Sullivan v. Bank of America NA

Filing 14

MEMORANDUM OPINION AND ORDER: Upon consideration of the defendant's 8 motion to dismiss, the court concludes that the plaintiff's complaint fails to provide information necessary for the resolution of this dispute. In particular, the complaint does not specify the exact dates the plaintiff contacted the defendant to inquire about her mortgage. On its own motion, the court orders that the plaintiff amend her complaint to include pertinent dates. If the plaintiff's fai lure to file a response to the motion to dismiss indicates her agreement with the defendant's proffered time frame, then she does not need to amend the complaint. In either case, if the plaintiff does not amend her complaint to provide the pertinent dates by Friday, 10/17/2014, the court will assume that the plaintiff agrees with the defendant's dates and will dismiss the action with prejudice on limitations grounds. (Ordered by Senior Judge A. Joe Fish on 10/10/2014) (tln)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

GINA SULLIVAN,
Plaintiff,
VS.
BANK OF AMERICA, N.A.,
Defendant.

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CIVIL ACTION NO.
3:14-CV-3186-G

MEMORANDUM OPINION AND ORDER

Upon consideration of the defendant’s motion to dismiss (docket entry 8), the
court concludes that the plaintiff’s complaint fails to provide information necessary
for the resolution of this dispute. In particular, the complaint does not specify the
exact dates the plaintiff contacted the defendant to inquire about her mortgage. See
Plaintiff’s Original Petition (“Complaint) ¶¶ 9-13 (docket entry 1, exhibit A).
When combined with the substance of the complaint, allegations in the
defendant’s brief supporting its motion to dismiss seem to fill this gap in information.
According to the brief, “on or around August 20, 2012, the Property was destroyed

by a fire in a total loss.” Defendant’s Motion to Dismiss at 6 (docket entry 8). In
the complaint, the plaintiff refers to a “sixth month period” during which she
contacted the defendant. Complaint ¶ 13. The organization of the complaint implies
that this “six month period” began relatively soon after the fire. See Complaint ¶¶ 913. If this is the case, and the court accepts the August 20, 2012, date submitted by
the defendant, then both of the plaintiff’s claims would be barred by statutes of
limitations. See 15 U.S.C. § 1692k(d) (providing a one year statute of limitations
from “the date on which the violation occurs” for claims under the Fair Debt
Collection Practices Act (FDCPA)); TEX. CIV. PRAC. & REM. CODE § 16.003(a)
(providing a two year statute of limitations from the date the cause of action accrues
for claims under the Texas Debt Collection Practices Act (TDCPA)); see also Williams
v. Chase Home Finance, LLC, Civil Action No. 3:13-CV-1307-G(BH), 2014 WL
46233, at *4 (N.D. Tex. Jan. 6. 2014) (Fish, J.) (noting that a two-year statute of
limitations applies to TDCPA claims).
Despite the above reasoning, burdens of proof and procedural rules prevent the
court from granting the defendant’s motion to dismiss. Statutes of limitations are
treated as affirmative defenses, implying the defendant has the burden of proof. See
Williams, 2014 WL 46233, at *3 (characterizing the TDCPA’s statute of limitations
as an affirmative defense); Martin v. Cavalry Portfolio Services, No. 07 C 4745, 2008
WL 4372717, at *2 (N.D. Ill. Mar. 28, 2008) (treating the FDCPA’s statute of

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limitations as an affirmative defense); see generally FED. R. CIV. P. 8(c)(1) (listing
statute of limitations as an affirmative defense). Furthermore, on a motion to
dismiss, a court “may not ‘go outside the complaint’” except to “consider documents
attached to the motion to dismiss if they are referred to in the plaintiff’s complaint
and are central to the plaintiff’s claim.” Gines v. Horton, 699 F.3d 812, 820 (5th Cir.
2012) (quoting Scanlan v. Texas A&M University, 343 F.3d 533, 536 (5th Cir. 2003)).
In this case, both the complaint and documents referenced in the complaint are
devoid of dates pertinent to the statutes of limitations. However, the court cannot
presently grant a Rule 12(b)(6) motion because the defendant possesses the burden
of proof on this issue. See, e.g., Kansa Reinsurance Company, Ltd. v. Congressional
Mortgage Corporation of Texas, 20 F.3d 1362, 1366 (5th Cir. 1994) (citing Clark v.
Amoco Production Company, 794 F.2d 967, 970 (5th Cir. 1986)) (noting that a Rule
12(b)(6) dismissal is appropriate when an affirmative defense is apparent from the
face of the pleadings).
Therefore, on its own motion, the court orders that the plaintiff amend her
complaint to include pertinent dates. If the plaintiff’s failure to file a response to the
motion to dismiss indicates her agreement with the defendant’s proffered time frame,
then she does not need to amend the complaint. In either case, if the plaintiff does
not amend her complaint to provide the pertinent dates by Friday, October 17,

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2014, the court will assume that the plaintiff agrees with the defendant’s dates and
will dismiss the action with prejudice on limitations grounds.
SO ORDERED.

October 10, 2014.

___________________________________
A. JOE FISH
Senior United States District Judge

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