Cross - Vessel v. MortgageIT, Inc. et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Bert D. Cross – Vessel, Jr.,
Plaintiff,
v.
MortgageIT, Inc., et al.,
Defendants.
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Civil Action H-24-3582
MEMORANDUM AND RECOMMENDATION
ON THE PARTIES’ CROSS-MOTIONS FOR
SUMMARY JUDGMENT
This case has been referred to the undersigned magistrate
judge 	pursuant 	to 	28 U.S.C. § 636(b)(1). 	ECF No. 21. 	Pending
before the court is Intervenors’ Motion for Summary Judgment,
ECF No. 90, and Plaintiff’s Motion for Summary Judgment, ECF
No. 108. 	The 	court 	recommends 	that 	Intervenors’ 	Motion 	for
Summary 	Judgment, 	ECF No. 90, 	be 	GRANTED, 	and 	that
Plaintiff’s 	Motion 	for 	Summary 	Judgment, 	ECF No. 108, 	be
DENIED. The court further recommends that all of Plaintiff’s
claims be DISMISSED with prejudice, and that Intervenors’
claims for quiet title and declaratory judgment be GRANTED.
1. Summary of the Case
This lawsuit is Plaintiff Bert D. Cross Jr.’s1 latest effort to
prevent the foreclosure of the home he has occupied since 2005. He
bases his challenge on a selective interpretation of a bankruptcy
judge’s order and many unsubstantiated allegations about the
1 The court notes that Plaintiff’s Original Complaint is brought in the name of “Bert
D. Cross, Jr. – Vessel c/o Bert D. Cross, Jr. – Living Man.” It is clear from all the
filings in the case that the plaintiff is an individual person who is proceeding pro se
in this action. The court refers to him as such.
United States District Court
Southern District of Texas
ENTERED
July 09, 2026
Nathan Ochsner, Clerk
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sequence of assignments of the loan documents that he executed
in 2005.
While 	Cross, 	via 	his 	purported 	expert 	(to 	be 	discussed
below), seems to believe that his mortgage loan was placed into the
“MortgageIT Trust 2005-5” (2005-5 Trust), there is no evidence to
support 	that. 	There 	is 	no 	mention 	in 	any 	of 	the 	admissible
documents 	of 	the 	2005-5 	Trust. 	Moreover, 	underlying 	Cross’s
claims appears to be the notion that, to show their authority to
foreclose, Intervenors are required to show more than (1) that the
original deed of trust named MERS as a beneficiary, and (2) that
MERS, 	acting 	as 	nominee 	for 	the 	original 	lender, 	named
Intervenor Bank of New York Mellon Trust Company, National
Association (Bank of New York Mellon) as the most recent assignee
of the deed. They do not. See Deutsche Bank Nat’l Tr. Co. v. Burke
(Burke II), 902 F.3d 548, 550 (5th Cir. 2018) (“Both Texas law and
our precedent make clear that, because the original deed of trust
names MERS as a beneficiary, ‘MERS, acting on its own behalf as
a book entry system and beneficiary of the [plaintiffs’] deed of
trust, can transfer its right to bring a foreclosure action to a new
mortgagee by a valid assignment of the deed of trust.’”).
The admissible evidence in the summary judgment record
shows that Bank of New York Mellon properly acquired its interest
in Cross’s home mortgage loan. The original lender on Cross’s
September 2005 home mortgage loan was Defendant MortgageIT,
Inc. (MortgageIT). The deed of trust—the instrument granting
MortgageIT 	its 	security 	interest 	in 	Cross’s 	property—named
Mortgage 	Electronic 	Registration 	Systems, 	Inc. 	(MERS) 	as
beneficiary. In 2014, MERS, acting as nominee for MortgageIT and
its successors and assigns, transferred its interest to Intervenor
Bank of New York Mellon. That transfer was recorded in the
Harris County, Texas property records. There is nothing to suggest
that Bank of New York Mellon is not the current holder of Cross’s
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mortgage 	loan. 	Similarly, 	there 	is 	nothing 	to 	suggest 	that
Intervenor PHH Mortgage Corporation (PHH) is not the current
servicer of Cross’s loan.
Although 	Defendant 	Wilmington 	Trust 	Co. 	(Wilmington
Trust) has not answered or otherwise appeared in this action,
there is no evidence to show that Wilmington Trust was involved
with Cross’s mortgage loan or the events of this case. By its own
admission, MortgageIT has had no interest in Cross’s loan since
2005. Therefore, because there is no factual basis to support
liability on any of Cross’s claims against these defendants, all of
his claims against MortgageIT and Wilmington Trust fail. See
Armendariz v. Chowaiki, No. EP-14-CV-451, 2016 WL 8856919,
at *19, (W.D. Tex. Mar. 31, 2016) (quoting Lewis v. Lynn, 236 F.3d
766, 768 (5th Cir. 2001) (“The Fifth Circuit has held that where ‘a
defending 	party 	establishes 	that 	plaintiff 	has 	no 	cause 	of
action . . . this defense generally inures also to the benefit of a
defaulting defendant.’”).
2. Background Facts and Procedural History
The court’s recitation of the facts is based on the evidence
presented by the parties, as well as public records from Cross’s
prior bankruptcy proceeding and the property records of Harris
County, Texas. See Walker v. Beaumont Indep. Sch. Dist., 938 F.3d
724, 735 (5th Cir. 2019) (citation omitted) (“Judicial notice may be
taken of matters of public record.”).
A. The Mortgage Loan
On September 19, 2005, Cross and his wife obtained a home
mortgage loan from MortgageIT in the amount of $148,370.00
(Loan). ECF No. 90-1 at 9–16, 18–37. 	The Loan encumbers the
Crosses’ home at 7911 Devlin Drive, Humble, Harris County,
Texas 77346 (Property). Id. An Adjustable-Rate Note (Note) and
Deed of Trust memorialize the Loan. Id.
