     Case: 11-20319     Document: 00511684610         Page: 1     Date Filed: 12/05/2011




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

                                                                            FILED
                                                                         December 5, 2011

                                     No. 11-20319                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



BOBIE KENNETH TOWNSEND,

                                                   Plaintiff - Appellant
v.

BAC HOME LOANS SERVICING, L.P.,
formerly known as Countrywide Home
Loans Servicing, L.P.,

                                                   Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CV-3751


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Bobie Kenneth Townsend, pro se, appeals the dismissal of his claims
against BAC Home Loans Servicing, L.P. (“BAC”). We AFFIRM.
                                              I.
        In 2004, Townsend purchased property located at 1504 Memorial Lane in
Conroe, Texas. He borrowed $99,900 from Countrywide Home Loans, Inc. The

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20319

mortgage loan was secured by a deed of trust. The deed of trust requires
Townsend to discharge any lien which has priority over the deed of trust unless
he “contests the lien in good faith by, or defends against enforcement of the lien
in, legal proceedings which in Lender’s opinion operate to prevent the
enforcement of the lien while those proceedings are pending.” The deed of trust
provides further that if he fails to do so, the lender may pay any sums secured
by a lien which has priority over the deed of trust. The Texas Tax Code provides
that on January 1 of each year, a tax lien attaches to property to secure the
payment of taxes and that such tax lien has priority over the claims of “any
creditor of a person whose property is encumbered by the lien.” TEX. TAX CODE
§§ 32.01(a), 32.05(b)(1).
         Townsend alleged that he was aware that the property was contaminated
by “Black Toxic Mold” when he purchased it. He alleged that BAC’s agent
referred him to a website which indicated that his property taxes (which he
refers to as “tax donations”) would remain low so long as the property was
damaged.
         He alleged that the property taxes were increased by 500 percent for tax
year 2005, and that he paid the taxes “under protest.” He did not pay the
property taxes for tax year 2006. In July 2007, a law firm representing the
taxing authorities sent Townsend a letter demanding payment of the 2006 taxes.
Townsend responded by letter, demanding, among other things, the attorney’s
Texas Bar Association card number and a copy of her license to practice law, as
well as documentation that the property is located in Texas. Townsend did not
pay the property taxes for 2006, and again failed to pay the property taxes for
2007. He alleged that he was protesting, and intended to file a counterclaim
against the taxing authorities once they filed suit against him to collect the
taxes.



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      In March 2008, Countrywide paid the 2006 and 2007 taxes and established
an escrow account to cover the taxes. Townsend refused to pay the additional
amounts into escrow. In April and July 2010, Townsend was given notice that
his loan was in default. That August, he was served with notice that the
property was scheduled for a foreclosure sale on October 5.
      On October 1, 2010, Townsend filed suit against BAC in state court,
seeking to enjoin the foreclosure sale. In his petition, he challenged BAC’s
standing to foreclose and asserted claims for negligent hiring, breach of fiduciary
duty, theft, fraud, and violation of the Texas Deceptive Trade Practices Act.
Construing the petition liberally, it is our understanding that the basis for these
claims is that BAC did not have the right to pay the 2006 and 2007 property
taxes and that BAC lacked standing to foreclose. The state court entered a
temporary restraining order enjoining the scheduled foreclosure sale.
      BAC removed the case to federal court and filed a motion to dismiss
Townsend’s petition for failure to state a claim upon which relief could be
granted or, alternatively, a motion for a more definite statement. The district
court dismissed all of Townsend’s claims with prejudice, except the fraud claim,
and gave Townsend seven days to file an amended complaint.
      Townsend timely filed an amended complaint, asserting claims for
common law fraud, statutory fraud, conspiracy to commit fraud, breach of
contract, negligent misrepresentation, and violation of the Truth in Lending Act
(“TILA”). Liberally construed, the basis for these claims seems to be that
Countrywide induced him to make the loan by representing that the property
taxes would not increase, and that he did not receive all of the notices required
by the Truth in Lending Act.
      BAC moved to dismiss Townsend’s amended complaint for failure to state
a claim upon which relief could be granted. Townsend filed a motion for default
judgment, a motion to amend or supplement his complaint to invoke the

