Case 4:16-cv-00520-ALM-CAN Document 39 Filed 08/02/17 Page 1 of 10 PageID #: 586
`
`United States District Court
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
`
`
`TAWNYA BRIGANDI, NICHOLAS
`BRIGANDI
`
`v.
`
`AMERICAN MORTGAGE INVESTMENT
`PARTNERS FUND I TRUST, FCI
`LENDER SERVICES, INC.
`
`§
`§
`§
`§
`§
`§
`§
`
`
`
`Civil Action No. 4:16-CV-520
`(Judge Mazzant/Judge Nowak)
`
`
`MEMORANDUM ADOPTING IN PART AND REJECTING IN PART REPORT AND
`RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
`
`Came on for consideration the report of the United States Magistrate Judge in this action,
`
`
`
`this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636.
`
`On May 31, 2017, the report of the Magistrate Judge (Dkt. #33) was entered containing proposed
`
`findings of fact and recommendations that Defendants American Mortgage Investment Partners
`
`Fund I Trust and FCI Lender Services, Inc.’s Motion to Dismiss (Dkt. #27) be granted. Having
`
`received the report and recommendation of the Magistrate Judge (Dkt. #33), having considered
`
`Plaintiffs’ timely filed objections (Dkt. #34), and having conducted a de novo review, the Court is
`
`of the opinion that the findings and conclusions of the Magistrate Judge are correct, except as to
`
`the Texas Debt Collection Act claims, the breach of contract claim, negligent misrepresentation
`
`claim, and set aside claims, and as such adopts in part the Magistrate Judge’s report (Dkt. #33) as
`
`the findings and conclusions of the Court.
`
`RELEVANT BACKGROUND
`
`
`
`Plaintiff Tawnya Brigandi initially filed this suit in the Denton County Probate Court. On
`
`July 14, 2016, the suit was removed to this Court (Dkt. #1).1 On August 12, 2016, Plaintiffs filed
`
`
`1 As noted, the instant suit was initially filed only by Plaintiff Tawnya Brigandi; however, on May 19, 2017, the Parties
`agreed and stipulated that Nicholas Brigandi, the husband of Tawnya Brigandi and co-borrower on the home mortgage
`
`

`

`Case 4:16-cv-00520-ALM-CAN Document 39 Filed 08/02/17 Page 2 of 10 PageID #: 587
`
`an Amended Complaint (Dkt. #7). Thereafter, Defendants filed a Rule 12(b)(6) motion to dismiss,
`
`which was rendered moot by the filing of Plaintiffs’ Third Amended Complaint on April 6, 2017
`
`(Dkt. #26). Defendants’ instant Motion to Dismiss was filed on April 25, 2017 (Dkt. #27).
`
`Plaintiffs’ Response was filed on May 9, 2017 (Dkt. #28), and Defendants’ Reply (Dkt.
`
`#30) on May 16, 2017. Notably, the ruling of the Fort Worth Court of Appeals in the parallel
`
`state proceedings (discuss infra) was issued on April 20, 2017. See Brigandi v. Am. Mortg. Inv.
`
`Partners Fund I Tr., 2017 WL 1428726 (Tex. App.—Fort Worth Apr. 20, 2017, no pet. h.).
`
`Plaintiffs’ Third Amended Complaint alleges that in June of 2003, Plaintiffs purchased real
`
`estate at 2428 Cherry Lane, Little Elm, Texas 75068 (“Property”). To purchase the Property,
`
`Plaintiffs executed a Note payable to First National Bank along with a Deed of Trust to secure
`
`payment on the Note. The terms of the Deed of Trust provide that the Lender’s rights to require
`
`immediate payment in full and/or to foreclose may be limited by Housing and Urban Development
`
`(HUD) regulations (Dkt. #26, Exhibit 2 at 4 (“This Security Instrument does not authorize
`
`acceleration or foreclosure if not permitted by regulations of the [HUD] Secretary.”)).
`
`Nicholas Brigandi became unemployed in November of 2012. Facing foreclosure, in
`
`December of 2013, Tawnya Brigandi filed a Petition and Application for Temporary Restraining
`
`Order in the District Court of Denton County, Texas, against Lex Special Assets, L.L.C. The
`
`Petition alleged Lex Special Assets (“Lex”) was threatening to foreclose on the Property, did not
`
`hold the Note, and had wrongfully stalled or refused to consider her request for a loan modification
`
`before initiating foreclosure. Brigandi v. Lex Special Assets, L.L.C., 4:14-cv-68-RAS, Dkt. #1,
`
`Exhibit 2. Tawnya Brigandi sought a determination of whether Lex was authorized to foreclose
`
`loan at issue herein, should be joined as a Plaintiff (Dkt. #31). The Court granted the Parties’ Joint Motion to Join
`Mr. Brigandi (Dkt. #32) and, as such, treats the Third Amended Complaint, and all pleadings responsive to the Motion
`to Dismiss, as filed by both Plaintiff Tawyna and Plaintiff Nicholas Brigandi.
`
`2
`
`