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Less than a year later, MortgageIT transferred its interest
in the Loan to GMAC Mortgage Corporation (GMAC). ECF No. 59
at 1–2; see also ECF No. 87 (adopting MortgageIT’s previously filed
Answer and Affirmative Defenses, ECF No. 59, in response to
Cross’s First Amended Complaint, ECF No. 83). Between 2007
and 2012, Cross and GMAC entered into three loan modification
agreements. ECF No. 90-1 at 49–51, 53–56, 58–69.
According to Harris County records, on December 16, 2014,
the loan was assigned to Bank of New York Mellon, as Trustee for
Residential 	Asset 	Mortgage 	Products, 	Inc., 	Mortgage 	Asset-
Backed 	Pass-Through 	Certificates 	Series 	2006-RP3 	(2014
Assignment). ECF No. 90-1 at 70–73. The assignor on the 2014
Assignment was MERS, acting as nominee for the original lender,
MortgageIT, and its successors and assigns. Id. at 70.
B. The Crosses’ Chapter 13 Bankruptcy Proceeding
A few months prior to the 2014 Assignment, Cross and his
wife filed for bankruptcy in the U.S. Bankruptcy Court for the
Southern District of Texas. In re Cross, No. 14-34308 (Bankr. S.D.
Tex. Aug. 4, 2014). The Crosses’ own Bankruptcy Court filings
from February 2017 show that they were aware that Bank of New
York Mellon and Ocwen Loan Servicing, LLC (Ocwen) were, at
that time, the creditor and servicer of their Loan. In re Cross, ECF
No. 65 at 2. The Bankruptcy Court declared the Loan current as of
August 31, 2019, and directed the Crosses to resume regular
payments beginning September 1, 2019. In re Cross, ECF No. 130.
The Crosses were discharged from bankruptcy on October 21,
2019. In re Cross, ECF No. 134.
In December 2020, Cross initiated an Adversary Proceeding
within his bankruptcy case against PHH—Ocwen’s successor by
merger and Intervenor in the instant lawsuit—and NewRez, LLC,
who then operated on behalf of PHH (collectively, AP Defendants).
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Cross v. NewRez (In re Cross), Ch. 13 Case No. 14-34308, Adv.
No. 4:20-AP-03494 (Bankr. S.D. Tex. Dec. 9, 2020), ECF No. 1. The
Adversary Proceeding centered on the Crosses’ alleged default on
the Loan, and the AP Defendants’ alleged attempt to foreclose on
the Property as a result of that default. Id. at 3. According to the
Crosses, the AP Defendants were attempting to collect on a June
2017 Loan payment that Ocwen “missed” and failed to credit to the
Crosses’ account. Id. at 4. The Crosses argued that the alleged
default and attempted collection was a willful violation of their
bankruptcy discharge because the Loan had been declared current
at the end of the bankruptcy. Id. at 12.
On 	May 	13, 	2024, 	Bankruptcy 	Judge 	Jeffrey 	Norman
granted 	summary 	judgment 	in 	favor 	of 	the 	AP 	Defendants.
NewRez, ECF No. 52 at 8. 	Judge 	Norman 	explained 	that 	the
Crosses had not provided any evidence that the AP Defendants
were attempting to collect on a 2017 Loan payment or that they
had violated the discharge injunction. Id. at 5. Judge Norman
found that the Crosses’ evidence and admissions undermined the
argument that they had timely paid all of their post-discharge
Loan payments. Id. at 5–6. Judge Norman stated that the Crosses
had not made any Loan payments since August 2021, “and the
[L]oan is currently due for the September 1, 2021, payments and
all subsequent payments.” Id. at 4. Accordingly, Judge Norman
granted summary judgment for the AP Defendants. Id. at 8. The
following 	day, 	he 	entered 	final 	judgment 	in 	the 	Adversary
Proceeding. NewRez, ECF No. 53. The Crosses did not move for
reconsideration of, nor appeal, Judge Norman’s decision.
C. The Instant Lawsuit
Four months after Judge Norman entered final judgment,
Cross commenced the instant lawsuit. ECF No. 1. Cross named as
defendants the original Loan lender, MortgageIT, and Wilmington
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Trust (collectively, Defendants). Id. Cross also filed a Notice of Lis
Pendens 	in 	Harris 	County, 	identifying 	the 	instant 	suit 	as
“involv[ing] 	a 	dispute 	concerning 	the 	improper 	transfer,
securitization, 	and 	foreclosure 	of” 	the 	Property. 	ECF No. 101,
Cross Ex. 0147 at 1.2
In his Complaint, Cross asserted a quiet title action and
additional causes of action seeking damages. ECF No. 1 at 13, 25.
Cross stated that he filed suit to halt the impending foreclosure of
the 	Property. 	Id. at 2. 	He 	again 	alleged 	that 	the 	Loan 	“was
wrongfully placed into the [2005-5 Trust]” in violation of state and
federal law. Id. He asserted that by placing the Loan in the 2005- 5
Trust, 	the 	Defendants 	had 	“[broken] 	the 	chain 	of 	title 	and
render[ed] 	the 	mortgage 	unenforceable.” 	Id. 	He 	argued 	that
Defendants lacked standing to pursue foreclosure. Id.
Wilmington Trust has never appeared in the instant lawsuit.
It does not appear to have had any involvement with Cross’s Loan
or the events he alleges. MortgageIT, however, responded to the
lawsuit with a motion to dismiss. ECF No. 30. In MortgageIT’s
motion, it argued that it was not the appropriate defendant as it
“has not owned (or had any involvement with) the Property in
nearly two decades,” it had not initiated foreclosure, and the
lawsuit “appears to be an improper attempt to re-litigate” the
Adversary Proceeding. Id. at 2. The motion asked the court to take
judicial notice of Bankruptcy Court filings. E.g., id. at 3. Because
the motion presented matters outside the pleadings, the court
denied the motion without prejudice to raising the same issues in
the context of a motion for summary judgment. ECF No. 56 at 5– 6.
