Burghardt v. Bank of America N.A. et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
NORMAN BURGHARDT,
Plaintiff.
V.
BANK OF AMERICA, N.A., et al.,
Defendants.
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CIVIL ACTION NO. 3:25-cv-00145
MEMORANDUM AND RECOMMENDATION
Pending before me are two motions to dismiss. The first is filed by Defendant
Bank of America, N.A. (“BANA”). See Dkt. 21. The second is filed by Defendants
Federal National Mortgage Association (“Fannie Mae”) and FNMA 2006-128
Trust. See Dkt. 23. Both motions were delivered to Plaintiff Norman Burghardt via
certified mail, return receipt requested. See Dkt. 22 at 1; Dkt. 23 at 8; see also USPS
Tracking, 	https://tools.usps.com/go/TrackConfirmAction_input 	(search 	9589
0710 5270 3193 1152 51 and 9414 7266 9904 2217 5995 01) (last visited Nov. 4,
2025). Burghardt has not responded to either motion. For the reasons discussed
below, I recommend that both motions be granted.
BACKGROUND1
This dispute arises out of allegedly unlawful attempts to enforce and transfer
Burghardt’s 	mortgage 	loan. 	On 	November 	9, 	2006, 	Burghardt 	executed 	a
promissory note in the amount of $61,600 in favor of BANA (the “Note”). That
same day, Burghardt executed a deed of trust encumbering the property located at
728 Grafton, La Marque, Texas 77568. Burghardt claims the Note was never
properly endorsed to any successor and remains payable to only BANA. Burghardt
also claims that the loan was a contract of adhesion.
1 This section recounts the allegations contained in the First Amended Complaint for
Declaratory Judgment, Damages, and Injunctive Relief. Dkt. 9.
United States District Court
Southern District of Texas
ENTERED
November 05, 2025
Nathan Ochsner, Clerk
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According to Burghardt, “Defendants claim the loan was securitized into the
FNMA 2006-128 Trust, with a closing date of December 29, 2006.” Dkt. 9 at 4.
Burghardt maintains that Fannie Mae’s selling guide and custodial guidelines
require delivery of the Note, properly endorsed, into the Trust prior to the closing
date, and that post-closing transfers into the Trust are prohibited. Burghardt
complains that the Note was not conveyed into the Trust prior to the closing date,
rendering the securitization of the loan defective and void. Burghardt also claims
that Defendants violated federal law by failing to notify him of the transfer and
securitization of the loan.
On April 7, 2023, an Assignment of Deed of Trust was recorded in Galveston
County, purporting to transfer Burghardt’s deed of trust from Ajax Mortgage Loan
Trust 2019-H to Ajax Mortgage Loan Trust 2023-A. Burghardt contends that this
assignment is void because: (1) BANA had already transferred any beneficial
interest years earlier; (2) the Trust’s governing documents prohibited any transfers
after 2006; and (3) the Note is unendorsed and unenforceable under UCC § 3-203.
On May 13, 2025, Burghardt instituted this lawsuit. On September 4, 2025,
Burghardt filed his first amended complaint, asserting causes of action under
federal law, Texas statutory law, and Texas common law related to the transfer and
securitization of the Note. See Dkt 9. He also seeks declaratory and injunctive
relief, and to quiet title to the property. Defendants have moved to dismiss all of
Burghardt’s claims.
LEGAL STANDARD
A complaint must be dismissed when the plaintiff’s allegations fail to set
forth facts that, if true, would entitle the plaintiff to relief. See Fed. R. Civ. P.
12(b)(6). While a complaint “does not need detailed factual allegations,” it must
provide “more than labels and conclusions” or “a formulaic recitation of the
elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
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face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at 678.
In this district, “[f]ailure to respond to a motion will be taken as a
representation of no opposition.” S.D. Tex. LR 7.4. Even so, “[t]he mere failure to
respond to a motion is not sufficient to justify a dismissal with prejudice.” Watson
v. United States ex rel. Lerma, 285 F. App’x 140, 143 (5th Cir. 2008). Thus, I must
address the substance of the motion and determine whether the complaint states
a cognizable claim for relief. See Ramsay v. Bailey, 531 F.2d 706, 709 n.2 (5th Cir.
1976) (“[A] proper sanction for a failure to respond to a motion to dismiss [is] for
the trial court to decide the motion on the papers before it.”).
ANALYSIS
A. 	BURGHARDT ’S TRUTH IN L ENDING A CT (TILA) CLAIM F AILS
Burghardt alleges that Defendants violated TILA when they “failed to notify
[him] of the transfer and securitization of his loan, in violation of 15 U.S.C.
