Adams, Jr. v. Bank of America et al
Filing
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MEMORANDUM OPINION AND ORDER re 12 MOTION to Dismiss PLAINTIFF'S PETITION AND INCORPORATED MEMORANDUM OF LAW filed by Bank of America, BAC Home Loans Servicing, LP, Wells Fargo Bank, N.A., Harborview Mortgage Loan Trust 2007-1. It is therefore ORDERED that Defendants' Motion to Dismiss Plaintiffs Petition (Dkt. #12) is hereby GRANTED and this case is DISMISSED with prejudice. Signed by Magistrate Judge Amos L. Mazzant on 1026/2011. (kls, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
HENRY C. ADAMS, JR.
V.
BANK OF AMERICA, ET AL.
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CASE NO. 4:10-CV-709
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants’ Motion to Dismiss Plaintiff’s Petition (Dkt. #12).
The Court, having considered the relevant pleadings, finds that Defendants’ motion should be
granted.
Background
Plaintiff filed this action on December 20, 2010, in state court by filing his Original Petition
against Bank of America, N.A. (“BANA”)1, BAC Home Loans Servicing, LP (“BAC”), Wells Fargo
Bank, N.A. (“Wells Fargo”) and Harborview Mortgage Loan Trust 2007-1 (“Harborview”) claiming
that a substitute trustee’s deed of January 4, 2011, is void and that the foreclosure was wrongful.
Plaintiff admits that, on or about January 19, 2007, he executed a note and a deed of trust
naming Bank of America as lender. The deed of trust also reflects that Mortgage Electronic
Registration Systems, Inc. ("MERS") was named as beneficiary. Plaintiff then alleges that
"[c]ounsel's examination of the public records available in Collin County discloses a purported
assignment of lien to BOA." Consistent with these allegations, on November 3, 2010, MERS
executed a Corporation Assignment of Deed of Trust/Mortgage, which assigned the deed of trust and
promissory note to Wells Fargo. A copy of this assignment was recorded in official public records
of Collin County, Texas, on November 15, 2010. On December 14, 2010, a Notice of Substitute
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Plaintiff referred to Bank of America, N.A. as Bank of America.
Trustee's Sale was filed with the County Clerk of Collin County, Texas, setting the sale for January
4, 2011. The foreclosure sale was postponed due to the filing of the Petition and has not yet taken
place.
On December 28, 2010, Defendants removed this action to this Court. On January 3, 2011,
the Court entered its Order and Advisory, giving Plaintiff an opportunity to file an amended
complaint. Plaintiff did not file an amended pleading. On July 8, 2011, Defendants filed their
motion to dismiss (Dkt. #12). On July 18, 2011, Plaintiff’s counsel withdrew from the case and
Plaintiff was proceeding pro se (Dkt. #14, #17). On August 30, 2011, Plaintiff filed a response to
the motion to dismiss (Dkt. #20). On September 6, 2011, the Court ordered Plaintiff to file an
amended complaint that provided more factual details supporting his claims. The Court also denied
the motion to dismiss as moot, but indicated that “[i]f no amended complaint is filed, the Court will
reconsider Defendants’ motion to dismiss.” (Dkt. #21). Plaintiff did not file an amended complaint.
Since Plaintiff has not complied with the Court’s prior Orders to file an amended complaint, the
Court is not required to give Plaintiff another opportunity to file an amended complaint, and will
decide the motion to dismiss based upon his state court petition.
Legal Standard
Defendants move for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
which authorizes certain defenses to be presented via pretrial motions. A Rule 12(b)(6) motion to
dismiss argues that, irrespective of jurisdiction, the complaint fails to assert facts that give rise to
legal liability of the defendant. The Federal Rules of Civil Procedure require that each claim in a
complaint include “a short and plain statement . . . showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). The claims must include enough factual allegations “to raise a right to relief
above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, “[t]o
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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 face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(quoting Twombly, 550 U.S. at 570).