It now appears, based on the evidence presented in connection with
2 The court accepts the Notice of Lis Pendens, ECF No. 101, Cross Ex. 047, as a public
record, recorded in Harris County. To the extent that Intervenors object to the exhibit,
the objection is OVERRULED.
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the instant motions for summary judgment, that MortgageIT’s
contentions are correct.
Shortly after MortgageIT filed its motion to dismiss, Bank of
New York Mellon and PHH moved to intervene in the action as the
current trustee and servicer of the Loan. ECF No. 31. The court
granted their motion to intervene. ECF No. 42. Bank of New York
Mellon and PHH (collectively, Intervenors) then answered Cross’s
Complaint and asserted counterclaims against Cross. ECF No. 43.
Intervenors’ counterclaims seek to quiet title or, in the alternative,
declaratory judgment. Id.
Cross eventually answered the Intervenors’ counterclaims,
ECF No. 86, and was granted leave to file his First Amended
Complaint against Defendants and Intervenors, ECF No. 83. In
his First Amended Complaint, Cross asserts that there is “a factual
dispute” about “the authority of any party to initiate foreclosure.”
ECF No. 83 at 2. Cross maintains his arguments that the Loan
was transferred to the 2005-5 Trust in 2011, and that the 2014
Assignment 	was 	thus 	invalid. 	Id. at 1–2. 	He 	alleges 	that 	the
Defendant, 	Intervenors, 	or 	their 	agents 	“have 	initiated 	non-
judicial foreclosure proceedings against the Property.” Id. at 4.
Against all four named defendants, Cross asserts a quiet title
action 	and 	seeks 	declaratory 	judgment 	that 	(1) the 	2014
Assignment is void and (2) the Defendants and Intervenors “have
no legal or equitable interest in the Property or the Note.” Id. at 5.
Cross also asserts additional causes of action against Defendants
and Intervenors, including wrongful foreclosure, slander of title,
and unjust enrichment. Id. at 5–7. Against MortgageIT only, Cross
asserts a breach of contract claim. Id. at 6.
3. Cross-Motions for Summary Judgment
Intervenors 	filed 	the 	instant 	Motion 	for 	Summary
Judgment, 	ECF No. 90, 	on 	October 	31, 	2025. 	In 	the 	Motion,
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Intervenors assert arguments that are similar to those raised in
MortgageIT’s motion to dismiss, including that the lawsuit is
barred by the doctrine of res judicata as a result of the Crosses’
bankruptcy and Adversary Proceeding.
Less than a week after Intervenors filed the instant Motion,
Cross moved to reopen his bankruptcy case and the associated
Adversary 	Proceeding 	through 	identical 	motions 	filed 	in 	both
cases. In re Cross, ECF No. 149; NewRez, ECF No. 56. In a section
of his motion titled “Pending Related Civil Action,” Cross referred
to the instant case, stating:
Plaintiff further advises the Court that the issues
presented in this Motion directly affect a pending
related civil patter currently before the United States
District Court for the Southern District of Texas, Case
No. 4:24-cv-03582. That action concerns the same loan
history, payment records, and standing issues that
originated in this bankruptcy proceeding.
In re Cross, ECF No. 149 at 5 (emphasis added); see also NewRez,
ECF No. 56 at 5 (stating the same). The Bankruptcy Court quickly
denied 	both 	motions. 	In re Cross, ECF No. 140; NewRez, ECF
No. 57.
In the instant case, Cross filed his own Motion for Summary
Judgment and a substantial volume of supplemental briefing,
testimony, 	and 	exhibits 	across 	several 	docket 	entries.
ECF Nos. 91–102. Citing the number and volume of Cross’s filings,
Intervenors 	requested 	an 	extension 	of 	time 	to 	respond. 	ECF
No. 104. The court vacated all response deadlines for pending
motions and set a hearing for mid-December to address future
filings. ECF No. 105.
During the hearing, the court reminded the parties of its
briefing rules. ECF No. 106. Due to Cross’s initial failure to comply
with those rules, the court struck Cross’s Combined Opposition to
Intervenors’ Motion for Summary Judgment and Cross-Motion for
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Summary Judgment, ECF No. 98, and terminated his Motion for
Summary Judgment, ECF No. 92. ECF No. 106. The court then set
new 	deadlines 	for 	Cross’s 	amended 	response 	and 	summary
judgment motion. Id.
By early February 2026, the parties fully briefed the instant
cross-motions for summary judgment, ECF Nos. 90 and 98.
4. Summary Judgment Standard
“Summary judgment is appropriate 	only if, 	viewing the
evidence in the light most favorable to the nonmovant, ‘the movant
shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.’” Davenport
v. Edward D. Jones & Co., 891 F.3d 162, 167 (5th Cir. 2018)
(quoting Fed. R. Civ. P. 56(a)). No genuine issue of material fact
exists if a rational jury could not find for the nonmoving party
based on the complete record. McMichael v. Transocean Offshore
Deepwater Drilling, Inc., 934 F.3d 447, 455 (5th Cir. 2019) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)).
Initially, “[t]he movant bears the burden of identifying those
portions of the record it believes demonstrate the absence of a
genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401
F.3d 347, 349 (5th Cir. 2005) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322–25 (1986)). If this burden is met, the nonmovant
must then “go beyond the pleadings,” using competent summary
judgment evidence to cite “specific facts” showing a genuine issue
for trial. McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 357
(5th Cir. 2017) (quoting Boudreaux v. Swift Transp. Co., 402 F.3d
536, 540 (5th Cir. 2005)).
The court reviews all evidence and reasonable inferences in
the light most favorable to the nonmoving party. Tolan v. Cotton,
572 U.S. 650, 657 (2014) (quoting Adickes v. S.H. Kress & Co., 398
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U.S. 144, 157 (1970)). The court, however, does not have a duty “to
search the record for material fact issues.” RSR Corp. v. Int’l Ins.
