ORDER. VIKKI RICKARD, Plaintiff,

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1 Case 1:12-cv SS Document 28 Filed 03/13/13 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEX13 MAR 13 AUSTIN DIVISION L. E. [2; VIKKI RICKARD, Plaintiff, VESIL : -vs- Case No. A-12-CA-1016-SS THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee f/k/a The Bank of New York Trust Company, N.A., as Trustee, as Successor to JP Morgan Chase Bank, N.A. as Trustee for Ramp 2004RS9; and GMAC MORTGAGE, LLC, Defendants. ORDER BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically The Bank of New York Mellon Trust Company, National Association and GMAC Mortgage, LLC (collectively, BONYM)'s Motion to Dismiss [#20], Plaintiff Vikki Rickard's Response [#26], and BONYM's Reply [#27]. Having reviewed the documents, the governing law, and the file as a whole, the Court now enters the following opinion and orders GRANTING the motion to dismiss. Background This is a foreclosure case, removed to this Court on the basis of diversity jurisdiction. In July 2004, Rickard obtained a $210,000 mortgage loan in order to acquire the property located at Briarcliff Drive, Spicewood, Texas 78669, executing a note and deed of trust in favor of Homecomings Financial Network. The deed of trust named MERS as beneficiary, acting as nominee 'I

2 Case 1:12-cv SS Document 28 Filed 03/13/13 Page 2 of 7 for Homecomings and its successors and assigns. MERS subsequently assigned the deed of trust to Defendant Bank of New York. Rickard eventually defaulted on the loan, and on August 7, 2012, the bank filed a Rule 736 Application for Foreclosure in the 261St Judicial District of Travis County, Texas. On September 12, 2012, Rickard filed suit in the 200th Judicial District Court of Travis County, Texas. BONYM removed to this Court on November 2,2012. BONYM subsequently filed a motion for judgment on the pleadings, to which Rickard failed to respond. The Court granted the motion and dismissed Rickard's claims, but afforded Rickard an opportunity to replead. Rickard timely filed her Amended Complaint [#19], asserting the following causes of action: (1) declaratory judgment, (2) quiet title and trespass to try title, and (3) violations of Chapter 12 of the Texas Civil Practice and Remedies Code. BONYM again moves to dismiss, arguing Rickard stills fails to state any claim on which relief can be granted. Analysis I. Motion to DismissRule 12(b)(6)Legal Standard Federal Rule of Civil Procedure 8(a)(2) requires a complaint 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 under Federal Rule of Civil Procedure 12(b)(6) asks a court to dismiss a complaint for "failure to state a claim upon which relief can be granted." FED. R. Civ. P. 12(b)(6). The plaintiff must plead sufficient facts to state a claim for relief that is facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Iqbal, 566 U.S. at 678. Although -2-

3 Case 1:12-cv SS Document 28 Filed 03/13/13 Page 3 of 7 a plaintiff's factual allegations need not establish that the defendant is probably liable, they must establish more than a "sheer possibility" that a defendant has acted unlawfully. Id. Determining plausibility is a "context-specific task," and must be performed in light of a court's "judicial experience and common sense." Id. at 679. In deciding a motion to dismiss under Rule 12(b)(6), a court generally accepts as true all factual allegations contained within the complaint. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164(1993). However, a court is not bound to accept legal conclusions couched as factual allegations. Papasan v. Al/am, 478 U.S. 265, 286 (1986). Although all reasonable inferences will be resolved in favor of the plaintiff, the plaintiff must plead "specific facts, not mere conclusory allegations." Tuchman v. DSC Commc 'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994). In deciding a motion to dismiss, courts may consider the complaint, as well as other sources such as documents incorporated into the complaint by reference, and matters of which a court may take judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). II. Application A. Declaratory Judgment As she did before, Rickard seeks an order declaring BONYM has no valid interest in the disputed property and therefore lacks authority to foreclose. While Rickard's Amended Complaint offers a few additional details, the legal theories underlying her claims are still without merit and must be dismissed. Rickard argues BONYM never obtained the note or deed of trust and therefore lacked any interest in the property. As this Court previously explained, MERS had the authority to assign the -3-

4 Case 1:12-cv SS Document 28 Filed 03/13/13 Page 4 of 7 deed of trust to BONYM, and the valid assignment gives BONYM an interest in the property and defeats Rickard's claims. See, e.g., Marsh v. JPMorgan Chase Bank, N.A.,No. SA-12-CA-599-FB, 2012 WL , at *4 (W.D. Tex. Aug. 29, 2012); Spositi v. Fed. Nat '1 Mortg. Ass 'n, No. 4:11 - CV-542, 2011 WL , at *4 (E.D. Tex. Nov. 3,2011). Rickard also reasserts her bifurcation and "show-me-the-note" theories, both of which have no basis in Texas law, as this Court and others have repeatedly explained. Ray v. CitiMortgage, Inc., No. A-li -CA SS, 2011 WL , at *34 (W.D. Tex. July 25,2011); see also Bircher v. Bank ofnew York Mellon, No. 4:1 2-CV Y, 2012 WL , at *34 (N.D. Tex. Aug. 9, 2012) (rejecting the "split-the-note" theory). Rickard's invocation of Chapter 3 of the Texas Business and Commerce Code is inapposite, because Texas law distinguishes between enforcement of the deed of trust and enforcement of the underlying note. See, e.g., Wells v. BACHome Loans Servicing, L.P.,No. W- 1 0-CA ,2011 WL , at *2_3 (W.D. Tex. Apr.26, 2011). Additionally, to the extent Rickard seeks to challenge the validity of the assignment, she lacks standing to do so because she was not a party to the assignment. See, e.g., Warren v. Bank of Am., NA., No. 3:1 i-cv-3603-m, 2012 WL , at *4 (N.D. Tex. June 19,2012); Eskridge v. Fed. Home Loan Mortg. Corp., No. W-i0-CA-285, 2011 WL , at *5 (W.D. Tex. Feb. 24, 2011). While courts, including this Court, have recognized two exceptions to this general rule, neither is applicable here. E.g.,Kramer v. Fed. Nat '1 Mortg. Ass 'n, No. A-i 2-CA-276-SS, 2012 WL , at *4_5 (W.D. Tex. May 15, 2012). This Court is aware some other courts have held to the contrary.seemillerv. Homecomings Fin., LLC, 881 F. Supp. 2d 825, (S.D. Tex. 2012). To El

