White v. Bombick et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
QUINCY WHITE,
Plaintiff.
V.
MARK BOMBICK, et al.,
Defendants.
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CIVIL ACTION NO. 3:25-cv-00353
MEMORANDUM AND RECOMMENDATION
Pending before me is a motion to dismiss filed by Defendants U.S. Bank
Trust Company, National Association, as Indenture Trustee, as successor-in
interest to U.S. Bank National Association, as Indenture Trustee, Successor in
Interest to Wachovia Bank National Association, as Indenture Trustee for Aegis
Asset Backed Securities Trust 2004-6, Mortgage Backed Notes (“Trustee”); and
PHH Mortgage Corporation. See Dkt. 15. Having reviewed the briefing, the record,
and the applicable law, I recommend that the motion be granted.
BACKGROUND
This dispute concerns the attempted foreclosure of 2530 Mango Court,
League City, Texas 77573 (the “Property”). Plaintiff Quincy White purchased the
Property in 2004 with a loan secured by a deed of trust, which names Aegis
Funding Corporation as the lender and Mortgage Electronic Registration Systems,
Inc. (“MERS”) as the beneficiary. See Dkt. 17 at 27.
On September 4, 2007, MERS foreclosed the original deed of trust and
purchased the property while White was in forbearance. On January 9, 2008, the
sale was rescinded with no renewal on record.
On August 14, 2025, a Notice of Substitute Trustee Sale was posted on the
Property. See id. at 45–47. According to the Notice, “the current mortgagee of the
note and deed of trust” is “U.S. Bank Trust Company, National Association, as
United States District Court
Southern District of Texas
ENTERED
July 01, 2026
Nathan Ochsner, Clerk
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Indenture Trustee, as successor-in-interest to U.S. Bank National Association, as
Indenture Trustee, Successor in Interest to Wachovia Bank National Association,
as Indenture Trustee for Aegis Asset Backed Securities Trust 2004-6, Mortgage
Backed Notes.” Id. at 45. PHH is the mortgage servicer.
On October 7, 2025, White filed an emergency petition and application for
temporary restraining order in the 405th District Court of Galveston County
seeking to halt the planned foreclosure sale and asserting claims for violations of
the Texas Property Code, the Texas Business and Commerce Code, and the Texas
Debt Collection Act (“TDCA”). White also sought a declaratory judgment that “the
supposed Deed of Trust is not a Promissory note” and that “the deed of trust was
extinguished with the recession [sic] and an agreement is need[ed] to revive it.”
Dkt. 1-3 at 7. White named as defendants the Trustee, PHH, Mark Bombick, and
AVT Title Services, LLC.1 See id. at 2. On October 24, 2025, the Trustee and PHH
removed the case to federal district court based on diversity jurisdiction. In their
notice of removal, the Trustee and PHH argue that the citizenship of Bombick and
AVT should be disregarded for the purposes of determining diversity jurisdiction
because White cannot state a claim against Bombick or AVT.
On October 31, 2025, the Trustee and PHH filed a motion to dismiss to
which White never responded. See Dkt. 5. At the December 10, 2025 initial
scheduling conference, I gave White leave to file an amended complaint by January
9, 2026. White did not file an amended complaint. On January 30, 2026, the
1 White also mentioned Power Default Services, Inc. in the opening paragraph of his state
court petition. See Dkt. 1-3 at 2. Unlike Bombick and AVT, however, Power Default is not
named as a defendant in the style of White’s state court pleading and is not mentioned
again anywhere in the pleading. The court does not believe that White intended to sue
Power Default. Presumably, Defendants do not believe that White intended to sue Power
Default either, because Defendants do not mention Power Default in their notice of
removal. But to the extent that White did intend to sue Power Default, then Power
Default’s citizenship should be disregarded for the same reason, explained below, that
Bombick and AVT’s citizenship should be disregarded: White fails to advance any
allegations as to Bombick, AVT, or Power Default.
