Record et al v. HSBC Bank USA, NA
MEMORANDUM OPINION AND ORDER granting 10 MOTION for Judgment filed by HSBC Bank USA NA and granting plaintiffs 28 days to file amended complaint. (Ordered by Judge Sidney A Fitzwater on 4/10/2018) (Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
ALFRED RECORD, et al.,
HSBC BANK USA, NA,
§ Civil Action No. 3:17-CV-1121-D
In this removed action arising from the attempted foreclosure of plaintiffs’ residence,
defendant moves for judgment on the pleadings under Fed. R. Civ. P. 12(c). For the reasons
set out below, the court grants defendant’s motion but permits plaintiffs to replead.
Plaintiffs Alfred Record and Marilyn Record (collectively, the “Records”) own
residential property in Cedar Hill, Texas.1 In July 2005 the Records executed a promissory
As the court explains below, the standard for deciding a motion under Rule 12(c) is
the same as the one for deciding a motion under Rule 12(b)(6). See, e.g., Great Plains Tr.
Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 n.8 (5th Cir. 2002) (“A number
of courts have held that the standard to be applied in a Rule 12(c) motion is identical to that
used in a Rule 12(b)(6) motion.” (citation omitted)). “For both [Rule 12(b)(6) and Rule
12(c)] motions . . . the well-pleaded facts are viewed in the light most favorable to the
plaintiff.” Castro v. Collecto, Inc., 634 F.3d 779, 783 (5th Cir. 2011) (quoting Turbomeca,
S.A. v. Era Helicopters, LLC, 536 F.3d 351, 354 (5th Cir. 2008)). “The court’s review is
limited to the complaint, any documents attached to the complaint, and any documents
attached to the motion to dismiss that are central to the claim and referenced by the
complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th
note and deed of trust in favor of Wells Fargo Bank, National Association. The loan was
assigned to defendant HSBC Bank USA, N.A., as trustee for Wells Fargo Bank Asset
Securities Corporation, Mortgage Pass-Through Certificates, Series 2007-AR3 (“HSBC”)
on April 21, 2014.
The Records allege that, because they were in financial distress, they were unable to
pay their mortgage for a few months. They filed for a modification of their loan, but HSBC
has not granted the modification.
In March 2017 HSBC provided notice of the substitute trustee’s sale along with a
notice of substitute trustee. The Records contend that they did not receive the 20-day notice
of default and intent to accelerate, as required by state and federal law; they have not
received the in-person consultation required under federal law; and HSBC did not follow the
notice requirements in the deed of trust. In April 2017 the Records’ property was sold at a
foreclosure sale for $429,000.
Before the foreclosure sale took place, the Records sued HSBC in state court, alleging
claims for quiet title, fraud, breach of contract and of chapter 392 of the Texas Finance Code,
and trespass to try title,2 and seeking, inter alia, damages and injunctive relief. HSBC
removed the case to this court, and it now moves for judgment on the pleadings under Rule
12(c), contending that all of plaintiffs’ claims fail as a matter of law. The Records oppose
As discussed below, the Records maintain that they also assert a wrongful foreclosure
claim, although no claim denominated as such is alleged in their original state-court petition.
The standard for deciding a motion under Rule 12(c) is the same as the one for
deciding a motion under Rule 12(b)(6). See, e.g., Great Plains Tr. Co. v. Morgan Stanley
Dean Witter & Co., 313 F.3d 305, 313 n.8 (5th Cir. 2002) (“A number of courts have held
that the standard to be applied in a Rule 12(c) motion is identical to that used in a Rule
12(b)(6) motion.” (citation omitted)).
Under Rule 12(b)(6), the court evaluates the
sufficiency of plaintiffs’ complaint “by accepting all well-pleaded facts as true, viewing them
in the light most favorable to the plaintiff.” Bramlett v. Med. Protective Co. of Fort Wayne,
Ind., 855 F.Supp.2d 615, 618 (N.D. Tex. 2012) (Fitzwater, C.J.) (quoting In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)) (internal quotation marks and brackets
omitted). To survive HSBC’s motion to dismiss, the Records 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). “The plausibility standard
HSBC filed its motion for judgment on the pleadings on January 26, 2018. The
Records’ response was due 21 days later, on February 16, 2018. The Records filed their
response 12 days late, on February 28, 2018, without seeking leave to file a late response.
