Singh v. U.S. Bank Home Mortgage
Filing
15
MEMORANDUM AND ORDER granting 7 MOTION to Dismiss Plaintiff's Petition and DISMISSING with prejudice Plaintiff's claims.(Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
HARJINDER SINGH,
Plaintiff,
CIVIL ACTION NO. H-12-3037
v.
U.S. BANK HOME MORTGAGE,
Defendant.
MEMORANDUM AND ORDER
Pending is Defendant U.S. Bank Home Mortgage's ("Defendant")
Motion to Dismiss (Document No. 7) .
Plaintiff Harjinder Singh
("Plaintiff") has filed no response to the motion, and it is
therefore deemed unopposed pursuant to Local Rule 7.4.
After
carefully considering the motion and applicable law, the Court
concludes that the motion should be granted.
I. Background
Plaintiff alleges that in 2009 he purchased a home at 11450
Suburban Road located in Houston, Texas, and borrowed $192,000.00
from U.S. Bank to finance the purchase.'
In 2010, Plaintiff fell
behind on his mortgage payments and applied for a loan modification
from Defendant.2
'
After submitting the requested documentation,
Document No. 1, ex. B.3 at 2 (Orig. Pet.).
Defendant's representative told Plaintiff he did not qualify for
the loan m~dification.~ In April 2012, Plaintiff hired a real
estate agent and listed the property for sale.4 In early May, the
real estate agent tried to obtain the financial status of the
mortgage from Defendant, but Defendant did not respond to her
request.
On May 31, 2012, a buyer was ready to purchase the home from
~
Plaintiff with an earnest money ~ o n t r a c t .Plaintiff submitted the
earnest money contract to an escrow agent.7 The escrow agent then
contacted Defendant for a pay-off quote.' Defendant initially did
not respond, but later gave a pay-off quote, which it subsequently
revised on August 27, 2012.
The revised pay-off quote included
$47,000.00 in additional charges, which Plaintiff alleges made the
total pay-off quote more than the fair market value of the home.''
Id.
-
a, B . 3
ex.
at 3 .
Id.
Id.
Document No. 1, ex. B . 3 at 3 .
Consequently, Plaintiff requested approval from Defendant for
a short sale.''
listed
the
Defendant failed to respond to this request and
property
for foreclosure on
September 4, 2012.12
Plaintiff alleges fraud, wrongful foreclosure due to fraud, slander
of title, wrongful foreclosure due to failure to give proper
notice, and promissory estoppel.13 He also requests an accounting
and seeks temporary and permanent injunctive relief to prevent
Defendant from foreclosing on the home.14
11.
Discussion
Leqal Standard
Rule 12 (b)(6) provides for dismissal of an action for ''failure
to state a claim upon which relief can be granted." FED. R. CIV. P.
12(b) (6).
When a district court reviews the sufficiency of a
complaint before it receives any evidence either by affidavit or
admission, its task is inevitably a limited one.
See Scheuer v.
Rhodes, 94 S. Ct. 1683, 1686 (1974). The issue is not whether the
plaintiff ultimately will prevail, but whether the plaintiff is
entitled to offer evidence to support the claims.
I.
d
l2
I.
d
l3
I . ex. B.3 at 4-5.
d,
l4
I . ex. B.3 at 6.
d,
I.
d
In considering a motion to dismiss under Rule 12 (b)( 6 ) , the
district court must construe the allegations in the complaint
favorably to the pleader and must accept as true all well-pleaded
facts in the complaint.
117 F.3d 242, 247
See Lowrev v. Tex. A&M
(5th Cir. 1997).
Univ. Svs.,
To survive dismissal, a
complaint must plead "enough facts to state a claim to relief that
is plausible on its face." Bell Atl. Corp. v. Twomblv, 127 S. Ct.
1955, 1974 (2007).
"A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable
inference
misconduct alleged."
(2009).
While
a
that
the
defendant
is
liable
for
the
Ashcroft v. Isbal, 129 S. Ct. 1937, 1949
complaint
"does not need
detailed
factual
allegations . . . [the] allegations must be enough to raise a right
to relief above the speculative level, on the assumption that all
the allegations in the complaint are true (even if doubtful in
fact)." Twomblv, 127 S. Ct. at 1964-65.
B.
Analysis
1.
Fraud
Defendant argues that Plaintiff's fraud claim should be
dismissed
because
Plaintiff
fails
to
plead
fraud
with
the
specificity required by Rule 9(b). Under Texas law, the elements
of a fraud claim are (1) that a material representation was made;
(2) the representation was false; ( 3 ) when the representation was
made, the speaker knew it was false or made it recklessly without
any knowledge of the truth and as a positive assertion; (4) the
speaker made the representation with the intent that the other
party should act upon it; (5) the party acted in reliance on the
representation; and (6) the party thereby suffered injury.
In re
FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001).
Rule 9(b) requires that
"
[iln alleging fraud or mistake, a
party must state with particularity the circumstances constituting
fraud or mistake."
FED. R. CIV. P. 9(b).