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Trustee and PHH renewed their motion to dismiss. See Dkt. 15. On May 13, 2026,
this case was referred to me for all pretrial purposes.
SUBJECT MATTER JURISDICTION
Before reaching the merits of the pending motion to dismiss, I must address
whether this court has jurisdiction. Defendants removed this case to federal court
based on diversity jurisdiction. See Dkt. 1 at 2. White is a citizen of Texas. The
Trustee, a national bank, is a citizen of Minnesota because that is where its main
office is located. PHH is a citizen of New Jersey because that is the state of its
incorporation and the state of its principal place of business. Defendants do not
contend that Bombick or AVT are diverse in citizenship from White. Rather,
Defendants argue that Bombick and AVT are improperly joined such that their
presence in the suit does not destroy complete diversity. See id. at 4.
“Federal courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute, which is not to be expanded by
judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994) (cleaned up). Parties “may neither consent to nor waive federal subject
matter jurisdiction.” See Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th
Cir. 1999). Where jurisdiction is in question, federal courts must “examine the
basis of jurisdiction sua sponte, even on appeal.” Id.
The doctrine of improper joinder permits a federal district court to exercise
diversity jurisdiction, even though there is not complete diversity of citizenship
between plaintiffs and defendants, by disregarding the citizenship of improperly
joined defendants. See Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572 (5th Cir.
2004). The Fifth Circuit has “recognized two ways to establish improper joinder:
(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff
to establish a cause of action against the non-diverse party in state court.” Id. at
573 (quotation omitted). Defendants argue that the latter applies here. Specifically,
Defendants contend that White “fails to identify any wrongdoing by [Bombick or
AVT] as opposed to [Defendants].” Dkt. 1 at 4.
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In reviewing White’s operative pleading, Bombick’s name appears only
twice, and only on the first page, merely identifying Bombick as a defendant. See
Dkt. 1-3 at 2. Likewise, AVT’s name appears only three times and only to identify
AVT as a defendant. See id. at 2–3. White does not advance a single factual
allegation or claim against Bombick or AVT. Accordingly, Bombick and AVT are
improperly joined parties whose citizenship can be disregarded for diversity
purposes. They should be dismissed from this case. Having concluded that
diversity jurisdiction exists, I turn to the merits of the motion to dismiss.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a party is entitled to
dismissal when the opposing party fails to state a claim upon which relief may be
granted. To survive a Rule 12(b)(6) motion, a plaintiff must plead “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). “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.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “[A] formulaic recitation of the elements of a cause of action will not
do.” 	Twombly, 	550 	U.S. 	at 	555. 	“While 	legal 	conclusions 	can 	provide 	the
framework of a complaint, they must be supported by factual allegations.” Iqbal,
556 U.S. at 679. In reviewing a Rule 12(b)(6) motion, I must accept all well-pleaded
facts as true, viewing them in the light most favorable to the plaintiff. See
Alexander v. AmeriPro Funding, Inc., 848 F.3d 698, 701 (5th Cir. 2017). Legal
conclusions, however, are not entitled to the same presumption of truth. See Iqbal,
556 U.S. at 680.
ANALYSIS
A. 	TEXAS PROPERTY CODE VIOLATION
White never identifies in his pleading which sections of the Texas Property
Code Defendants allegedly violated. All White says is that Defendants violated the
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Texas Property Code because “all transfers of the lien were not recorded.” Dkt. 1-3
at 5. But as the Fifth Circuit has explained:
It matters not that the Texas Property Code defines “mortgagee” to
include “the last person to whom [the deed of trust] has been assigned
of record,” as this definition is not exhaustive and applies only “if the
[deed of trust] has been assigned of record.” See Tex. Prop.Code
§ 51.0001(4). 	The 	definition 	of 	“mortgagee” 	also 	includes 	“the
grantee, beneficiary, owner, or holder of [the deed of trust],” see id.