Although the court does not suggest that the Records’ disregard for the response deadline is
excusable, because considering their late-filed response does not change the outcome in this
case, the court will consider it in deciding HSBC’s motion.
is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556); see also Twombly,
550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the
speculative level[.]”). “[W]here 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.’” Iqbal, 556 U.S. at 679 (brackets omitted)
(quoting Rule 8(a)(2)). Furthermore, under Rule 8(a)(2), a pleading must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Although “the
pleading standard Rule 8 announces does not require ‘detailed factual allegations,’” it
demands more than “‘labels and conclusions.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555). And “ ‘a formulaic recitation of the elements of a cause of action will not
do.’” Id. (quoting Twombly, 550 U.S. at 555).
“Rule 9(b) imposes a heightened pleading standard for fraud claims and requires that
a party state with particularity facts supporting each element of fraud.” Turner v.
AmericaHomeKey Inc., 2011 WL 3606688, at *2 (N.D. Tex. Aug. 16, 2011) (Fitzwater, C.J.)
(citing Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 724 (5th Cir. 2003)), aff’d,
514 Fed. Appx. 513 (5th Cir. 2013). “At a minimum, Rule 9(b) requires allegations of the
particulars of time, place, and contents of the false representations, as well as the identity of
the person making the misrepresentation and what he obtained thereby.” Turner, 2011 WL
3606688, at *2 (quoting Benchmark Elecs., 343 F.3d at 724) (internal quotation marks
omitted). More colloquially, plaintiffs must plead the “who, what, when, where, and how”
of the fraud. United States ex rel. Williams v. Bell Helicopter Textron, Inc., 417 F.3d 450,
453 (5th Cir. 2005) (quoting United States ex rel. Thompson v. Columbia/HCA Healthcare
Corp., 125 F.3d 899, 903 (5th Cir. 1997)). Because Rule 9(b) must be “read in conjunction
with [Rule] 8 which requires only a short and plain statement of the claim showing that the
pleader is entitled to relief,” “punctilious pleading detail” is not required. Steiner v.
Southmark Corp., 734 F. Supp. 269, 273 (N.D. Tex. 1990) (Fitzwater, J.) (internal quotation
marks omitted) (quoting Landry v. Air Line Pilots Ass’n Int’l AFL-CIO, 892 F.2d 1238, 1264
(5th Cir. 1990)). “The court’s key concern in assessing a complaint under Rule 9(b) is to
determine whether the plaintiff seeks to redress specific wrongs or whether the plaintiff
instead seeks the opportunity to search out actionable wrongs.” Garcia v. Boyar & Miller,
P.C., 2007 WL 2428572, at *4 (N.D. Tex. Aug. 28, 2007) (Fitzwater, J.) (citation omitted).
HSBC maintains that, if the Records intend to assert a claim for wrongful foreclosure,4
the claim fails as a matter of law. In response, the Records contend that they are alleging
such a claim.5 The court will therefore begin with the Records’ wrongful foreclosure claim.
HSBC states in its motion: “Although it’s not entirely clear from the Complaint, to
the extent Plaintiffs’ allegations can be construed as a claim for wrongful foreclosure, such
a claim fails as a matter of law.” D. Mot. 4.
“Plaintiffs allege causes of actions in wrongful foreclosure, quiet title, breach of
contract, and trespass of title.” Ps. Resp. 1.
Under Texas law, the elements of a wrongful foreclosure claim are “(1) a defect in the
foreclosure sale proceedings; (2) a grossly inadequate selling price; and (3) a causal
connection between the defect and the grossly inadequate selling price.” Sauceda v. GMAC
Mortg. Corp., 268 S.W.3d 135, 139 (Tex. App. 2008, no pet.); see also Am. Sav. & Loan
Ass’n of Hous. v. Musick, 531 S.W.2d 581, 587 (Tex. 1975). “A claim for ‘wrongful
foreclosure’ is not available based merely on showing a defect in the foreclosure process; it
is also necessary that there be an inadequate selling price resulting from the defect.” Biggers
v. BAC Home Loans Servicing, LP, 767 F.Supp.2d 725, 729 (N.D. Tex. 2011) (Fitzwater,
C.J.); see also Musick, 531 S.W.2d at 587.
