Wingfield et al v. Carrington Mortgage Services, LLC
Filing
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MEMORANDUM OPINION AND ORDER: Came on for consideration the motion of defendant, Carrington Mortgage Services, LLC, to dismiss. Plaintiffs, Wanda J. Wingfield and Willie H. Wingfield, have failed to respond to the motion, which is ripe for ruling. The court, having considered the motion, the record, and applicable authorities, finds that the motion should be granted. (Ordered by Judge John McBryde on 8/13/2015) (trs)
U.S. DISTRICT COURT
NORTHERN DISTRICT Of TEXAS
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
WANDA J. WINGFIELD, ET AL.,
Plaintiffs,
vs.
CARRINGTON MORTGAGE SERVICES,
LLC, C/0 BANK OF AMERICA, N.A.
AS SUCCESSORS BY MERGER TO BAC
HOME LOAN SERVICING, LP FKA
COUNTRYWIDE HOME LOANS
SERVICING LP,
Defendant.
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FILED
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13 2010
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CLERK, U.S. DISTRICT COURT
By---=----Deputy
NO. 4:15-CV-453-A
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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant,
Carrington Mortgage Services, LLC, to dismiss. Plaintiffs, Wanda
J. Wingfield and Willie H. Wingfield, have failed to respond to
the motion, which is ripe for ruling. The court, having
considered the motion, the record, and applicable authorities,
finds that the motion should be granted.
I.
Plaintiffs' Claims
On May 29, 2015, plaintiffs filed their original petition in
the 67th Judicial District Court of Tarrant County, Texas. On
June 22, 2015, defendant filed its notice of removal, bringing
the action before this court. The court ordered plaintiffs to
file an amended complaint, bearing in mind the requirements of
the Federal Rules of Civil Procedure. On July 8, plaintiffs filed
their first amended complaint.
In their amended complaint, plaintiffs allege that
defendant, as holder of a deed of trust signed by them, was
obligated to determine plaintiffs' eligibility for loss
mitigation options, including loan modification, and to meet with
plaintiffs in person before foreclosing its lien on plaintiffs'
home on May 5, 2015. Plaintiffs allege that the foreclosure was
conducted in violation of 24 C.F.R.
§§
203.604 and 203.605 and
that defendant violated certain unidentified guidelines. They ask
the court to set aside the foreclosure sale and grant them
"monetary relief of more than $200,000.00 but not more than
$1,000,000.00,"
~nd
an unspecified declaration as to the rights,
obligations, and interest of the parties with regard to the real
property the subject of the foreclosure.
II.
Standard of Review
Rule 8(a} (2} of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. 8(a} (2},
"in order to give the defendant fair
notice of what the claim is and the grounds upon which it rests,"
2
Bell Atl. Corp. v. Twombly, 550
u.s.
544, 555 (2007)
quotation marks and ellipsis omitted) .
(internal
Although a complaint need
not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
of action.
Twombly, 550
u.s.
at 555 & n.3.
Thus, while a court
must accept all of the factual allegations in the complaint as
true, it need not credit bare legal conclusions that are
unsupported by any factual underpinnings.
556
u.s.
662, 679 (2009)
See Ashcroft v. Iqbal,
("While legal conclusions can provide
the framework of a complaint, they must be supported by factual
allegations.").
"Determining whether a complaint states a plausible claim
for relief .
[is] a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense." Iqbal, 556 U.S. at 678. To survive a motion to dismiss
for failure to state a claim under Rule 12(b) (6), the facts
pleaded must allow the court to infer that the plaintiff's right
to relief is plausible.
Id.
To allege a plausible right to
relief, the facts pleaded must suggest liability; allegations
that are merely consistent with unlawful conduct are
insufficient. Id. In other words, where the facts pleaded do no
more than permit the court to infer the possibility of
3
misconduct, the complaint has not shown that the pleader is
entitled to relief. Id. at 679.
III.
Analysis
Plaintiffs' failure to respond to the motion to dismiss may
be interpreted as an abandonment of their claims. Black v. North
Panola School Dist., 461 F.3d 584, 588, n.1 (sth Cir. 2006). The
court is nevertheless considering the merits of the motion.
A.
Violation of HUD Regulations
Defendant first addresses plaintiffs' claim that defendant
violated certain HUD regulations, 24 C.F.R.
§§
203.604 & 203.605.
As defendant points out, the regulations apply only to mortgage
loans backed by the Federal Housing Administration. Turnbow v.