(emphasis 	added), 	a 	definition 	broad 	enough 	to 	accommodate
assignees who fail to record.
Reinagel v. Deutsche Bank Nat. Tr. Co., 735 F.3d 220, 227 n.25 (5th Cir. 2013).
Because “assignees who fail to record” are still recognized mortgagees under the
Texas Property Code, it is irrelevant that transfers of the lien were not recorded. 2
White also states that he “has reason to believe that the mortgagee listed on
the above referenced Notice of Foreclosure Sale is not the current Holder in Due
Course and Holder of any Original Note.” Dkt. 1-3 at 6. As an initial matter, “has
reason to believe,” without more, is the very definition of a conclusory allegation
that deserves no credit when evaluating a motion to dismiss. See Iqbal, 556 U.S. at
679. In any event, to the extent White believes that the Trustee is not the current
noteholder and thus lacks authority to foreclose, “[n]umerous district courts in
Texas have held that borrowers [generally] do not have standing to challenge the
assignments of their mortgages because they are not parties to those assignments.”
2 See Bittinger v. Wells Fargo Bank, N.A., 744 F. Supp. 2d 619, 625 (S.D. Tex. 2010) (“the
ability to foreclose on a deed of trust is transferred when the note is transferred, not when
an assignment of deed of trust is either prepared or recorded”); see also Preston v.
Seterus, Inc., 931 F. Supp. 2d 743, 755 (N.D. Tex. 2013) (collecting cases and observing:
“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.”); Herrera v.
Wells Fargo Bank, N.A., No. H-13-68, 2013 WL 961511, at *9 (S.D. Tex. Mar. 12, 2013)
(“The failure to . . . record the assignment of the deed of trust when it was executed, and
the foreclosure before the assignment was recorded, do not as a matter of law give rise to
a . . . claim.”). Nor has Texas law ever required the recording of assignments of a
promissory note. See KCB Equities, Inc. v. HSBC Bank USA, Nat’l Ass’n, No. 05-10-
01648-CV, 2012 WL 1985899, at *2 (Tex. App.—Dallas June 4, 2012, no pet.) (“KCB offers
no authority, and we have located none, that requires the recording of assignments of a
Note.”)
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McLemore v. CitiMortgage, Inc., No. 3:12-cv-713, 2013 WL 775350, at *3 (N.D.
Tex. Feb. 8, 2013) (quotation omitted). The only two exceptions to this rule are
when the assignment is void or when “a defendant [is] sued on a negotiable
instrument to assert defenses and claims held by others.” Id. (quotation omitted).
White does not assert that either circumstance applies here. Accordingly, White’s
claim for violation of the Texas Property Code must be dismissed.
B. 	TEXAS BUSINESS AND COMMERCE CODE
White also fails to identify which sections of the Texas Business and
Commerce Code Defendants allegedly violated. The crux of White’s argument is
that Defendants “have not shown that they are the ‘Holder’ of the Note or ‘Holder
in Due Course’ and have no right to attempt to enforce such Note.” Dkt. 1-3 at 6.
This is known as a “show-me-the-note” theory. White also alleges that “Defendants
have failed to provide an accounting since November 22, 2004 to date to account
for the lawful application of payment in accordance to a valid contract and Texas
constitution.” Id. Neither of White’s arguments is availing.
