Case 4:14-cv-00367-ALM Document 54 Filed 02/03/16 Page 1 of 13 PageID #: 744
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`United States District Court
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`§
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`§
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`§ CIVIL ACTION NO 4:14-CV-367
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`Judge Mazzant
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`§
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`JESSE C. BURCIAGA and EDNA K.
`BURCIAGA
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`v.
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`DEUTSCHE BANK NATIONAL TRUST
`COMPANY, NATIONAL ASSOCIATION
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`MEMORANDUM OPINION AND ORDER
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`Pending before the Court is Defendant/Counter-Plaintiff’s Motion for Summary
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`Judgment and Brief
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`in Support on Plaintiff/Counter-Defendant’s Claims and on
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`Defendant/Counter Plaintiff’s Motion for Summary Judgment on Defendant/Counter-Plaintiff’s
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`Counterclaim (Dkt. #34). After reviewing the relevant pleadings, the Court finds that the motion
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`should be granted.
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`BACKGROUND
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`In or about 1999, Plaintiffs purchased a house in Flower Mound, Texas (the “Property”)
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`and entered into a Purchase Money Mortgage (Dkt. #4 at ¶¶ 6-7). The Mortgage was
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`subsequently
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`refinanced
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`in 2003 when Plaintiffs executed a Texas Home Equity
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`Fixed/Adjustable Rate Note in the original principal amount of $344,000 (Dkt. #4 at ¶ 7; Dkt.
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`#34 at ¶ 2). The Note and interest in the Security Instrument were subsequently assigned to
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`Defendant in 2003.
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`Plaintiffs defaulted on their obligation under the Note and Security Instrument (Dkt. #34
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`at ¶ 6). In or about 2013, Defendant filed a suit for judicial foreclosure (Dkt. #4 at ¶ 8). On
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`December 13, 2013, the 393rd Judicial District Court of Denton County, Texas issued a Home
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`Equity Foreclosure Order (the “Foreclosure Order”) that provided that Defendant could proceed
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`with a foreclosure of the loan and sale of the Property (Dkt. #34 at ¶ 9). On December 13, 2013,
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`Case 4:14-cv-00367-ALM Document 54 Filed 02/03/16 Page 2 of 13 PageID #: 745
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`the Foreclosure Action was closed (Dkt. #34 at ¶ 9). On December 20, 2013, in the same court,
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`Plaintiffs filed a Motion to Vacate the Home Equity Foreclosure Order in the Foreclosure Action
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`and on the same day a Notice of Hearing on the Motion to Vacate was filed (Dkt. #34 at ¶ 13).
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`On January 9, 2014, the state court entered an Order granting Plaintiffs’ Motion to Vacate the
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`Foreclosure Order (Dkt. #34 at ¶ 14).
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`A copy of the Foreclosure Order and a Notice of Sale were sent to Plaintiffs on April 10,
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`2014 (Dkt. #34 at ¶ 11). Defendant foreclosed on the loan on May 6, 2014 (Dkt. #34 at ¶ 12).
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`Defendant purchased the Property at the sale for $455,784.96 (Dkt. #34 at ¶ 12).
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`Plaintiffs filed their Original Petition, Application for Temporary Restraining Order, and
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`Application for Temporary Injunction (the “Complaint”) on June 4, 2014, in the 393rd Judicial
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`District Court of Denton County, Texas (Dkt. #1; Dkt. #4). Defendant removed the case to this
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`Court on June 6, 2014 (Dkt. #1). On June 6, 2014, Defendant filed its Original Counterclaim
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`(Dkt. #3). Plaintiffs answered the Original Counterclaim on August 12, 2014 (Dkt. #11). On
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`February 24, 2015, Defendant filed its Motion for Leave to File Amended Counterclaim (Dkt.
