Daniels v. PennyMac Loan Services, LLC

UNITED STATES DISTRICT COURT October 31, 2022

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

DAVID LEE DANIELS, III §

§

Plaintiff, §

VS. § CIVIL ACTION NO. 4:22-CV-199

§

PENNYMAC LOAN SERVICES, LLC, et §

al., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

This is a wrongful foreclosure case in which Plaintiff David Lee Daniels, III

(“Daniels”), proceeding pro se and in forma pauperis, has sued 13 defendants. Pending

before the Court are numerous motions filed by several different parties.

All of the defendants have filed motions to dismiss under Federal Rule of Civil

Procedure 12(b)(6). For the reasons given below, the Court GRANTS the motions to

dismiss filed by Defendants Government National Mortgage Association (“Ginnie Mae”);

Citibank, N.A. (“Citibank”); Matthew King (“King”); Marinosci Law Group, P.C.

(“MLG”); Cypresswood Lake Community Association, Inc. (“Cypresswood Lake”); and

Shannon Abernathy (“Abernathy”). (Dkt. 66; Dkt. 68;1 Dkt. 75; Dkt. 92). The other

defendants’ motions to dismiss (Dkt. 62; Dkt. 63; Dkt. 64; Dkt. 67; Dkt. 69) are DENIED

without prejudice to being reasserted as motions for summary judgment.

1 Docket entry 68 is an amended motion to dismiss filed by King and MLG. The first motion to

dismiss filed by King and MLG (Dkt. 29) is DENIED AS MOOT.

FACTUAL AND PROCEDURAL BACKGROUND

After several defendants pointed out that his original complaint was deficient and

moved for a more definite statement, Daniels filed a more definite statement2 and another

pleading entitled “Notice to the Court of Timeline.” (Dkt. 1; Dkt. 57; Dkt. 58). Most of the

claims contained within Daniels’s pleadings are difficult to follow, but it is clear that

Defendant Pennymac Loan Services, LLC (“Pennymac”) initiated foreclosure proceedings

against Daniels’s home in December of 2021 and that Daniels vigorously contests

Pennymac’s standing to foreclose. (Dkt. 57 at pp. 19–21; Dkt. 58 at pp. 3–4). Defendants

ZLOS Investment Trust (“ZLOS”) and Sam Sorour (“Sorour”) bought Daniels’s house at

the foreclosure sale on January 4, 2022. (Dkt. 58 at p. 4). Daniels also claims that

Cypresswood Lake, of which Abernathy is the registered agent and manager, sued him in

Texas state court to collect homeowner association (“HOA”) assessments that he did not

owe. (Dkt. 57 at pp. 32–34).3

The foreclosure and HOA-lawsuit claims are arguably severable from each other.

However, no party has requested severance under Federal Rule of Civil Procedure 21, and

at this time the Court will keep the claims together under this cause number in the interest

of judicial economy. The following facts are either undisputed or set forth in Daniels’s

2 The defendants’ motions for a more definite statement (Dkt. 35; Dkt. 36; Dkt. 37; Dkt. 41) remain

pending and are DENIED AS MOOT.

3 Daniels filed a global response to the defendants’ motions to dismiss that was docketed as a

motion to “dismiss” the defendants’ motions. The Court will consider the response (Dkt. 73); but

to the extent that Daniels intended it to be a motion to strike the defendants’ motions to dismiss,

the motion to strike is DENIED.

pleadings and taken as true for the purposes of the Court’s ruling on the defendants’

motions to dismiss.

—The foreclosure

In his filings, Daniels alleges that he and his ex-wife4 took out a mortgage loan with

Defendant SWBC Mortgage Corporation (“SWBC”) in August of 2016. (Dkt. 58 at p. 1).