PNC Mortgage, No. 4:12-CV-2835, 2013 WL 5410075, *4 (S.D. Tex.
Sept. 25, 2013). Plaintiffs have not alleged any facts to show
that theirs is an FHA loan subject to the regulations. Thus, they
have failed to state a claim in this regard. Id. Moreover, and in
any event, there is no private right of action for failure to
comply with HUD regulations. See Lindsey v. JPMorgan Chase Bank,
N.A., No. 3:12-CV-4535-M(BH), 2013 WL 2896897, *7 (N.D. Tex. June
13, 2013); Holloway v. Wells Fargo Bank, N.A., No. 3:12-CV-2184G(BH), 2013 WL 1187156, *18 (N.D. Tex. Feb. 26, 2013), adopted,
2013 WL 1189215 (N.D. Tex. Mar. 22, 2013).
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B.
Violation of Consumer Financial Protection Bureau Servicing
Guidelines
Defendant next points out that plaintiffs cannot assert a
claim for violation of 12 C.F.R.
§
1024.41, because that
provision states that nothing therein
~imposes
a duty on a
servicer to provide any borrower with any specific loss
mitigation option." Further, plaintiffs have not alleged that
they submitted a complete application requesting loss mitigation
review so as to give rise to any obligation by defendant. 12
C.F.R.
C.
§
1024.41(b),
(c),
&
(g).
Quiet Title and Trespass to Try Title
The court is not satisfied that plaintiffs have asserted a
quiet title or trespass to try title action, although defendant
says that their request to set aside the foreclosure might be
interpreted as a quiet title claim. A suit to quiet title is an
equitable action to clear a valid title against a defendant's
invalid claim to the property. Puente v. CitiMortgage, Inc., No.
3:11-CV-2509-N, 2012 WL 433997, *3
(N.D. Tex. Aug. 12, 2012).
Trespass to try title is a statutory action with specific
pleading requirements. Singha v. BAC Home Loans Servicing, L.P.,
564 F. App'x 65, 71 (5th Cir. 2014). In either case, the
plaintiff must prove and recover on the strength of his own
title, not the weakness of his adversary's. Id.; Summers v.
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PennyMac Corp., No. 3:12-CV-1235-L, 2012 WL 5944943, *3
(N.D.
Tex. Nov. 28, 2012).
Here, plaintiffs do not allege facts that, if proved, would
establish their superior right to title to the property. For one
thing, plaintiffs have not pleaded that they tendered the amount
due on the note. Cook-Bell v. Mortgage Electronic Registration
Sys., Inc., 868 F. Supp. 2d 585, 591 (N.D. Tex. 2012); Jasper
State Bank v. Braswell, 111 S.W.2d 1079, 1083
(Tex. 1938). For
another, they have not pleaded that their interest in the
property is superior to that of defendant. Morlock. L.L.C. v.
MetLife Home Loans, L.L.C., 539 F. App'x 631, 633
(5th Cir.
2013); Hahn v. Love, 321 S.W.3d 517, 531 (Tex. App.-Houston [1st
Dist.] 2009, pet. denied).
D.
Wrongful Foreclosure
To state a claim for wrongful foreclosure, plaintiffs must
allege (1) a defect in the foreclosure sale proceedings,
(2) a
grossly inadequate sales price, and (3) a causal connection
between the defect and the grossly inadequate sales price.
Sauceda v. GMAC Mortgage Corp., 268 S.W.3d 135, 139 (Tex.
App.-Corpus Christi 2008, no pet.). Plaintiffs have not alleged
facts to support any of these elements and have not stated a
claim for wrongful foreclosure. Brackens v. Ocwen Loan Servicing,
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L.L.C., No. 3:13-CV-3458-L, 2015 WL 1808541, *3-4 {N.D. Tex. Apr.
21, 2015).
E.
Declaratory Relief
Because plaintiffs' substantive claims are being dismissed
for failure to state a claim upon which relief can be granted,
they are not entitled to a declaratory judgment based on those
claims; nor are they entitled to injunctive relief. DSC
Communications Corp. V. DGI Techs., Inc., 81 F.3d 597, 600 {5th
Cir. 1996); Marsh v. JPMorgan Chase Bank, N.A., 888 F. Supp. 2d
805, 815 {W.D. Tex. 2012).
IV.
Order
For the reasons discussed herein,
The court ORDERS that defendant's motion to dismiss be, and
is hereby, granted, and that plaintiffs' claims in this action
be, and are hereby, dismissed with prejudice.
SIGNED August 13, 2015.
Judge
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