, 587 F.3d at 768 (quoting
Goldsmith v. Hood Cnty. Jail, 299 F. App’x 422, 423 (5th Cir. 2008) (per curiam)
(unpublished)).
                              III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment.




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