§ 1641(g).” Dkt. 9 at 6. Burghardt also alleges that “[he] never received written
notice identifying the new creditor as required by federal law.” Id.
TILA requires, in relevant part, that “not later than 30 days after the date on
which a mortgage loan is sold or otherwise transferred or assigned to a third party,
the creditor that is the new owner or assignee of the debt shall notify the borrower
in 	writing 	of 	such 	transfer.” 	15 	U.S.C. 	§ 1641(g)(1). 	Defendants 	argue 	that
Burghardt’s TILA claim should be dismissed because (1) Burghardt fails to allege
that any defendant is the new owner or assignee of the debt; (2) TILA does not
apply retroactively and was not passed until 2009, after the Note was securitized
into the Trust; and (3) Burghardt’s TILA claim is time-barred by the one-year
statute of limitations. Each of these arguments is an independent and sufficient
reason to dismiss Burghardt’s TILA claim.
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“By its terms, § 1641(g) applies only to ‘the creditor that is the new owner or
assignee of the debt.’” Fowler v. U.S. Bank, Nat. Ass’n, 2 F. Supp. 3d 965, 982 n.55
(S.D. Tex. 2014) (quoting 15 U.S.C. § 1641(g)(1)). Because Burghardt fails to allege
that any defendant is the new owner or assignee of the debt, his claim necessarily
fails. See id.
Section 1641(g) was enacted in 2009. See Helping Families Save Their
Homes Act of 2009, Pub. L. No. 111-22, § 404, 123 Stat. 1632, 1658 (2009).
Burghardt alleges that his loan was securitized on December 29, 2006. See Dkt. 9
at 4. TILA does not apply retroactively to violations that occurred before § 1641(g)’s
enactment. See Johnson v. Bank of Am., N.A., No. CIV.A. H-13-2029, 2014 WL
4923970, at *10 n.69 (S.D. Tex. Sept. 30, 2014) (“Section 1641(g) applies only to
transfers made on or after the date of its passage.”). Thus, Burghardt’s TILA claim
fails because it does not apply retroactively. See Reardean v. Fed. Home Loan
Mortg. Corp., No. A-13-CA-1059, 2014 WL 774939, at *4 (W.D. Tex. Feb. 24, 2014)
(“In the alternative, § 1641(g) was enacted in May 2009, and it does not apply to
violations which occurred prior to its enactment.”).
Finally, 	Burghardt’s 	claim 	is 	indisputably 	time-barred. 	“Claims 	under
§ 1641(g) are subject to a one year statute of limitations which runs from the end
of the 30 days period after the date of an assignment.” Benitez v. Am.’s Wholesale
Lender, No. CIV.A. H-14-953, 2014 WL 3388650, at *2 (S.D. Tex. July 9, 2014)
(citing 15 U.S.C. § 1640(e)). The December 2006 securitization of which Burghardt
complains has been proscribed for nearly two decades. Accordingly, Burghardt’s
TILA claim is time-barred.
* * *
For any and all of these reasons, Burghardt’s TILA claim should be
dismissed as to all Defendants.
B. 	BURGHARDT F AILS TO PLEAD HIS F RAUD CLAIMS
Burghardt asserts claims of fraud, fraudulent concealment, and coercion
against Defendants. See Dkt. 9 at 6. Specifically, he alleges that “Defendants
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knowingly concealed material facts regarding the securitization of the loan, the
lack of lawful assignment, and the use of MERS to obscure true ownership.” Id.
In Texas, the elements of a fraud claim are: (1) a material representation; (2)
the representation was false; (3) the speaker knew the representation was false
when making it, or made it recklessly without knowledge of the truth and as a
positive assertion; (4) the speaker made the representation with the intent that the
plaintiff should act upon it; (5) the plaintiff relied on the representation; and
(6) the plaintiff was injured. See Italian Cowboy Partners, Ltd. v. Prudential Ins.
Co. of Am., 341 S.W.3d 323, 337 (Tex. 2011).
“The elements of fraudulent concealment are: (1) the existence of the
underlying tort; (2) the defendant’s knowledge of the tort; (3) the defendant’s use
of deception to conceal the tort; and (4) the plaintiff’s reasonable reliance on the
deception.” Glover v. Union Pac. R.R. Co., 187 S.W.3d 201, 217 (Tex. App.—
Texarkana 2006, pet. denied).
