### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-20319 Summary Calendar

BOBIE KENNETH TOWNSEND, Plaintiff - Appellant
v. BAC HOME LOANS SERVICING, L.P., formerly known as Countrywide Home Loans Servicing, L.P., Defendant - Appellee

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:10-CV-3751

Before KING, JOLLY, and GRAVES, Circuit Judges. PER CURIAM: * Bobie Kenneth Townsend, p ro se , appeals the dismissal of his claims against BAC Home Loans Servicing, L.P. (“BAC”). We AFFIRM. I. In 2004, Townsend purchased property located at 1504 Memorial Lane in Conroe, Texas. He borrowed $99,900 from Countrywide Home Loans, Inc. The U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Decem ber 5 , 20 11 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedthat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-20319 Document: 00511684610 Page: 1 Date Filed: 12/05/2011No. 11-20319

mortgage loan was secured by a deed of trust. The deed of trust requires Townsend to discharge any lien which has priority over the deed of trust unless he “contests the lien in good faith by, or defends against enforcement of the lien in, legal procee di n g s w hich in Lender’s opinion operate to prevent the enforcement of the lien while those proceedings are pending.” The deed of trust provides further that if he fails to do so, the lender may pay any sums secured by a lien which has priority over the deed of trust. The Texas Tax Code provides that on January 1 of each year, a tax lien attaches to property t o s ecure the payment of taxes and that such tax lien has priority over the c laims of “any creditor of a person whose property is encumbered by the lien.” T E X
. TAX C O D E §§ 32.01(a), 32.05(b)(1). Townsend alleged that he was aware that the property was contaminated by “Black Toxic Mold” when he purchased it. He a l leged that BAC’s agent referred him to a w eb s i te which indicated that his property taxes (which he refers to as “tax donations”) would rem a i n l o w s o long as the property was damaged. He alleged that the property taxes were increased by 500 percent for tax year 2005, and that he paid th e taxes “under protest.” He did not pay the property taxes for ta x y e a r 2 0 0 6

. In July 2007, a law firm representing the taxing authorities sent Townsend a letter demanding payment of the 2006 taxes. Townsend responded by letter, demanding, among other things, the attorney’s Texas Bar Association card number and a copy of her license to practice law, as well as documentation that the property is located in Texas. Townsend did not pay the p r o p e rty t axes for 2006, and again failed to pay the property taxes for 2007. He alleged that he was protesting, a n d intended to file a counterclaim

a g ai nst the taxing authorities once they filed suit against him to collect the taxes.

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In March 2008, Countrywide paid the 2006 and 200 7 t axe s an d e st ablished

an escrow account to cover the taxes. Townsend refused t o p ay th e additional amounts into escrow. In April and July 2010, Townsend was given notice that his loan w a s in default. That August, he was served with notice that the property was scheduled for a foreclosure sale on October 5. On October 1, 2 010, Townsend filed suit against BAC in state court, seeking to enjoin the f o reclosure sale. In his petition, he challenged BAC’s standing to foreclose an d a s s erted claims for negligent hiring, breach of fiduciary duty, theft, fraud, and vi o l a t i o n of the Texas Deceptive Trade Practices Act. Construing the petition liberally, it is our understanding that the basis for these claims is that BAC did not have the ri gh t t o pay the 2006 and 2007 property taxe s and that BAC lacked standing to foreclose. The state court entered a temporary restraining order enjoining the scheduled foreclosure sale. BAC removed the case t o federal court and filed a motion to dismiss Townsend’s petition for failure to state a claim upon which r elief could be granted or, alternatively, a motion for a more definite statement. Th e district court dismissed all of Townsend’s claims with prejudice, except the fraud claim, and gave Townsend seven days to file an amended complaint. Townsend t i m e ly filed an amended complaint, asserting claims for

common law fraud, statutory fraud, conspiracy to commit fraud, breach of contract, negligent misrepresentation, and violation of the Truth in Lending Act (“TILA”). Liberally construed, the basis for these claims seems t o b e that Countrywide induced him to make th e loan by representing that the property taxes would not increase, and that he did not receive all of the notices required by the Truth in Lending Act. BAC moved to dismiss Townsend’s amended complaint for failure to state