Daniels made his payments for two years, but his monthly payment for August of 2018

was “declined/unaccepted.” (Dkt. 58 at p. 1). Daniels contacted SWBC the day that his

payment request was declined, and SWBC told him that his loan account “d[id] not exist

in SWBC Mortgage Corporation’s system.” (Dkt. 58 at pp. 1–2). In November of 2018,

SWBC reported to Experian, a credit reporting agency, that Daniels’s loan account had

been “closed” and “transferred to another office.” (Dkt. 58 at p. 2). On November 7, 2018,

SWBC had transferred servicing responsibility for Daniels’s loan to Pennymac; but Daniels

claims in his pleadings that he was not notified of the transfer. (Dkt. 1 at pp. 28–29; Dkt.

57 at p. 24; Dkt. 58 at p. 4). Although Daniels’s pleadings do not state whether he ever

made another payment on his mortgage, they do indicate that, in October of 2021,

Pennymac reported to Equifax, another credit reporting agency, that Daniels’s loan account

had been delinquent since December of 2018. (Dkt. 58 at pp. 2–3).

In December of 2021, Pennymac reported to Experian that Daniels’s loan account

was “flagged” by Pennymac with the designation “bank adjustment/deed in lieu/bank

liquidation[.]” (Dkt. 58 at p. 3). Pennymac also began foreclosure proceedings in December

4 Daniels’s ex-wife relinquished her interest in the subject property after she and Daniels divorced,

and she is not a party to this action. (Dkt. 58 at p. 2).

of 2021. (Dkt. 58 at p. 3). Daniels contacted Pennymac by phone and “demanded a copy

of the original mortgage note and indebtedness instruments and the date the instrument

transactions happened.” (Dkt. 58 at p. 3). Pennymac said that it would send the documents

and “directed [Daniels] to reach out to” MLG, which “was handling [the] foreclosure

process and sale and auction” of Daniels’s home. (Dkt. 58 at p. 3).

On December 14, 2021, Daniels received documents from Pennymac in response to

his prior request. (Dkt. 58 at p. 4). The package from Pennymac included a copy of the

deed of trust that Daniels and his ex-wife signed when they got their loan from SWBC;

Daniels contends that the document was “counterfeit.” (Dkt. 1 at pp. 30–31). The package

from Pennymac also included a copy of a letter dated November 30, 2018 and addressed

to Daniels in which Pennymac stated that SWBC had transferred servicing responsibility

for Daniels’s loan to Pennymac; Daniels claims that this notice was “backdated” and that

he did not receive it before December of 2021. (Dkt. 1 at pp. 28–29; Dkt. 57 at p. 24; Dkt.

58 at p. 4).

On December 16, 2021, Daniels received a monthly billing statement from

Pennymac. (Dkt. 58 at p. 4). The December 16, 2021 statement indicated that Daniels

needed to pay $82,238.41 by January 18, 2022 to bring his account current; the total payoff

amount at that time was $281,940.83. (Dkt. 1 at p. 32).

The foreclosure sale was scheduled for January 4, 2022. (Dkt. 58 at p. 3). On January

3, 2022, Daniels sent Pennymac a “presentment document” purporting to tender payment

“in the amount of $274,906.00.” (Dkt. 57-1 at pp. 59–61). $274,906.00 was a payoff

amount that Pennymac had previously reported to Experian. (Dkt. 58 at p. 4). Included

with Daniels’s “presentment document” was a United States Postal Service money order

in the amount of $1.00 on which Daniels had handwritten “Accept for value tendered of

$274,906.00”:

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ay en ee Ee «One: Dollar ond. 00/100 □□□□□□□□□□□□□□□□□□□□□□□□□□ □□□

en Loan [O058ad4orn 5 mem Acceat torvalue tendered! of P274,906.00

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TH ACCORAUNC With UC Sagasy the Bill ct Exchange Ack, Public Lan. 7310 WOsraR GT

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Dkt. 57-1 at p. 61.

On January 3, 2022, Daniels also sent an email and a letter to MLG claiming that

he had paid his balance “in full’”—an apparent reference to the $1.00 money order—and

that he would “pursue criminal prosecution” against MLG if it moved forward with the

foreclosure sale. (Dkt. 57-1 at pp. 23-25). Daniels received no response from MLG. (DKt.