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`#31) and its Amended Counterclaim (Dkt. #32). On May 21, 2015, Defendant filed
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`Defendant/Counter-Plaintiff’s Motion for Summary Judgment and Brief in Support on
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`Plaintiff/Counter-Defendant’s Claims and on Defendant/Counter Plaintiff’s Motion for Summary
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`Judgment on Defendant/Counter-Plaintiff’s Counterclaim (Dkt. #34) which addressed the claims
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`in both the Original Counterclaim and the Amended Counterclaim. On June 5, 2015, Plaintiffs
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`filed Plaintiffs’/Counter-Defendants’ Response to Defendant/Counter-Plaiuntiff’s Motion for
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`Summary Judgment on Plaintiff’s/Counter-Defendants’ Claim and Motion for Summary
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`Judgment on Defendant’s/Counter-Plaintiff’s Counterclaim (Dkt. #35). On June 10, 2015, the
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`Court granted the Motion for Leave to File Amended Counterclaim (Dkt. #36). On June 25,
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`Case 4:14-cv-00367-ALM Document 54 Filed 02/03/16 Page 3 of 13 PageID #: 746
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`2015, Defendant filed Defendant/Counter-Plaintiff’s Reply in Support of Motion for Summary
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`Judgment (Dkt. #40).
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`LEGAL STANDARD
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`The purpose of summary judgment is to isolate and dispose of factually unsupported
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`claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary judgment
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`is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits
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`“[show] that there is no genuine dispute as to any material fact and that the movant is entitled to
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`judgment as a matter of law.” FED. R. CIV. P. 56(a). A dispute about a material fact is genuine
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`“if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
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`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The trial court must resolve all
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`reasonable doubts in favor of the party opposing the motion for summary judgment. Casey
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`Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981) (citations
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`omitted). The substantive law identifies which facts are material. Anderson, 477 U.S. at 248.
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`The party moving for summary judgment has the burden to show that there is no genuine
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`issue of material fact and that it is entitled to judgment as a matter of law. Id. at 247. If the
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`movant bears the burden of proof on a claim or defense on which it is moving for summary
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`judgment, it must come forward with evidence that establishes “beyond peradventure all of the
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`essential elements of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th
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`Cir. 1986). Where the nonmovant bears the burden of proof, the movant may discharge its
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`burden by showing that there is an absence of evidence to support the nonmovant’s case.
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`Celotex, 477 U.S. at 325; Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000).
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`Once the movant has carried its burden, the nonmovant must “respond to the motion for
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`summary judgment by setting forth particular facts indicating there is a genuine issue for trial.”
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`Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at 248-49). The nonmovant must adduce
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`affirmative evidence. Anderson, 477 U.S. at 257. No “mere denial of material facts
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`nor…unsworn allegations [nor] arguments and assertions in briefs or legal memoranda” will
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`suffice to carry this burden. Moayedi v. Compaq Computer Corp., 98 F. App’x 335, 338 (5th
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`Cir. 2004). Rather, the Court requires “significant probative evidence” from the nonmovant in
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`order to dismiss a request for summary judgment supported appropriately by the movant. United
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`States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001). The Court must consider all of the
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`evidence, but must refrain from making any credibility determinations or weighing the evidence.
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`See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
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`The Rooker-Feldman Doctrine1
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`ANALYSIS
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`Although the parties do not contest the Court’s jurisdiction, federal courts are duty-bound
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`to examine their subject-matter jurisdiction sua sponte. Ins. Corp. of Ireland, Ltd. v. Compagnie
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`des Bauxites de Guinee, 456 U.S. 694, 702 (1982) (citing Mansfield, C. & L.M. Ry. Co. v. Swan,
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`111 U.S. 379, 382 (1884)); H & D Tire & Automotive-Hardware, Inc. v. Pitney Bowes Inc., 227
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`F.3d 326, 328 (5th Cir. 2000). As outlined below, the Rooker-Feldman doctrine impacts the
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`Court’s subject-matter jurisdiction. Consequently, the question of whether this action is subject
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`to Rooker-Feldman must be addressed. See Union Planters Bank Nat. Ass’n v. Salih, 369 F.3d
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`457, 460 (5th Cir. 2004) (examining sua sponte subject matter jurisdiction pursuant to Rooker-
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`Feldman.) (citations omitted).