HSBC contends that it is entitled to judgment on this claim because the Records have
failed to plead a defect in the foreclosure proceedings; that to the extent the Records allege
that they did not “receive” notice of default before the April 4, 2017 foreclosure sale, Texas
law does not require that they actually receive notice, and, instead, service of notice is
complete when the notice is sent via certified mail; that the Records have not pleaded and
cannot demonstrate that their property sold for a grossly inadequate price, since the property
sold for $429,000, which was 80% of its fair market value; that the Records have failed to
plead any causal connection between an alleged defect and any alleged grossly inadequate
selling price; that the Records admit that they are still in possession of the property, and the
complaint is devoid of any allegation that they tendered or attempted to tender the amount
due and owing on the debt for the property; that to the extent plaintiffs base their wrongful
foreclosure claim on HSBC’s alleged violation of an unspecified federal law requiring an “in
person consultation” before foreclosure, the Records have failed to specify a federal law that
HSBC allegedly violated; and that, to the extent the Records intended to plead that HSBC
violated the Housing and Urban Development (“HUD”) regulation, 24 C.F.R. § 203.604,
which discusses face-to-face meetings between a mortgagor and mortgagee, no private right
of action exists under HUD regulations, and the Records have failed to point to any other
particular federal law authorizing a private right of action relating to an “in person
The Records respond that HSBC’s contention that they are still in possession of the
property is inaccurate because they were, in fact, removed from the property when it was sold
to a third-party purchaser. They do not otherwise respond to HSBC’s arguments.
The court grants HSBC’s motion for judgment on the pleadings on the Records’
wrongful foreclosure claim, at least for the reason that they have failed to plausibly allege
the required elements of such a claim. They do not allege that the selling price for their
property was grossly inadequate or that there was a causal connection between any alleged
defect in the foreclosure sale and the grossly inadequate selling price. See Sauceda, 268
S.W.3d at 139. Accordingly, the court dismisses the Records’ wrongful foreclosure claim.
The court turns next to the Records’ breach of contract claim. “A breach of contract
claim under Texas law requires proof of four elements: (1) the existence of a valid contract,
(2) plaintiff’s performance of duties under the contract, (3) defendant’s breach of the
contract, and (4) damages to the plaintiff resulting from the breach.” Mesa v. Verizon Bus.
Network Servs., Inc., 2012 WL 3452696, at * 12 (N.D. Tex. Aug. 14, 2012) (Fitzwater, C.J.)
(citing Lewis v. Bank of Am. NA, 343 F.3d 540, 544-45 (5th Cir. 2003)).
HSBC moves for judgment on this claim on the grounds that the Records admit that
they were in default under their loan payment obligations and are therefore precluded from
maintaining a breach of contract claim; that there is no requirement under the deed of trust
that requires that plaintiffs receive any default or foreclosure-related notices to be effective;
and that to the extent the Records’ contract claim is premised on an alleged violation of HUD
regulations, it fails as a matter of law because there is no private right of action for failure
to comply with HUD regulations, even when incorporated into a deed of trust.
The Records respond that a deed of trust is governed by Texas contract law. And they
contend that, in Legette v. Washington Mutual Bank, F.A., 2005 WL 2679699, at *5 (N.D.
Tex. Oct. 19, 2005) (Fitzwater, J.), this court “did state that HUD regulations would not form
a private cause of action. However, the Court did state that the facts plead by the Plaintiffs
in this case did amount to a breach of contract. That being said, dismissal of this matter
under Rule 12(c) is not warranted[.]” Ps. Br. 5.
“In Texas, performance or tendered performance by the plaintiff is an essential
element of a breach of contract claim.” Golden v. Wells Fargo Bank, N.A., 557 Fed. Appx.
