Hunt v. Wells Fargo Bank, N.A.
Filing
18
ORDER granting 9 Motion to Dismiss.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LATRICIA HUNT
Plaintiff,
VS.
WELLS FARGO BANK, N.A.,
Defendant.
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. H-14-0618
OPINION AND ORDER
The above referenced cause, removed from state court on
diversity jurisdiction and seeking injunctive relief to prevent
foreclosure on Plaintiff Latricia Hunt’s (“Hunt’s”) property at
13203 Remme Ridge, Houston, Texas 77047 (“the Property”) and
damages, alleges causes of action for violations of the Texas
Deceptive Trade Practices Act (“DTPA”), violations of the Truth in
Lending Act (“TILA”), conversion, “money had and received,” suit to
remove cloud and quiet title, suit for declaratory judgment, and
breach of contract.
Pending before the Court are (1) Defendant Wells Fargo Bank,
N.A.’s (“Wells Fargo’s”) motion to dismiss with prejudice pursuant
to Federal Rule of Civil Procedure 12(b)(6) or, alternatively,
motion for summary judgment (instrument #9) and (2) United States
Magistrate Judge Frances Stacy’s Memorandum and Recommendation
(#16) that Defendant’s motion for summary judgment be granted.
Plaintiff Latricia Hunt (“Hunt”) has not filed any objections to
the Memorandum and Recommendation, while the Bank has filed a
response (#17) regarding its request for an award of fees.
-1-
The Magistrate Judge notes that Hunt addressed only the
challenge to her DTPA claim in her response to Wells Fargo’s motion
for
summary
judgment
and
therefore
has
arguably
waived
and
abandoned her other substantive claims. Keenan v. Tejeda, 290 F.3d
252, 262 (5th Cir. 2002)(“If a party fails to assert a legal reason
why summary judgment should not be granted, that ground is waived
and cannot be considered or raised on appeal.”); Thompson v. Exxon
Mobil Corp., 344 F. Supp. 2d 971, 977 (E.D. Tex. 2004)(“Plaintiffs
are deemed to have abandoned the remainder of their claims by
failing to raise them in their responsive brief.”).
Even if Hunt
has not waived her right to appeal these claims, the Magistrate
Judge concluded that all of Hunt’s causes of action fail as a
matter of law.
Standard of Review
Findings of the United States Magistrate Judge to which no
specific objections are made require that the Court only to decide
whether the Memorandum and Recommendation is clearly erroneous or
contrary to law.
Id., citing U.S. v. Wilson, 864 F.2d 1219, 1221
(5th Cir. 1989). The district court “may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the
magistrate judge.”
28 U.S.C. § 636(b)(1)(C).
Federal Rule of Civil Procedure 8(a)(2) provides, “A pleading
that states a claim for relief must contain . . . a short and plain
statement of the claim showing that the pleader is entitled to
relief.”
When a district court reviews a motion to dismiss
-2-
pursuant
to
Fed.
R.
Civ.
P.
12(b)(6),
it
must
construe
the
complaint in favor of the plaintiff and take all well-pleaded facts
as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763
(5th Cir. 2011), citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.
2009).
The plaintiff’s legal conclusions are not entitled to the
same assumption.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(“The
tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.”),
citing Bell Atlantic Corp. v. Twombly, 556 U.S. 662, 678 (2007);
Hinojosa v. U.S. Bureau of Prisons, 506 Fed. Appx. 280, 283 (5th
Cir. Jan. 7, 2012).
“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, . . . a
plaintiff’s
obligation
‘entitle[ment]
to
to
relief’
provide
the
‘grounds’
requires
more
than
of
his
labels
and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do . . . .”
S.
Ct.
1955,
1964-65
Bell Atlantic Corp. v. Twombly, 127
(2007)(citations
omitted).
“Factual
allegations must be enough to raise a right to relief above the
speculative level.”
Federal
Practice
Id. at 1965, citing 5 C. Wright & A. Miller,
and
Procedure
§
1216,
pp.
235-236
(3d
ed.
2004)(“[T]he pleading must contain something more . . . than . . .
a statement of facts that merely creates a suspicion [of] a legally
cognizable right of action”). “Twombly jettisoned the minimum
notice pleading requirement of Conley v. Gibson, 355 U.S. 41 . . .
-3-
(1957)[“a complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to
relief”], and instead required that a complaint allege enough facts
to state a claim that is plausible on its face.”
St. Germain v.
Howard,556 F.3d 261, 263 n.2 (5th Cir. 2009), citing In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)(“To survive
a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough
facts to state a claim to relief that is plausible on its face.’”),
citing Twombly, 127 S. Ct. at 1974).
“‘A claim has facial
plausibility when the pleaded factual content allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.’”