57-1 at p. 26). On January 4, 2022, Daniels emailed MLG again and said that he would

notify “the FBI’ if MLG did not “stop the auction and foreclosure proceedings by 10am

Central Time[.]” (Dkt. 57-1 at p. 26). MLG did not respond, and Pennymac sent the $1.00

money order back to Daniels with a notice stating that the money order did not constitute

sufficient payment to make his account current. (Dkt. 57-1 at p. 63; Dkt. 58 at pp. 4-5).

§/19

ZLOS and Sorour bought Daniels’s house at the foreclosure sale on January 4, 2022. (Dkt.

58 at p. 4).

—The HOA lawsuit

In addition to fighting the foreclosure, Daniels became involved in litigation

stemming from HOA assessments that Daniels claims he did not owe. (Dkt. 57 at pp. 32–

34). Cypresswood Lake sued Daniels in Texas state court to recover HOA assessments in

February of 2020. (Dkt. 57-2 at pp. 51–52). Prior to the filing of the lawsuit, Defendant

Roberts Markel Weinberg Butler Hailey, P.C. (“RMWBH”), which represented

Cypresswood Lake, sent Daniels a demand letter claiming that Daniels owed Cypresswood

Lake $3,254.24 in assessments and assorted administrative costs. (Dkt. 57-2 at pp. 48–50).

—This lawsuit

In this lawsuit, Daniels has sued 13 defendants and listed numerous theories of

liability, including fraud, negligence, slander of title, violations of the federal Fair Debt

Collection Practices Act (“FDCPA”), and violations of a host of other federal statutes and

regulations, most of which are briefly mentioned without explanation. (Dkt. 1 at pp. 13–

22; Dkt. 57 at pp. 12–34). After several defendants pointed out that his original complaint

was deficient and moved for a more definite statement, Daniels filed a more definite

statement and another pleading entitled “Notice to the Court of Timeline.” (Dkt. 1; Dkt.

57; Dkt. 58). Daniels makes clear that his subsequent filings are supplemental pleadings

that “do[] not eliminate the original filing[.]” (Dkt. 57 at p. 2).

Daniels’s claims are often difficult to follow; his original complaint discusses all of

the defendants collectively and never distinguishes among them or refers to them by name,

even when he is describing an action clearly taken by only one defendant. (Dkt. 1). For

instance, when describing the monthly billing statement sent to him by Pennymac on

December 16, 2021, Daniels’s original complaint does not use Pennymac’s name and

instead attributes the payment demand to all of the defendants by alleging that it is “relevant

to all claims” in the case:

GENERAL ALLEGATIONS RELEVANT TO ALL CLAIMS

13. Plaintiff repeats and incorporates the preceding paragraphs above

with the same force and effect as if set forth at length herein.

14. On a Statement Dated December 16th 2021 Defendant sent to

Plaintiff a demand for payment of an alleged debt obligation. Said document

contained the following heading: Mortgage Activity Statement, Accelerated

Amount and Foreclosure.

15. Said document demanded payment of United States dollars in the

amount of $82.238.41.

Dkt. | at p. 6.

Nevertheless, some salient issues are discernible. Daniels is challenging

Pennymac’s standing to foreclose on his home and is contending that SWBC and

Pennymac did not comply with certain notice and disclosure requirements. (Dkt. 57 at pp.

12-26). Daniels is also claiming that he was not delinquent in his HOA assessment

payments. (Dkt. 57 at p. 32).

7/19

LEGAL STANDARD

Rule 8 of the Federal Rules of Civil Procedure requires a pleading to contain “a

short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.

R. Civ. P. 8(a)(2). A motion filed under Federal Rule of Civil Procedure 12(b)(6) tests a

pleading’s compliance with this requirement and is “appropriate when a defendant attacks

the complaint because it fails to state a legally cognizable claim.” Ramming v. United

States, 281 F.3d 158, 161 (5th Cir. 2001). A complaint can be dismissed under Rule

12(b)(6) if its well-pleaded factual allegations, when taken as true and viewed in the light

most favorable to the plaintiff, do not state a claim that is plausible on its face. Amacker v.

