Villanueva v. Wells Fargo Home Mortgage et al
Filing
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MEMORANDUM OPINION AND ORDER. ORDERED that Defendant Buckley Madole, P.C.s Motion to Dismiss (Dkt. #7) is hereby GRANTED. It is further ORDERED that Plaintiff Daniel Villanuevas claims against Defendant Buckley Madole, P.C. are DISMISSED with prejudice. Signed by Judge Amos L. Mazzant, III on 7/20/2016. (pad, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
DANIEL VILLANUEVA
v.
WELLS FARGO HOME MORTGAGE
and BUCKLEY MADOLE, P.C.
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CASE NO. 4:16-CV-320
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Buckley Madole, P.C.’s Motion to Dismiss (Dkt.
#7). After reviewing the relevant pleadings, the Court finds that the motion should be granted.
BACKGROUND1
Plaintiff Daniel Villanueva (“Plaintiff”) financed the property located at 2042 Lake Fort
Lane, Little Elm, Denton County, Texas 75068 (the “Property”) with BSM Financial, L.P (Dkt.
#2 at ¶ 5.2). On September 8, 2003, Plaintiff executed a Promissory Note with BSM Financial
for $172,636.00 secured by a Deed of Trust attached to the Property (collectively called “the
Loan”) (Dkt. #2 at ¶ 5.3). At some unspecified point, the Loan was transferred to Defendant
Wells Fargo Home Mortgage (“Wells Fargo”). On April 23, 2015, Plaintiff sent a Qualified
Written Request to Wells Fargo, seeking an accounting of payments made on the Loan, to which
Wells Fargo never responded (Dkt. #2 at ¶ 5.5).
On February 9, 2016, Wells Fargo sent notice of a foreclosure sale on the Property (Dkt.
#2 at ¶ 5.6).
To prevent the foreclosure, Plaintiff filed for bankruptcy and made several
payments under a Chapter 13 plan (Dkt. #2 at ¶¶ 5.6-5.7). Due to confusion as to the amount of
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The following facts were alleged in Plaintiff Daniel Villanueva’s Petition (Dkt. #2) and are taken as true for the
purpose of this Memorandum Opinion and Order.
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the payments under the plan, Plaintiff’s bankruptcy case was dismissed for delinquency of
payments (Dkt. #2 at ¶ 5.10). Plaintiff claims that he made all payments under the Loan but
eventually Wells Fargo began to refuse Plaintiff’s payments (Dkt. #2 at ¶ 5.11).
Finally, after extensive communications between Plaintiff and Wells Fargo, Defendant
Buckley Madole, P.C. (“Buckley Madole”), attorney for Wells Fargo, mailed a notice of default
and acceleration on April 18, 2016 (Dkt. #2 at ¶ 5.16). On that same day, Buckley Madole
mailed a notice of Trustee’s sale to Plaintiff (Dkt. #2 at ¶ 5.17).
On April 28, 2016, Plaintiff filed the present suit in state court, seeking to halt the
Trustee’s sale. (Dkt. #2). On May 12, 2016, Defendants removed the case to this court on the
basis of diversity jurisdiction. (Dkt. #1). On June 7, 2016, Buckley Madole filed the present
Motion to Dismiss. (Dkt. #7).
LEGAL STANDARD
Defendant also moves 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 claim 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).
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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
Iqbal, 556 U.S. at 678 (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 a 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 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 context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Iqbal, 556 U.S. at 679.
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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).
However, 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. Id.
ANALYSIS
Buckley Madole argues that Plaintiff’s claims against it must be dismissed because it
cannot be sued for actions taken while representing its client, Wells Fargo. Plaintiff has not
responded to Buckley Madole’s motion. Under the local rules, Plaintiff is considered to have no
factual basis to oppose Buckley Madole’s motion. See Local Rule CV-7(d). Plaintiff’s claims
arise out of Texas law; therefore, the Court looks to Texas law when determining whether
Plaintiff’s claims should be dismissed. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
Under Texas law, attorneys are generally protected from suits by opposing parties for
actions taken during litigation to further their representation of a client. Chapman Children’s Tr.
v. Porter & Hedges, LLP, 32 S.W.3d 429, 440 (Tex. App.—Houston [14th Dist.] 2000, pet.
denied).
This protection has been extended to include attorneys bringing foreclosure
proceedings on behalf of their clients. Campbell v. Mortg. Elec. Registration Sys., Inc., No. 0311-00429-CV, 2012 WL 1839357, at *5 (Tex. App.—Austin May 18, 2012, pet. denied) (mem.
op.); Igbal v. Bank of Am., 559 F. App’x 363, 365 (5th Cir. 2014). An attorney is not entitled to
protection if it can be shown that he engaged in fraud or other acts—separate from his
representation of his clients—on which relief can be granted. See Chapman, 32 S.W.3d at 441–
42.
In his Petition, Plaintiff does not list what causes of action he is bringing against Buckley
Madole. He also recognizes that Buckley Madole was acting as Wells Fargo’s attorney. (Dkt. #2
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at ¶ 5.16). Plaintiff alleges that Buckley Madole mailed the notice of default and acceleration to
Plaintiff as well as the notice of Trustee’s sale. (Dkt. #2 at ¶¶ 5.16-5.17). These are the only
facts alleged against Buckley Madole, and they clearly concern actions taken in the course of
Buckley Madole’s representation of Wells Fargo. Based on Plaintiff’s failure to plead that
Buckley Madole took any actions outside the scope of its representation of Wells Fargo, the
Court concludes that Plaintiff has failed to state a claim upon which relief can be granted.
Plaintiff has failed to state a claim against Buckley Madole upon which relief can be
granted. While a court may allow a plaintiff the chance to replead prior to dismissing a claim,
Plaintiff’s failure to respond shows that he does not have any factual basis on which to oppose
Buckley Madole’s Motion. See Local Rule CV-7(d). The court concludes that giving Plaintiff a
chance to replead is unnecessary.
This Order has no effect on Plaintiff’s claims against
Defendant Wells Fargo.
CONCLUSION
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It is therefore ORDERED that Defendant Buckley Madole, P.C.’s Motion to Dismiss
(Dkt. #7) is hereby GRANTED.
It is further ORDERED that Plaintiff Daniel Villanueva’s claims against Defendant
Buckley Madole, P.C. are DISMISSED with prejudice.
SIGNED this 20th day of July, 2016.
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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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