Co., 612 F.3d 851, 857 (5th Cir. 2010) (“Rather, the party opposing
the summary judgment is required to identify specific evidence in
the record and to articulate precisely how this evidence supports
[the] claim.”). Although the court needs to consider only the cited
evidence, it is allowed to consider other materials in the summary
judgment record. Fed. R. Civ. P. 56(c)(3). Additionally, the court
“may take judicial notice of public records,” but it cannot “take
judicial notice of ‘adjudicative facts’ [that are] subject to reasonable
dispute.” Payne v. City of Hous., No. 24-20150, 2025 WL 999085,
at *1 (5th Cir. Apr. 3, 2025). The court may not take judicial notice
of factual content within the exhibits in a separate case. Id. at *2.
5. Objections to Evidence
Cross filed a USB drive containing 141 PDF files, which he
describes 	as 	his 	“summary 	judgment 	evidence.” 	ECF No. 101.
However, Cross’s summary-judgment briefing cites only five of
the documents contained therein. ECF Nos. 107–08 (citing ECF
No. 101, Cross Ex. 0030A, 0034A, 0035A, 0037A, 0038A). The court
refers to these five documents as Exhibits 0030A, 0034A, 0035A,
0037A, and 0038A. Intervenors object to, and move to strike, all
five Exhibits. ECF No. 112 at 6–7, n.2.
Generally, as to all five of the Exhibits, Intervenors object on
the basis that Cross did not timely produce the exhibits contained
in ECF No. 101 in compliance with the Court’s September 30, 2025
Order. ECF No. 112 at 6 (citing Minute Entry Order, ECF No. 68).
Instead, 	they 	assert, 	Cross 	withheld 	the 	evidence 	until 	the
summary judgment stage. Id. Cross asserts that he was under no
obligation 	to 	disclose 	the 	documents. 	ECF No. 113 at 3–4.
Moreover, he argues that Intervenors waived their objections to
discovery because they did not move to compel production nor seek
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clarification from the court regarding its September 30, 2025
Order. Id. at 4.
In 	addition 	to 	their 	general 	objection 	about 	untimely
production, Intervenors make specific evidentiary objections to
each of the five Exhibits.
A. Exhibits 0030A and 0035A
Cross’s Exhibit 0030A purports to be the “first page of the
closing package” and the “last page of the closing package” for each
of Cross’s two mortgage liens, along with a notice of the address to
which to “send the closing package within 24 hours of closing.”
ECF No. 101, Cross Ex. 0030A. Intervenors object to the exhibit
because Cross did not provide citations to specific pages. ECF
No. 112 at 3. Intervenors also assert that the document is not
properly authenticated and is hearsay. Id.
Cross’s Exhibit 0035A appears to be a supplement to the
prospectus of the 2005-5 Trust. ECF No. 101, Cross Ex. 0035A.
Intervenors move to strike the exhibit on the basis that it was not
included in the copy of exhibits served on them by Plaintiff.
ECF No. 112 at 6.
Overruling Intervenors’ objections to Cross’s Exhibits 0030A
and 0035A has no material effect on the resolution of either motion
for summary judgment. Nor does it prejudice Intervenors. As such,
Intervenors’ objections to those exhibits are OVERRULED.
B. Exhibits 0037A and 0038A
Cross’s Exhibit 0037A contains a list of information under
the title, “Search Results - September 18, 2024.” ECF No. 101,
Cross Ex. 0037A. Similarly, the first page and a half of Cross’s
Exhibit 0038A contains a list of information under the title, “Trust
Information – RMBS.” ECF No. 101, Cross Ex. 0038A at 1–2. The
remainder of the eight-page Exhibit 0038A appears to contain a
collection of miscellaneous statutes from New York, Delaware, and
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the “V.T.C.A.,” as well as a citation to various provisions of the
Uniform Commercial Code (UCC). Id. at 3–8.
Intervenors 	assert 	that 	both 	exhibits 	“appear 	to 	be
summaries of information created by an unidentified person.” ECF
No. 112 at 6. 	They 	note 	that 	while 	Cross 	purportedly 	“self-
authenticated” the exhibits as within the scope of his own personal
knowledge (ECF No. 102), the exhibits have no authenticating
features. Therefore, they object and move to strike the exhibits on
the basis that they “are unauthenticated and hearsay.” Id.
Cross 	has 	not 	shown 	a 	basis 	for 	concluding 	that 	the
information 	contained 	within 	Exhibits 	0037A 	and 	0038A 	are
within the scope of his own personal knowledge. The court cannot
discern 	the 	source 	of 	the 	information 	contained 	within 	the
exhibits. They have not been authenticated through a business
records affidavit or by a person who has personal knowledge of the
information contained within. Further, some of the information
listed 	conflicts 	with 	official 	county 	records 	pertaining 	to 	the
Property. Accordingly, Intervenors objections to Exhibit 0037A
and Exhibit 0038A are SUSTAINED. The court STRIKES Cross’s
Exhibit 0037A and Cross’s Exhibit 0038A.
C. Exhibit 0034A
The court separately addresses Intervenors’ objection 	to
Cross’s Exhibit 0034A—an affidavit of Joseph R. Esquivel, Jr.
(Esquivel Affidavit). Cross hired Esquivel, who purports to be a
licensed 	private 	investigator, 	to 	conduct 	a 	“Chain 	of 	Title
Analysis & Mortgage Fraud Investigation.” ECF No. 101, Cross’s
Ex. 0034A ¶ 4. In the Affidavit, Esquivel describes his purported
findings from his analysis. Id.
Intervenors assert that the Esquivel Affidavit “constitutes
expert testimony by a person who is not qualified as an expert.”