Although the exact
pleading requirements for Rule 9(b) are case-specific, see Guidrv
v. Bank of Laplace, 954 F.2d 278, 288 (5th Cir. 1992), the Fifth
Circuit requires the claimant to allege "'the particulars of time,
place, and contents of false representations,' as well as the
identity of the person making the misrepresentation and what that
person obtained thereby, otherwise referred to as the 'who, what,
when, where, and how' of the alleged fraud." United States ex rel.
Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 384 (5th
Cir. 2003) (citations omitted).
Plaintiff does not allege with the specificity required by
Rule 9 (b) any misrepresentation made by Defendant. He pleads that
Defendant "represented it was working with Plaintiff to prevent
foreclosure," but does not allege who made this representation,
when this representation was made, where this representation was
made, what the details were of this representation, and how the
representation was
fraudulent.15
Plaintiff also alleges that
Defendant made an 'oral contract" to stop foreclosure temporarily
to allow Plaintiff to seek other alternatives to foreclosure, but
likewise fails to allege the who, where, when, and how such
representation was fraudulent. Plaintiff has failed to plead fraud
with the required specificity.16 Thus, Plaintiff's attempted fraud
claim is dismissed.
2.
Wronqful Foreclosure
Plaintiff alleges
"wrongful foreclose due to
"wrongful foreclosure--failure to properly notice."I7
fraud" and
"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 Mortq. Corp., 268
S.W.3d 135, 139 (Tex. App.--Corpus Christi 2008, no pet.).
l5
a, B.3
ex.
at 3 .
Plaintiff also states within Count 2, wrongful foreclosure
due to fraud, that: 'The representations made by Defendant's
employees to Plaintiff were false, material and misrepresentations. Document No. 1, ex. B.3 at 4. A conclusory recital of the
elements of a claim does not satisfy the pleading requirements of
Rule 8, see Isbal, 129 S.Ct. at 1949, much less the heightened
pleading standard required by Rule 9(b). Hence, these allegations
do not support a claim of fraud.
l6
l7
Document No. 1, ex. B.3 at 4 -5.
As discussed above, Plaintiff has pled no facts to support a
claim of fraud. Moreover, wrongful foreclosure due to fraud is not
a recognized cause of action in Texas. Barcenas v. Fed. Home Loan
Mortq. C o r ~ . , Civ. A. No. H-12-2466, 2013 WL
286250, at
*7
(S.D.Tex.Jan. 24, 2013) (Harmon, J. ) ("wrongful foreclosure due to
fraud is not a recognized cause of action under Texas law"); see
also Casev v. Fed. Home Loan Mortq. Ass'n, Civ. A. No. H-11-3830,
2012 WL 1425138, at *4 (S.D.Tex.April 23, 2012) M i l l e r J . ( t e
'h
alleged misrepresentation is completely unrelated to the elements
of
a
wrongful
foreclosure claim
in
Texas, so
the
wrongful
foreclosure due to fraud claim must be dismissed").
In support of his claim for "wrongful foreclosure - failure to
properly notice," Plaintiff states that he believes that "Defendant
failed to follow Texas requirements for acceleration of note and
for notice of foreclosure."I8
He does not allege any facts in
support of these allegations.
Moreover, to maintain a cause of
action for wrongful foreclosure, the foreclosure must have actually
occurred. Owens v. BAC Home Loans Servicinq, L.P., Civ. A. No. H11-2742, 2012 WL
(Rosenthal, J.)
1494231, at
*3
(S.D. Tex. Apr.
27, 2012)
("Texas law does not recognize a cause of action
for attempted wrongful foreclosure."); Biqqers v. BAC Home Loan
~ervicinq, L.P., 767 F. Supp. 2d 725, 730
("Because under Texas law an
l8
(N.D. Tex. 2011)
inadequate selling price
Document No. 1, ex. B.3 at 5.
7
is a
necessary element of a wrongful foreclosure action, a foreclosure
sale is a precondition to recovery.").
Plaintiff's complaint seeks to prevent the foreclosure of his
home, implying that Defendant has not foreclosed on Plaintiff1s
home.19 Without a foreclosure sale, Plaintiff cannot state a claim
for wrongful
foreclosure.
This
alleged
claim
is
therefore
dismissed.
3.
Slander of Title
Plaintiff alleges a claim for slander of title, stating that
't
i
is believed that Defendant has not received a conveyance of
title and/or rights from the original mortgagee."20 To advance a
claim of slander of title, the plaintiff must allege: (1) the
utterings and publishing of disparaging words; (2) that they were
false; (3) that they were malicious; (4) that special damages were
sustained thereby; (5) that the plaintiff possessed an estate or
interest in the property disparaged; and ( 6 ) the loss of a specific
sale. Williams v. Jennings, 755 S.W.2d 874, 879 (Tex. App.-Houston
[14th Dist.1 1988, writ denied).
Plaintiff has failed to state a
l9 Moreover, before removal the state court issued a temporary
injunction that Defendant not foreclose the property. See Willard,
336 F.3d at 379 (I
'n deciding a motion to dismiss the court may
consider documents attached to or incorporated in the complaint and
matters of which judicial notice may be taken."). There is no
allegation of foreclosure after the temporary injunction expired.