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`As the Fifth Circuit recently explained,
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`1 On September 28, 2015, the Court ordered the parties to brief the issue of jurisdiction and if any claims or
`counterclaims are barred by the Rooker-Feldman doctrine (Dkt. #43). On October 8, 2015, Defendant filed its Brief
`Regarding Jurisdiction (Dkt. #46). On October 14, 2015, Plaintiffs filed their Brief Regarding Jurisdiction (Dkt.
`#49).
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`Case 4:14-cv-00367-ALM Document 54 Filed 02/03/16 Page 5 of 13 PageID #: 748
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`Exxon, the Court’s most authoritative recent pronouncement on Rooker-Feldman,
`makes plain that the doctrine has four elements: (1) a state-court loser; (2)
`alleging harm caused by a state-court judgment; (3) that was rendered before the
`district court proceedings began; and (4) the federal suit requests review and
`reversal of the state-court judgment.
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`Houston v. Venneta Queen, 606 F. App’x 725, 730 (5th Cir. 2015) cert. denied sub nom.
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`Houston v. Queen, 136 S. Ct. 503 (2015) reh’g denied, No. 15-311, 2016 WL 101421 (U.S. Jan.
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`11, 2016) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).
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` This Fifth Circuit has observed that “[a] state court judgment is attacked for purposes of
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`Rooker-Feldman ‘when the [federal] claims are inextricably intertwined with a challenged state
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`court judgment,’ or where the losing party in a state court action seeks ‘what in substance would
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`be appellate review of the state judgment.’” Weaver v. Tex. Capital Bank, N.A., 660 F.3d 900,
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`904 (5th Cir. 2011) (per curiam) (citations omitted); see also Houston, 606 F. App’x. at 730.
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`However, Rooker-Feldman “does not preclude federal jurisdiction over an ‘independent claim,’
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`even ‘one that denies a legal conclusion that a state court has reached.’” Weaver, 660 F.3d at
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`904 (quoting Exxon, 544 U.S. at 293). Indeed, the doctrine “generally applies only where a
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`plaintiff seeks relief that directly attacks the validity of an existing state court judgment.”
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`Weaver, 660 F.3d at 904. Nonetheless, a party cannot escape Rooker-Feldman by “casting . . . a
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`complaint in the form of a civil rights action.” Liedtke v. State Bar of Tex., 18 F.3d 315, 317 (5th
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`Cir. 1994).
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`In the current case, Plaintiffs assert a trespass to try title claim because Plaintiffs believe
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`that they have superior title. Plaintiffs’ argue that they have superior title because the state
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`court’s Foreclosure Order was improper and it was later properly vacated by the state court.
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`Plaintiffs also claim they are entitled to a temporary restraining order and a temporary injunction
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`preventing Defendant from enforcing the state court’s Foreclosure Order.
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`Case 4:14-cv-00367-ALM Document 54 Filed 02/03/16 Page 6 of 13 PageID #: 749
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`Defendant requests that the Court quiet title to the Property in its favor (Dkt. #32 at ¶ 26).
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`Defendant also seeks a declaratory judgment that the May 6, 2014 foreclosure and sale of the
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`Property was valid (Dkt. #32 at ¶ 22). Alternatively, Defendant asserts a claim for judicial or
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`non-judicial foreclosure and breach of contract (Dkt. #32 at ¶ 28).
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`Defendant’s counterclaims are within the Court’s subject matter jurisdiction because
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`Defendant is not a “state court loser” under the Foreclosure Order. Defendant seeks to enforce
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`the state court judgment, not attack it. See Weaver, 660 F.3d at 904 (“[T]he Rooker–Feldman
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`doctrine generally applies only where a plaintiff seeks relief that directly attacks the validity of
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`an existing state court judgment.” (emphasis added)). Likewise, Plaintiffs are not “state court
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`losers” because they believe that they “won” when the state court vacated the Foreclosure Order
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`and do not seek to set aside the Foreclosure Order.
