Nelson v. Wells Fargo Bank, N.A.
Memorandum Opinion and Order (Ordered by Judge John McBryde on 8/7/2017) (wxc)
.. U.S. DISTRICT COURT
:NORTHERN DISTRICT OF TEX M
IN THE UNITED STATES DISTRICT COURT ~~~- -- . . ·-~-7
NORTHERN DISTRICT OF TEXA
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FORT WORTH DIVISION
TWALIA L. NELSON,
WELLS FARGO BANK, N.A.,
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, Wells
Fargo Bank, N.A., to dismiss. Plaintiff, Twalia L. Nelson, has
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.
On March 3, 2017, plaintiff filed her original petition and
application for temporary restraining order in the 141st Judicial
District Court of Tarrant County, Texas. Doc. 1 1. On that date,
the state court signed a temporary restraining order prohibiting
defendant from conducting a foreclosure sale with respect to the
property at issue. Doc. 1-8. Defendant was served on March 8,
2017, and, on April 7, 2017, filed its notice of removal,
bringing the action before this court. Doc. 1.
"reference is to the number of the item on the docket in this action.
By order signed May 9, 2017, the court ordered the parties
to replead consistent with the pleading requirements of the
Federal Rules of Civil Procedure. Doc. 7. The order specifically
pointed out the need for plaintiff to pay particular attention to
Fed. R. Civ. P. S(a), as explained and clarified by the Supreme
Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662
(2009). Doc. 7 at 2, n.2.
On May 23, 2017, plaintiff filed her amended complaint. Doc.
8. After receiving extensions of time in which to respond, Docs.
10 & 12, defendant filed its motion to dismiss. Doc. 13.
Grounds of the Motion
Defendant says that plaintiff has not stated any plausible
claim for relief and requests that plaintiff's amended complaint
be dismissed with prejudice.
Applicable Pleading Standard
Rule S(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. S(a) (2),
"in order to give the defendant fair
notice of what the claim is and the grounds upon which it rests,"
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
quotation marks and ellipsis omitted) .
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
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
See Ashcroft v. Iqbal,
("While legal conclusions can provide
the framework of a complaint, they must be supported by factual
allegations. •) .
Moreover, to survive a motion to dismiss for failure to
state a claim, the facts pleaded must allow the court to infer
that the plaintiff's right to relief is plausible.
U.S. at 678.
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 misconduct, the complaint has not
shown that the pleader is entitled to relief. Id. at 679.
"Determining whether a complaint states a plausible claim for
[is] a context-specific task that requires the
reviewing court to draw on its judicial experience and common
As the Fifth Circuit has explained:
"Where the complaint is
devoid of facts that would put the defendant on notice as to what
conduct supports the claims, the complaint fails to satisfy the
requirement of notice pleading." Anderson v. U.S. Dep't of
Housing & Urban Dev., 554 F.3d 525, 528
(5th Cir. 2008). In sum,
"a complaint must do more than name laws that may have been
violated by the defendant; it must also allege facts regarding
what conduct violated those laws. In other words, a complaint
must put the defendant on notice as to what conduct is being
called for defense in a court of law." Id. at 528-29.
In considering a motion to dismiss for failure to state a
claim, the court may consider documents attached to the motion if
they are referred to in the plaintiff's complaint and are central
to the plaintiff's claims. Scanlan v. Tex. A&M Univ., 343 F.3d
(5th Cir. 2003). The court may also refer to matters of
public record. Davis v. Bayless, 70 F.3d 367, 372 n.3
1995); Cinel v. Connick, 15 F. 3d 1338, 1343 n.6
(5th Cir. 1994)
This includes taking notice of pending judicial proceedings.
Patterson v. Mobil Oil Corp., 335 F.3d 476, 481 n.1
it includes taking notice of governmental websites.
Kitty Hawk Aircargo,
Inc. v. Chao, 418 F.3d 453, 457
2005); Coleman v. Dretke, 409 F.3d 665,
667 (5th Cir. 2005).
Texas Property Code
Plaintiff's first cause of action is for violation of
section 51.002(d) of the Texas Property Code. Doc. 8 at 3.
Plaintiff says that defendant did not send her the required
notice of default at least twenty days prior to the notice of
foreclosure sale. That section of the Property Code, however,
does not provide plaintiff with a private right of action.
Palomino v. Wells Fargo Bank, N.A., No. 6:15-CV-375-RWS-KNM, 2017
WL 989300, at *3 (E.D. Tex. Feb. 17, 2017), report and
recommendation adopted, 2017 WL 978930
(E.D. Tex. Mar. 14, 2017);
Carey v. Wells Fargo, N.A., No. H-15-1666, 2016 WL 4246997, at
(S.D. Tex. Aug. 11, 2016).