323, 327 (5th Cir. 2014) (per curiam) (citing Mullins v. TestAmerica, Inc., 564 F.3d 386, 418
(5th Cir. 2009)). Moreover, “a party to a contract who is himself in default cannot maintain
a suit for its breach.” Dobbins v. Redden, 785 S.W.2d 377, 378 (Tex. 1990) (citation
omitted). The Records’ petition does not explicitly state that they are in default on their
mortgage or have failed to make recent payments, but it nonetheless permits the reasonable
inference that they are in default. The petition alleges that, “[d]ue to financial distress,
Plaintiffs were unable to pay the mortgage for a few months,” Pet. ¶ 7, and that they filed for
a modification of the loan (which HSBC has not granted), both of which permit the
reasonable inference that they were in default. Moreover, the Records do not appear to
contest HSBC’s contention that they admit they were in default under their loan payment
obligations. Because the Records’ petition enables the court to draw the reasonable inference
that the Records defaulted on their mortgage, the court dismisses their breach of contract
claim. See May v. Wells Fargo Home Mortg., 2013 WL 2984795, at *2 (N.D. Tex. June 17,
2013) (Fitzwater, C.J.) (dismissing breach of contract claim “[b]ecause the second amended
complaint permits the court to draw the reasonable inference that [plaintiff] defaulted on his
The court next considers the Records’ fraud claim.
In support of their fraud claim, the Records allege that HSBC made misrepresentations
and omissions of material fact regarding the ability to obtain a loan modification; that these
misrepresentations induced them to do nothing until they received notice of the trustee’s sale;
and that, in addition, “Defendant ha[s] presented documents showing they are the proper
party to take such action against Plaintiffs which facts are false and material to the essence
of the Trustee Sale Defendant is attempting to take in April of 2017,” Pet. ¶ 16.
HSBC moves for judgment on the fraud claim, contending that the Records have
failed to satisfy the heightened pleading standard of Rule 9(b) because they have not offered
any explanation of what statements were made, when they were made, who made them, or
any factual allegations concerning why the statements were fraudulent. HSBC also contends
that the fraud claim is barred by the Texas statute of frauds, Tex. Bus. & Com. Code Ann.
§ 26.02(b) (West 2015). It posits that the purported promises regarding the alleged loan
modification and foreclosure involve a loan in an amount well over $50,000; that the alleged
promises are therefore subject to the statute of frauds and must be in writing to be
enforceable; and that plaintiffs do not allege whether any of the representations were made
orally or in writing or that there was a loan agreement that existed in writing. Finally, HSBC
contends that the fraud claim is barred by the economic loss rule because the Records have
not alleged any independent injury outside the purported economic losses allegedly caused
by the alleged misrepresentations relating to the subject matter of the contracts between the
parties, i.e., the note and deed of trust. The Records do not respond to any of HSBC’s
arguments regarding their fraud claim.
At the very least, plaintiffs have failed to plead their fraud claim with the particularity
required by Rule 9(b). They refer generally to misrepresentations and omissions, but they
do not specify the particulars of time, place, and contents of the false representations or
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omissions, the identity of any person making a misrepresentation or omission, or what the
person obtained thereby. The court therefore dismisses the Records’ fraud claim based on
their failure to comply with Rule 9(b).6
HSBC next moves for judgment on the pleadings with respect to plaintiffs’ quiet title
A Texas-law quiet title claim is an equitable action that requires proof of three
elements: “(1) an interest in a specific property, (2) title to the property is affected by a claim
by the defendant, and (3) the claim, although facially valid, is invalid or unenforceable.”
Metcalf v. Deutsche Bank Nat’l Tr. Co., 2012 WL 2399369, at *7 (N.D. Tex. June 26, 2012)
(Fitzwater, C.J.) (citing U.S. Nat’l Bank Ass’n v. Johnson, 2011 WL 6938507, at *3 (Tex.
App. Dec. 30, 2011, no pet.) (mem. op.)). To quiet title, the Records “must allege right, title,
or ownership in [themselves] . . . with sufficient certainty to enable the court to see [they] .
. . [have] a right of ownership that will warrant judicial interference.” Id. (quoting Wells v.
BAC Home Loans Servicing, L.P., 2011 WL 2163987, at *4 (W.D. Tex. Apr. 26, 2011)).
They “must prove and recover on the strength of [their] own title, not the weakness of [their]
adversary’s title.” Id. (alterations in original) (quoting Fricks v. Hancock, 45 S.W.3d 322,
Because the court dismisses plaintiffs’ fraud claim for failure to comply with the
heightened pleading requirement of Rule 9(b), it does not address HSBC’s arguments that
this claim is barred by Texas’s statute of frauds or by the economic loss rule.