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`Furthermore, the parties agree that the injury at issue stems from the sale of the property
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`and not from the state court’s Foreclosure Order. Defendant argues that if Rooker-Feldman
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`applies in the current action, then “this Court would be without jurisdiction to hear all cases
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`brought challenging court-ordered foreclosure sales and seeking to invalidate foreclosure sales—
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`an absurd result.” (Dkt. #46 at ¶ 8). The Court agrees. However, at several points in the parties’
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`briefs they also argue about the validity of the state court’s actions. For example, Plaintiffs argue
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`that “[t]he trial court did not follow the procedural rules set forth in the Texas Rules of Civil
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`Procedure Rule 736.6 when it signed the Foreclosure Order without holding a hearing.” (Dkt.
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`#35 at p. 8). However, whether or not the state court made a procedural error is irrelevant. The
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`Texas Rules of Civil Procedure provide that “[a]fter an order is obtained, a person may proceed
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`with the foreclosure process under applicable law and terms of the lien sought to be foreclosed.”
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`Tex. R. Civ. P. 736.9. Therefore, even if there was a procedural error, the Texas Rules of Civil
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`Procedure provide a remedy.2
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`Additionally, the 393rd Judicial District Court of Denton County, Texas lacked
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`jurisdiction to vacate the Foreclosure Order. An order obtained under Texas Rule of Civil
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`Procedure 736 “is not subject to a motion for rehearing, new trial, bill of review, or appeal.”
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`Tex. R. Civ. P. 736.8(c). “Any challenges to a Rule 736 order must be made in a suit filed in a
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`separate, independent, original proceeding in a court of competent jurisdiction.” Id. Courts
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`determine the nature of a motion by its substance, not its title or caption. In re Brookshire
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`Grocery Co., 250 S.W.3d 66, 72 (Tex. 2008) (orig. proceeding). In In re Casterline, the court
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`found that because a ‘Motion to Reconsider and Reopen’ requested the trial court set aside its
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`previous order, reopen the case, and set the matter for a final hearing, the motion was in
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`substance a motion for rehearing or new trial which is prohibited by Rule 736.8(c). No. 13-13-
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`00708-CV, 2014 WL 217285, at *5 (Tex. App. Jan. 15, 2014). The same analysis applies to the
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`motion to vacate. See In re Brookshire Grocery Co., 250 S.W.3d at 73 (holding that the
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`fundamental nature of new trial motion is a request to vacate judgment.). Thus, the Court has
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`jurisdiction to determine the various claims asserted here.
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`Defendant’s Declaratory Judgment Counterclaim
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`The federal Declaratory Judgment Act states, “[i]n a case of actual controversy within its
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`jurisdiction, . . . any court of the United States, upon the filing of an appropriate pleading, may
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`declare the rights and other legal relations of any interested party seeking such declaration,
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`2 This is not a situation in which the parties, “rather than seek appellate relief from the Texas Court of Appeals, the
`Texas Supreme Court and, ultimately, the United States Supreme Court, . . . ask this federal district court to act as a
`de facto appellate court [.]” Rainwater v. 21st Mortgage Corp., No. 1:09-CV-331, 2010 WL 1330624, at *3 (E.D.
`Tex. Feb. 25, 2010) report and recommendation adopted, No. CIV. A. 1:09-CV-331, 2010 WL 1328845 (E.D. Tex.
`Mar. 29, 2010). “Rule 736.8(c) expressly prohibits appeals from orders issued granting or denying the application
`for expedited foreclosure and requires challenges to be made by separate, independent proceedings[.]” In re
`Casterline, No. 13-13-00708-CV, 2014 WL 217285, at *5 (Tex. App. Jan. 15, 2014); see Tex. R. Civ. P. 736.8(c);
`In re Dominguez, 416 S.W.3d 700, 708 (Tex. App.—El Paso 2013, orig. proceeding).
