1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LESTER LORENZO RUMMANS,

Plaintiff,

§

§

§

§

§

§

§

§

§

§

§

§

§

§

v. Case No. 3:22-cv-02046-M-BT

HSBC BANK USA, NATIONAL 

ASSOCIATION AS TRUSTEE FOR 

MASTR REPERFORMING LOAN 

TRUST 2005-2, SPECIALIZED 

LOAN SERVICING, LLC, and 

NORTHSKY LLC, 

Defendants.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Defendant Northsky, LLC has filed a Motion to Dismiss (ECF No. 9) this 

removed civil action arising out of a disputed foreclosure. For the reasons set forth 

in this recommendation, the Court should DENY the Motion.

Background

According to the live pleading, Plaintiff Lester Rummans and his late wife 

purchased a home in Grand Prairie, Texas (the “Property”), on or around June 6, 

2002. Am. Compl. 2–3 (ECF No. 8). At the time, Rummans was in the U.S. Army 

Reserve and qualified for a Department of Veteran’s Affairs (VA) loan. Id. at 3 (ECF 

No. 8). Approximately one year later, he and his wife refinanced their loan and 

executed a Note payable to Mortgage Resource Group, LLC of OK d/b/a City 

Mortgage Group LC (City Mortgage) and a Deed of Trust to secure payment of the 

Case 3:22-cv-02046-M Document 32 Filed 09/01/23 Page 1 of 10 PageID 603
2

Note. Id. at 3 (ECF No. 8). Thereafter, City Mortgage assigned the loan to HSBC 

Bank USA (HSBC), and Specialized Loan Servicing, LLC (SLS) began servicing the 

loan. Id. (ECF No. 8). 

Rummans returned to active duty and served in Iraq and Afghanistan. Id.

(ECF No. 8). He retired from the Army Reserve on December 5, 2020. Id. (ECF 

No. 8). 

On July 5, 2022, HSBC and SLS conducted a foreclosure sale and sold 

Rummans’s home to Northsky. Id. (ECF No. 8); id. at Ex. 5, p. 1 (ECF No. 8-5). 

Rummans, however, remained in possession of the Property.1 Id. at 2 (ECF No. 8). 

Approximately three months later, Rummans filed his complaint in Texas state 

court. Not. Removal Exs. 8–24 (ECF No. 1-1). HSBC and SLS, with Northsky’s 

consent, timely removed the action to this Court on the basis of federal question 

jurisdiction. Id. at 3 (ECF No. 1); id. at Exs. 71 (ECF No. 1-1).

By his lawsuit, Rummans seeks to set aside the foreclosure sale and cancel 

the trustee’s deed on grounds that HSBC and SLS breached the terms of the Deed 

of Trust by failing to comply with the Servicemembers Civil Relief Act (SCRA) and 

the VA Servicing Guidelines, which are incorporated into the Deed of Trust. See 

generally Am. Compl. (ECF No. 8). He also seeks damages from HSBC and SLS 

for alleged violations of the Texas Debt Collections Act (TDCA). Id. at 6–9. (ECF 

1 In his Response to Northsky’s Motion to Dismiss, Rummans states that Northsky

filed a forcible detainer suit against him, and the Justice Court entered a judgment 

in Northsky’s favor, but Rummans appealed. MTD Resp. 3 (ECF No. 13).

Case 3:22-cv-02046-M Document 32 Filed 09/01/23 Page 2 of 10 PageID 604
3

No. 8). Rummans further asserts claims against Northsky for quiet title and 

trespass to try title. Id. at 11–13 (ECF No. 8). 

In response, Northsky timely filed a Motion to Dismiss. Mot. Dismiss (ECF 

No. 9). Rummans responded to the Motion, MTD Resp. (ECF No. 14), and 

Northsky filed its Reply, MTD Reply (ECF No. 16). The Motion is ripe and ready 

for determination. 

Legal Standards 

When deciding a 12(b)(6) motion to dismiss for failure to state a claim, the 

Court “accepts all well-pleaded facts as true, viewing them in the light most 

favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 

(5th Cir. 2007) (internal quotation marks and citations omitted). Thus, to survive 

a Rule 12(b)(6) motion, a plaintiff’s complaint must contain sufficient factual 

matter to state a claim for relief that is plausible on its face. Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007). “To be plausible, the complaint’s ‘[f]actual 

allegations must be enough to raise a right to relief above the speculative level.’” In 

re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010) (quoting 

Twombly, 550 U.S. at 555). 