ECF No. 112 at 3. They argue that the Affidavit is “vague and
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confusing,” “relies on speculation and conjecture,” and “tries to
hide legal conclusions . . . in the guise of fact statements.” Id.
at 3, 6. Moreover, Intervenors assert that the Affidavit “relies on
documents that are unauthenticated and hearsay,” as well as “on
the opinions of yet another person – William McCaffrey, who . . . is
stated to be ‘available for court appearance’” but is also “not
qualified as an expert.” Id. at 3.
More 	generally, 	Intervenors 	assert 	that 	“forensic 	loan
audits,” 	including 	those 	by 	Esquivel 	and 	McCaffrey, 	“have 	a
lengthy history of rejection by multiple courts.” ECF No. 112 at 3.
Intervenors detail that history across two and a half pages of their
response. Id. at 4–6 (citing, e.g., Fed. Nat’l Mortg. Ass’n v. Harris,
No. 1:11-cv-03207, 2012 WL 13013000, at *3 n.3 (N.D. Ga. Aug. 13,
2012) 	(“Mr. 	Esquivel’s 	affidavit 	is 	replete 	with 	erroneous
statements of law and is wholly unhelpful to a resolution of the
case let alone to be admitted as an expert opinion.”)).
In 	his 	Reply, 	Cross 	does 	not 	address 	the 	merits 	of
Intervenors’ objections to the Affidavit. Despite citing the Esquivel
Affidavit 	four 	times 	in 	his 	Motion 	for 	Summary 	Judgment,
ECF No. 108, Cross asserts that his Motion does not rely on the
document. ECF No. 113 at 4. He states that, instead, his “core
assertions rest on judicial admissions, self-authenticating court
records, and [his] own documented payment history.” Id.
The court takes Cross’s response as expressing his non-
opposition 	to 	Intervenor’s 	objection 	to 	the 	Esquivel 	Affidavit.
However, even if Cross had expressed opposition to the objection,
the 	court 	would 	come 	to 	the 	same 	conclusion. 	The 	Esquivel
Affidavit makes numerous legal assertions that are entirely devoid
of factual support. Because Esquivel is not qualified as an expert,
Intervenors’ objection to the Esquivel Affidavit is SUSTAINED.
The court STRIKES Cross’s Exhibit 0034A.
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6. Cross’s claims are barred by res judicata.
The doctrine of res judicata prevents the relitigation of
“issues that were or could have been raised in [the previous]
action.” United States v. Davenport, 484 F.3d 321, 326 (5th Cir.
2007) (alteration in original) (emphasis added) (quoting Federated
Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981)). Intervenors
assert that because this is a diversity-jurisdiction action, Texas
substantive law applies, including its law of res judicata. ECF
No. 90 at 12 (citing Calderon v. Bank of N.Y. Mellon, 791 F. App’x
453, 455–56 (5th Cir. 2019)). However, Texas law establishes that
when the earlier lawsuit “took place in federal court,” Texas courts
“follow the federal law of res judicata.” Jeanes v. Henderson, 688
S.W.2d 100, 103 (Tex. 1985) (citing Com. Box & Lumber Co. v.
Uniroyal, 	Inc., 	623 	F.2d 	371, 	373 	(5th 	Cir. 	1980)). 	Because
Intervenors 	assert 	that 	the 	Adversary 	Proceeding 	precludes
Cross’s claims, federal res judicata law applies.
It is proper to apply res judicata when “(1) the parties are
identical or in privity; (2) the judgment in the prior action was
rendered by a court of competent jurisdiction; (3) the prior action
was concluded by a final judgment on the merits; and (4) the same
claim or cause of action was involved in both actions.” Devins v.
Armstrong, 	167 	F.4th 	247, 	252 	(5th 	Cir. 	2026) 	(quoting 	Test
Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir.
2005)).
The first element is satisfied if the parties in both actions are
identical or in privity with one another. Devins, 167 F.4th at 252.
“‘Privity’ with respect to res judicata, ‘is recognized as a broad
concept, which requires [the Court] to look to the surrounding
circumstances to determine whether claim preclusion is justified.’”
Crear v. JPMorgan Chase Bank, N.A., 491 F. Supp. 3d 207, 215
(N.D. Tex. 2020) (quoting Russell v. SunAmerica Sec., Inc., 962
F.2d 1169, 1173 (5th Cir. 1992)) (alteration in 	original). The
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relationship between the party on the record and the non-party
must be “sufficiently close to afford application of the principle of
preclusion.” Id. (quoting Sw. Airlines Co. v. Tex. Int’l Airlines, Inc.,
546 F.2d 84, 95 (5th Cir. 1977)). There is a sufficiently close
relationship 	when 	the 	party-on-the-record 	succeeds 	the 	non-
party’s interest in property, or when the party-on-the-record’s
interests were adequately represented by the non-party in the
prior litigation. Id. (citations omitted). In the context of lawsuits
pertaining to the same mortgage loan, courts have found that an
original mortgagee is in privity with its assignee mortgagee, and
that the mortgagee is in privity with the servicer. Id. (finding
original mortgagee and assignee lender are in privity); Davis v.
Ocwen Loan Servicing LLC, No. 3:18-cv-2720, 2020 WL 1910137,
at *5 (N.D. Tex. Jan. 27, 2020) (citing Russell, 962 F.2d at 1174)
(finding mortgagee and servicer are in privity), R. & R. adopted,
2020 WL 880855 (N.D. Tex. Feb. 24, 2020).
Cross and PHH were parties to the Adversary Proceeding.
MortgageIT, 	the 	original 	mortgagee, 	and 	Bank 	of 	New 	York
Mellon, the assignee mortgagee, were not parties to the Adversary
Proceeding. However, their interests were adequately represented
by PHH, which is the current servicer and successor by merger to
the original servicer. Under the circumstances, PHH, MortgageIT,
and Bank of New York Mellon have a sufficiently close relationship
such that they are in privity.