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`whether or not further relief is or could be sought.” 28 U.S.C. § 2201. Federal courts have broad
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`discretion to grant or refuse declaratory judgment. Torch, Inc. v. LeBlanc, 947 F.2d 193, 194
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`(5th Cir. 1991). “Since its inception, the Declaratory Judgment Act has been understood to
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`confer on federal courts unique and substantial discretion in deciding whether to declare the
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`rights of litigants.” Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995). The Declaratory
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`Judgment Act is “an authorization, not a command.” Public Affairs Assocs., Inc. v. Rickover,
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`369 U.S. 111, 112 (1962). It gives federal courts the competence to declare rights, but does not
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`impose a duty to do so. Id.
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`The Declaratory Judgment Act is a procedural device that creates no substantive rights,
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`and requires the existence of a justiciable controversy. Aetna Life Ins. Co. v. Haworth, 300 U.S.
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`227, 239–241 (1937); Lowe v. Ingalls Shipbuilding, 723 F.2d 1173, 1179 (5th Cir. 1984). Thus,
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`the Act provides no relief unless there is a justiciable controversy between the parties. The Fifth
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`Circuit stated as follows:
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`In order to demonstrate that a case or controversy exists to meet the Article III
`standing requirement when a plaintiff is seeking injunctive or declaratory relief, a
`plaintiff must allege facts from which it appears there is a substantial likelihood
`that he will suffer injury in the future. Based on the facts alleged, there must be a
`substantial and continuing controversy between two adverse parties. The plaintiff
`must allege facts from which the continuation of the dispute may be reasonably
`inferred. Additionally, the continuing controversy may not be conjectural,
`hypothetical, or contingent; it must be real and immediate, and create a definite,
`rather than speculative threat of future injury.
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`Past exposure to illegal conduct does not in itself show a present case or
`controversy regarding injunctive relief . . . if unaccompanied by any continuing,
`present adverse effects. To obtain equitable relief for past wrongs, a plaintiff must
`demonstrate either continuing harm or a real and immediate threat of repeated
`injury in the future. Similar reasoning has been applied to suits for declaratory
`judgments.
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`Bauer v. Texas, 341 F.3d 352, 358 (5th Cir. 2003) (citations and quotations omitted).
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`Defendant seeks a declaration that “the May 6, 2014 foreclosure and sale of the Property
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`was valid.” (Dkt. #32 at ¶ 22). The sale was conducted in a procedurally valid manner.
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`“[C]hapter 51 of the Texas Property Code sets forth a variety of requirements for foreclosure of
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`liens and foreclosure sales involving real property.” Patton v. Porterfield, 411 S.W.3d 147, 159
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`(Tex. App. 2013). In particular, section 51.002 establishes the procedures for conducting a
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`foreclosure sale. Tex. Prop. Code § 51.002.
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`“To effect a valid foreclosure, the holder of a defaulted note must give notice of intent to
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`accelerate with demand for payment and time to cure, notice of acceleration and notice of
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`foreclosure sale at least 21 days before the sale and notice of default at least twenty days before
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`notice of sale.” Clark v. FDIC, 849 F. Supp. 2d 736, 742 (S.D. Tex. 2011) (citing Tex. Prop.
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`Code § 51.002(b); Ogden v. Gibraltar Sav. Ass’n, 640 S.W.2d 232, 233 (Tex. 1982)). Notice to
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`the debtor is satisfied so long as the notice is deposited for delivery to the debtor’s last known
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`address by certified mail. Tex. Prop. Code § 51.002(e); Hill v. Fremont Inv. & Loan, 2004 WL
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`1178607, at *3 (Tex. App.—Dallas May 28, 2004, no pet.) (citing Onwuteaka v. Cohen, 846
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`S.W.2d 889, 892 (Tex. App.—Houston [1st Dist.] 1993, writ denied)). The affidavit of a person
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`who has knowledge that service was completed is prima facie evidence of service. Tex. Prop.
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`Code § 51.002(e).