This pleading standard does not require “detailed factual allegations,” but it 

does demand more than an unadorned accusation devoid of factual support. 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). 

“A claim has facial plausibility when the plaintiff pleads factual content that allows 

the court to draw a reasonable inference that the defendant is liable for the 

Case 3:22-cv-02046-M Document 32 Filed 09/01/23 Page 3 of 10 PageID 605
4

misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[A] formulaic 

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 

555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “While legal conclusions 

can provide the framework of a complaint, they must be supported by factual 

allegations.” Iqbal, 556 U.S. at 679. Where the facts do not permit the Court to infer 

more than the mere possibility of misconduct, the complaint has stopped short of 

showing that the plaintiff is plausibly entitled to relief. Id. at 678 (citing Twombly, 

550 U.S. at 557).

Analysis

Northsky characterizes Rummans’s claims against it as a claim for wrongful 

foreclosure and argues that this claim fails because (i) Rummans did not plead a 

grossly inadequate foreclosure price; (ii) Rummans is still in possession of the 

Property, and (iii) Rummans did not tender the full amount due under the Note. 

Mot. Dismiss 5 (ECF No. 9). Northsky further contends that Rummans fails to state 

a claim for quiet title or trespass to try title because he failed to “meet the burden 

to plead facts disproving Northsky’s bona fide purchaser status, which is 

dispositive.” Id. at 6–7 (ECF No. 9). And, because Rummans has already amended 

his complaint, Northsky seeks dismissal with prejudice. Id. at 10 (ECF No. 9).

A. Northsky is not entitled to dismissal of any claim for wrongful foreclosure 

because Rummans does not assert such a claim.

Rummans rejects Northsky’s characterization of his claim as one for 

wrongful foreclosure. Indeed, he acknowledges that he “does not seek relief from 

Case 3:22-cv-02046-M Document 32 Filed 09/01/23 Page 4 of 10 PageID 606
5

such a legal theory” because he is still in possession of the Property and, thus, “any 

wrongful foreclosure claim would be premature.” MTD Resp. 8 (ECF No. 14). He 

explains that his claim is that HSBC and SLS breached the terms of the Deed of 

Trust, and that this breach gives rise to an equitable cause of action for return of 

the Property. Id. at 8–10 (ECF No. 14). Rummans insists that his claim against 

Northsky is for quiet title and trespass to try title.

Because Rummans is the master of his Complaint, the Court should not 

accept Northsky’s characterization of Rummans’s claim in a manner that 

contravenes his express statements. The Court should deny Northsky’s Motion to 

the extent it seeks dismissal of a claim for wrongful foreclosure. Rummans has not 

pleaded a claim for wrongful foreclosure.

B. Northsky is not entitled to dismissal of Rummans’s claims for quiet title or 

trespass to try title based on any failure to plead facts disproving Northsky’s 

bona fide purchaser status.

Northsky further asserts that it is a bona fide purchaser of the Property and 

that Rummans fails to state a claim for quiet title or trespass to try title because he 

failed to plead facts disproving Northsky’s bona fide purchaser status. Mot. 

Dismiss 6–7 (ECF No. 9).

“Status as a bona fide purchaser is an affirmative defense to a title dispute.” 

Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001). Under Texas law, to be a 

bona fide purchaser, “one must acquire property in good faith, for value, and 

without notice of any third-party claim or interest.” Id. And although bona fide 

purchaser status is an affirmative defense, a party claiming title—here, 

Case 3:22-cv-02046-M Document 32 Filed 09/01/23 Page 5 of 10 PageID 607
6

Rummans—has the burden to prove that a subsequent purchaser is not a bona fide 

purchaser. See Bank of Am. v. Babu, 340 S.W.3d 917, 923 (Tex. App.—Dallas 2011, 

pet. denied) (“A party claiming title through principles of equity has the burden of 

proving that a subsequent purchaser was not a good faith purchaser.”); see also 

Noble Mortg. & Invs., LLC v. D & M Vision Invs., LLC, 340 S.W.3d 65, 76 (Tex. 