Courts have construed claims for violation of Tex. Prop.
51.002 as claims for wrongful foreclosure. Carey, 2016 WL
4246997, at *3. To state a claim for wrongful foreclosure, a
plaintiff must plead (1) a defect in the foreclosure sale
(2) a grossly inadequate sales price; and (3) a
causal connection between the defect and the grossly inadequate
sales price. Martins v. BAC Home Loans Servicing, L.P.,
(5th Cir. 2013). Under Texas law, a grossly
inadequate sales price must be such as to shock a correct mind.
Id. at 256. Here, the record reflects that plaintiff obtained a
temporary restraining order preventing the foreclosure sale from
taking place. Thus, plaintiff cannot be asserting a wrongful
Breach of Contract
To state a claim for breach of contract, plaintiff must
(1) the existence of a valid contract;
tendered performance by plaintiff;
(2) performance or
(3) breach of contract by
defendant; and (4) damages sustained by plaintiff as a result of
defendant's breach. Sport Supply Group,
Co., 335 F.3d 453, 465
Inc. v. Columbia Cas.
(5th Cir. 2003). A plaintiff who is
herself in default, as plaintiff admits is the case here, Doc. 8
at 2, , 7, cannot maintain an action for breach of contract.
Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763, 767
Texas Debt Collection Act'
Plaintiff asserts that defendant violated section
392.304(a) (8) of the Texas Finance Code by •not applying
Plaintiff payment thereby representing an incorrect amount due on
Plaintiff's loan.• Doc. 8 at 4, , 19. Plaintiff has not pleaded
'Chapter 392 of the Texas Finance Code is titled "Debt Collection."
that defendant was engaged in debt collection as that term is
defined in Tex. Fin. Code
392.001(5). Rather, it appears that
the act about which plaintiff complains was in response to an
inquiry made by plaintiff. In any event, the court cannot
determine the amount defendant says is actually owed from what
plaintiff claims is the true amount. Plaintiff's conjecture is
insufficient to state a claim, even assuming that defendant made
a misrepresentation in connection with debt collection
activities. Brooks v. Ocwen Loan Servicing, L.L.C., No. H-121410, 2012 WL 3069937, at *6 (S.D. Tex. July 27, 2012); Smallwood
v Bank of Am., No. 3:11-CV-1283-D, 2012 WL 32654, at *3
Tex. Jan. 6, 2012)
Finally, plaintiff asserts a claim against defendant for
violation of the Real Estate Settlement Procedures Act, 12 U.S.C.
( "RESPA") . Specifically, plaintiff says defendant
violated section 2605(e) by failing to timely acknowledge and
respond to plaintiff's written notice of error and request for
information. Doc. 8 at 5,
23. However, in order to recover for
a RESPA violation, plaintiff must allege that she suffered actual
damages as a result of the alleged violation, which she has not
done. Smith v. JPMorgan Chase Bank, N.A., 519 F. App'x 861, 864
(S'h Cir. 2013); Kareem v. Am. Home Mortgage Servicing, Inc., 479
F. App'x 619, 620
(5th Cir. 2012). Plaintiff has not even alleged
any facts giving rise to a reasonable inference that she suffered
actual damages from the alleged RESPA violation. Hurd v. BAC Home
Loans Servicing, L.P., 880 F. Supp. 2d 747, 768
(N.D. Tex. 2012)
Nor does it appear that she could, given that plaintiff alleges
that she sent her qualified written request on the very day she
filed her lawsuit. Doc. 8 at 2,
Defendant urges that dismissal with prejudice is
appropriate. The court agrees. Plaintiff has already had an
opportunity to amend her complaint and presumably to state the
best case she could. As noted, the court specifically cautioned
plaintiff that in filing her amended complaint, she should take
into account the pleading requirements recited supra. Moreover,
plaintiff has made no response to the motion. Nor has she
requested leave to amend. The court is satisfied that no purpose
would be served by allowing an amendment at this point as it
appears that any amendment would be futile. Martin's Herend
Imports, Inc. v. Diamond & Gem Trading U.S. Am. Co., 195 F.3d
765, 771 (5th Cir. 1999) .
The court ORDERS that defendant's motion to dismiss be, and
is hereby, granted, and that plaintiff's claims be, and are
hereby, dismissed with prejudice.
SIGNED August 7, 2017.
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