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`Defendant has provided proof that it gave notice of its intent to accelerate the sale and
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`notice of default within the requisite time period (Dkt. #34-2). Plaintiffs do not deny that they
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`received notice (Dkt. #4 at ¶ 10). Plaintiffs have not identified any other procedural error in the
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`sale. Therefore, the sale was valid as a matter of law.
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`Defendant produced summary judgment evidence of its interest in the property as both
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`the holder of the loan and as the owner of the title to the Property by virtue of the May 6, 2014,
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`foreclosure sale (Dkt. #34-1; Dkt. #34-2; Dkt. #34-7). Plaintiffs have not raised any arguments
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`or produced any evidence that support an argument that the sale was defective for any other
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`reason than the state court committed error when it issued the Foreclosure Order (Dkt #35 at pp.
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`15-17). Defendant has presented summary judgment evidence showing that it conducted a valid
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`foreclosure sale and thus has superior title. Therefore, Defendant is entitled to a declaratory
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`judgment that the foreclosure was proper.
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`Defendant’s Suit to Quiet Title
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`Defendant also seeks summary judgment on its suit to quiet title. A suit to quiet title is
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`an equitable remedy to clarify ownership by removing clouds on the title. See Ford v. Exxon
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`Mobil Chem. Co., 235 S.W.3d 615, 618 (Tex. 2007). To establish a claim for suit to quiet title,
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`the party must show the following: (1) an interest in specific property; (2) that title to the
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`property is affected by a claim by the other party; and (3) that the claim, although facially valid,
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`is invalid or unenforceable. Sadler v. Duvall, 815 S.W.2d 285, 293, n.2 (Tex. App.—Texarkana
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`1991, pet. denied). An adverse claim, to constitute a cloud on the title removable by the court,
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`must be one that is valid on its face but is proved by extrinsic evidence to be invalid or
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`unenforceable. Id. As discussed above, Defendant produced summary judgment evidence of its
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`interest in the property. Plaintiffs’ subsequent claim to the Property, including the claims
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`asserted in this lawsuit, adversely impact Defendant’s title to the Property and are invalid for the
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`reasons discussed above. Defendant provided summary judgment evidence proving the
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`existence of each element required for a suit to quiet title. Defendant is entitled to a judgment in
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`its favor as to the propriety of the foreclosure proceedings and the removal of the cloud on its
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`title. See JP Morgan Chase Bank, N.A. v. Dixon, 541 F. App’x 423, 429 (5th Cir. 2013) (holding
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`that the district court did not err, “in rendering judgment in favor of J.P. Morgan as to the
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`propriety of the foreclosure proceedings, Freddie Mac’s superior title to the Property, and the
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`removal of the cloud on the title resulting from the recordation of the (now vacated) state court
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`default judgment.”).
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`Plaintiffs’ Trespass to Try Title Claim
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`Defendant seeks summary judgment on Plaintiffs’ trespass to try title claim (Dkt. #34 at
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`p. 10). “To prevail in a trespass-to-try-title action, [a party] must usually (1) prove a regular
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`chain of conveyances from the sovereign, (2) establish superior title out of a common source, (3)
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`prove title by limitations, or (4) prove title by prior possession coupled with proof that
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`possession was not abandoned.” Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004) (citation
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`omitted). “The pleading rules are detailed and formal, and require a plaintiff to prevail on the
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`superiority of his title, not on the weakness of a defendant's title.” Id. Defendant is entitled to
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`summary judgment on Plaintiffs’ trespass to try title claim because, as explained above,
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`Plaintiffs have not established superior title.
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`The Texas Civil Practices and Remedies Code
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`Plaintiffs claim Defendant violated the Texas Civil Practices and Remedies Code when it
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`used the Foreclosure Order to sell the Property because the Foreclosure Order had been vacated.