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327 (Tex. App. 2001, no pet.)). “The effect of a suit to quiet title is to declare invalid or
ineffective the defendant[’s] claim to title.” Id. at *6 (quoting Gordon v. W. Hous. Trees,
Ltd., 352 S.W.3d 32, 42 (Tex. App. 2011, no pet.)).
HSBC contends that the quiet title claim fails as a matter of law because it is not based
on the strength of the Records’ purported title to the property, but, instead, is based on their
allegations that improperly rely on the alleged weakness of HSBC’s title to the property.
HSBC also maintains that the Records cannot demonstrate as a matter of law that they have
superior title to the property because any ownership interest they purportedly claim to have
in the property was wiped away by the foreclosure sale, thereby giving HSBC superior title
to the property as a matter of law. HSBC posits that the Records’ quiet title claim fails for
the additional reason that they are admittedly in default, and their petition is devoid of any
facts demonstrating that they have tendered the amount owed on the note.
The Records respond as follows:
Defendant has not shown that they are holder of the note. This
cause of action is essentially based on the fact that would allow
the Court to enter an order preventing any action taken by the
Defendant until it is shown they are the holder of the note. The
Plaintiff is not seeking to obtain the homestead without any lien
against the property. Plaintiff’s intent is just to put the chain of
title back to the point that the unlawful notice occurred. Based
on that premise, Plaintiff has stated facts in order to support a
cause of action.
Ps. Br. 5.
The Records have failed to plausibly allege the elements of a quiet title claim. In the
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petition, they allege only that
Defendant has clouded Plaintiffs’ title by committing various
acts and omissions, w[hich] both individually and collectively
are the proximate cause and producing cause of the occurrence
and damages sustained by Plaintiff, including the filing of
documents with the Dallas County Clerk’s Office stating HSBC
Bank, N.A. is the holder of the note and mortgage when in fact
they are not.
Pet. ¶ 11. These allegations are alone insufficient to plausibly allege that the Records have
an interest in the property or that HSBC’s claim to the property is unenforceable or invalid.7
Accordingly, the court dismisses plaintiffs’ quiet title claim.
HSBC moves for judgment on the Records’ claim under the Texas Finance Code,
contending that plaintiffs have failed to allege which provisions of Chapter 392 of the Texas
Finance Code they allegedly violated, and that plaintiffs have therefore failed to state a claim.
The Records have not responded to this argument.
In their state-court petition, the Records allege that “Defendant[’s] failure to properly
notice Plaintiffs violated multiple paragraphs of the Deed of Trust executed between
Plaintiffs and Original Lender and further violates Chapter 392 of the Texas Finance Code.”
Pet. ¶ 23 (emphasis added). No other facts are alleged to support plaintiffs’ claim under the
To the extent plaintiffs argue in their response that HSBC is required to show that it
is the holder of the note, under Texas law, a mortgagee can obtain the right to initiate
foreclosure through the terms of a deed of trust even if it is not the holder of a corresponding
promissory note. See Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 255 (5th
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Texas Finance Code. Merely alleging that HSBC’s “failure to properly notice” plaintiffs
violated Chapter 392 of the Texas Finance Code, without any additional factual allegations,
“is a legal conclusion couched as a factual assertion, which does not survive a motion to
dismiss under the federal rules and applicable law.” Franklin v. BAC Home Loans Servicing,
L.P., 2011 WL 248445, at *3 (N.D. Tex. Jan. 26, 2011) (Lynn, J.). Accordingly, the court
grants HSBC’s motion as to this claim.
Finally, the court considers the Records’ claim for trespass to try title.
HSBC argues for dismissal of plaintiffs’ trespass to try title claim on the grounds that
plaintiffs have failed to comply with the special pleading and proof requirements for this
statutory cause of action; plaintiffs have failed to plead a regular chain of conveyances from
the sovereign, a superior title out of a common source, title by limitations, or prior possession
and that the possession has not been abandoned; plaintiffs admit that they have not been
dispossessed of the property; plaintiffs’ claim is not based on the strength of their purported
title to the property but rather on plaintiffs’ defective allegations of wrongful foreclosure; and
plaintiffs do not allege that they have tendered or attempted to tender the purchase price of
Plaintiffs respond that HSBC did conduct a foreclosure, and that, contrary to HSBC’s
statements, plaintiffs were removed from the property when it was sold to a third party buyer.