“The courts [across the country] . . . have roundly rejected this [show-me-
the-note] theory and dismissed the claims, because foreclosure statutes simply do
not require possession or production of the original note. The ‘show me the note’
theory fares no better under Texas law.” Martins v. BAC Home Loans Servicing,
L.P., 722 F.3d 249, 253 (5th Cir. 2013) (quotation omitted). To the extent that
White is arguing instead that Defendants have failed to show their authority to
foreclose, his “bare allegation that [Defendants] lack[] authority to foreclose fails
to raise a reasonable inference that [Defendants] engaged in any wrongdoing with
respect to the [notice of] foreclosure.” Bennett v. JPMorgan Chase, No. 3:12-cv-
212, 2013 WL 655059, at *5 (N.D. Tex. Feb. 5, 2013). “As the servicer of [White]’s
mortgage, [PHH] could foreclose on the Property without producing the note or
deed of trust.” Id. Because the Notice identifies PHH as the mortgage servicer, and
White “does not claim that [PHH] was not the . . . mortgage servicer on the
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mortgage loan, . . . his claims are subject to dismissal for failure to state a claim.”
Id. (quotation omitted).
I admit that it seems counterintuitive at first to say that where the entity
seeking to foreclose is not listed on the note or deed of trust, that entity need not
explain to the mortgagor why it has authority to foreclose on his property. To the
extent White challenges defects that would render an assignment merely voidable
rather than void, those defects belong to the parties to the assignment, not White.
White’s primary defense to foreclosure would be that he is not in default, an
argument he does not make here. White could also challenge the foreclosure if the
assignment to the Trustee was void, but White does not make that argument either.
See Onyekwere v. Bank of Am., N.A., No. 3:13-cv-2557, 2014 WL 1032447, at *5
(N.D. Tex. Mar. 18, 2014) (“While it is well-settled in Texas that an obligor cannot
defend against foreclosure efforts on grounds that merely render an assignment
voidable, it is also well-settled that an obligor may defend on any ground which
renders the assignment void.”). For these reasons, White fails to state a violation
of the Texas Business and Commerce Code.
C. 	A CCOUNTING
White claims that “Defendants have failed to provide an accounting since
November 22, 2004 to date to account for the lawful application of payment in
accordance to a valid contract and Texas constitution.” Dkt. 1-3 at 6. It is unclear
under the law “[w]hether an accounting is only an equitable remedy or also an
independent cause of action.” Donnelly v. JP Morgan Chase, NA, No. H-13-1376,
2014 WL 429246, at *3 (S.D. Tex. Feb. 4, 2014). To the extent that an accounting
is an independent cause of action, it is unclear whether White intends to state a
claim for an accounting, as it is not listed as a cause of action in his pleading. See
Dkt. 1-3. In any event, if I construe White’s pleading generously and assume that
he intends to state an accounting claim, such a claim still fails because an
accounting “is appropriate only ‘when the facts and accounts presented are so
complex that adequate relief may not be obtained at law.’” Donnelly, 2014 WL
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429246, at *3 (quoting Hutchings v. Chevron USA, Inc., 862 S.W.2d 752, 754 (Tex.
App.—El Paso 1993, writ denied)). Here, as in Donnelly, White “has not pleaded
any basis to support an inference that the documents []he seeks cannot be obtained
through ordinary procedures” or “that this case is so complex that adequate relief
cannot be obtained at law.” 2014 WL 429246, at *4. Thus, Defendants are entitled
to dismissal of White’s claim for an accounting, assuming he intended to bring such
a claim.
D. 	TDCA
White claims that Defendants have violated the TDCA by attempting to
collect on the Note without the authority to do so. See Dkt. 1-3 at 7. This is merely
a 	reiteration 	of 	White’s 	“show-me-the-note” 	or 	“show-me-your-authority”
theories, which courts have also rejected as applied to the TDCA. See Lopez v. PHH
Mortg. Corp., No. SA-21-cv-00754, 2021 WL 5771874, at *5 (W.D. Tex. Dec. 2,
2021) (“To the extent that Plaintiffs intend to argue that any attempt to initiate a
non-judicial foreclosure is fraudulent by virtue of Defendant’s failure to produce
the original, wet-ink Note, their claim under the TDCA fails because, as explained
above, Texas law does not recognize the ‘show-me-the-note’ theory.”); Davis v.
U.S. Dep’t of Hous. & Urb. Dev., No. 4:20-cv-320, 2020 WL 3640545, at *4 (N.D.