Renaissance Asset Mgmt., LLC, 657 F.3d 252, 254 (5th Cir. 2011); Lone Star Fund V

(U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). As the Fifth Circuit

has further clarified:

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. This includes the basic requirement that the

facts plausibly establish each required element for each legal claim.

However, a complaint is insufficient if it offers only labels and conclusions,

or a formulaic recitation of the elements of a cause of action.

Coleman v. Sweetin, 745 F.3d 756, 763–64 (5th Cir. 2014) (quotation marks

and citations omitted).

Courts construe pleadings filed by pro se litigants under a less stringent standard of

review. Haines v. Kerner, 404 U.S. 519 (1972) (per curiam). Under this standard, “[a]

document filed pro se is ‘to be liberally construed,’ Estelle [v. Gamble, 429 U.S. 97, 106

(1976)], and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94

(2007). Nevertheless, “[t]hreadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (observing that courts

“are not bound to accept as true a legal conclusion couched as a factual allegation”); see

also Payton v. United States, 550 Fed. App’x 194, 195 (5th Cir. 2013) (affirming dismissal

of pro se complaint that “failed to plead with any particularity the facts that gave rise to

[the plaintiff’s] present cause of action”) (“[T]he liberal pro se pleading standard still

demands compliance with procedural standards.”).

Additionally, allegations of fraud must be pled with particularity under the Federal

Rules of Civil Procedure. Federal Rule of Civil Procedure 9(b) “supplements” Rule 8 and

requires a plaintiff who is pleading fraud to allege “the time, place and contents of the false

representation, as well as the identity of the person making the misrepresentation and what

that person obtained thereby.” IAS Services Group, L.L.C. v. Jim Buckley & Associates,

Inc., 900 F.3d 640, 647 (5th Cir. 2018) (quotation marks and brackets omitted). Rule 9

allows conditions of the mind, such as scienter, malice, intent, or knowledge, to be averred

generally; but “case law amply demonstrates that pleading scienter requires more than a

simple allegation that a defendant had fraudulent intent.” Tuchman v. DSC

Communications Corp., 14 F.3d 1061, 1068 (5th Cir. 1994). “To plead scienter adequately,

a plaintiff must set forth specific facts that support an inference of fraud.” Id. Rule 9(b)’s

“ultimate meaning is context-specific[,]” but at bottom it is intended to “provide defendants

with fair notice of the plaintiffs’ claims, protect defendants from harm to their reputation

and goodwill, reduce the number of strike suits, and prevent plaintiffs from filing baseless

claims and then attempting to discover unknown wrongs.” IAS Services Group, 900 F.3d

at 647 (quotation marks and brackets omitted). “State law fraud claims are subject to the

heightened pleading requirements of Rule 9(b).” Sullivan v. Leor Energy, LLC, 600 F.3d

542, 550–51 (5th Cir. 2010).

When considering a motion to dismiss, a district court generally may not go outside

the pleadings. Id. at 546. The court’s review is limited to the complaint; any documents

attached to the complaint; any documents attached to the motion to dismiss that are central

to the claim and referenced by the complaint; and matters subject to judicial notice under

Federal Rule of Evidence 201. Allen v. Vertafore, Inc., 28 F.4th 613, 616 (5th Cir. 2022);

George v. SI Group, Inc., 36 F.4th 611, 619 (5th Cir. 2022).

ANALYSIS

The Court now turns to the pending motions to dismiss.5

5 Daniels has filed a motion asking the Court to take judicial notice of a “Chain of Title Analysis

& Mortgage Fraud Investigation” report by a private investigator whom Daniels attempts to tender

as an expert witness. SWBC, joined by several other defendants, has filed a motion to strike the

materials of which Daniels wants the Court to take judicial notice. As previously noted, matters

subject to judicial notice may be considered by a district court when that court is evaluating a

motion to dismiss under Rule 12(b)(6). George v. SI Group, Inc., 36 F.4th 611, 619 (5th Cir. 2022).