20
Document No. 1, ex. B.3 at 5.
claim for slander of title.
Although Plaintiff alleges that he
lost a potential sale, he alleges no facts to support an inference
that the lost sale was caused by Defendant's publishing any false,
malicious, or disparaging words.
Further, Plaintiff alleges no
facts to support his assertion that Defendant falsely claimed to be
the holder or owner of the promissory note and deed of trust, which
appears to form the basis of his claim.
Because Plaintiff has
failed to plead facts sufficient to raise a right to relief above
the speculative level, the slander of title claim is dismissed.
4.
Promissory Estoppel
In support of
alleges:
his
promissory
estoppel
claim, Plaintiff
"Defendant through its employees and agent entered into
an agreement that they would not foreclose on the property and
Plaintiff would be given sufficient time to request and workout a
modification of his loan or to pursue other alternatives to
'
I
foreclosure."
A
promissory estoppel claim requires:
(1) a
promise, (2) foreseeability of reliance thereon by the promisor,
and (3) substantial reliance by the promisee to her detriment.
Enslish v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983). Reliance must
be reasonable, substantial, and detrimental.
Ezennia v. Wells
Fargo Bank, N.A., Civ. A. No. H-10-5004, 2012 WL 5499420, at * 5
(S.D. Tex. Nov 13, 2012) (Miller, J) (citing Frost Crushed Stone
Document No. 1, ex. B.3 at 6.
9
Co., Inc. v. Odell Geer Const. Co., Inc., 110 S.W.3d 41, 44-45
(Tex. App.-Wac0 2002, no pet. )
)
. 'Vague and indefinite statements
about future events are insufficient to support a claim for
promissory estoppel.
I . at
d
*7
(citing cases) .
Plaintiff does
not allege a specific and definite promise that Defendant made that
would make
reliance thereon reasonable.
Moreover, Plaintiff
alleges that he "reasonably relied on Defendant's promises to his
detriment," but alleges no facts in support of that conclusory
allegation.
In addition,
\\
[wlhen the statute of frauds applies, promissory
estoppel is available only if the alleged oral promise is a promise
to sign an existing document that satisfies the statute of frauds."
Carrillo v. Bank of America, N.A., Civ. A. No. H-12-3096, 2013 WL
1558320, at *8 (S.D. Tex. Apr. 11, 2013) (Rosenthal, J.) (citing
Bank
of
Tex., N.A. v.
Gaubert, 286
App.-Dallas 2009, pet. dism'd) ) .2 2
S.W.3d 546,
553
(Tex.
Plaintiff does not allege nor
22
\\Aloan agreement in which the amount involved in the loan
agreement exceeds $50,000 in value is not enforceable unless the
agreement is in writing and signed by the party to be bound or by
that party' s authorized representative.
TEX. BUS. & COMM. CODE
§ 26.02(b) (West 2009). A "loan agreement" is defined as 'one or
more promises, promissory notes, agreements, undertakings, security
agreements, deeds of trust or other documents, or commitments, or
any combination of those actions or documents, pursuant to which a
financial institution loans or delays repayment of or agrees to
loan or delay repayment of money, goods, or another thing of value
or to otherwise extend credit or make a financial accommodation
. . . . " TEX. BUS. & COMM. CODE § 26.02(a)(2). Plaintiff alleges
that he borrowed $192,000, and therefore any modification of that
loan would be a loan agreement that must be in writing in
accordance with § 26.02(b). See Carrillo, 2013 WL 1558320, at *4
describe any existing written agreement for Defendant to sign that
would have precluded Defendant from foreclosing on the home while
Plaintiff pursued a modification, much less that Defendant promised
to sign such an agreement.
Plaintiff has failed to state a claim
for promissory estoppel, and this claim is therefore dismissed.
Accountinq
'
Plaintiff requests that the Court order 'a detailed accounting
."23
of the fees and expenses amounting to $47,000.00
"An action for
accounting may be a suit in equity, or it may be a particular
remedy sought in conjunction with
another cause of
action."
Michael v. Dyke, 41 S.W.3d 746, 754 (Tex. App.-Corpus Christi 2001,
no pet. ) , abrogated on other grounds as recognized by Richardson v.
Wells Farqo, N.A., 873 F. Supp. 2d 800, 817 (N.D. Tex. 2012).
Because Plaintiff fails to state a claim for an underlying cause of
action, an accounting remedy is unavailable.
111.
Order
Because Plaintiff has failed to state any claim upon which
relief can be granted, it is
("The loan was for more than $50,000. Any alleged modification
that would delay or change the amounts of the loan payments would
be a 'loan agreement' under § 26.02(a)(2). " ) .
23
I .ex. B.3 at 6.
d
11
ORDERED that Defendant U.S. Bank Home Mortgage's
Motion to
Dismiss (Document No. 7) is GRANTED and Plaintiff Harjinder Singh's
claims are DISMISSED with prejudice.
The Clerk will enter this Order and provide a correct copy to
all parties.
SIGNED at Houston, Texas, on this
June, 2013.
*
WERLEIN , JR .
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