Rule 12(b)(6) provides that a party may move for dismissal of an action for failure to state
a claim upon which relief can be granted. FED . R. CIV . P. 12(b)(6). The Court must accept as true
all well-pleaded facts contained in the plaintiff’s complaint and view them in the light most favorable
to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In deciding a Rule 12(b)(6)
motion, “[f]actual allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555; Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). “The Supreme
Court recently expounded upon the Twombly standard, explaining that ‘[t]o 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 face.’” Gonzalez, 577 F.3d at 603 (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949 (2009)). “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.”
Id. “It follows, that ‘where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged - but it has not ‘shown’ - ‘that the pleader is
entitled to relief.’” Id.
In Iqbal, the Supreme Court established a two-step approach for assessing the sufficiency of
a complaint in the context of a Rule 12(b)(6) motion. First, the Court identifies conclusory
allegations and proceeds to disregard them, for they are “not entitled to the assumption of truth.”
Iqbal, 129 S.Ct. at 1951. Second, the Court “consider[s] the factual allegations in [the complaint]
to determine if they plausibly suggest an entitlement to relief.” Id. “This standard ‘simply calls for
enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the necessary
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claims or elements.” Morgan v. Hubert, 335 F. App’x 466, 470 (5th Cir. 2009). This evaluation will
“be a context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 129 S.Ct. at 1950.
In determining whether to grant a motion to dismiss, a district court may generally not “go
outside the complaint.” Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003). When
ruling on a motion to dismiss a pro se complaint, however, a district court is “required to look
beyond the [plaintiff’s] formal complaint and to consider as amendments to the complaint those
materials subsequently filed.” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); Clark v.
Huntleigh Corp., 119 F. App’x 666, 667 (5th Cir. 2005) (finding that because of plaintiff’s pro se
status, “precedent compels us to examine all of his complaint, including the attachments”); Fed. R.
Civ. P. 8(e) (“Pleadings must be construed so as to do justice.”). Furthermore, a district court may
consider documents attached to a motion to dismiss if they are referred to in the plaintiff’s complaint
and are central to the plaintiff’s claim. Scanlan, 343 F.3d at 536.
Analysis
Plaintiff asserts that the foreclosure should not be allowed to proceed for the following
reasons: (1) Defendants lack authority to conduct the sale; and (2) the notices of default and notice
of sale required by § 51.002 of the Texas Property Code did not comply with §§ 51.002(b), (d), or
51.0025(2). Based upon these allegations, Plaintiff brings causes of action for (1) violation of the
Texas Debt Collection Act, Chapter 392 of the Texas Finance Code (the "TDCA"), (2) violation of
the Texas Deceptive Trade Practices Act, § 17.41, et seq., of the Texas Business & Commerce Code
(the "DTPA"), (3) negligent misrepresentation, and (4) wrongful foreclosure.
Defendants assert that Plaintiff's contention that Defendants lack authority to conduct the
foreclosure sale is without merit. Even if a recorded assignment of lien were required to establish
authority to conduct a foreclosure, Defendants argue that the existence of a recorded assignment
transferring interest in the note and deed of trust, as recognized by Plaintiff in his Petition, defeats
his claim. Defendants further assert that Plaintiff's contention that the notice of default and notice
of sale do not comply with §§ 51.002(b), (d), and 51.0025(2) fails where, as here, no foreclosure sale
has occurred.
Defendants generally assert that the facts alleged in Plaintiff’s petition are sparse. The Court
agrees. The Court has given Plaintiff two opportunities to file an amended pleading. Moreover,
after the filing of this motion to dismiss, the Court ordered Plaintiff to file an amended pleading
because Plaintiff’s factual allegations were so basic and conclusory that the Court had no choice but
to grant the motion to dismiss. The Court’s view that the petition is deficient has not changed, and the
Court finds that Defendant’s motion should be granted because, based upon the few facts that are
asserted, none of Plaintiff’s claims are plausible.