The 	United 	States 	Bankruptcy 	Court 	of 	the 	Southern
District of Texas is a court of competent jurisdiction. E.g., Superior
Offshore Int’l, Inc. v. Schaefer, No. 11-3130, 2012 WL 5879608,
at *4 (S.D. Tex. Nov. 20, 2012); Vela v. Enron Oil & Gas Co.,
No. 02-0037, 2007 WL 1564562, at *7 (S.D. Tex. May 29, 2007).
Neither party argues that it lacked jurisdiction to preside over the
Crosses’ bankruptcy case or the Adversary Proceeding.
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“Summary judgment is a judgment on the merits; it has the
same effect as if the case had been tried by the party against whom
judgment is rendered and decided against him.” Halicki v. La.
Casino Cruises, Inc., 151 F.3d 465, 471 (5th Cir. 1998) (citing
Daigle v. Opelousas Healthcare, Inc., 774 F.2d 1344, 1345 (5th Cir.
1985)) (applying federal law). Judge Norman granted summary
judgment in favor of the servicer defendants. NewRez, ECF No. 52
He entered final judgment in favor of the defendants and “against
the plaintiffs on all causes of action in th[e] case.” NewRez, ECF
No. 53. 	Cross 	did 	not 	appeal 	the 	Bankruptcy 	Court’s 	final
judgment, and he did not appeal the Bankruptcy Court’s decision
to 	deny 	his 	motion 	to 	reopen 	the 	Adversary 	Proceeding.
Accordingly, the Adversary Proceeding concluded with a final
judgment on the merits.
The “same claim or cause of action was involved” in the
earlier action if it shares “the same nucleus of operative facts” with
the instant action. Devins, 167 F.4th at 252 (citations omitted).
“The nucleus of operative facts, rather than the type of relief
requested, 	substantive 	theories 	advanced, 	or 	types 	of 	rights
asserted, 	defines 	the 	claim.” 	Id. 	(citing 	Davenport, 	484 	F.3d
at 326). The court considers various factors, such as “whether the
facts are related in time, space, origin, or motivation, whether they
form a convenient trial unit, and whether their treatment as a unit
conforms to the parties’ expectations or business understanding or
usage.” Test Masters, 428 F.3d at 571. “If a party can only win the
[instant] suit by convincing the court that the prior judgment was
in error, the second suit is barred.” Id. (citing N.Y. Life Ins. Co. v.
Gillispie, 203 F.3d 384, 387 (5th Cir. 2000)). When two actions each
involve a lender or servicer’s attempt to foreclose upon the same
property, the two suits involve the same claim or cause of action.
Davis, 2020 WL 880855, at *2.
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Here, the instant action and the Adversary Proceeding share
“the same nucleus of operative facts.” In his motion to reopen the
Adversary 	Proceeding, 	Cross 	admitted 	that 	the 	instant 	case
“concerns the same loan history, payment records, and standing
issues that originated in th[e] bankruptcy proceeding.” NewRez,
ECF No. 56 at 5 	The 	Adversary 	Proceeding 	and 	the 	instant
lawsuit involve the same Loan. In both actions, Cross challenged
the 	defendants’ 	authority 	to 	declare 	a 	default 	and 	initiate
foreclosure. Both lawsuits had the same goal—to prevent the
defendants from pursuing foreclosure of the Property. Cf. Mitchell
v. Wilmington Sav. Fund Soc’y, FSB, No. 02-18-00325-CV, 2019
WL 1950061 at *3 (Tex. App.—Fort Worth May 2, 2019, no pet.)
(mem. op.) (holding that an adversary proceeding and state court
lawsuit shared a common nucleus of operative facts where the
plaintiff’s goal in both actions was “to have the 2016 judicial
foreclosure order and sale declared void”).
While Cross did not challenge the 2014 Assignment during
the 	Adversary 	Proceeding, 	he 	could 	have 	done 	so. 	Cross’s
Bankruptcy filings show that by February 2017, he was aware that
the Loan had been transferred to Bank of New York Mellon.
Bankruptcy, ECF No. 65 at 2 (listing “The Bank of New York Trust
Company c/o Ocwen Loan Servicing LLC” as the Loan creditor).
Cross 	has 	not 	presented 	any 	evidence 	that 	Defendants 	or
Intervenors, subsequent to the closing of the adversary proceeding,
have wronged him in some new way. See ASARCO, LLC v. Mont.
Res., Inc., 514 B.R. 168, 201 (S.D. Tex. 2012) (quoting Blair v. City
of Greenville, 649 F.2d 365, 368 (5th Cir. 1981)) (“The general rule
is that ‘[a] subsequent wrong constitutes a new cause of action.’”)
(alteration 	in 	original); 	Vela, 	2007 	WL 	1564562, 	at 	*9 	(“The
conduct of which Plaintiff presently complains began prior to the
[bankruptcy court’s judgment], and continued uninterrupted to the
date Plaintiff filed the instant suit. Therefore, the segment of
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[Defendant’s] continuous conduct occurring after the [bankruptcy
court’s judgment] became final is not a ‘subsequent wrong’ for
Blair purposes.”) (alterations in original).
Cross cannot now bring a challenge to the Loan’s assignment
that 	he 	could 	have 	brought, 	but 	neglected 	to 	bring, 	in 	the
Adversary 	Proceeding. 	Cross’s 	claims 	in 	the 	instant 	case 	are
barred under res judicata. All of Cross’s claims against Defendants
and Intervenors should therefore be dismissed.
7. Cross’s Motion for Summary Judgment should be
denied.
While the doctrine of res judicata fully disposes of all of
Cross’s claims, for the sake of completeness, the court now also
addresses the merits of each of Cross’s claims. There is no evidence
to support any of Cross’s claims. All of the undisputed evidence
demonstrates 	that 	Bank 	of 	New 	York 	Mellon 	holds 	a 	valid
assignment 	of 	the 	Loan 	and 	has 	authority 	to 	foreclose.