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`The Texas Civil Practices and Remedies Code § 12.002(a), provides:
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`A person may not make, present, or use a document or other record with: (1)
`knowledge that the document or other record is a fraudulent court record or a
`fraudulent lien or claim against real or personal property or an interest in real or
`personal property;
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`(2) intent that the document or other record be given the same legal effect as a
`court record or document of a court created by or established under the
`constitution or laws of this state or the United States or another entity listed in
`Section 37.01, Penal Code, evidencing a valid lien or claim against real or
`personal property or an interest in real or personal property; and
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`(3) intent to cause another person to suffer:
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`Case 4:14-cv-00367-ALM Document 54 Filed 02/03/16 Page 12 of 13 PageID #: 755
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`(A) physical injury;
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`(B) financial injury; or
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`(C) mental anguish or emotional distress.
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`Tex. Civ. Prac. & Rem. Code Ann. § 12.002. Someone who violates the statute may become
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`liable to an injured person to the greater of $10,000 or the actual damages caused by such
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`violation in addition to incurring liability for court costs, reasonable attorney’s fees, and even
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`exemplary damages as determined by the court. Tex. Civ. Prac. & Rem. Code Ann. § 12 .002(b).
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`Section 12.002 requires a showing that Defendants made, presented, or used a document
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`with: (1) knowledge that the document was a fraudulent lien or claim against real or personal
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`property or an interest in real or personal property; (2) intent that the document or other record
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`be given legal effect; and (3) intent to cause another person to suffer: (A) physical injury; (B)
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`financial injury; or (C) mental anguish or emotional distress. Tex. Civ. Prac. & Rem. Code Ann.
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`§ 12.002(a). A plaintiff has the burden of proving all three elements of its claim. Aland v.
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`Martin, 271 S.W.3d 424, 430 (Tex. App.—Dallas 2008, no pet.).
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`Plaintiffs have failed to provide evidence that support the injury element of their claim.
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`In Golden v. Wells Fargo Bank, N.A., the Fifth Circuit held that the plaintiffs failed to adequately
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`plead the injury element because the defendant only used the allegedly fraudulent document to
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`foreclose on a property “for business purposes” and the plaintiffs did not allege facts showing
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`that their property would not be subject to foreclosure absent the allegedly fraudulent document.
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`557 F. App’x 323, 327 (5th Cir. 2014); see also Trang v. Bean, 600 F. App’x 191, 193 (5th Cir.
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`2015) (granting summary judgment because the plaintiff failed to allege facts tending to show
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`that the defendant acted with intent to cause financial injury or mental anguish, rather than just
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`for business purposes.). Therefore, Defendant is entitled to summary judgment on Plaintiffs’
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`

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`Case 4:14-cv-00367-ALM Document 54 Filed 02/03/16 Page 13 of 13 PageID #: 756
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`claim that Defendant violated the Texas Civil Practice and Remedies Code and Plaintiffs are not
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`entitled to reasonable attorney’s fees and costs pursuant to this claim.
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`Plaintiff’s Request for Injunctive Relief
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`Defendant seeks summary judgment on Plaintiffs’ request for injunctive relief. “Under
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`Texas law, a request for injunctive relief is not itself a cause of action but depends upon an
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`underlying cause of action.” Marsh v. Wells Fargo Bank, N.A., 760 F. Supp. 2d 701, 708 (N.D.
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`Tex. 2011) (citing Cook v. Wells Fargo Bank, N.A., No. 3:10–cv–592–D, 2010 WL 2772445, at
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`*4 (N.D. Tex. July 12, 2010)). All of Plaintiffs’ claims have been dismissed. Therefore,
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`Defendant is entitled to summary judgment on Plaintiffs’ request for injunctive relief as a matter
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`of law.
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`CONCLUSION
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`It is therefore ORDERED that Defendant’s First Motion for Summary Judgment on its
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`counterclaims and declaratory judgment (Dkt. #34) is hereby GRANTED.
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`The Court hereby declares that the foreclosure sale in this action that occurred on May 6,
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`2014, in connection with property located at 4809 Amber Court, Flower Mound, Texas 75028,
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`was valid, and enters this order quieting title in favor of Defendant.
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`It is further ORDERED Plaintiffs’ claims are hereby DISMISSED with prejudice.
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`13