IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50218

Summary Calendar

NASIM IQBAL; TEJ IQBAL,

Plaintiffs - Appellants,

v.

BANK OF AMERICA, N.A., as Successor by Merger to BAC Home

Loans Servicing, L.P.; MERSCORP HOLDINGS, INCORPORATED;

COUNTRYWIDE KB HOME LOANS, a Countrywide Mortgage

Ventures, L.L.C.; FEDERAL NATIONAL MORTGAGE

ASSOCIATION, also known as Fannie Mae; BARRETT DAFFIN

FRAPPIER TURNER & ENGEL, L.L.P.,

Defendants - Appellees.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:12-CV-938

Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

Plaintiffs-Appellants Nasim and Tej Iqbal appeal the dismissal of 

numerous claims relating to foreclosure on their home. For the reasons herein, 

we affirm the district court’s dismissal. 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 18, 2014

Lyle W. Cayce

Clerk

 

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No. 13-50218

I.

The Iqbals purchased the property at issue in this case on May 12, 2006 

and eventually defaulted. Bank of America sought to foreclose on the property 

in 2011.

The Iqbals filed suit to prevent the foreclosure in state court. That case 

was removed to federal court and later dismissed without prejudice. The court 

allowed the Iqbals thirty days to file an amended complaint, which the Iqbals 

did not do. 

In August 2012, the property was sold to Fannie Mae at a foreclosure 

sale. On August 22, 2012, Fannie Mae filed an Original Petition for Forcible 

Detainer seeking possession of the property (“the FED proceeding”) and, in 

support of its claim, attached a copy of the Substitute Trustee’s Deed. On 

September 18, 2012, the FED proceeding was abated at the request of the 

Iqbals. The court explained that it abated the proceeding because the Iqbals

“raised issues of title” and it “lack[ed] the jurisdiction to grant the relief sought 

by [Fannie Mae].” That same day, the Iqbals filed this suit in state court, 

alleging claims based on quiet title, statutory fraud, breach of contract, 

negligence, and declaratory judgment. The case was subsequently removed to 

federal court on the basis of diversity jurisdiction. 

The Iqbals then filed a motion to remand, claiming Appellee Barrett 

Daffin Frappier Turner & Engel (“BDFTE”), a law firm that had represented 

Bank of America, N.A. (“BANA”) in the foreclosure, was non-diverse. The 

district court denied the motion, finding that the Iqbals had failed to state a 

viable cause of action against BDFTE and that BDFTE was improperly joined 

for the purposes of defeating diversity. It allowed the Iqbals to amend their 

complaint in order to state a claim against BDFTE. Thereafter, BDFTE and 

other Defendants-Appellees filed motions to dismiss under Federal Rule of 

Civil Procedure (“FRCP”) 12(b)(6). 

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The district court granted BDFTE’s motion to dismiss by incorporating

its denial of the motion to remand, which explained that BDFTE enjoyed 

attorney immunity. It also dismissed the claims against the remaining 

defendants, articulating a number of grounds for dismissal including that the 

correction of the mistake in the deed removed any basis for relief. 

On appeal, the Iqbals challenge the district court’s denial of their motion 

to remand and dismissal of their claims, and argue that this court and the 

district court lack jurisdiction over their case. 

II.

We review de novo a dismissal for failure to state a claim under FRCP

12(b)(6). Highland Capital Mgmt. LP v. Bank of Am., Nat’l Ass’n, 698 F.3d 

202, 205 (5th Cir. 2012) (per curiam). 

The Iqbals’ claims of quiet title, statutory fraud, breach of contract, and 

negligence rest on an error in the description of the property in the original 

Deed of Trust and later copied into the Substitute Trustee’s Deed recorded 

after the foreclosure sale. The property’s legal description is as follows:

LOT 12, BLOCK C, SILVERADO WEST PHASE A, SECTION 2, 

A SUBDIVISION IN WILLIAMSON COUNTY, ACCORDING TO 

THE PLAT RECORDED IN CABINET AA, SLIDES 249, PLAT 

RECORDS WILLIAMSON COUNTY, TEXAS.

When the Iqbals executed a Deed of Trust upon purchasing the property, 

it described the property using the phrase “Section 1” rather than “Section 2.” 