Accordingly, the court recommends that Intervenors’ Motion for
Summary 	Judgment, 	ECF No. 90, 	be 	GRANTED, 	and 	that
Plaintiff’s 	Motion 	for 	Summary 	Judgment, 	ECF No. 108, 	be
DENIED.
A. Wrongful Foreclosure
Cross’s 	claim 	for 	wrongful 	foreclosure 	cannot 	survive
summary judgment because no foreclosure has occurred. Under
Texas law, to state a claim for wrongful foreclosure, a plaintiff
must plead: (1) that there was “a defect in the foreclosure sale
proceedings;” 	(2) that 	the 	property 	was 	sold 	at 	a 	“grossly
inadequate 	price;” 	and 	(3) that 	there 	is 	“a 	causal 	connection
between the defect and the grossly inadequate selling price.” Carey
v. Fargo, No. 15-1666, 2016 WL 4246997, at *3 (S.D. Tex. Aug. 11,
2016) (citing Martins v. BAC Home Loans Servicing, L.P., 722 F.3d
249, 256 (5th Cir. 2013)). Texas courts do not recognize a cause of
action for attempted wrongful foreclosure. Farshchi v. Wells Fargo
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Bank, N.A., No. 15-1692, 2016 WL 2858903, at *5 (S.D. Tex. May
13, 2016) (citing Motten v. Chase Home Fin., 831 F. Supp. 2d 988,
1007 (S.D. Tex. 2011)). “Because recovery for wrongful foreclosure
is premised upon loss of possession, a person who never loses
possession of the property cannot recovery on a theory of wrongful
foreclosure.” Id. (citation omitted).
Cross has not shown that he has lost possession of the
property. He has not shown that that Defendants or Intervenors
have even initiated foreclosure proceedings. Because there is no
evidence that could lead a reasonable factfinder to conclude that
Cross’s Property has been foreclosed upon, his claim for wrongful
foreclosure fails. Accordingly, as to Cross’s claim for wrongful
foreclosure, Intervenors’ motion for summary judgment should be
GRANTED, and Cross’s motion for summary judgment should be
DENIED. Cross’s wrongful foreclosure action against MortgageIT
and Wilmington Trust should also be dismissed, as Intervenors
have established that there is no factual basis to support the
finding 	of 	liability 	against 	any 	of 	the 	named 	parties. 	See
Armendariz, 2016 WL 8856919, at *19.
B. Slander of Title
Cross asserts a claim of slander of title against all four of the
named defendants. ECF No. 83 at 6. To state a claim for slander of
title under Texas law, a plaintiff must establish: (1) the uttering
and publishing of disparaging words; (2) that they were false;
(3) that 	they 	were 	malicious; 	(4) that 	special 	damages 	were
sustained thereby; (5) that the plaintiff possessed an estate or
interest in the property disparaged; and (6) the loss of a specific
sale of the property due to the uttering and publishing of the
allegedly disparaging words. Emeribe v. Wells Fargo Bank, N.A.,
No. 12-2545, 2013 WL 140617, at *3 (S.D. Tex. Jan. 10, 2013)
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(citing Williams v. Jennings, 755 S.W.2d 874, 879 (Tex. App.—
Houston [14th Dist.] 1988, writ ref’d)).
Cross asserts that “[t]he 2011 assignment and related filings
with [Harris County] records falsely represent the status of title
and ownership of [his] loan.” ECF No. 83 ¶ 44. He asserts that the
filings “were made with reckless disregard for the truth, as they
conflict with the [2005-5] Trust’s closing date and MortgageIT’s
own 	judicial 	admissions.” 	Id. ¶ 45. 	However, 	Cross 	has 	not
produced any records that show that there was an assignment of
the Loan in 2011, or that an invalid assignment occurred at any
time. As the court explained in Part I above, Intervenors provided
evidence 	that, 	under 	Fifth 	Circuit 	precedent, 	conclusively
establishes that the 2014 Assignment was valid. See Deutsche
Bank Nat’l Tr. Co. v. Burke (Burke I), 655 F. App’x 251 (5th Cir.
2016) (holding that MERS, in its dual role as nominee for the
original lender and beneficiary under the deed of trust, may assign
its rights, including its right to foreclose, to a new mortgagee).
Moreover, Cross has not alleged, much less provided evidence to
support, that he lost a specific sale of the Property.
For these reasons, on Cross’s claim for slander of title,
Intervenors’ motion for summary judgment should be GRANTED,
and Cross’s motion for summary judgment should be DENIED.
Further, because Intervenors have established that there is
no factual basis to support the finding of liability against any of
the 	named 	parties, 	Cross’s 	slander 	of 	title 	claim 	against
MortgageIT 	and 	Wilmington 	Trust 	should 	be 	dismissed. 	See
Armendariz, 2016 WL 8856919, at *19.
C. Unjust Enrichment
Unjust enrichment occurs when someone secures a benefit
wrongfully 	or 	passively 	receives 	a 	benefit 	that 	would 	be
unconscionable to retain. Eun Bok Lee v. Ho Chang Lee, 411
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S.W.3d 95, 111 (Tex. App.—Houston [1st Dist.] 2013, no pet.). To
assert a claim for unjust enrichment, a party must show that “one
person has obtained a benefit from another by fraud, duress, or the
taking of an undue advantage.” Heldenfels Bros., Inc. v. City of
Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992).
Cross asserts that Defendants and Intervenors “have been
unjustly enriched by claiming a right to [his mortgage] payments”
and attempting to collect on “a debt for which they possess no valid,
enforceable interest . . . .” ECF No. 83 at 7.
Because 	the 	2014 	Assignment 	is 	valid, 	as 	previously
explained, Intervenors have the right to collect on the Loan. Cross
has not produced any evidence that shows that Intervenors or
Defendants obtained an interest in the Property or Loan by fraud,
duress, or taking of an undue advantage. It is not unconscionable
to retain mortgage payments to which a lender and its servicer are
legally entitled.
