Duke v. Wells Fargo Bank, N.A. et al

Filing 36

MEMORANDUM OPINION and ORDER: The court ORDERS that the claims of plaintiff against defendants be, and are hereby, dismissed. (Ordered by Judge John McBryde on 10/26/2017) (bdb)

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U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS

FILFD

,

IN THE UN I TED STATES DISTRICT\ COURT,----·------:.:: ....~,
1
NORTHERN DISTRICT OF TEX~S
)
FORT woRTH DIVISION
2 6 20t7

I

KEISHA DUKE,

§

L_ocr

CLEHK, U.S. DISTiUCI COURT

§
§

Plaintiff,

By _ _ _ _ _ _ _ _ _ __
Deputy

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vs.

§

NO. 4:17-CV-590-A

§

WELLS FARGO BANK, N.A., ET AL.,

§

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Defendants.

§

MEMORANDUM OPINION
and
ORDER
Before the court for consideration and decision are the
motions of defendants, Wells Fargo Bank, N.A.

("Wells Fargo") and

Fay Servicing, LLC ("Fay•), to dismiss the claims of plaintiff,
Keisha Duke, against them.

The court, having considered the

motions, plaintiff's response to each motion, Wells Fargo's
reply, the record, and the applicable legal authorities, finds
that both the motions should be granted.
I.

Plaintiff's Claims
Plaintiff alleges claims against defendants for,
court can tell,

as best the

trespass and violation of the Fair Debt

Collection Practic;::es Act, 15 U. s. C.

§

1692-1962p ( "FDCPA") .

The

basis of plaintiff's trespass claim is that defendants have been,

in her words,

"administer[ing her] property without rights,"

doc. 1 10 at 1-2, and her FDCPA claims are founded on defendants
having refused to verify the debt in question.

To support her

claims, she alleges the following facts:
On August 9, 2006, Keenan and Claire Duke acquired the
property located at 5924 Walden Trail, Arlington, Texas 76016
("property") .

In 2012, Keenan fell ill and transferred the

property to plaintiff.

The following year, Wells Fargo sent

notice of payment due on the property.

Plaintiff requested

verification of the debt, which Wells Fargo refused to provide,
In May

and so plaintiff did not pay any of the amount owed.
2014, Wells Fargo threatened foreclosure.

Plaintiff made a

payment of $15,439.21 to bring the loan current and allow Wells
Fargo more time to provide the requested accounting.

Plaintiff

claims she has continually sought to obtain a full accounting
from Wells Fargo, to no avail.

On November 29, 2016, "wells

fargo [sic] claims to transfer servicing rights to Fay
Servicing[,]" id. at 2, which, in plaintiff's words, constitutes
"administer[ing] my property without rights."

Id.

She claims

she has disputed the debt with Fay, but that like Wells Fargo,
Fay has refused to "verify the debt."

Id.

Plaintiff also

accuses Fay of "threatening to sell my property". Id.

'The "Doc.

"reference is to the number of the item on the docket in this action.
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Plaintiff requests relief in the amount of $39,926,700.00
and "immediate restore of property as it was the day before the
wrongdoing."

Id. at 1.
II.
Grounds of the Motions

Each of the defendants maintains that plaintiff has failed
to sufficiently plead any cause of action.
Wells Fargo further asserts that plaintiff lacks standing to
assert the claims in this lawsuit, that even if plaintiff did
have standing, she has failed to state a claim on her FDCPA claim
because Wells Fargo is not a debt collector and foreclosing on
property does not constitute debt collection.
Each defendant asserts that all claims against that
defendant should be dismissed.
III.
Applicable Pleading Standards
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[s are] and the grounds upon which [they]
rest[]."

Twombly, 550 U.S. at 555 (internal quotation marks and

3

'~-

'

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 of action.
555 & n.3.

Id. at

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.

See Igbal, 556 U.S. at 679

("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 under Rule 12 (b) (6), the facts pleaded must allow
the court to infer that the plaintiff's right to relief is
plausible.

Id. 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.
Twombly, 550 U.S. at 566-69.

"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."

Igbal, 556 U.S. at 679.

The court generally is not to look beyond the pleadings in
deciding a motion to dismiss.
774

(5th Cir. 1999).