`

`Case 4:16-cv-00520-ALM-CAN Document 39 Filed 08/02/17 Page 3 of 10 PageID #: 588
`
`on the Property. She further claimed Lex committed fraud and violated the Texas Debt Collection
`
`Act (“TDCA”) by refusing to produce the loan servicing agreement evidencing its right to collect
`
`on the Note, and its ability to accept mortgage payments and modify the Note. Brigandi v. Lex
`
`Special Assets, L.L.C., 4:14-cv-68-RAS, Dkt. #1, Exhibit 2. That lawsuit was removed to federal
`
`court on January 31, 2014, and it was dismissed with prejudice on June 23, 2015. Brigandi v. Lex
`
`Special Assets, 4:14-cv-68-RAS, Dkt. #1; Dkt. #7. Defendants refer to this lawsuit in their Motion
`
`to Dismiss as the Fourth Lawsuit.2
`
`After several transfers and assignments, Defendant American Mortgage Investment
`
`Partners Trust Fund I (“AMIP”) became the owner and holder of the Note and Deed of Trust, and
`
`in July 2014, Defendant FCI Lender Services (“FCI”) began servicing Plaintiffs’ loan on behalf of
`
`AMIP (Dkt. #26). See also Brigandi, 2017 WL 1428726, at *1. In July 2014, Tawnya Brigandi
`
`contacted FCI to discuss a loan modification, but FCI’s representative informed her that no loan
`
`modification would be considered. Tawnya Brigandi thereafter filed for Chapter 13 bankruptcy
`
`protection in August of 2014, and FCI’s scheduled foreclosure was stayed. That bankruptcy
`
`proceeding was dismissed without prejudice in October or November of 2014. Then in November
`
`2014, FCI scheduled a foreclosure for December 2014. Tawnya Brigandi filed yet another
`
`Chapter 13 bankruptcy action in November or December 2014. The foreclosure was again stayed.
`
`The bankruptcy proceedings were dismissed in December of 2014. FCI scheduled another
`
`foreclosure sale in January of 2015. Nicholas Brigandi filed for Chapter 13 bankruptcy protection
`
`in February 2015, and the foreclosure was stayed. That bankruptcy proceeding was dismissed in
`
`
`2 There exists a significant prior litigation history related to the Property. Indeed, as detailed in Defendants’ Motion
`to Dismiss, Plaintiffs (together or separately) have filed at least six civil litigation matters and six bankruptcy matters
`related to the Property (see Dkt. #27 at 3-6 (detailing prior filings and lawsuits)). Given the lengthy nature of such
`history, the Court does not detail it fully herein, and instead discusses only those prior matters relevant to its disposition
`of the Motion to Dismiss.
`
`
`
`3
`
`

`

`Case 4:16-cv-00520-ALM-CAN Document 39 Filed 08/02/17 Page 4 of 10 PageID #: 589
`
`September 2015. In October 2015, FCI scheduled another foreclosure sale for November 2015.
`
`Nicholas Brigandi again filed for bankruptcy protection, listing Defendant FCI as a lender. The
`
`foreclosure was not stayed.
`
`Plaintiffs subsequently tried to submit a payment to Defendant FCI, but FCI returned the
`
`payment with a letter stating that it was initiating foreclosure. In December 2015, Plaintiffs
`
`received a letter stating FCI was going to foreclose in February 2016. On February 19, 2016, FCI
`
`sent a Notice of Acceleration to Plaintiffs. Tawnya Brigandi filed a lawsuit in the Denton County
`
`Probate Court and obtained a temporary restraining order, which halted the February 2016
`
`foreclosure sale. FCI agreed thereafter to review a loan modification request. Plaintiffs submitted
`
`a loan modification application to FCI on March 15, 2016, but FCI denied the application within
`
`three days, refusing to evaluate Plaintiffs for a loan modification because the request was submitted
`
`within thirty-seven days of a scheduled foreclosure sale.
`
`On April 5, 2016, Plaintiffs’ Property was sold to AMIP at a foreclosure sale. At the time
`
`of the sale, Plaintiffs owed over $57,000 in past-due monthly principal and interest payments.
`
`AMIP paid $167,500 at the sale. Brigandi, 2017 WL 1428726, at *1 n.2.
`
`“Because the Brigandis did not immediately surrender possession of the property after the
`
`sale, they became tenants at sufferance under the terms of the deed of trust.” Id. at *1. On
`
`April 14, 2016, AMIP served Plaintiffs with a notice to vacate and demand for possession, but
`
`Plaintiffs failed to vacate the property. Id. AMIP filed an eviction petition on May 2, 2016. Id.
`
`On June 15, 2016, the Denton County justice court signed a judgment of eviction, awarding AMIP
`
`possession of the property, stating AMIP was “entitled to such writs and abstracts as are necessary
`
`to effect execution of this judgment,” and setting an appellate bond at $1,500. Id.
`
`4
`
`