5 Case 1:12-cv SS Document 28 Filed 03/13/13 Page 5 of 7 the extent such decisions are inconsistent with Kramer, this Court continues to disagree.1 Even if Rickard did have standing, her challenges to the assignment fail on the merits. As this Court recognized in its previous order, MERS had authority to assign the deed of trust, and Rickard's complaints about the negotiation of the note under the Texas Business and Commerce Code and her related bifurcation arguments fail as described above. Finally, Rickard continues to assert her challenges to the securitization of her mortgage loan based on the terms of the Pooling and Servicing Agreement (PSA). As this Court's previous order held, Rickard lacks standing to challenge the compliance with a PSA to which she was not a party or beneficiary. See, e.g., Truitt v. Resmae Mortg. Corp., No. 6:12CV617, 2013 WL , at *3 (E.D. Tex. Jan. 8, 2013) ("As multiple district courts have agreed, a mortgagor does not have standing to challenge various assignments of the note or pooling and servicing agreements because the mortgagor is not a party to the assignments or agreements."); Davis v. Bank of Am., NA., No 3:1 1-CV-3276-B, 2012 WL , at *3 (N.D. Tex. July 6,2012); Bittinger v. Wells Fargo Bank NA, 744 F. Supp. 2d 619, (S.D. Tex. 2010). B. Quiet Title and Trespass to Try Title This Court previously rejected Rickard' s quiet title claim as it was initially pleaded. To the extent Rickard' s quiet title claim is any different now, it relies exclusively on the discredited legal theories described above, and is without merit. Although Rickard has added a trespass to try title claim, she offers no additional support for such a claim, and makes no attempt to distinguish such 1 Rickard also states, "This Court has recently addressed the 'standing' issue that Defendant has raised." Pl.'s Resp. [#26] at 5 (citing Puente v. CitiMortgage, Inc., No.3:11 -CV-2509-N, 2012 WL , at *6 (N.D. Tex. 2012)). First, the Court notes Rickard (or, more precisely, her counsel) is either confused about which court this case is filed in, or should exercise more care when re-using pleadings from previous cases. Second, the Puente court approvingly cited this Court's decision in Kramer as an accurate assessment of the standing issue. Id. As this Court has already explained, neither of the exceptions to the general no-standing rule discussed inkramer apply in this case. -5-

6 Case 1:12-cv SS Document 28 Filed 03/13/13 Page 6 of 7 a claim from her quiet title claim. It therefore fails for the same reasons. The problem is not, as Rickard' s response suggests, a dearth of factual allegations; the problem is the facts alleged underpin legal theories which cannot entitle Rickard to any relief. C. Chapter 12 of the Texas Civil Practice and Remedies Code Rickard asserts a new cause of action under Chapter 12 of the Texas Civil Practice and Remedies Code. Like her other claims, it rests primarily on the legal theories already dismissed above, arguing the property records filed by BONYM are fraudulent because BONYM lacked an interest in the property. Because Rickard' s legal theories have no basis in Texas law, her Chapter 12 claims must be dismissed. Additionally, this claim fails because both the plain language and legislative history of Chapter 12 indicate it was never intended to apply to mortgage assignments or similar records. Marsh, 2012 WL , at *6_7. Conclusion Rickard has failed to state any claim upon which relief can be granted, and has not shown herself entitled to any relief in law or equity. Although Rickard requests leave to amend, this marks the second time this Court has dismissed her claims under Rule 12(b)(6). While leave to amend "should be freely given" in most circumstances, leave is not required where previous amendments have failed to cure the deficiencies and further amendments would be futile. United States ex rel. Adrian v. Regents of Univ. of Cal., 363 F.3d 398, (5th Cir. 2004) ("[P]leadings review is not a game where the plaintiff is permitted to file serial amendments until he finally gets it right.").2 Nothing in the history of the pleadings in this case, or in Rickard's response to the second motion to dismiss, suggest a second amended complaint would fare any better than the first two. 2 In other words, while three strikes may equal an out in baseball, two will suffice in federal court.

7 Case 1:12-cv SS Document 28 Filed 03/13/13 Page 7 of 7 Accordingly, IT IS ORDERED that The Bank of New York Mellon Trust Company, National Association and GMAC Mortgage, LLC's Motion to Dismiss [#20] is GRANTED; IT IS FINALLY ORDERED that Plaintiff Vikki Rickard's claims are DISMISSED WITH PREJUDICE. SIGNED this the /5 day of March SAM SPARKS CI UNITED STATES DISTRICT JUDGE 1016 mtd lac ord kkt.frrn -7-

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