On September 22, 2006, this error was corrected by the filing of an Affidavit of 

Fact. In 2009, when the Deed of Trust was assigned to Bank of America, the 

assignment again described the property using “Section 1” rather than “Section 

2.” In August 2012, after the property was sold to Fannie Mae at a foreclosure 

sale, the Substitute Trustee’s Deed identified the property using “Section 1” 

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rather than “Section 2.” On November 26, 2012, a Corrected Substitute 

Trustee’s Deed was filed, correcting the description to read “Section 2.” 

The Iqbals argue these corrected documents demonstrate that 

Defendants foreclosed on the wrong property. They also maintain that the 

correction deed was improper because a correction deed may not be used to 

convey an additional, separate parcel of land. Here, however, the correction 

deed simply corrected a scrivener’s error. We agree with the district court that 

because all the Iqbals’ claims were premised on the mistake in the original 

Substitute Trustee’s Deed, the correction of the mistake removes any basis for 

relief. 

The Iqbals next argue that the district court improperly denied their 

motion to remand. We review denials of motions to remand de novo. Luckett 

v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999). In determining 

whether a party has been improperly joined, the district court should conduct 

“a Rule 12(b)(6)-type analysis,” which the district court here did. See McDonal

v. Abbott Labs., 408 F.3d 177, 183 n.6 (5th Cir. 2005).

The Iqbals argue that the district court erred in finding that BDFTE was 

improperly joined. Specifically, they contend their claims against BDFTE were 

viable because BDFTE did not qualify for attorney immunity. We disagree. 

BDFTE was retained to assist in the foreclosure, and the actions complained 

of by the Iqbals are within the scope of their representation. The Iqbals argue 

that attorney immunity applies only in the litigation context, but that stance 

is not in line with Texas law.1 See, e.g., Campbell v. Mortg. Elec. Registration 

1 “Because this case is before the Court on diversity jurisdiction, state law supplies 

the applicable substantive authority.” J.D. Fields & Co., Inc. v. U.S. Steel Int’l, Inc., 426 F. 

App’x 271, 276 (5th Cir. 2011) (unpublished). In the absence of a final decision by the Texas 

Supreme Court on an issue, we must make an “Erie guess” and determine how that court 

would resolve the issue if presented with the same case. Am. Int’l Specialty Lines Ins. Co. v. 

Rentech Steel, LLC, 620 F.3d 558, 564 (5th Cir. 2010). “In making an Erie guess, we may 

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Sys., Inc., No. 03-11-00429-CV, 2012 WL 1839357, at *5–6 (Tex. App.—Austin, 

May 18, 2012, pet. denied) (affirming dismissal on grounds of attorney 

immunity in wrongful foreclosure case against attorneys retained by Wells 

Fargo to assist in foreclosure).2

The Iqbals lastly argue that the district court should have remanded for 

lack of jurisdiction based on the prior exclusive jurisdiction doctrine. They 

assert that the district court erred in concluding the doctrine did not apply in 

this case. They base their argument on the existence of the prior FED 

proceeding in state court. 

Under the doctrine of prior exclusive jurisdiction, “when one court is 

exercising in rem jurisdiction over a res, a second court will not assume in rem

jurisdiction over the same res.” Marshall v. Marshall, 547 U.S. 293, 311 (2006). 

As the district court explained, the primary purpose of this doctrine is to 

prevent jurisdictional disputes brought about as a result of multiple concurrent 

proceedings. See Kline v. Burke Constr. Co., 260 U.S. 226, 229 (1922). Here, 

the FED proceeding was abated and the court in that proceeding specifically 

declined to exercise jurisdiction. Thus, the district court properly found that 

the prior exclusive jurisdiction doctrine did not apply.

rely on . . . lower state court decisions.” Austin v. Kroger Tex. LP, 731 F.3d 418, 423 (5th Cir. 

2013). 

2 The Iqbals further argue that if BDFTE was indeed improperly joined to defeat 

diversity, then the district court did not have jurisdiction to decide BDFTE’s motion to 

dismiss. This argument is unavailing. The district court properly conducted a 12(b)(6)-style 

analysis in deciding the motion to remand, and simply incorporated its order on the motion 

to remand in its later order on the motions to dismiss. See Burden v. General Dynamics 

Corp., 60 F.3d 213, 221 (5th Cir. 1995) (“Given our conclusion that Burden fraudulently 

joined Riney and Davis to defeat diversity, it follows that the district court had subject matter 

jurisdiction to consider and grant the Defendants-Appellees’ summary judgment motion.”). 

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III.

Accordingly, we AFFIRM the district court’s dismissal of the Iqbals’ 

claims, as well as its denial of their motion to remand. 

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