`

`Case 4:16-cv-00520-ALM-CAN Document 39 Filed 08/02/17 Page 5 of 10 PageID #: 590
`
`Tawnya Brigandi appealed the justice court’s ruling to the county court. But on
`
`October 18, 2016, without providing the required notice, the county court dismissed the appeal for
`
`failure to pay the appellate filing fee. Id. at *2. On October 31, 2016, Tawnya Brigandi moved
`
`the county court to stay or vacate the writ of possession based on the county court's failure to notify
`
`her of the past-due filing fee. Id. She also moved for a writ of mandamus. Tawnya Brigandi’s
`
`request was denied, but the state appellate court did stay any attempts to execute the writ of
`
`possession pending appellate review. Id. Tawnya Brigandi appealed the county court’s dismissal
`
`on November 17, 2016. The county court set a supersedeas bond to be paid by December 30, 2016.
`
`Tawnya Brigandi filed a second writ of mandamus, claiming setting a bond violated the prior
`
`appeals court order. That writ was denied. Id.
`
`AMIP filed a motion on January 17, 2017, requesting the state appellate court to execute
`
`on the writ of possession based on the failure to post the supersedeas bond. The motion was
`
`granted. The state appellate court held AMIP was “no longer prohibited from executing the writ
`
`of possession issued on October 19, 2016,” by the justice court. Id. at *3. Tawnya Brigandi’s
`
`subsequent motions to reconsider and to review the county court’s supersedeas bond were denied.
`
`Id. “[I]f a supersedeas bond in the amount set by the county court is not filed, the judgment in a
`
`forcible-detainer action may be enforced and a writ of possession may be executed, evicting the
`
`defendant from the property.” Id. Plaintiffs were ultimately evicted on March 2, 2017 (Dkt. #26
`
`at 5).
`
`Notably, the eviction mooted the appeal before the state appellate court; that court held that
`
`“[b]ecause Brigandi is no longer in possession of the property and because she does not assert a
`
`potentially meritorious claim raising her right to current, actual possession of the property, the
`
`5
`
`

`

`Case 4:16-cv-00520-ALM-CAN Document 39 Filed 08/02/17 Page 6 of 10 PageID #: 591
`
`issue of possession—the sole issue in a forcible-detainer appeal—is rendered moot.” Brigandi,
`
`2017 WL 1428726, at *4.
`
`In this parallel federal action related to the Property, Plaintiffs assert claims for wrongful
`
`eviction, Texas Debt Collection Act (“TDCA”) violations, breach of contract, unjust enrichment,
`
`negligent representation, and suit to set aside foreclosure (Dkt. #26). By and through these claims,
`
`Plaintiffs seek specific performance to enforce HUD regulations requiring a face-to-face meeting
`
`with Defendants and consideration of all loss mitigation options, and to set aside the foreclosure
`
`and cancel the Trustee’s deed, as well as an award of monetary damages. Defendants filed the
`
`instant Motion to Dismiss (Dkt. #27) on April 25, 2017, and Plaintiffs filed their Response on
`
`May 9, 2017 (Dkt. #28). Defendants filed their Reply on May 16, 2017 (Dkt. #30). The
`
`Magistrate Judge entered a report and recommendation on May 31, 2017, recommending that
`
`Defendants’ Motion to Dismiss (Dkt. #33) be granted. Plaintiffs timely filed objections to the
`
`Magistrate Judge’s report and recommendation on June 14, 2017 (Dkt. #34). Thereafter the
`
`Parties filed an Agreed Motion to Abate Proceedings (Dkt. #36), seeking abatement of existing
`
`trial deadlines pending the Court’s disposition of Plaintiffs’ objections.
`
`OBJECTIONS
`
`A party who files timely written objections to a magistrate judge’s report and
`
`recommendation is entitled to a de novo review of those findings or recommendations to which
`
`the party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2)-(3). At the outset,
`
`the Court notes the Magistrate Judge finds in the report and recommendation that each of Plaintiffs’
`
`claims, for wrongful eviction, violation of the TDCA, breach of contract, unjust enrichment,
`
`negligent misrepresentation, and to set aside foreclosure, should be dismissed (Dkt. #33). The
`
`Magistrate Judge rejected Defendants’ argument that res judicata and/or collateral estoppel should
`
`6
`
`