Although not required, the Court will still review the grounds for dismissal put forth by
Defendants. Defendants assert that as an underlying premise of each of Plaintiff's claims, he relies
on one or more of the following contentions: (1) Defendants lack authority to conduct the
yet-to-occur foreclosure sale; and (2) the notices required by §§ 51.002(b) and (d) of the Texas
Property Code did not comply with these provisions, as well as § 51.0025(2).
Defendants argue that Plaintiff’s assertion that there is a "[d]efective [d]ocumentary [c]hain"
is, therefore, wholly without merit and contrary to his own allegations. Moreover, Plaintiff's
suggestion that, in order to establish the requisite authority to conduct a foreclosure sale, an
assignment of lien must appear in the public records, is unsupported by any legal authority.
A good explanation of MERS and Texas law can be found in Richardson v. CitiMortgage,
Inc., No. 6:10cv119, 2010 WL 4818556, at *5 (E.D. Tex. Nov. 22, 2010). U.S. Magistrate Judge
Judith K. Guthrie explained as follows:
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Under Texas law, where a deed of trust, as here, expressly provides for MERS to have
the power of sale, then MERS has the power of sale. Athey v. MERS, 314 S.W.3d 161,
166 (Tex. App.-Eastland 2010). MERS was the nominee for Southside Bank and its
successors and assigns. MERS had the authority to transfer the rights and interests in
the Deed of Trust to CitiMortgage. The Plaintiffs' complaints about the role of MERS
in this matter lack merit.
It is further noted that the role of MERS has been the subject of federal multidistrict
litigation in In re: Mortgage Electronic Registration Systems (MERS) Litigation, 659
F. Supp.2d 1368 (U.S. Jud. Pan. Mult. Lit. 2009). The MERS system is merely an
electronic mortgage registration system and clearinghouse that tracks beneficial
ownerships in, and servicing rights to, mortgage loans. Id. at 1370. The system is
designed to track transfers and avoid recording and other transfer fees that are
otherwise associated with the sale. Id. at 1370 n. 6. MERS is defined in Texas
Property Code § 51.0001(1) as a “book entry system,” which means a “national book
system for registering a beneficial interest in security instrument and its successors
and assigns.” As noted in Athey, mortgage documents provide for the use of MERS
and the provisions are enforceable to the extent provided by the terms of the
documents. The role of MERS in this case was consistent with the Note and Deed of
Trust.
Plaintiff’s allegations that the transfer was not valid are mere conclusions and do not state
a plausible breach of contract claim. Furthermore, Plaintiff lacks standing to contest any assignment.
A court recently addressed this issue and found as follows:
Plaintiff has no standing to contest the various assignments as she was not a party to
the assignments. Even if she has standing, her allegations are without merit because
MERS was given the authority to transfer the documents in the Deed of Trust. The
Restatement (3d) of Property offers no support for Plaintiff's claims. As MERS is a
beneficiary and nominee for both the originating lender and its successors and assigns
by the express language in the Deed of Trust, the situation falls within an exception
to the general rule that a party holding only the deed of trust cannot enforce the
mortgage. See Comment e to the Restatement (3d) of Property (Mortgages) § 5.4.
Section 5.4 additionally notes that a "transfer of an obligation secured by a mortgage
also transfers the mortgage unless the parties to the transfer agree otherwise." Plaintiff
makes no allegations that the parties in this case agreed otherwise. Finally, while the
Note may not specifically mention MERS, the Note and Deed of Trust must be read
together in evaluating the terms…thus, the Note and Deed of Trust are construed
together as a single instrument.
Eskridge v. Fed. Home Loan Mortgage Corp. et al., Case No. W-10-CA-285, 2011 WL 2163989,
at *5 (W.D. Tex. Feb. 24, 2011).