I construe Burghardt’s claim of coercion to be one of economic duress. 2 The
Texas Supreme Court has articulated a three-part test for the tort of economic
duress: “(1) there is a threat to do something which a party threatening has no legal
right to do; (2) there is some illegal exaction or some fraud or deception; and
(3) the restraint is imminent and such as to destroy free agency without present
means of protection.” Lee v. Wal-Mart Stores, Inc., 34 F.3d 285, 288 (5th Cir.
1994) (quotation omitted)).
All three of these claims—fraud, fraudulent concealment, and economic
duress—require 	Burghardt 	to 	“state 	with 	particularity 	the 	circumstances
constituting fraud or mistake.” Fed. R. Civ. P. 9(b). This requires Burghardt to
2 To the extent that Burghardt’s “Coercion in Contract Formation” claim is a claim, not of
economic duress, but of adhesion, that claim also fails. Under Texas law, “adhesion
contracts are not per se unconscionable or void.” In re Lyon Fin. Servs., Inc., 257 S.W.3d
228, 233 (Tex. 2008). Only when the contract “is so one-sided as to be unconscionable”
will courts refuse to enforce it. Id. Burghardt has not pleaded any facts that suggest the
contract was so one-sided as to be unconscionable. Thus, to the extent that Burghardt
asserts that his loan is a contract of adhesion, it is still enforceable.
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allege “at a minimum . . . the who, what, when, where, and how of the alleged
fraud.” United States ex rel. Steury v. Cardinal Health, Inc., 625 F.3d 262, 266
(5th Cir. 2010) (quotation omitted). Burghardt has not alleged any of this
information. Accordingly, his claims sounding in fraud should be dismissed.
C. 	BURGHARDT F AILS TO S TATE A VIOLATION OF THE TEXAS PROPERTY
CODE OR TEXAS L OCAL GOVERNMENT CODE
In his third count, Burghardt alleges violations of § 13.001 and § 192.007 of
the Texas Property Code. Specifically, Burghardt alleges that “Defendants failed to
record lawful transfers of the Deed of Trust as required by the Texas Property Code
§§ 13.001 and 192.007,” and that “[a]ny unrecorded or defective assignments are
void as to [Burghardt].” Dkt. 9 at 6–7. Neither of these statutory provisions afford
Burghardt any basis for relief.
1. 	Texas Property Code § 13.001
Section 13.001 provides, in relevant part:
A conveyance of real property or an interest in real property or a
mortgage or deed of trust is void as to a creditor or to a subsequent
purchaser for a valuable consideration without notice unless the
instrument has been acknowledged, sworn to, or proved and filed for
record as required by law.
Tex. Prop. Code § 13.001(a) (emphasis added). “Texas courts have consistently
held that recordation is not necessary for liens, deeds, or deeds of trust to be
enforceable against the parties to those instruments.” Calvino v. Conseco Fin.
Servicing Corp., No. A-12-CA-577, 2013 WL 4677742, at *3 (W.D. Tex. Aug. 30,
2013) (collecting cases rejecting the argument that an unrecorded document is
void under § 13.001). Moreover, § 13.001 “protects only subsequent purchasers for
value and without notice.” Reinagel v. Deutsche Bank Nat. Tr. Co., 735 F.3d 220,
227 (5th Cir. 2013). Burghardt does not allege that he is a subsequent purchaser
for value and without notice. Accordingly, Burghardt’s claim under § 13.001 fails.
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2. 	Texas Local Government Code § 192.007
Burghardt 	mistakenly 	asserts 	a 	claim 	under 	Texas 	Property 	Code
§ 192.007—a nonexistent statutory provision. I assume that Burghardt meant to
assert a claim under Texas Local Government Code § 192.007, which provides:
To release, transfer, assign, or take another action relating to an
instrument that is filed, registered, or recorded in the office of the
county 	clerk, 	a 	person 	must 	file, 	register, 	or 	record 	another
instrument relating to the action in the same manner as the original
instrument was required to be filed, registered, or recorded.
Tex. Loc. Gov’t Code § 192.007(a).
The Fifth Circuit has held that “the Texas Legislature did not create a private
right of action to enforce section 192.007” and “even if there were a right of action,
section 192.007 does not impose a duty to create and record assignments of deeds
of trust when an interest in the related promissory note is transferred.” Harris
County v. MERSCORP Inc., 791 F.3d 545, 551–52 (5th Cir. 2015). Accordingly,
Burghardt has no claim under § 192.007.
D. 	BURGHARDT F AILS TO S TATE A VIOLATION U NDER THE UCC OR TEXAS
BUSINESS AND COMMERCE C ODE
In count four of his complaint, Burghardt asserts a violation of UCC Article
3, which is codified as Texas Business and Commerce Code §§ 3.203, 3.301, and
3.305. See Dkt. 9 at 7. Burghardt complains that “[t]he Note was never properly
indorsed or negotiated to Defendants”; “Defendants are not ‘persons entitled to
enforce’ under § 3.301”; and “[u]nder § 3.305, [Burghardt] has valid defenses
against enforcement of the Note.” Id. Each of these arguments fails.