The materials presented by Daniels, however, fail to present facts that are either (1) generally

known within the territorial jurisdiction of this Court or (2) capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be questioned. See Fed. R.

Evid. 201. Accordingly, Daniels’s motion for judicial notice (Dkt. 79) is DENIED. See Scanlan

v. Texas A&M University, 343 F.3d 533, 537 (5th Cir. 2003) (noting that the report of a special

investigative commission was not judicially noticeable) (“The Final Report cannot be

characterized as generally known within the Southern District of Texas or capable of accurate and

ready determination by resort to sources whose accuracy cannot reasonably be questioned. Instead,

the Final Report is essentially a defendant-created report[.]”). SWBC’s motion to strike the

materials of which Daniels wants the Court to take judicial notice (Dkt. 84) is GRANTED to the

extent that the Court will not consider those materials when deciding Defendants’ motions to

dismiss. At this time, the Court expresses no opinion on the ultimate admissibility of the private

investigator’s report or testimony.

—Ginnie Mae and Citibank

Ginnie Mae and Citibank played no role in either the foreclosure on Daniels’s house

or the dispute over Daniels’s HOA assessments; Daniels is evidently suing them simply

because they allegedly participated in the securitization of his mortgage. (Dkt. 1 at pp. 8–

9, 16–17; Dkt. 57 at pp. 8–11, 31). In discussing securitization, Daniels propounds the

theory that the securitization and pooling of his mortgage invalidated any subsequent

assignment to Pennymac, stripping Pennymac of standing to foreclose. (Dkt. 1 at pp. 8–9,

16–17; Dkt. 57 at pp. 8–11, 31). According to Daniels, “the mortgage loan was no longer

considered an enforceable loan instrument once the mortgage was split from the

promissory note, paid, securitized and pooled to many different undisclosed stocks and

bond investors[.]” (Dkt. 57 at p. 8).

The theory that improper securitization of a mortgage renders a subsequent

assignment of that mortgage invalid “has been resoundingly rejected by federal courts

across the country.” Berry v. Wells Fargo Bank, N.A., No. 20-30670, 2022 WL 728969, at

*5 (5th Cir. Mar. 10, 2022) (quotation marks omitted); see also Preston v. Seterus, Inc.,

931 F. Supp. 2d 743, 759 (N.D. Tex. 2013) (“Plaintiffs cite no Texas authority, and the

court has found none, to support their contention that the mere securitization of a note by

transferring it into a trust extinguishes the foreclosure rights of the assignee of the deed of

trust.”). Moreover, Daniels’s assertion that the securitization of his mortgage “split” the

mortgage from the promissory note bespeaks reliance on “the flawed ‘split-the-note’

theory[,]” which incorrectly “assumes that, under Texas law, the entity foreclosing must

own or hold both the note and the deed of trust.” Preston, 931 F. Supp. 2d at 759; see also

Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 255 (5th Cir. 2013) (“A deed

of trust gives the lender as well as the beneficiary the right to invoke the power of sale,

even though it would not be possible for both to hold the note. The ‘split-the-note’ theory

is therefore inapplicable under Texas law where the foreclosing party is a mortgage servicer

and the mortgage has been properly assigned. The party to foreclose need not possess the

note itself.”) (quotation marks and citation omitted).

Daniels’s sparse allegations against Ginnie Mae and Citibank do not provide any

basis for concluding that Pennymac’s foreclosure was improper. More importantly, those

allegations do not provide any basis on which Daniels could recover against either Ginnie

Mae or Citibank. Accordingly, the motions to dismiss filed by Ginnie Mae6 and Citibank

will be granted.

—King and MLG

MLG was Pennymac’s foreclosure counsel, and King is an attorney at the firm.

(Dkt. 1 at p. 5). Daniels does not allege that either MLG or King ever contacted him.