Spivey v. Robertson, 197 F.3d 772,

"Pleadings" for purposes of a Rule 12 (b) (6)

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motion include the complaint, its attachments, and documents that
are referred to in the complaint and central to the plaintiff's
claims.

Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,

498-99 (5th Cir. 2000).
public record.

The court may also refer to matters of

Davis v. Bayless, 7.0 F.3d 367, 372

1995); Cinel v. Connick, 15 F.3d 1338, 1343

(5th Cir.

(5th Cir. 1994).

This includes taking notice of pending judicial proceedings.
Patterson v. Mobil Oil Corp., 335 F.3d 476, 481 (5th Cir. 2003)
IV.

Analysis
A.

Failure to Comply with August 21, 2017 Order

On August 21 2017, this court ordered the parties, including
plaintiff, to replead in conformity with the Federal Rules of
Civil Procedure and other rules applicable to this court.

That

ordered warned that failure to comply with it would subject a
party to the imposition of sanctions, up to, ·in plaintiff's case,
dismissal of her claims.

On September 5, 2017, plaintiff filed

what the court assumes to be her amended complaint.'

Defendants

each moved to dismiss the claims of plaintiff against it, citing

'Pursuant to the order signed August 21, 2017, plaintiff's amended complaint was to be titled
"Plaintiff's Amended Complaint." Doc. 9 at 2. Plaintiff instead filed what she called "Prosecutor
Amended Claim of Trespass (ADMINISTERING PROPERTY WITHOUT RIGHTS)." Doc. I 0.
Plaintiff has also filed with the court various nonsensical documents. It is unclear if plaintiff intended for
those documents to be part of her complaint or something else. Because she has not sought leave to
amend her pleading, the court construes these documents as separate from her complaint.
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that plaintiff has not complied with the order because the
allegations in her amended complaint fall short of

pl~ading

requirements set forth in the Federal Rules of Civil Procedure.
Bearing in mind that this court must liberally construe the
pleadings of a pro se litigant, Mcconathy v. Dr. Pepper/Seven Up
Corp., 131 F.3d 558, 561 (5th Cir. 1998), the court agrees.
Plaintiff's complaint consists of two pages of claims and
factual information, Doc. 10 at 1-2, to which she has attached
numerous, mostly nonsensical, letters and other documents.
Nowhere in these papers does plaintiff competently allege any
cause of action, nor any facts that might support such cause(s)
of action.

At most, plaintiff's allegations amount to threadbare

recitals and legal conclusions, which are insufficient to suggest
a claim for relief that is plausible on its face.

However, to

the extent that plaintiff's intent was to bring trespass or FDCPA
claims against either or both defendants, those claims are
addressed individually below.
B.

Trespass Claims
1.

Common Law Trespass

To properly allege a claim for common law trespass in Texas,
a plaintiff must allege that (1) she owned or had a lawful right
to possess the real property;

(2) defendant entered her land and

the entry was physical, intentional, and voluntary; and (3)

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defendant's trespass injured plaintiff's right of possession.
See North Shore Energy, L.L.C. v. Harkins, 501 S.W.3d 598, 605
(Tex. 2016); Barnes v. Mathis, 353 S.W.3d 660, 764

(Tex.

2011) (per curiam); R.C. Bowen Estate v. Cont'l Trailways, Inc.,
152 Tex. 260 (1953).
As defendants point out, plaintiff has neither alleged these
bare trespass elements, nor any factual assertions that, taken as
true, could support a trespass claim.

She alleged, given the

most generous reading, that she owns the property, that both
defendants trespassed on her by "administer[ing her] property
without rights" and "using a [sic] unverified claim of debt",
Doc. 10 at 1-2, and that Fay Servicing threatened to sell her
property.

Id.

However, based on public records relating to the

property in question,

it is not apparent to the court that

plaintiff's assertion that she owns the property is true. 3

As

best the court can tell, the above-captioned action was initiated
after Keenan and Claire Duke filed for bankruptcy in the United
States Bankruptcy Court for the Northern District of Texas, Fort
Worth Division.

Doc. 27 at 1-22.