App. —Houston [1st Dist.] 2011, no pet.) (“In a contest between the owner of an 

equitable right of title and the holder of legal title . . . the burden of proof as to good 

faith and consideration is upon the party asserting the equitable right and not upon 

the subsequent purchaser of legal title.”). But a plaintiff generally is not required 

to plead—in the complaint—facts that negate an affirmative defense. See Jones v. 

Bock, 549 U.S. 199, 216 (2007). Instead, the burden falls upon the defendant to 

allege facts in its answer to support the affirmative defense. See Ocwen Loan 

Servicing, LLC v. Gonzalez Fin. Holdings, Inc., 77 F. Supp. 3d 584, 597 (S.D. Tex. 

2015), aff'd sub nom. Ocwen Loan Servicing, L.L.C. v. Moss, 628 F. App'x 327 (5th 

Cir. 2016) (observing status as a bona fide purchaser is an affirmative defense that 

must be pleaded in a title dispute under Texas law).

The cases on which Northsky relies for the proposition that Rummans has 

the burden to plead facts that would demonstrate it is not a bona fide purchaser 

are inapposite because they address the burden of proof under state law and not 

the pleading standard under Rule 8. See Babu, 340 S.W.3d at 923 (“A party 

claiming title through principles of equity has the burden of proving that a 

subsequent purchaser was not a good faith purchaser.”) (emphasis added); Noble 

Case 3:22-cv-02046-M Document 32 Filed 09/01/23 Page 6 of 10 PageID 608
7

Mortg. & Investments, 340 S.W.3d at 76 (“In a contest between the owner of an 

equitable right of title and the holder of legal title . . . the burden of proof as to good 

faith and consideration is upon the party asserting the equitable right and not upon 

the subsequent purchaser of legal title.”) (emphasis added).

Northsky is not entitled to dismissal of Rummans’s claims under Rule 

12(b)(6) for failure to plead facts disproving Northsky’s alleged bona fide 

purchaser status. Therefore, the Court should deny Northsky’s Motion on this 

ground.

C. Taking the allegations in the First Amended Complaint as true and viewing 

them in the light most favorable to Rummans, the Court should find that 

Rummans has stated claims for quiet title and trespass to try title that are

plausible on their face.

A suit to quiet title is an equitable remedy to remove a cloud on a party’s title 

to property, “traditionally one in which the superior title holder seeks to remove a 

challenge to that title.” Brumley v. McDuff, 616 S.W.3d 826, 835 (Tex. 2021). 

Under Texas law, the elements of an action to quiet title are: (1) an interest in a 

specific property; (2) title to the property is affected by a claim by the defendant; 

and (3) the claim, although facially valid, is invalid or unenforceable. Rhodes v. 

Kelly, 2017 WL 2774452, at *10 (Tex. App.—Dallas June 27, 2017, pet. denied); 

Cook-Bell v. Mortg. Elec. Reg. Sys., Inc., 868 F. Supp. 2d 585, 591 (N.D. Tex. 

2012). To prevail on a claim to quiet title, a plaintiff must rely on the strength of 

his own title, not the weakness of the adversary’s title. Epstein v. U.S. Bank Nat’l 

Ass’n, 540 F. App’x 354, 358 (5th Cir. 2013) (per curiam) (citing Katz v. Rodriguez, 

Case 3:22-cv-02046-M Document 32 Filed 09/01/23 Page 7 of 10 PageID 609
8

563 S.W.2d 627, 629 (Tex. Civ. App.—Corpus Christi 1977, writ. ref’d n.r.e.)); 

Humble Oil & Ref. Co. v. Sun Oil Co., 191 F.2d 705, 715 (5th Cir. 1951). 

By contrast, an action in trespass to try title “is the method of determining 

title to lands, tenements, or other real property.” Tex. Prop. Code § 22.001(a). In 

other words, a trespass to try title suit seeks “to recover the possession of land 

unlawfully withheld from the owner and to which [s]he has the right of immediate 

possession.” See Rocha v. Campos, 574 S.W.2d 233, 235 (Tex. App.—Corpus 

Christi 1978, no writ.). To prevail on a trespass to try title claim, a plaintiff must 

establish (1) a regular chain of conveyances from the sovereign; (2) superior title 

out of a common source; (3) title by limitations; or (4) title by prior possession 

coupled with proof that possession was not abandoned. Martin v. Amerman, 133 

S.W.3d 262, 265 (Tex. 2004), superseded on other grounds by Tex. Civ. Prac. & 

Rem. Code § 37.004(c). As with a suit to quiet title, to succeed in a suit for trespass 

to try title, “the plaintiff must recover upon the strength of his own title and not 

the weakness of the defendant's title.” Rocha, 574 S.W.2d at 235 (citing Hejl v. 