Although Daniels wrote a letter and two emails to MLG, he does not allege that either MLG

or King ever responded. Daniels does not allege any misrepresentations or other conduct

that could form the basis of a claim against King or MLG for fraud, for violations of the

FDCPA, or under any other theory. Rather, Daniels’s sole factual allegation against MLG

6 Ginnie Mae’s pending motion to set a responsive pleading deadline (Dkt. 76) is DENIED AS

MOOT. The Court set a deadline (which Ginnie Mae met) for Ginnie Mae to file its motion to

dismiss in a separate order. (Dkt. 82).

and King is that they represented Pennymac in what Daniels claims was a fraudulent

foreclosure. (Dkt. 57 at p. 27).

The allegation that MLG and King represented Pennymac in what Daniels claims

was a fraudulent foreclosure does not, on its own, state a claim upon which relief can be

granted. Under Texas law, attorney immunity generally protects attorneys from liability to

non-clients where the alleged conduct was within the scope of legal representation. Troice

v. Greenberg Traurig, L.L.P., 921 F.3d 501, 505 (5th Cir. 2019). Attorney immunity is

“broad[;]” it “can apply even to criminal acts so long as the attorney was acting within the

scope of representation.” Id. at 506–07.

The applicability of attorney immunity is a legal question that may be decided on a

motion to dismiss when the scope of the attorney’s representation is apparent on the face

of the complaint. Ironshore Europe DAC v. Schiff Hardin, L.L.P., 912 F3d 759, 764 (5th

Cir. 2019). “Whether immunity attaches turns on the type of conduct in which the lawyer

is engaged, and the dispositive question is whether the attorney’s conduct was part of the

discharge of his duties in representing a party in a lawsuit.” McDaniel v. JPMorgan Chase

Bank, N.A., No. 1:12-CV-392, 2012 WL 6114944, at *6 (E.D. Tex. Dec. 10, 2012)

(quotation marks and citation omitted); see also Youngkin v. Hines, 546 S.W.3d 675, 681

(Tex. 2018) (“[A]n attorney may be liable to nonclients only for conduct outside the scope

of his representation of his client or for conduct foreign to the duties of a lawyer[. T]he

above inquiry correctly focuses on the kind of conduct at issue rather than the alleged

wrongfulness of said conduct. That is, a lawyer is no more susceptible to liability for a

given action merely because it is alleged to be fraudulent or otherwise wrongful.”)

(emphasis in Youngkin) (citation omitted). Texas courts have applied attorney immunity to

attorneys sued for assisting a mortgage beneficiary in a nonjudicial foreclosure on real

property and attorneys sued for sending debt acceleration and foreclosure notices. See

Troice, 921 F.3d at 505–06 (citing Campbell v. Mortgage Electronic Registration Systems,

No. 03-11-00429-CV, 2012 WL 1839357, at *6 (Tex. App.—Austin May 18, 2012, pet.

denied) and Alanis v. Wells Fargo Bank National Association, No 04-17-00069-CV, 2018

WL 1610939, at *1, 5 (Tex. App.—San Antonio Apr. 4, 2018, pet. denied)).

Here, the only factual allegation that Daniels makes regarding MLG and King is

that they represented Pennymac in a foreclosure proceeding. Daniels had no contact with

either MLG or King. Although Daniels vaguely alleges that MLG and King “joined” in

Pennymac’s alleged fraud, he does not set forth any actions that MLG and King themselves

took beyond carrying out a foreclosure sale for Pennymac. “Representing a mortgage

company and filing a foreclosure action against homeowners who have defaulted on their

loan is clearly the kind of conduct an attorney engages in as part of the discharge of his

duties in representing a party in a lawsuit.” Smith v. National City Mortgage, No. A-09-