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Furthermore, a review of the complaint demonstrates no factual allegations that would
support the theory that BAC is not the proper holder of the note and deed of trust. Under the Texas
Property Code, a mortgagee may authorize a mortgage servicer to service a mortgage and conduct
a foreclosure sale. See Tex. Prop. Code. Ann. § 51.0025. MERS is a mortgagee under the Texas
Property Code. See Tex. Prop. Code Ann. § 51.0001(4). Since the deed of trust identifies MERS
as the beneficiary and the nominee for the original lender and its successors and assigns, this makes
MERS a mortgagee under the Texas Property Code. As a mortgagee, MERS could authorize BAC
to service the loan and foreclose, regardless of whether MERS was the true owner of the note. In
addition, Plaintiff points to no provision of the Texas Property Code that requires a mortgagee or
mortgage servicer to produce the original note or deed of trust before conducting a non-judicial
foreclosure. See Sawyer v. Mortg. Elec. Registration Sys., Inc., No. 3-09-CV-2303-K, 2010 WL
996768, at *3 (N.D. Tex. Feb. 1, 2010). Moreover, Plaintiff fails to plead any facts indicating that
the lender or lender’s successors and assigns never held the note, or that the note has been lost or
stolen.
Courts in Texas have repeatedly recognized that Texas law allows either a mortgagee or a
mortgage servicer to administer a deed of trust foreclosure without production of the original note.
See Wells v. BAC Home Loans Servicing, L.P., No. W-10-CA-00350, 2011 WL 2163987, at *3
(W.D. Tex. Apr. 26, 2011) ; Coleman v. Bank of America, N.A., No. 3-11-CV-0430-GBD, 2011 WL
2516169, at *2 (N.D. Tex. May 27, 2011), rec. adopted, 2011 WL 2516668 (N.D. Tex. June. 22,
2011); Dillard v. Mortg. Elec. Registration Sys., Inc., No. 3-10-CV-0091-N, slip op. at 4 n.1 (N.D.
Tex. Apr. 16, 2010), appeal dism'd, No. 11-10069 (5th Cir. Apr. 21, 2011); Sawyer, 2010 WL
996768, at *3 (N.D. Tex. Feb. 1, 2010); Athey v. Mortgage Elec. Registration Sys., Inc., 314 S.W.3d
161, 165-66 (Tex. App.—Eastland 2010, pet. denied); Tex. Prop. Code § 51.002(a)-(h) (setting forth
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requirements for non-judicial foreclosure in Texas, which do not include producing original note).
Furthermore, Plaintiff’s allegations that the notices required by sections 51.002(d) and
51.002(b) were not complied with fail, because Plaintiff fails to identify any specific defects in the
notices, and there is no basis to challenge the notices when no sale has occurred or is even scheduled
to occur.
Furthermore, to recover under the DTPA, Plaintiff must show: (1) the plaintiff is a consumer;
(2) the defendant can be sued under the DTPA; (3) the defendant violated a specific provision of the
DTPA; and (4) the defendant’s violation is a producing cause of the plaintiff’s damages. Tex. Bus.
& Com. Code Ann. §§ 17.41-17.63; Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996).
To qualify as a consumer, a plaintiff must (1) seek or acquire goods or services, and (2) the goods
or services purchased or leased must form the basis of the complaint. Modelist v. Deutsche Bank
Nat. Trust Co., No. H-05-1180, 2006 WL 2792196, at *7 (S.D. Tex. Aug. 25, 2006) (citing Sherman
Simon Enters., Inc. v. Lorac Serv. Corp., 724 S.W.2d 13, 14 (Tex. 1987)). Whether a plaintiff is a
consumer under the DTPA is a question of law. Id. (citing Holland Mortg. & Inv. Corp. v. Bone,
751 S.W.2d 515, 517 (Tex. App.-Houston [1st Dist.] 1987, writ ref’d n.r.e.)).
In evaluating whether Plaintiff is a consumer, the Court must look to the object of the
transaction. Tex. Bus. & Com. Code Ann. § 17.45; La Sara Grain Co. v. First Nat’l Bank of
Mercedes, 673 S.W.2d 558, 567 (Tex. 1984). In La Sara Grain Company, the Texas Supreme Court
held that a lender may be subject to a DTPA claim if the borrower’s “objective” was the purchase
or lease of a good or service. La Sara Grain Co., 673 S.W.2d at 567. However, a person whose
objective is merely to borrow money is not a consumer because the lending of money does not
involve either the purchase or lease of a good or service. Riverside Nat’l Bank v. Lewis, 603 S.W.2d
169, 173 (Tex. 1980).
