IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10176

Summary Calendar

JOE LOUIS REECE, Sui Juris in the interest of Joe Louis Reece Owner of 

Property Located at 1912 Morrison Drive, Fort Worth, TX 76112,

Plaintiff - Appellant

v.

U.S. BANK NATIONAL ASSOCIATION, as Trustee Successor in Interest to 

Bank of America, National Association as Trustee, as Successor by Merger to 

Lasalle Bank National Association,

Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:

Joe Reece appeals the dismissal of his wrongful foreclosure suit 

rinvolving a promissory note and an associated Deed of Trust on property in 

Fort Worth, Texas. He contends that he sufficiently pled claims against U.S. 

Bank National Association (“U.S. Bank”) to wit, that it lacked standing when 

it foreclosed on his property, and that U.S. Bank’s counsel committed fraud by 

inquiring about Reece’s willingness to settle before it evicted him from the 

property. We hold that the district court properly granted U.S. Bank’s motion 

United States Court of Appeals

Fifth Circuit

FILED

August 5, 2014

Lyle W. Cayce

Clerk

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No. 14-10176

to dismiss because Reece failed to assert a claim upon which relief can be 

granted and accordingly we AFFIRM.

I.

In December 2004 Reece executed a promissory note on his home in Fort 

Worth, Texas in the amount of $142,500. The Note was secured by a 

corresponding Deed of Trust naming Mortgage Electronic Registration 

Systems, Inc. (“MERS”) as the nominee and beneficiary under the Deed of 

Trust. In February 2012 MERS assigned the Deed of Trust to U.S. Bank. The 

assignment was duly recorded in the real property records of Tarrant County 

where the property is located. Reece later defaulted on the Note and U.S. Bank 

itself purchased the property at a foreclosure sale. 

Following its purchase of the property, U.S. Bank filed a forcible entry 

and detainer action in Texas justice court seeking to evict Reece from the 

property. The court entered an order granting the forcible eviction detainer. 

Reece filed the present suit in Texas state court seeking an injunction staying 

his eviction and challenging U.S. Bank’s standing to foreclose on the property. 

U.S Bank’s first removal of the suit was remanded because the amount in 

controversy was not met. After Reece filed an amendment to his complaint

with more specific allegations, U.S. Bank successfully removed the suit to 

federal court.

U.S. Bank filed a motion to dismiss for failure to state a claim under 

Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion 

after determining, first, that all of Reece’s claims relating to U.S. Bank’s 

standing to foreclose failed as a matter of law, and, second, that Reece failed 

to allege any actionable misrepresentation on the part of U.S. Bank. Reece 

timely appealed the judgment dismissing his claims.

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II.

“We review a district court’s grant of a motion to dismiss de novo.” Haase 

v. Countrywide Home Loans, Inc., 748 F.3d 624, 630 (5th Cir. 2014). To pass 

muster under Rule 12(b)(6), Reece’s complaint must have contained “enough 

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

Twombly, 550 U.S. 544, 570 (2007). The first claim in Reece’s First Amended 

Complaint generally alleges that U.S. Bank’s lawyers committed fraud by 

making a statement to him in court inquiring as to whether he wished to settle 

the case out of court.1 To establish a claim of fraud under Texas law a plaintiff 

must allege: 

(1) that a material representation was made; (2) the 

representation was false; (3) when the representation was made, 

the speaker knew it was false or made it recklessly without any 

knowledge of the truth and as a positive assertion; (4) the speaker 

made the representation with the intent that the other party 

should act upon it; (5) the party acted in reliance on the 

representation; and (6) the party thereby suffered injury.

In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001). Reece failed to 

allege that the attorney for U.S. Bank made a representation that was either 

material or false. As a result, the district court did not err when finding that 

Reece failed to state a claim for common-law fraud under Texas law.

The second claim alleges that the recorded security instruments 

evidencing the securitization of his home loan “constitute[] a fraudulent claim 

against real property because MERS never acquired a security interest in the 

mortgaged properties, and therefore, the recordings denominating MERS as a 

beneficiary of the security instruments are fraudulent.” We construe Reece’s 

allegation to be a claim under § 12.002 of the Texas Civil Practice & Remedies 

1 As U.S. Bank points out in its reply brief, Reece never expressly asserted a claim for 

fraud in his First Amended Complaint. Instead, he makes the general allegation in the 

factual background section of that complaint.

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Code which prohibits individuals from placing fraudulent liens on real or 

personal property. We have previously addressed, in an unpublished case, a 

fraudulent lien claim in the similar context of a home foreclosure. Golden v. 

Wells Fargo Bank, N.A., 557 F. App’x 323, 327 (5th Cir. 2014). Reece, like the 

homeowner in Golden, failed to plead facts sufficient to meet an element of a 

claim under § 12.002, namely that the defendant “intended to cause the 

plaintiff physical injury, financial injury, or mental anguish.” Id. at 326–27. 

A bank’s usage of an assignment for business purposes “hardly equates to an 

argument that [the bank] intended to inflict financial injury or mental 

anguish.” Id. at 327. Additionally, Reece has failed to allege facts to show that 

his property would not otherwise be subject to foreclosure absent the 

assignment; thus, the district court did not err when it found that Reece failed 

to state a claim under § 12.002 of the Texas Civil Practice & Remedies Code.

Finally, Reece contends that U.S. Bank lacked standing to foreclose on 

Reece’s property because MERS lacked the ability to assign the Deed of Trust 

and, thus, U.S. Bank was not the proper party to foreclose on the home. Our 

Court has expressly recognized that MERS may assign a deed of trust to a 

third party and that such assignments confer the new assignee standing to

non-judicially foreclose on property associated with that particular deed of 

trust. See Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 253–55 

(5th Cir. 2013). Reece’s argument is foreclosed by Fifth Circuit precedent.2 

2 Reece also argues that the non-judicial foreclosure of his home was unlawful because 

U.S. Bank was required to give the Internal Revenue Service notice of the sale. The district 

court did not err in dismissing this claim in Reece’s First Amended Complaint because that 

particular section of the Internal Revenue Code requiring notice be provided to the United 

States only relates to situations where the property is subject to a federal tax lien. Reece 

fails to allege any facts that suggest the property was burdened by such a lien.

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III.

For the foregoing reasons, the judgment of the district court dismissing 

Reece’s First Amended Complaint under Rule 12(b)(6) is

 AFFIRMED.

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