881, 2010 WL 3338537, at *4 (W.D. Tex. Aug. 23, 2010), adopted, 2010 WL 11652114

(W.D. Tex. Sept. 20, 2010); see also Campbell, 2012 WL 1839357 at *6 (affirming

dismissal of law firm that assisted a mortgage beneficiary in a nonjudicial foreclosure on

real property) (“Neither the Campbells’ petition nor their response to the motion to dismiss

alleged that the Attorney Defendants committed any wrongful acts outside of the

foreclosure proceedings.”). Daniels’s characterization of MLG’s and King’s conduct as

fraudulent does not by itself state a claim against MLG and King. Youngkin, 546 S.W.3d

at 682 (“That the plaintiff characterized the firm’s conduct as fraudulent or otherwise

wrongful was immaterial to our evaluation of the immunity defense. Rather, the firm was

shielded by attorney immunity because preparing documents ancillary to the divorce

decree, even in a manner that allegedly violated the decree, was within the scope of

representation relating to execution of the decree and was not foreign to the duties of a

lawyer.”); see also McCampbell v. KPMG Peat Marwick, 982 F. Supp. 445, 448 (N.D.

Tex. 1997) (holding that the plaintiff, who sued the law firm that had represented the

opposing party in a previous lawsuit, could not recover against the law firm for the law

firm’s allegedly false statements in an affidavit and motion for new trial filed in the

previous suit). Accordingly, the motion to dismiss filed by MLG and King will be granted.

—Cypresswood Lake and Abernathy

Cypresswood Lake, of which Abernathy is the registered agent and manager, sued

Daniels in Texas state court to recover HOA assessments in February of 2020. (Dkt. 57 at

32–34; Dkt. 57-2 at pp. 51–52). Daniels contends that Cypresswood Lake and Abernathy

violated the FDCPA because he did not owe them HOA assessments. (Dkt. 57 at pp. 32–

34).

Under the facts pled by Daniels, the FDCPA does not apply to Cypresswood Lake

and Abernathy. The FDCPA only imposes civil liability on parties who meet the statutory

definition of “debt collector.” KPMG Peat Marwick v. Texas Commerce Bank, 976 F.

Supp. 623, 632 (S.D. Tex. 1997). The FDCPA’s definition of “debt collector” excludes:

(1) a creditor who is collecting its own debts in its own name; and (2) officers or employees

of a creditor who are collecting the creditor’s debts in the creditor’s name. Id. (“Any claim

regarding TCB’s conduct on its own behalf is precluded by the statutory definition of “debt

collector,” which excludes “any officer or employee of a creditor while, in the name of the

creditor, collecting debts for such creditor[.]”) (emphasis in Texas Commerce Bank); see

also Deutsche Bank Trust Co. Americas v. Garst, 989 F. Supp. 2d 1194, 1201 (N.D. Ala.

2013) (“[T]he FDCPA does not apply to creditors who seek to collect only what is owed

them. It only applies to third party debt collectors.”). Neither Cypresswood Lake nor

Abernathy is a debt collector. Daniels has not stated a claim against either of them.

Accordingly, the motion to dismiss filed by Cypresswood Lake and Abernathy will be

granted.

—The remaining foreclosure defendants

The dismissal of Ginnie Mae, Citibank, MLG, and King leaves the following named

defendants who were involved in the foreclosure on Daniels’s home: SWBC, Pennymac,

ZLOS, and Sorour. Daniels is challenging Pennymac’s standing to foreclose on his home

and is contending that SWBC and Pennymac did not comply with certain notice and

disclosure requirements.

All four remaining foreclosure defendants make strong arguments for dismissal on

the pleadings. However, the relationships and communications among the parties, along

with the chain of transactions involving Daniels’s loan, are more appropriately addressed

through summary judgment evidence. Accordingly, the motions to dismiss filed by SWBC,

Pennymac, ZLOS, and Sorour will be denied without prejudice to being reasserted as

motions for summary judgment.