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In the present case, it is undisputed that Plaintiff’s claims arise out of a loan and do not
involve the purchase or lease of either goods or services. Plaintiff did not seek to purchase or lease
any goods or services from Defendants. Therefore, Plaintiff is not a “consumer” with respect to the
home loan. Therefore, Plaintiff’s DTPA claim should be dismissed.
Plaintiff alleges Defendants violated § 392.301(a)(8) of the TDCA by threatening to take an
action prohibited by law, i.e., foreclose the deed of trust. Defendants also move to dismiss Plaintiff’s
TDCA claim because foreclosure is not debt collection subject to the TDCA, and Defendants are not
third-party debt collectors and, therefore, not required to be bonded.
Section 392.304(a)(8) of the Texas Finance Code states that, “in debt collection or obtaining
information concerning a consumer, a debt collector may not use a fraudulent, deceptive, or
misleading representation that misrepresent[s] the character, extent, or amount of a consumer debt.”
Tex. Fin. Code § 392.304(a)(8). A debt collector is also prohibited from “threatening to take an
action prohibited by law.” Tex. Fin. Code § 392.301(a)(8). For a statement to constitute a
misrepresentation under the TDCA, Defendant must have made a false or misleading assertion.
Reynolds v. Sw. Bell Tel., L.P., No. 2-05-356-CV, 2006 WL 1791606, at *7 (Tex. App.-Fort Worth
June 29, 2006, pet. denied). A collection notice or balance statement misstating the amount owed
on a debt constitutes a misleading assertion regarding the amount of that debt under the TDCA. See
Baker v. Countrywide Home Loans, Inc., No. 3-08-cv-0916, 2009 WL 1810336, at *7 (N.D. Tex.
June 24, 2009); see also Steele v. Green Tree Servicing, LLC, No. 3:09-cv-0603, 2010 WL 3565415,
at *5 n.6 (N.D. Tex. Sept. 7, 2010). The TDCA does not prevent a debt collector from “exercising
or threatening to exercise a statutory or contractual right of seizure, repossession, or sale that does
not require court proceedings.” Tex. Fin. Code § 392.301(b)(3); Sweet v. Wachovia Bank and Trust
Company, No. 3:03-CV-1212-R, 2004 WL 1238180, at *3 (N.D. Tex. Feb. 26, 2004).
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Defendants move to dismiss Plaintiff’s TDCA claims, asserting that there are no facts that
would support a claim under these provisions. The Court agrees. Plaintiff offers only conclusions
and fails to provide any facts that support these allegations. Merely stating Defendants violated the
TDCA, without more factual allegations, is a legal conclusion couched as a factual assertion, which
does not survive a motion to dismiss. Plaintiff provides no allegations that Defendants did anything
but exercise their right under the deed of trust to foreclose. Defendants assert that foreclosure is
not an action prohibited by law.
Section 392.101 of the Texas Finance Code prohibits a third-party debt collector from
engaging in debt collection unless he obtains a bond and files a copy of the bond with the Secretary
of State. See Tex. Fin. Code § 392.101. The definition of “third-party debt collector” in the Texas
Finance Code tracks the definition of “debt collector” in the Fair Debt Collection Practices Act. See
Tex. Fin. Code § 392.001(7). The Fair Debt Collection Practices Act states:
The term “debt collector” means any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose of which is the collection
of any debts, or who regularly collects or attempts to collect, directly or indirectly,
debts owed or due or asserted to be owed or due another.