Tex. July 6, 2020) (“[N]onjudicial foreclosure by a debt collector does not violate
the Finance Code.”).
Setting aside the futility of the “show-me-the-note” or “show-me-your-
authority” theories, White’s TDCA claim also fails because his pleading “does not
contain any specific allegations as to how PHH [or the Trustee] violated the TDCA,
such as describing [their] fraudulent, deceptive, or misleading representations.”
Lopez, 2021 WL 5771874, at *5. Thus, Defendants are entitled to dismissal of
White’s TDCA claim.
E. 	WHITE’S R EQUEST FOR D ECLARATORY AND I NJUNCTIVE R ELIEF
White requests declaratory and injunctive relief. 	See 	Dkt. 1-3 at 7–8.
Requests for declaratory and injunctive relief must be tied to a viable cause of
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action. Because White fails to state a claim, his requests for declaratory and
injunctive relief necessarily fail. 	See Sivertson v. Citibank, N.A. as Tr. for
Registered Holders of WAMU Asset-Back Certificates WAMU Series No. 2007-
HE2 Tr., 390 F. Supp. 3d 769, 793 (E.D. Tex. 2019) (“[B]ecause Plaintiff has failed
to state any valid causes of action against Defendant, there is no underlying cause
of action for which the Court can provide this equitable remedy. Accordingly,
Plaintiff’s request for injunctive fails as a matter of law.”); Adams v. Nissan N. Am.,
Inc., 395 F. Supp. 3d 838, 856 (S.D. Tex. 2018) (“Plaintiffs’ claims for declaratory
and injunctive relief are derivative of their other claims, and if the other claims are
dismissed, 	so 	too 	must 	the 	claims 	for 	declaratory 	and 	injunctive 	relief 	be
dismissed.”).
F. 	L EAVE TO A MEND
White requests “that he be entitled to amend the complaint” if the court
dismisses his claims. Dkt. 17 at 4. At a December 10, 2025 initial scheduling
conference, I gave White leave to file an amended complaint by January 9, 2026.
White did not file an amended complaint. In response to the motion to dismiss,
White’s counsel attempts to explain her failure to file an amended complaint:
White’s counsel intended to amend the complaint and attempted to
on January 9, 2026, but she could not figure out how to file the
document in the system. She messaged Defendants’ counsel and
asked if they were opposed to an extension to file an amendment and
did not receive a response. Then, with help, a few days later she
thought that the amended complaint was filed. It was not until she
received Defendant’s renewed motion to dismiss, that she realized
that it was not filed. Nevertheless, White asserts that he did plea a
claim for which relief may be granted but intends to amend the
complaint for clarity and to supplement the claims. If the court
dismisses the claims, Plaintiff request that he be entitled to amend the
complaint.
Dkt. 17 at 4. White’s counsel has known for more than six months that White’s
amended complaint was not filed, yet she has never requested leave to file an
amended complaint late. Such conduct is inexcusable.
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I am loath, however, to punish a client for his lawyer’s sins. Moreover, the
Fifth Circuit prefers that “plaintiffs facing a motion to dismiss go through a process
of receiving briefing from the movant, conducting research and submitting
opposing briefing to the district court, and finally receiving a ruling identifying
potential flaws in their original complaint.” Ass’n of Am. Physicians & Surgeons
Educ. Found. v. Am. Bd. of Internal Med., 103 F.4th 383, 394 (5th Cir. 2024).
Because White has never amended his complaint, I recommend that he be given
one week from the entry of the court’s order adopting this memorandum and
recommendation to file an amended complaint.
CONCLUSION
For the reasons discussed above, I recommend that Defendants’ motion to
dismiss (Dkt. 15) be granted without prejudice and that White be given one week
from the date the court’s order adopting this memorandum and recommendation
is issued to file an amended complaint.
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 JuO\ 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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