As to §§ 3.203 and 3.301, other courts have held that “[r]ather than
constituting an independent cause of action,” a plaintiff’s references to these UCC
provisions “are merely offered in connection with Plaintiff’s claim to quiet title and
his argument that Defendant must be the owner or holder of the note prior to
administering a deed of trust foreclosure.” Martinez v. Bank of Am., N.A., No. SA-
12-CV-462, 2013 WL 489992, at *12 (W.D. Tex. Feb. 7, 2013). But even if these
UCC provisions constituted independent causes of action, they would fail.
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As for § 3.203, it provides in relevant part: A “transferee cannot acquire
rights of a holder in due course by a transfer, directly or indirectly, from a holder
in due course if the transferee engaged in fraud or illegality affecting the
instrument.” Tex. Bus. & Com. Code § 3.203(b). As discussed above, Burghardt
fails to plead fraud. Accordingly, Burghardt cannot state a claim under § 3.203.
As for § 3.301, it defines a “[p]erson entitled to enforce” an instrument. Id.
§ 3.301. Burghardt does not plausibly allege that any of the Defendants have
attempted to enforce the Note or seek to enforce the Note. Burghardt’s only
allegations concerning enforcement of the Note are vague and conclusory. For
example, Burghardt alleges that “[t]his action arises from Defendants’ unlawful
attempts to enforce and transfer a mortgage loan.” Dkt. 9 at 1. Yet, Burghardt never
identifies any attempt by any Defendant to enforce the loan. Similarly, Burghardt
says that he wants “to prevent further unlawful foreclosure or collection activities,”
id. at 2, but he never identifies any foreclosure or collection activities that have
already taken place. Thus, even if § 3.301 provided an independent cause of action,
Burghardt would lack standing to bring such a claim because he has not identified
an actual controversy between himself and the Defendants.
Finally, Burghardt’s assertion of defenses under § 3.305 are irrelevant to
determining whether he has stated a claim against Defendants.
E. 	BURGHARDT I S NOT E NTITLED TO A D ECLARATORY JUDGMENT , Q UIET
TITLE, OR I NJUNCTIVE R ELIEF
In his fifth count, Burghardt seeks a declaratory judgment and to quiet title
to the property. See Dkt. 9 at 7. Specifically, Burghardt seeks a declaration that:
(1) “Defendants lack authority to enforce the Note or Deed of Trust”; (2) “[t]he
2023 assignment is void”; (3) “[t]itle to the property remains with Plaintiff, free
and clear of unlawful claims.” Id. In his sixth count, Burghardt seeks “to enjoin
Defendants from initiating or continuing foreclosure, eviction, or collection
activities based on the void and unenforceable assignments.” Id.
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The Fifth Circuit has held that where a plaintiff “simply asked for a
determination and declaration of whether [a defendant] . . . [is] entitled to enforce
and bring a foreclosure action[,]” the plaintiff “did not allege an actual, current
case or controversy.” Val-Com Acquisitions Tr. v. Chase Home Fin., L.L.C., 420 F.
App’x 405, 406 (5th Cir. 2011) (quotation omitted). The same result must follow
here. Burghardt has not alleged that any Defendant has or is attempting to
undertake enforcement activities that would cloud the title to the subject property.
Thus, his requests for declaratory and injunctive relief and to quiet title fail to
present an actual dispute for this court’s consideration. Accordingly, these claims
must be dismissed.
Burghardt’s request for a declaration that the 2023 assignment is void also
fails because Burghardt has not stated a claim upon which such a declaration could
be made. See Hymes v. Amcap Mortg., Ltd., No. 4:19-cv-00515, 2020 WL
7658127, at *9 (S.D. Tex. Nov. 17, 2020) (“Because this Court has already
recommended dismissal of the underlying claims for relief that relate to the
request for declaratory and injunctive relief, the declaratory relief and injunctive
relief claims cannot survive.”).
CONCLUSION
For the reasons discussed above, I recommend that both motions to dismiss
(Dkts. 21, 23) be granted.
The 	parties 	have 	14 	days 	from 	service 	of 	this 	Memorandum 	and
Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); Fed. R.
Civ. P. 72(b)(2). Failure to file timely objections will preclude appellate review of
factual findings and legal conclusions, except for plain error.
SIGNED this 	day of November 2025.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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