`

`Case 4:16-cv-00520-ALM-CAN Document 39 Filed 08/02/17 Page 7 of 10 PageID #: 592
`
`apply. Neither Party objects to the Magistrate Judge’s findings regarding res judicata/collateral
`
`estoppel or unjust enrichment. As such, the Court adopts these findings and proceeds to evaluate
`
`the remaining claims and findings.
`
`Objection 1: Wrongful Eviction Findings
`
`Plaintiffs object that the Magistrate Judge erroneously determined Defendant AMIP acted
`
`lawfully in executing the writ of possession on March 2, 2017, when the writ issued on
`
`October 19, 2016.
`
`Plaintiffs contend the writ of possession was stale when executed.
`
`Accordingly, Plaintiffs assert the Magistrate Judge erred in finding dismissal of their wrongful
`
`foreclosure claim appropriate (Dkt. #34 at 3-4). Plaintiffs also argue they did not “lose” in state
`
`court such that the Rooker-Feldman doctrine cannot bar their claims, as the Magistrate Judge found
`
`(Dkt. #34 at 4).
`
`Plaintiffs’ contentions concerning the “stale” writ of possession evidences their misreading
`
`of the Magistrate Judge’s Rooker-Feldman finding. Plaintiffs argue that, because Texas Rule of
`
`Civil Procedure 510.8 proscribes execution of a writ of possession “after the 90th day after a
`
`judgment for possession is signed[,]” the fact that Defendant AMIP executed the writ of possession
`
`in the underlying case “134 days after [it] was issued” warrants a finding the writ was “stale” and
`
`unenforceable as a matter of law (Dkt. #34 at 3-4). Plaintiffs cite the Texas Rule without
`
`confronting the context in which the writ issued (and which the Magistrate Judge discusses as the
`
`basis for the recommendation):
`
`Contrary to Plaintiffs’ conclusory allegation, [Dkt. 26 at 6], the county court’s
`eviction order was not “stale” when it was executed: the eviction itself occurred
`less than two months after the state appellate court lifted its stay and granted AIMP
`[sic] leave to pursue that remedy. Plaintiff cites no authority that such a short lapse
`in time supports a claim the order is stale. Moreover, Plaintiffs’ allegations fail to
`factually describe or explain how the Texas forcible detainer proceedings and
`subsequent eviction were unlawful.
`
`7
`
`

`

`Case 4:16-cv-00520-ALM-CAN Document 39 Filed 08/02/17 Page 8 of 10 PageID #: 593
`
`(Dkt. #33 at 9) (emphasis added). Review of the underlying state appellate litigation reveals that
`
`Plaintiff Tawnya Brigandi’s October 31, 2016 appeal is the very force that initiated the stay on the
`
`writ of execution. See Brigandi v. Am. Mortg. Inv. Partners Fund I Tr., No. 02-16-0044-cv, 2017
`
`WL 1428726, at *2-3 (Tex. App.—Fort Worth Apr. 20, 2017). The stay on the writ of execution
`
`remained until at least January 17, 2017, when the appellate court lifted it at Defendant AMIP’s
`
`request. Id. at *3. Defendant AMIP then executed the writ on March 2, 2017—forty-four days
`
`later and well within the ninety-day time limit for such action. Plaintiffs do not address the
`
`propriety of the stay in their objections, or its effect on the applicability of Texas Rule of Civil
`
`Procedure 510.8. Accordingly, Plaintiffs do not object to the Magistrate Judge’s specific finding,
`
`but rather argue around it. The Court overrules this objection.
`
`Further, even if Plaintiffs had directly addressed the Magistrate Judge’s finding, preclusive
`
`doctrines would bar their argument. Plaintiffs assert in objection that “the [state appellate court]
`
`simply dismissed [Plaintiffs’] appeal and vacated all of the underlying courts’ judgments” such
`
`that Plaintiffs “did not lose on any claims” (Dkt. #34 at 4). But Plaintiffs ignore that the state
`
`appellate court expressly determined it should stay execution of the writ of possession, and did not
`
`lift the stay until January 2017. See Brigandi, 2017 WL 1428726, at *2-3. This determination
`
`forms the basis of the Magistrate Judge’s recommendation that the Court find Plaintiffs’ claim
`
`barred by the Rooker-Feldman doctrine (see Dkt. #33 at 10 (finding Rooker-Feldman bars
`
`Plaintiffs’ claim for wrongful eviction as pleaded because granting relief would require review and
`
`reversal of the state court’s decision to stay execution of the writ of possession)). Indeed,
`
`Plaintiffs’ wrongful eviction claim—that “the writ of possession was stale and could not be
`
`executed”—relies on this Court’s finding that the state appellate court could not effect a stay of
`
`the writ of possession (see Dkt. #26 at 5-6). Plaintiffs may not challenge the state court’s decision
`
`8
`
`