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Documents from that court, as

Attached to plaintiff's complaint is a document titled "Notice of [Substitute] Trustee's Sale"
that relates to the foreclosure sale initiated by Fay. Doc. 10 at 11. Such ·document indicates that the
instrument to be foreclosed is the deed of trust executed on the property by Keenan and Claire Duke in
favor of World Savings Bank, FSB, its successors and/or assignees. Because this document was attached
to plaintiffs complaint, the comt takes judicial notice of it, as well as the related public records
submitted to the comt by Wells Fargo in its appendix to its motion to dismiss, which are central to
plaintiffs claims. See Doc ..27.
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well as other public records, including a Texas Equity Deed of
Trust, indicate that in April 2017, the bankruptcy court entered
an Order Lifting Stay as to Debtor, allowing non-judicial
foreclosure on the property.

Doc. 27 at 76-80.

On June 19,

2017, Claire Duke filed a motion in the bankruptcy court to
reinitiate the stay.

On June 20, 2017, plaintiff, claiming to be

the property owner, filed her lawsuit in the District Court of
Tarrant County, Texas, 67th Judicial District, which was
eventually removed to this court.
Even if plaintiff does own the property, she still has not
sufficiently alleged that either defendant physically;
intentionally, and voluntarily entered onto the property and that
such entry injured plaintiff's right of possession.

Thus,

dismissal of plaintiff's trespass claims is proper.
2. Trespass to Try Title
To the extent plaintiff intended to bring a trespass to try
title claim against either party, such claim fails because
plaintiff has not.properly pleaded such cause of action.

To

prevail on a trespass to try title claim, a plaintiff is required
to:

"(1) prove a regular chain of conveyances from the

sovereign,

(2) establish superior title out of a common source,

(3) prove title by limitation, or (4) prove title by prior
possession coupled with proof that possession was not.abandoned."

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Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004).

As in a suit

to quiet title, the plaintiff must "prevail on the superiority of
his title, not the weakness of a defendant's."

Id.

Because, as

explained above, plaintiff has provided only conclusory factual
allegations supporting her claim that she has superior title to
the property, and not met the detailed pleading requirements,
plaintiff has not stated a trespass to try title claim upon which
relief can be granted.

Accordingly, any trespass to try title

claim that plaintiff intended to bring is dismissed.
D.

Fair Debt Collection Practices Act Claim4

The purpose of the FDCPA is to eliminate abusive debt
collection practices by debt collectors.

15 U.S.C.

§

1692(e)

Only behavior by "debt collectors" against "consumers," as both
terms are defined by the statute, are prohibited.

It proscribes

debt collectors from using "any false, deceptive, or misleading
representation or means" or "unfair or unconscionable means" when
collecting a debt.

Id. at

§

1692e-1692f.

Section 1692g of the

FDCPA requires that a debt collector provide·a consumer certain
written disclosures in connection with any attempt to collect a
debt.

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Although plaintiff makes only one reference to the FDCPA in her complaint, see Doc. I 0 at 2
("Fay Servicing refuses the requirement to verify the debt. [Cf. Fair Debt Collections Act]"), she
repeatedly states that she has attempted, and been unable to, verify the debt in question. Doc. I 0 at 1-2.
Thus, the court assumes that it is plaintiffs intent to allege violation of the FDCPA by one or both of the
defendants.
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Plaintiff seems to allege that defendants violated the FDCPA
when they attempted to collect a debt without first providing
verification.

Plaintiff vaguely references in her fact section

that Wells Fargo did not verify the debt or provide a.full
accounting of the final bill, and that Fay "refuse[d) the
requirement and request to verify the debt."
Clearly,

the~e

Doc. 10 at 2.

pleadings are next to threadbare, and wholly

conclusory allegations.

Plaintiff has not alleged that she is a

consumer, or that either party is a debt collector, as those
terms are defined by the FDCPA.
be attempting to

~llege

To the extent that plaintiff may

that defendants did not provide the

information required under section 1692g, neither defendant is
required to provide that information to plaintiff unless it meets
the definition of a debt collector, and plaintiff a consumer,
which has not been established by plaintiff's pleadings.

Thus,

any FDCPA claim plaintiff intended to bring must fail because she

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has not suggested any plausible right to relief.

v.
ORDER
For the foregoing reasons, the court ORDERS that the claims
of plaintiff against defendants be, and are hereby, dismissed.
SIGNED October 26, 2017.

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