There is no evidence from which the court could infer that
Intervenors or Defendants have been unjustly enriched. As such,
on Cross’s claim for unjust enrichment, Intervenors’ motion for
summary judgment should be GRANTED, and Cross’s motion
for summary judgment should be DENIED. Because Intervenors
have established that there is no factual basis to support the
finding of liability against any of the named parties, Cross’s unjust
enrichment 	claim 	against 	MortgageIT 	and 	Wilmington 	Trust
should also be dismissed. See Armendariz, 2016 WL 8856919,
at *19.
D. Breach of Contract
Cross 	alleges 	a 	claim 	for 	breach 	of 	contract 	against
MortgageIT. The elements of a breach of contract claim are (1) “the
existence 	of 	a 	valid 	contract,” 	(2) “performance 	or 	tendered
performance by the plaintiff,” (3) “breach of the contract by the
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defendant,” and (4) “damages sustained as a result of the breach.”
Innova Hosp. San Antonio, LP v. Blue Cross & Blue Shield of Ga.,
892 F.3d 719, 731 (5th Cir. 2018) (citation omitted). Under Texas
law, breach of contract actions are subject to a four-year statute of
limitations. Ammerman v. Ranches of Clear Creek Cmty. Ass’n,
Inc., 562 S.W.3d 622, 636 (Tex. App.—Houston [1st Dist.] 2018, no
pet.) (citing Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d
194, 203 (Tex. 2011)).
Cross asserts that the Loan contains an implied covenant
that required MortgageIT to comply with applicable law in any
transfer. ECF No. 83 at 6. He argues that MortgageIT breached
the Loan “by using MERS to execute a void assignment years after
the Trust closing date, in violation of New York Trust Law and
Texas Property Code § 192.001.” Id.
There is no evidence to support Cross’s allegations. As the
court has already explained, MortgageIT has not had an interest
in 	the 	Loan 	since 	2005, 	and 	the 	2014 	Assignment 	properly
assigned the Loan to Bank of New York Mellon. These facts
undermine 	Cross’s 	theory 	of 	liability. 	Moreover, 	Cross’s
bankruptcy case filings demonstrate that he was aware of the 2014
Assignment by February 2017. Thus, even if Cross did have a valid
basis to support his breach of contract claim, it would be barred by
the statute of limitations.
Cross’s claim for breach of contract against MortgageIT fails.
Accordingly, Cross’s motion for summary judgment should be
DENIED as to the claim, and the breach of contract claim should
be dismissed.
E. Quiet Title
Cross 	and 	Intervenors 	each 	seek 	to 	quiet 	title 	to 	the
Property. A party seeking to quiet title must show (1) that they
have an interest in a specific property, (2) that the property’s title
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is affected by a claim by the defendant, and (3) that the defendant’s
claim, although facially valid, is actually invalid or unenforceable.
Kapur v. U.S. Bank Nat’l Ass’n, 691 S.W.3d 663, 667 (Tex. App.—
Houston [14th Dist.] 2024, no pet.) (citation omitted).
Again, Cross believes that, in 2011, his Loan was placed into
the 	2005-5 	Trust, 	constituting 	an 	invalid 	assignment 	which
thereby invalidated subsequent assignments. But Cross did not
provide any admissible evidence to show that there was an invalid
assignment. 	Moreover, 	Cross 	did 	not 	provide 	any 	admissible
evidence to cast doubt on the validity of the 2014 Assignment.
To 	the 	contrary, 	the 	evidence 	shows 	that 	the 	2014
Assignment 	validly 	assigned 	the 	first 	mortgage 	lien 	on 	the
Property to Bank of New York Mellon. Cross cannot establish, as
a matter of law, that he holds superior title to the Property.
Accordingly, as to the quiet title actions, the court recommends
that Intervenors’ motion for summary judgment be GRANTED,
and that Cross’s motion for summary judgment be DENIED.
8. Declaratory Relief
Intervenors request declaratory judgment that Bank of New
York Mellon has a valid and subsisting mortgage lien against the
Property, and such lien is superior to any interest that Cross has
in the Property. ECF No. 90 at 19.
As stated above, Bank of New York Mellon holds the first
mortgage lien on the Property 	as 	a 	result 	of the valid 	2014
Assignment. 	Accordingly, 	Intervenors 	requests 	for 	declaratory
judgment that (1) Bank of New York Mellon has a valid and
subsisting mortgage lien against the Property, and (2) Bank of
New York Mellon’s mortgage lien is superior to any interest of
Cross, should be GRANTED. The court further recommends that
Cross 	be 	ORDERED 	to 	immediately 	withdraw, 	terminate,
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release, and disclaim his Notice of Lis Pendens filed in Harris
County, Texas, on September 27, 2024.
9. Conclusion
The 	court 	recommends 	that 	Intervenors’ 	Motion 	for
Summary 	Judgment, 	ECF No. 90, 	be 	GRANTED, 	and 	that
Plaintiff’s 	Motion 	for 	Summary 	Judgment, 	ECF No. 108, 	be
DENIED.
The court recommends that all of Cross’s claims against all
Intervenors and Defendants be DISMISSED with prejudice.
The court further recommends that Intervenors’ request for
declaratory 	judgment, 	ECF No. 90 at 19, 	be 	GRANTED. 	As 	a
result, the court also recommends that Cross be ORDERED to
immediately withdraw, terminate, release, and disclaim his Notice
of Lis Pendens.
The 	parties 	have 	fourteen 	days 	from 	service 	of 	this
Memorandum and Recommendation to file written objections. 28
U.S.C. 	§ 636(b)(1); 	Fed. 	R. 	Civ. 	P. 	72. 	Failure 	to 	timely 	file
objections will preclude appellate review of factual findings or legal
conclusions, except for plain error. See Thomas v. Arn, 474 U.S.
140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th
Cir. 1988).
Signed at Houston, Texas, on July 9, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
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