—The remaining HOA-assessment defendants

The dismissal of Cypresswood Lake and Abernathy leaves the following named

defendants who were involved in Daniels’s HOA-assessment dispute: RMWBH, Noelle

Hicks (“Hicks”), and Cliff Davis (“Davis”). Hicks and Davis were the RMWBH attorneys

who represented Cypresswood Lake in its collection efforts against Daniels. RMWBH sent

Daniels a demand letter, signed by Hicks, stating that Daniels owed Cypresswood Lake

$3,254.24 in assessments and assorted administrative costs. Daniels denies that he owed

Cypresswood Lake any assessments and contends that RMWBH, Hicks, and Davis

violated the FDCPA by, among other things, misrepresenting the “character, amount, or

legal status” of a debt. See 15 U.S.C. § 1692e(2).

Construing his pleadings liberally, Daniels has alleged facts sufficient to state a

claim under the FDCPA, and it is unclear at this time whether attorney immunity bars

Daniels’s claims against RMWBH, Hicks, and Davis. “An attorney acting on behalf of a

client is typically not a third party debt collector. But if the attorney employs nonattorneys

who are regularly engaged to solicit debts for collection or who regularly make contact

with debtors for the purpose of collection, the attorney becomes a third party debt

collector.” Westervelt v. Ocwen Loan Servicing, LLC, No. 4:08-CV-413, 2009 WL

2567852, at *2 (E.D. Tex. Aug. 17, 2009). Moreover, “[a]s long as the

attorney regularly collects or attempts to collect debt on the behalf of another, he is a debt

collector subject to the provisions of the FDCPA.” Id. (emphasis in Westervelt); see also

Kaltenbach v. Richards, 464 F.3d 524, 527 n.3 (5th Cir. 2006) (“[L]itigating lawyers are

not exempt from the FDCPA if they otherwise qualify as debt collectors.”).

Daniels’s claims under the FDCPA against RMWBH, Hicks, and Davis are more

appropriately addressed through summary judgment evidence. Accordingly, the motion to

dismiss filed by RMWBH, Hicks, and Davis will be denied without prejudice to being

reasserted as a motion for summary judgment.

CONCLUSION

For the reasons stated above, the Court rules on the numerous pending motions in

this case as follows:

(1) The motions to dismiss filed by Defendants Government National Mortgage

Association; Citibank, N.A.; Matthew King; Marinosci Law Group, P.C.;

Cypresswood Lake Community Association, Inc.; and Shannon Abernathy (Dkt.

66; Dkt. 68; Dkt. 75; Dkt. 92) are GRANTED.

(2) The motions to dismiss filed by Defendants SWBC Mortgage Corporation;

Pennymac Loan Services, LLC; ZLOS Investment Trust; Sam Sorour; Roberts

Markel Weinberg Butler Hailey, P.C.; Noelle Hicks; and Cliff Davis (Dkt. 62;

Dkt. 63; Dkt. 64; Dkt. 67; Dkt. 69) are DENIED without prejudice to being

reasserted as motions for summary judgment.

(3) The first motion to dismiss filed by Defendants Matthew King and Marinosci

Law Group, P.C. (Dkt. 29) is DENIED AS MOOT.

(4) The pending motions for a more definite statement (Dkt. 35; Dkt. 36; Dkt. 37;

Dkt. 41) are DENIED AS MOOT.

(5) Defendant Government National Mortgage Association’s motion to set a

responsive pleading deadline (Dkt. 76) is DENIED AS MOOT.

(6) Plaintiff David Lee Daniels, III’s motion for judicial notice (Dkt. 79) is

DENIED.

(7) Defendant SWBC Mortgage Corporation’s motion to strike the materials of

which Plaintiff David Lee Daniels, III wants the Court to take judicial notice

(Dkt. 84) is GRANTED to the extent that the Court has not considered those

materials when deciding Defendants’ motions to dismiss.

(8) Docket entry 73, to the extent that Plaintiff David Lee Daniels, II intended it to

be a motion to strike the defendants’ motions to dismiss, is DENIED.

SIGNED at Houston, Texas, on October 31, 2022.

Heorae QC

GEORGE C. HANKS, JR.

UNITED STATES DISTRICT JUDGE

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