Wirth, 343 S.W.2d 226, 226 (Tex. 1961)).

In his First Amended Complaint, Rummans alleges that he has an interest 

in the Property; that is, the Property is his home; he previously obtained title to the 

Property through a Special Warranty deed; and he currently resides at the 

Property. See Am. Compl. 2, 3, 12 (ECF No. 8). He alleges that title to the property 

is affected by a claim by the Defendant—i.e., that Northsky claims legal title to the 

Property by virtue of a Foreclosure Deed it obtained through a void foreclosure 

Case 3:22-cv-02046-M Document 32 Filed 09/01/23 Page 8 of 10 PageID 610
9

sale. See id. at 12 (ECF No. 8). He further sets forth facts to support his allegation 

that the foreclosure sale could not have passed title to Northsky and that he still 

holds valid title—HSBC and SLS breached the terms of the Deed of Trust by failing 

to comply with the SCRA and the VA Servicing Guidelines, which are incorporated 

into the Deed of Trust. See id. at 4–5, 12 (ECF No. 8); id. at Ex. 3 (ECF No. 8-3).

Specifically, Rummans alleges that HSBC and SLS breached their obligation under 

the SCRA to obtain a court order prior to foreclosure, id. at 4–5 (ECF No. 8), and 

their obligations under the VA Servicing Guidelines to provide a realistic and 

mutually satisfactory arrangement for curing his default. Id. at 5 (ECF No. 8). 

These allegations, taken as true and viewed in the light most favorable to 

Rummans, state plausible claims for quiet title and trespass to try title.

Northsky argues that Rummans’s allegation that the foreclosure was 

improper because it was conducted in violation of the SCRA and the VA Servicing 

Guidelines is not sufficient to state a claim because it relies on the weakness of 

Northsky’s title. However, a plaintiff may demonstrate proof of superior title by 

showing the other party’s title was improperly obtained and the plaintiff had valid 

title. See Wilkerson v. Citimortgage, Inc., 2011 WL 6937382, at *9 (N.D. Tex. Oct. 

24, 2011), rec. adopted, 2012 WL 11039 (N.D. Tex. Jan. 3, 2012) (citations 

omitted). Here, Rummans alleges that the foreclosure sale to Northsky was void, 

and that he has superior title to the Property. See Am. Compl. 12 (ECF No. 8). This 

is sufficient to withstand Northsky’s Rule 12(b)(6) motion to dismiss. See Jones v. 

Bank of Am., N.A., 2012 WL 13028135, at *13 (N.D. Tex. July 30, 2012) (“With an 

Case 3:22-cv-02046-M Document 32 Filed 09/01/23 Page 9 of 10 PageID 611
10

allegedly illegal act which may render the foreclosure void, Plaintiffs’ have alleged 

right, title, or ownership in themselves with sufficient certainty to enable the court 

to see they have a right of ownership that will warrant judicial interference.”

(cleaned up)).

Recommendation

For the reasons stated, the Court should DENY Northsky’s Motion to 

Dismiss (ECF No. 9) and order Northsky to file an answer to Rummans’s First 

Amended Complaint. 

SO RECOMMENDED. 

September 1, 2023. 

____________________________ 

REBECCA RUTHERFORD 

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all parties in 

the manner provided by law. Any party who objects to any part of this report and 

recommendation must file specific written objections within 14 days after being 

served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be 

specific, an objection must identify the specific finding or recommendation to 

which objection is made, state the basis for the objection, and specify the place in 

the magistrate judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates by reference or 

refers to the briefing before the magistrate judge is not specific. Failure to file 

specific written objections will bar the aggrieved party from appealing the factual 

findings and legal conclusions of the magistrate judge that are accepted or adopted 

by the district court, except upon grounds of plain error. See Douglass v. United 

Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

Case 3:22-cv-02046-M Document 32 Filed 09/01/23 Page 10 of 10 PageID 612