Garrett v. U.S. Bank, National Association

Filing 7

MEMORANDUM AND ORDER granting 5 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Brief in Support; Plaintiff's claims are DISMISSED with prejudice.(Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
HELEN GARRETT,

§

§
§

Plaintiff,
v.

§
§

U.S. BANK, NATIONAL ASSOCIATION,

§
§

CIVIL ACTION No

§
§

Defendant.

MEMORANDUM AND ORDER
Pending

is

Defendant

U.S.

Bank, National

("Defendant") Motion to Dismiss (Document No. 5).

Association's
Plaintiff Helen

Garrett ("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.
Backsround
The entirety of Plaintiff's "Facts" section of her complaint
setting out the basis for her lawsuit, reads as follows:
8.
Defendant [sic] failure to provide an accounting of
debt leaves Plaintiff without adequate recourse to the
foreclosure.
9.
Unless US BANK NATIONAL ASSOCIATION, Defendant
herein, is immediately enjoined and restrained, Defendant
[sic] will lose her property located at LOT 30 BLOCK 1
SUTTON PLACE R/P located in Harris County Texas, also
known as 3226 ARBOR ST, HOUSTON, TEXAS 77004.'

Document No. 1, ex. B.2 at 2 (Orig. Pet.)

.

Plaintiff seeks a declaratory judgment, requesting that the Court
"determine

the

rights

of

the

parties

under

the

written

agreements."= Plaintiff requests injunctive relief and, in support
of that request, alleges that Defendant has violated the Texas Fair
Debt Collection Practices Act, as well as Defendant's 'own internal
policies regarding modification of the loan."

Defendant moves to

dismiss the claim(s) against i t f 3 and Plaintiff has filed no
response in opposition.
11.

A.

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

In considering a motion to dismiss under Rule 12 (b)(6), the
district court must construe the allegations in the complaint

I . ex. B.2 at
d,
Document No. 5.

3.

favorably to the pleader and must accept as true all well-pleaded
facts in the complaint.
117 F.3d 242, 247

See Lowrey v. Tex. A&M

(5th Cir. 1997).

Univ. Sys . ,

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. Twombly, 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 that the defendant is liable for the
misconduct alleged."
(2009). While
allegations

a

. . .

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

complaint

'does

not

need

detailed

factual

[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)."
B.

Twomblv, 127 S. Ct. at 1964-65.

Analysis
1.

Texas Fair Debt Collection Practices Act

Plaintiff evidently attempts to allege a violation of the
Texas Fair Debt Collection Practices Act

("TDCPA") because of

Defendant's alleged failure to provide an accounting and failure to
Plaintiff has not stated what
follow its own internal p ~ l i c i e s . ~
internal policy Defendant failed to follow, how Defendant failed to

Document No. 1, ex. B. 2. at 4.

follow such a policy, or why Defendant's failure to adhere to its
own

unspecified

internal policies

entitles

injunction restraining a foreclosure sale.

Plaintiff

to

an

Moreover, Defendant's

failure to provide an accounting of the mortgage loan and/or
failure to follow its own internal policies does not constitute
prohibited conduct under the TDCPA.

See TEX. FIN. CODE S S 392.301-

306

debt

(West 2006)

(prohibiting a

collector

from

using

harassment, threats or coercion, unfair or unconscionable means,
and deceptive representations).

Plaintiff alleges no facts from

which a reasonable inference can be drawn that Defendant has made
any

threat; subjected Plaintiff to any harassing or abusive

conduct; made any fraudulent, deceptive, or misleading representations; or otherwise engaged in any unconscionable conduct that
would give rise to a cause of action under the TDCPA.

In sum,

Plaintiff has wholly failed to state a cause of action upon which
relief can be granted under the Texas Fair Debt Collections
Practices Act.
Declaratory Judqment

2.

Plaintiff asks for a declaratory judgment to "determine the
rights of the parties under the written agreements," and has
requested relief pursuit to the Texas Declaratory Judgments Act.
TEX.CIV.

PRAC. &

REM. CODEANN s 37.003 (West 2006) . 5

Document No. 1, ex. B.2. at 3.
4

Upon removal to

federal court, a declaratory action is converted into an action
brought under the Federal Declaratory Judgment Act, 28 U.S.C.
§§

2201, 2202. Hurd v. BAC Home Loans Servicinq, LP, 880 F. Supp.

Home
2d 747, 769 (N.D. Tex. 2012) ; see also Bell v. Bank of ~merica
Loan Servicinq LP, No. 4:ll-CV-02085,2012 WL 568755, at *8 (S.D.
Tex. Feb. 21, 2012). The Declaratory Judgment Act does not create
substantive rights, but is a procedural law.6

Lowe v. Inqalls

Shipbuildins, A Div. Of Litton SYS., Inc., 723 F.2d 1173, 1179 (5th
Cir. 1984).
For the Court to grant the declaratory relief, Plaintiff must
allege facts that show a justiciable controversy.

Kazmi v. BAC

Home Loans Servicinq, LP, No. 4:ll-CV-375, 2012 WL 629440, at *15
(E.D. Tex. Feb. 3, 2012); see also Bauer v. Texas, 341 F.3d 352,
358 (5th Cir. 2003) ("Based on the facts alleged, there must be a
substantial

and

continuing

controversy

between

two

adverse

parties."). Plaintiff has alleged no facts to show a justiciable
controversy of such a nature as to warrant the maintenance of a
declaratory judgment action.

The Declaratory Judgment Act allows for the Court to use
its discretion and does not confer a right upon the litigant.
Wilton v. Seven Falls Co., 115 S. Ct. 2137, 2143 (1995).

III.

Order

For the foregoing reasons, it is
ORDERED that Defendant U.S. Bank, National Association's
Motion to Dismiss (Document No. 5) is GRANTED and Plaintiff Helen
Garrett's claims against Defendant are DISMISSED with prejudice.
The Clerk will enter this Order and provide a correct copy to
all parties.
SIGNED at Houston, Texas, on this

day of May, 2013.