Katsande v. Ocwen Loan Servicing, LLC et al

Filing 17

MEMORANDUM OPINION GRANTING - 7 MOTION to Dismiss filed by Power Default Services, Inc., GRANTING 8 MOTION to Dismiss filed by Deutsche Bank National Trust Company, Ocwen Loan Servicing, LLC. Signed by Judge Amos L. Mazzant, III on 2/17/2015. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

RUMBIDZAI GABRIELLA KATSANDE §
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V.
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OCWEN LOAN SERVICING, LLC ET AL §

CASE NO. 4:14-CV-712
Judge Mazzant

MEMORANDUM OPINION
Pending before the Court are the Motion to Dismiss Plaintiff’s First Amended Petition of
Defendants Ocwen Loan Servicing, LLC (“Ocwen”) and Deutsche Bank National Trust Company,
as Trustee for the Registered Holders of Morgan Stanley ABS Capital Inc. Trust 2007-HE6
Mortgage Pass-Through Certificates, Series 2007-HE6 (“Deutsche Bank”) (Dkt. #8) and the Motion
to Dismiss Plaintiff’s First Amended Petition of Defendant Power Default Services, Inc. (Dkt. #7).
The Court, having considered the relevant pleadings, finds that Defendants’ motions should be
granted.
BACKGROUND
Plaintiff commenced this lawsuit against Defendants in state court. On November 10, 2014,
Defendants removed this case to this Court. On November 13, 2014, the Court entered its Order and
Advisory, giving Plaintiff an opportunity to file an amended complaint. Plaintiff did not file an
amended pleading. On January 5, 2015, Defendants filed motions to dismiss (Dkt. #7, #8). No
responses were filed.
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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, “[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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (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.”
Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting Twombly, 550 U.S. at 555). “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 Iqbal, 556 U.S. at
678). “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
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a complaint in the context of a Rule 12(b)(6) motion. First, the Court should identify and disregard
conclusory allegations for they are “not entitled to the assumption of truth.” Iqbal, 556 U.S. at 664.
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 claims or elements.”
Morgan v. Hubert, 335 F. App’x 466, 470 (5th Cir. 2009). This evaluation will “be a contextspecific task that requires the reviewing court to draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679.
In determining whether to grant a motion to dismiss, a district court may generally not “go
outside the pleadings.” 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.
DISCUSSION AND ANALYSIS
On January 5, 2015, Defendants filed motions to dismiss (Dkt. #7, #8). No responses were
filed.
Local Rule CV-7(d) provides as follows:
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Response and Briefing. The response and any briefing shall be contained in one document.
A party opposing a motion shall file the response, any briefing and supporting documents
within the time period prescribed by Subsection (e) of this rule. A response shall be
accompanied by a proposed order conforming to the requirements of Subsection (a) of this
rule. Briefing shall contain a concise statement of the reasons in opposition to the motion and
a citation of authorities upon which the party relies. In the event a party fails to oppose a
motion in the manner prescribed herein, the court will assume that the party has no
opposition. (Emphasis added).
Plaintiff has not filed a response. Since Plaintiff has not filed a response, the Court will assume that
she is not opposed to the Court’s granting Defendants’ motions to dismiss. Furthermore, a review
of Defendants’ motions illustrates that Plaintiff has no plausible claims against Defendants. The
Court has reviewed the motions to dismiss and finds that Defendants’ motions to dismiss should be
granted. Plaintiff fails to allege any facts that would make any of her claims plausible.
It is therefore ORDERED that the Motion to Dismiss Plaintiff’s First Amended Petition of
Defendants Ocwen Loan Servicing, LLC and Deutsche Bank National Trust Company, as Trustee
for the Registered Holders of Morgan Stanley ABS Capital Inc. Trust 2007-HE6 Mortgage
Pass-Through Certificates, Series 2007-HE6 (Dkt. #8) and the Motion to Dismiss Plaintiff’s First
. Amended Petition of Defendant Power Default Services, Inc. (Dkt. #7) are hereby GRANTED and
Plaintiff’s claims against Defendants are DISMISSED with prejudice.
All motions not previously granted are hereby DENIED.
The Clerk is directed to CLOSE this civil case.
SIGNED this 17th day of February, 2015.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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