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Trespass to try title is a statutory claim brought under Tex. Prop. Code Ann. § 22.001
(West 2014). See id. (“A trespass to try title action is the method of determining title to
lands, tenements, or other real property.”). A trespass to try title action is “an action to
recover the possession of land unlawfully withheld from an owner who has a right of
immediate possession.” Katz v. Rodriguez, 563 S.W.2d 627, 629 (Tex. Civ. App. 1977, writ
ref’d n.r.e.). It is “the exclusive remedy for resolving competing claims to property.” Parker
v. Hunegnaw, 364 S.W.3d 398, 401 (Tex. App. 2012, no pet.) (citing Tex. Prop. Code Ann.
§ 22 .001 (West 2000)).
To maintain an action for trespass to try title, the person bringing the suit must have
title to the land sought to be recovered. Ramsey v. Grizzle, 313 S.W.3d 498, 505 (Tex. App.
2010, no pet.). A plaintiff’s right to recover depends on the strength of the plaintiff’s own
title, not the weaknesses of the title of the adversary. Id. In a trespass-to-try-title action, the
plaintiff is required to prove title by establishing (1) a regular chain of title of conveyances
from the sovereign to the plaintiff; (2) a superior title to that of the defendant out of a
common source; (3) title by limitations; or (4) prior possession that has not been abandoned.
Teon Mgmt., LLC v. Turquoise Bay Corp., 357 S.W.3d 719, 728 (Tex. App. Oct. 27, 2011,
pet. denied) (citing Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 768 (Tex. 1994)).
As stated above, “[t]o prevail on a trespass to try title action, a plaintiff must prove
title to the property by: ‘(1) proving a regular chain of conveyances from the sovereign, (2)
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establishing superior title out of a common source, (3) proving title by limitations, or (4)
proving title by prior possession coupled with proof that possession was not abandoned.’”
Richardson v. Wells Fargo Bank, N.A., 873 F.Supp.2d 800, 816 (N.D. Tex. 2012) (McBryde,
J.) (citations omitted). The Records have not alleged even one of these elements in their
petition. In support of their trespass to try title claim, plaintiffs allege only that “[t]he facts
stated herein above evidence Plaintiff’s legal right to the Property and establish sufficient
title to maintain this trespass to try title action. . . . Plaintiffs asks the Court to determine its
title to the property, and right to possess it under Civ. Prac. & Rem. Code Chapter 22[.]”
Pet. ¶¶ 26-27. These allegations are insufficient to plausibly allege the elements of a claim
for trespass to try title. Accordingly, the court dismisses this claim.
In their response, the Records request leave to amend any cause of action that the
court determines should be dismissed. The court grants this request.
The Records filed this case in state court, under the pleading standards that govern in
that forum. They have requested, and should be given, an opportunity to replead under the
federal pleading standards. See, e.g., Hoffman v. L & M Arts, 774 F.Supp.2d 826, 849 (N.D.
Tex. 2011) (Fitzwater, C.J.) (granting similar relief in removed case). Accordingly, the court
grants the Records 28 days from the date this memorandum opinion and order is filed to file
an amended complaint.
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In a March 16, 2018 order, the court granted HSBC’s unopposed motion to stay
pretrial deadlines and discovery. It ordered that all discovery and the deadlines set out in the
scheduling order and order granting joint motion to enlarge deadlines be stayed until the
court resolved HSBC’s motion for judgment. And it stated that, if its ruling on the motion
for judgment failed to completely resolve this matter, it would issue an order requiring the
parties to submit an agreed scheduling order governing the pretrial deadlines.
Although the court has permitted the Records to replead, at present each of their
claims has been dismissed. The court will therefore leave the stay in place pending the filing
of an amended complaint and the disposition of any motion addressed to that pleading. If,
however, HSBC answers the amended complaint, then within 14 days of the date the answer
is filed, the parties must file a joint scheduling proposal that suggests revisions to the
deadlines in the June 26, 2017 scheduling order.
For the foregoing reasons, the court grants HSBC’s motion for judgment on the
pleadings under Rule 12(c) but also grants plaintiffs leave to replead.
April 10, 2018.
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
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