15 U.S.C. § 1692a(6). Section 1692a(6) further narrows the meaning of “debt collector” by
excluding “any person collecting or attempting to collect any debt owed or due or asserted to be
owed or due another to the extent such activity ... concerns a debt which was not in default at the
time it was obtained by such person.” See 15 U.S.C. § 1692a(6)(F)(iii). Therefore, “a debt collector
does not include the consumer's creditors, a mortgage servicing company, or an assignee of a debt,
as long as the debt was not in default at the time it was assigned.” CA Partners v. Spears, 274
S.W.3d 51, 79 (Tex. App.-Houston[14th Dist.] 2008, pet. denied) (quoting Perry v. Stewart Title
Co., 756 F.2d 1197, 1208 (5th Cir. 1985)). If a debt is in default at the time the assignee acquires
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his interest in the debt, he is a “third-party debt collector” within the contemplation of the section
392.101(a) of the Texas Finance Code. There is no allegation that Plaintiff was in default at the time
BAC began servicing the loan.
Defendants next move to dismiss Plaintiff’s claim for negligent misrepresentation. Plaintiff
alleges Defendants "supplied false information" in the course of a transaction by "claim[ing]
ownership and/or servicing of the Loan" and that this conduct constitutes negligent
misrepresentation. Defendants assert that “[t]his vague and convoluted accusation fails to give
Defendants fair notice of the misrepresentation for which damages are sought. Exactly what ‘actions’
or ‘false information’ plaintiff refers to is a mystery.” The Court agrees. Based upon the
conclusions and lack of facts offered by Plaintiff, this claim is not plausible and should be dismissed.
Defendants also assert that Plaintiff's claim fails for lack of a duty. In Texas, there is “no
special relationship between a mortgagor and mortgagee.” Collier v. Wells Fargo Home Mortg., No.
7:04-CV-86, 2006 WL 1464170, at *8 (N.D. Tex. May 26, 2006) (citing UMLIC VP LLC v. T & M
Sales and Envtl. Sys., Inc., 176 S.W.3d 595, 612 (Tex. App.– Corpus Christi 2005, pet. denied)).
“Absent a ‘special relationship,’ any duty to act in good faith is contractual in nature and its breach
does not amount to an independent tort.” UMLIC, 176 S.W.3d at 612 (citations omitted). Thus,
there is no duty of care that arises in this case.
Defendants also assert that Plaintiff’s claim for wrongful foreclosure fails because no
foreclosure has occurred. The Court agrees, and this claim should be dismissed.
Defendants also assert that Plaintiff’s attempt to plead miscellaneous claims also fails to state
a claim upon which relief could be granted. The Court agrees. Plaintiff makes passing reference to
claims throughout his Petition that are not supported by any factual allegations and leave Defendants
guessing as to whether he is raising a cause of action at all. In paragraph three of his petition, entitled
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“Jurisdiction and Venue,” Plaintiff states the “Court has jurisdiction of any FDCPA claims . . . of
any TILA claims . . . and of any RESPA claims[.]” However, Plaintiff did not raise FDCPA, TILA,
or RESPA claims in his Petition. In paragraph nine, Plaintiff “seeks injunctive relief to bar any
transfer of any interest in his Property.” While it is entirely unclear what Plaintiff is claiming or the
basis for this claim, this request is remedial in nature, and dependent upon the assertion of viable
causes of action. See VRC LLC v. City of Dallas, 460 F.3d 607, 611 (5th Cir. 2006). To the extent
Plaintiff tried to plead these additional causes of action, they too should be dismissed for failure to
state a claim.
Plaintiff’s response argues that Defendants are really asking the Court to decide a motion for
summary judgment and not a motion to dismiss. The argument is misplaced. Moreover, Plaintiff’s
petition is deficient, and Plaintiff has refused the Court’s Order to attempt to remedy any of the
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problems addressed in the motion to dismiss. Plaintiff’s petition fails to plead facts that would make
any of his claims plausible. Therefore, Defendants’ motion should be granted.
It is therefore ORDERED that Defendants’ Motion to Dismiss Plaintiff’s Petition (Dkt. #12)
is hereby GRANTED and this case is DISMISSED with prejudice.
SIGNED this 26th day of October, 2011.
___________________________________
AMOS L. MAZZANT
UNITED STATES MAGISTRATE JUDGE
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