`

`Case 4:16-cv-00520-ALM-CAN Document 39 Filed 08/02/17 Page 9 of 10 PageID #: 594
`
`to stay execution of the writ of possession in this Court. See, e.g., Weaver v. Tex. Capital Bank
`
`N.A., 660 F.3d 900, 904-08 (5th Cir. 2011) (determining that, even where the narrow Rooker-
`
`Feldman doctrine did not apply, res judicata barred the claimant’s federal court challenge to a state
`
`court judgment). Without such challenge, Plaintiffs’ wrongful eviction claim falls flat. And, in
`
`any event, Plaintiffs do not contend with other Texas cases proceeding in the same manner—
`
`permitting stay of a writ of execution pending resolution of appeal—or explain why they did not
`
`(or show that they did) challenge the stay before the state appellate court. See, e.g., McCartney v.
`
`Cal. Mortg. Serv., 951 S.W.2d 549 (Tex. App.—El Paso 1997, no pet.) (installing then
`
`withdrawing stay of writ of possession). The Court overrules this objection.
`
`Objection 2: TDCA Findings
`
`Plaintiffs also object to the Magistrate Judge’s TDCA findings. The Court sustains
`
`Plaintiffs’ objections.
`
`Objection 3: Breach of Contract Findings
`
`Plaintiffs object that the Magistrate Judge erroneously determined Plaintiffs’ breach of
`
`contract claims should be dismissed. Plaintiffs contend that the Magistrate Judge sua sponte found
`
`find that Plaintiffs failed to state a claim. Plaintiffs further assert the Magistrate Judge errs, in any
`
`event, in reaching this conclusion. The Court agrees that the Magistrate Judge went beyond the
`
`arguments raised by Defendants, and the Court sustains Plaintiffs’ objections.
`
`Objection 4: Negligent Misrepresentation Findings
`
`Plaintiffs also object that the Magistrate Judge erred in finding Plaintiffs fail to state a
`
`negligent misrepresentation claim because the economic loss rule bars Plaintiffs’ damages as
`
`pleaded. The Court sustains Plaintiffs’ objections.
`
`Objection 5: Set Aside Claim Findings
`
`9
`
`

`

`Case 4:16-cv-00520-ALM-CAN Document 39 Filed 08/02/17 Page 10 of 10 PageID #: 595
`
`Plaintiffs object that the Magistrate Judge erroneously construed their suit to set aside
`
`foreclosure claim as either a claim for wrongful foreclosure and/or an action in trespass to try title
`
`(Dkt. #34 at 10). The Court sustains Plaintiffs’ objection.
`
`CONCLUSION
`
`Having considered each of Plaintiffs’ timely filed objections (Dkt. #34), and having
`
`conducted a de novo review, the Court adopts the Magistrate Judge’s report (Dkt. #33) as the
`
`findings and conclusions as to the wrongful eviction findings and the Court SUSTAINS Plaintiffs’
`
`objections and rejects the Magistrate Judge’s report as to the following: the Texas Debt Collection
`
`Act claims, the breach of contract claim, negligent misrepresentation claim, and set aside claims.
`
`Accordingly, it is ORDERED that Defendants’ Motion to Dismiss (Dkt. #27) is
`
`GRANTED IN PART and DENIED IN PART. Plaintiffs’ wrongful eviction claim is
`
`hereby DISMISSED.
`
`It is further ORDERED that the Parties’ Agreed Motion to Abate Proceedings (Dkt. #36)
`
`is DENIED.
`
`IT IS SO ORDERED.
`
`10
`
`