Alessandro Cervantes v. New Century Mortgage Corp. , 633 F. App'x 290 ( 2016 )

Case: 15-40798 Document: 00513406534 Page: 1 Date Filed: 03/04/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-40798 United States Court of Appeals
Summary Calendar Fifth Circuit
FILED
March 4, 2016
ALESSANDRO F. CERVANTES, Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
NEW CENTURY MORTGAGE CORPORATION; OCWEN LOAN
SERVICING, L.L.C.; BARCLAYS CAPITAL REAL ESTATE,
INCORPORATED, doing business as HomeEq Servicing Corporation;
MORTGAGE ASSET SECURITIZATION TRANSACTION,
INCORPORATED; U.S. BANK NATIONAL ASSOCIATION,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:14-CV-180
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:*
Alessandro F. Cervantes appeals the dismissal of his complaint, which
is rooted in alleged unrecorded assignments of a mortgage note in violation of
state and federal laws, for failure to state a claim under Federal Rule of Civil
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40798
Procedure 12(b)(6). We review dismissal under Rule 12(b)(6) de novo,
accepting well-pleaded facts as true. See, e.g., In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007).
Appearing pro se, Cervantes asserted a number of claims. Construing
the complaint liberally, Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006)
(stating that courts “must construe the pleadings of pro se litigants liberally”),
the district court understood these claims to include: a claim to void a mortgage
on his property—based on allegations that Defendants did not properly record
relevant assignments; a claim for slander of title; fraud claims under the Texas
Penal Code; and claims for declaratory and injunctive relief. Reviewing the
complaint, record, and relevant law, we find that dismissal under 12(b)(6) is
proper largely for the reasons stated by the district court.
Cervantes contends he also asserted a claim that the district court
ignored: “suit to remove cloud from title or suit to quiet title.” His pleading
does not include the phrase “remove cloud from title” and only mentions
“quieting title” within the final Prayer for Relief, which requests that the court
“Declare that the Tangible Deed of Trust is not a lien against the subject
property, ordering the immediate release of the Tangible Deed of Trust of
record, and quieting title to the subject properties in favor of Plaintiff.” See
also, Plaintiff’s Complaint at ¶ 60 (“Plaintiff requests a judicial determination
of the real property rights, obligations and interest of the parties with regard
to the subject property . . . so that all parties may ascertain and know their
legal rights, obligations and real property interests with regard to the subject
property.”). When given a liberal construction, Cervantes’s requested
declaratory relief was arguably sufficient to put the district court and
defendants on notice that he was making a claim to quiet title. But even if the
complaint does try to assert a claim to quiet title, it fails to allege an element
of such a claim. Under Texas law, a claim to quiet title requires that the
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No. 15-40798
plaintiff prove: “(1) he has an interest in a specific property, (2) title to the
property is affected by a claim by the defendant or defendants, and (3) the
claim, although facially valid, is invalid or unenforceable.” Green v. JPMorgan
Chase Bank, N.A., 937 F. Supp. 2d 849, 863 (N.D. Tex. 2013) aff’d sub nom.
Green v. JP Morgan Chase Bank, N.A., 562 F. App’x 238 (5th Cir. 2014)
(citation omitted). Cervantes does not allege facts to support the last
requirement: that Defendants’ claim is unenforceable or invalid. Cervantes
alleges that the mortgage note was transferred without proper notice to him 1
or recordation. Accepting this as true, the failure to record a transfer of a
mortgage note does not make the mortgage unenforceable against the original
mortgagor. Tex. Prop. Code Ann. § 13.001(b) (“The unrecorded instrument is
binding on a party to the instrument, on the party’s heirs, and on a subsequent
purchaser who does not pay a valuable consideration or who has notice of the
instrument.”); Reinagel v. Deutsche Bank Nat’l Trust Co., 735 F.3d 220, 227–
28 (5th Cir. 2013) (“Texas’s recording statute protects only subsequent
purchasers for value and without notice.”).
The remainder of Cervantes’s claims were properly analyzed and
dismissed by the district court. The judgment is AFFIRMED.
1 As the district court correctly found, the Truth in Lending Act provision Cervantes
cites that requires a creditor that is a new owner or assignee of debt to notify the borrower
in writing of the transfer was not in effect until 2009, after relevant transfers in this case.
See 15 U.S.C. § 1641(g); Jemison v. CitiMortgage, Inc., Civ. A. No. H-13-2475, 2014 WL
2739351, at *10 (S.D. Tex. June 17, 2014).
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