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discovery rule, and a response to the motion to dismiss. The district court
dismissed all claims with prejudice. The district court denied Townsend’s
motion for reconsideration. Townsend filed a timely notice of appeal.
                                        II.
      Townsend’s brief is poorly organized, repetitive, and difficult to
comprehend. The statement of facts consists primarily of arguments that the
district court was biased and violated his due process rights, and that the
district court clerk’s staff was incompetent. In his statement of issues, he lists
eight issues, but the argument section of his brief discusses ten arguments,
which do not correspond to the issues listed in his statement of issues. As best
we can understand them, Townsend’s arguments on appeal appear to be:
      (1) BAC defaulted by not answering the First Amended Complaint;
      (2) the district court erred by allowing BAC to file a motion to dismiss in
the same document as a motion for a more definite statement;
      (3) the district court erred by dismissing the claims in the original petition;
      (4) the district court erred by not giving reasons for the dismissal;
      (5) BAC lacks authority to foreclose because it is not a holder in due
course;
      (6) the assignment of the deed of trust to BAC was fraudulent and,
therefore, BAC lacks standing to foreclose;
      (7) BAC breached the deed of trust by paying the property taxes without
prior notice to Townsend;
      (8) BAC breached its fiduciary duty to Townsend by misapplying his
monthly note payments to the escrow account that it established without
Townsend’s consent, instead of applying the note payments to interest and then
to principal;
      (9) the district court erred by ignoring Townsend’s request for leave to
amend the complaint to invoke the discovery rule; and

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      (10) the district court erred by not remanding the case to state court.
      Throughout his brief, Townsend complains that the district court judge
was biased against him and in favor of BAC, and that BAC has committed “fraud
upon the court.” In his prayer for relief, he asserts that the district court judge
should recuse himself and the case should be assigned to a different judge.
      In a supplemental reply brief and appendix, Townsend presents new
evidence and arguments that were not presented to the district court.
      We review a dismissal “for failure to state a claim de novo, accepting all
well-pleaded facts as true and viewing those facts in the light most favorable to
the plaintiff.” Brown v. Continental Airlines, Inc., 647 F.3d 221, 225-26 (5th Cir.
2011) (internal quotation marks and citations omitted). “A plaintiff fails to state
a claim when the complaint does not contain ‘enough facts to state a claim to
relief that is plausible on its face.’” Del-Ray Battery Co. v. Douglas Battery Co.,
635 F.3d 725, 728-29 (5th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Viewing the complaints in the light most favorable to
Townsend, we find no reversible error in the district court’s dismissal of his
claims.
      BAC was not in default, because it filed a motion to dismiss. See FED. R.
CIV. P. 12, 55.
      The Federal Rules of Civil Procedure do not prohibit the filing of a motion
to dismiss in the same document as an alternative motion for a more definite
statement. See FED. R. CIV. P. 12(g)(1) (“A motion under this rule may be joined
with any other motion allowed by this rule.”).
      Townsend failed to adequately brief his contention that the district court
erred by dismissing the claims in his original petition and failed to explain how
the cases he cites entitle him to any relief on appeal.
      The district court was not required to explain its reasons for dismissal.
See FED. R. CIV. P. 52(a)(3).

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      There is no authority for Townsend’s claim that BAC lacks authority to
foreclose because it is not a “holder in due course.”
      Townsend’s argument that the assignment of the deed of trust to BAC
from the original beneficiary, Mortgage Electronic Registration Systems, Inc.
(“MERS”), is fraudulent because it contains no corporate seal, as required by
Section 16.033 of the Texas Civil Practices and Remedies Code, is meritless.
Section 16.033 applies to instruments that convey real property, and the
assignment of the deed of trust is not such an instrument.           Townsend’s
contention that MERS ceased to do business in Texas is unsupported and
irrelevant to the validity of the assignment from MERS to BAC.
      BAC did not breach the deed of trust by paying the delinquent property
taxes, because Townsend did not contest the property tax lien in good faith
through a legal proceeding. Townsend was not entitled to notice of payment of
the property taxes because the deed of trust provides that the Lender “may” give
such notice.
      There is no fiduciary relationship between BAC and Townsend and, even
if there were, BAC did not breach it by paying the delinquent property taxes and
establishing an escrow account.
      It would have been futile for Townsend to amend his complaint to invoke
the discovery rule because his own pleadings show that he knew or should have
known the basis for his fraud, negligent misrepresentation, and TILA claims
more than four years before he filed suit. See TEX. CIV. PRAC. & REM. CODE §
16.004(a)(4) (four-year limitations period for fraud claims); Exxon Corp. v.
Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 202 (Tex. 2011) (two-year
limitations period for negligent misrepresentation claims); 15 U.S.C. § 1640(e)
(one-year limitations period for TILA).
      The district court did not err by not remanding the case to state court. See
28 U.S.C. 1332(a), 1447.

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      The grounds for recusal asserted by Townsend—the district judge has a
line of credit from Bank of America and the judge did not read or acknowledge
his pleadings or exhibits—are baseless.
      Finally, we do not consider the new arguments and evidence that
Townsend presents for the first time on appeal, in his supplemental reply brief
and appendix.
      For the foregoing reasons, the judgment of the district court is
                                                                   AFFIRMED.




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