a claim upon which relief could be granted. Townsend filed a motion for default judgment, a motion to amend or supplement his complaint to invok e th e
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discovery rule, and a response to the motion to dismiss. The district court dismissed all claims with prejudice. The district court denied Townsend’s motion for reconsideration. Townsend filed a timely notice of appeal. II. Townsend’s brief is poorly organized, repetitive, and difficult to comprehend. Th e statement of facts consists primarily of arguments that the district cou rt w a s biased and violated his due process rights, and that the district court clerk’s staff was incompetent. In his statement of issues, he lists eight issues, but the argument section of his brief discusses t e n arguments, which do not correspond to the issues listed in his statement of issues. As best we can understand them, Townsend’s arguments on appeal appear to be: (1) BAC defaulted by not answering the First Amended Complaint; (2) the district court erred by allowing BAC to file a motion to dismiss in the same document as a motion for a more definite statement; (3) the district court erred by dismissing the claims in the original petition; (4) the district court erred by not giving reasons for the dismissal; (5) BAC lack s a u th o rity to foreclose because it is not a holder in due
course; (6) the assignment of the deed of trust to BAC was fraudu l e n t a n d, therefore, BAC lacks standing to foreclose; (7) BAC breached the deed of trust by paying the property taxes without prior notice to Townsend; (8) BAC breached its fiduciary duty to T o w n s end by misapplying his monthly note payments to the escrow account that it established without Townsend’s consent, instead of applying the note payments to interest and then to principal; (9) the district court e rr e d by ignoring Townsend’s request for leave to amend the complaint to invoke the discovery rule; and

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(10) the district court erred by not remanding the case to state court. Throughout his brief, Townsend complains that the di s t rict court judge

was biased against him and in favor of BAC, and that BAC has committed “fraud
upon the court.” In his prayer for relief, he asserts that the district court judge should recuse himself and the case should be assigned to a different judge. In a supplemental r e p ly brief and appendix, Townsend presents new evidence and arguments that were not presented to the district court. We review a dismissal “for failure to state a claim de novo , accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff.” Brown v. Continental Airlines, Inc. , 647 F.3d 221, 225-26 (5th Cir. 2011) (internal quotation marks and citations omitted). “A plaintiff fails to state

a claim when the complaint does not contain ‘enough facts to state a cl a i m to relief that is plausible on its face.’” Del-Ray Battery Co. v. Douglas Battery Co. , 6 3 5 F.3d 725, 728-29 (5th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly , 5 5 0 U.S. 544, 570 (2007)). Viewing the co m p l a i nt s in the light most favorable to Townsend, we find no rev e r s ib le error in the district court’s dismissal of his claims. BAC was not in default, because it filed a motion to dismiss. See F E D
. R. C IV
. P. 12, 55. The Federal Rules of Civil Procedure do not prohibit the filing of a motion to dismiss in the same document as an a l t e r n a t ive motion for a more definite statement. See F E D
. R. C IV
. P. 12(g)(1) (“A motion under this rule may be joined with any other motion allowed by this rule.”). Townsend failed to adequately brief his contention that the district court erred by dismissing the claims in his original petition and failed to explain how the cases he cites entitle him to any relief on appeal. The district cou rt was not required to explain its reasons for dismissal. SeeF E D
. R. C IV
. P. 52(a)(3).
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There is no authority for Townsend’s claim that BAC lacks authority to foreclose because it is not a “holder in due course.” Townsend’s argument that the assignmen t of the deed of trust to BAC from the original beneficiary, Mortgage Electronic Registration Systems, Inc. (“MERS”), is fraudule n t because it contains no corporate seal, as required by Section 16.033 of the Texas Civil Practices and Remedies Code, is meritless. Section 16.033 applies to instruments th a t c onvey real property, and the assignment of the de e d o f trust is not such an instrument. Townsend’s cont e n t i o n that MERS ceased to do business in Texas is unsupported and irrelevant to the validity of the assignment from MERS to BAC. BAC did not breach the deed of trust by p ayi n g th e delinquent property taxe s , b e c a u s e Townsend did not contest the property tax lien in good faith through a legal proceeding. Townsend was not entitled to notice of payment of the property taxes because the deed of trust provides that the Lender “may” give such notice. There is no fiduciary relationship between BAC and Townsend and, even if there were, BAC did not breach it by paying the delinquent property taxes and establishing an escrow account. It would have been futile for Townsend to amend his complaint to invoke the discovery rule because his own pleadings show that he knew or should have known the basis for h i s fraud, negligent misrepresentation, and TILA claims

m o r e th a n four years before he filed suit. See T E X
. C IV
. P RA C

. & R E M
. C O D E § 16.004(a)(4) (four-year limitations p e riod for fraud claims); Exxon Corp. v. Emerald Oil & Gas Co., L.C. , 348 S.W.3d 1 9 4 , 2 0 2 (Tex. 2011) (two-year limitations period for negligent misrepresentation claims); 15 U.S.C. § 1640(e) (one-year limitations period for TILA). The district court did not err by not remanding the case to state court. See 28 U.S.C. 1332(a), 1447.
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The grounds for recusal asserted by Townsend—the district judge has a line of credit from Bank of America and the judge did not read or acknowledge his pleadings or exhibits—are baseless. Finally, we do n o t c o nsider the new arguments and evidence that Townsend presents for the first time on appeal, in his supplemental reply brief and appendix. For the foregoing reasons, the judgment of the district court is AFFIRMED.

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