Montoya v. FedEx Ground Package System,
Inc., 614 F.3d 145, 148 (5th Cir. 2010), quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
to
a
“probability
The plausibility standard is not akin
requirement,”
but
asks
for
“possibility that a defendant has acted unlawfully.”
U.S. at 556.
more
than
a
Twombly, 550
Dismissal is appropriate when the plaintiff fails to
allege “‘enough facts to state a claim to relief that is plausible
on its face’” and therefore fails to “‘raise a right to relief
above the speculative level.’”
Montoya, 614 F.3d at 148, quoting
Twombly, 550 U.S. at 555, 570.
In Ashcroft v. Iqbal, 556 U.S. at 679, the Supreme Court
stated that “only a complaint that states a plausible claim for
relief survives a motion to dismiss,” a determination involving “a
-4-
context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.”
“[T]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements do not suffice” under Rule 12(b).
1949.
The
plaintiff
must
plead
Iqbal, 129 S. Ct. at
specific
facts,
conclusory allegations, to avoid dismissal.
not
merely
Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). “Dismissal
is proper if the complaint lacks an allegation regarding a required
element necessary to obtain relief . . . .“
Rios v. City of Del
Rio, Texas, 444 F.3d 417, 421 (5th Cir. 2006), cert. denied, 549
U.S. 825 (2006).
“Rule 12(b) is not a procedure for resolving contests about
the facts or the merits of a case.”
Authority of City of Port Arthur, Tex.,
Gallentine v. Housing
F. Supp. 2d
, Civ.
A. No. 1:12-CV-417, 2013 WL 244651, *3 (E.D. Tex. Jan. 22, 2012),
citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice
and Procedure:
Civil 2d § 1356, at 294 (1990).
As noted, on a Rule 12(b)(6) review, although generally the
court may not look beyond the pleadings, the Court may examine the
complaint, documents attached to the complaint, and documents
attached to the motion to dismiss to which the complaint refers and
which are central to the plaintiff’s claim(s), as well as matters
of public record.
Lone Star Fund V (U.S.), L.P. v. Barclays Bank
PLC, 594 F.3d 383, 387 (5th Cir. 2010), citing Collins, 224 F.3d at
498-99; Cinel v. Connick, 15 F.3d 1338, 1341, 1343 n.6 (5th Cir.
-5-
1994).
See also United States ex rel. Willard v. Humana Health
Plan of Tex., Inc., 336 F.3d 375, 379 (5th Cir. 2003)(“the court may
consider . . . matters of which judicial notice may be taken”).
Taking judicial notice of public records directly relevant to the
issue in dispute is proper on a Rule 12(b)(6) review and does not
transform the motion into one for summary judgment.
Stryker Corp., 631 F.3d 777, 780 (5th Cir. 2011).
Funk v.
“A judicially
noticed fact must be one not subject to reasonable dispute in that
it
is
either
(1)
generally
known
within
the
territorial
jurisdiction of the trial court or (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot
reasonably be questioned.”
Fed. R. Evid. 201(b).
Summary judgment under Federal Rule of Civil Procedure 56(c)
is appropriate when, viewing the evidence in the light most
favorable
to
the
nonmovant,
the
court
determines
that
“the
pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.”
A dispute of material
fact is “genuine” if the evidence would allow a reasonable jury to
find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
Initially the movant bears the burden of identifying those
portions of the pleadings and discovery in the record that it finds
demonstrate the absence of a genuine issue of material fact on
-6-
which the nonmovant bears the burden of proof at trial; a “complete
failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lujan v.
National Wildlife Federation, 497 U.S. 871, 885 (1990); Edwards v.
Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998).
If the movant meets its burden and points out an absence of
evidence to prove an essential element of the nonmovant’s case on
which the nonmovant bears the burden of proof at trial, the
nonmovant must then present competent summary judgment evidence to
support the essential elements of its claim and to demonstrate that
there is a genuine issue of material fact for trial.
National
Ass’n of Gov’t Employees v. City Pub. Serv. Board, 40 F.3d 698, 712
(5th Cir. 1994).
“[A] complete failure of proof concerning an
essential element of the nonmoving party’s case renders all other
facts immaterial.”
not
rely
merely
Celotex, 477 U.S. at 323.
on
allegations,
denials
The nonmovant may
in
a
pleading
or
unsubstantiated assertions that a fact issue exists, but must set
forth specific facts showing the existence of a genuine issue of
material fact concerning every element of its cause(s) of action.
Morris v. Covan World Wide Moving, Inc,, 144 F.3d 377, 380 (5th Cir.
1998).
Conclusory
allegations
preclude summary judgment.
unsupported
by
evidence
will
not
National Ass’n of Gov’t Employees v.
City Pub. Serv. Board, 40 F.3d at 713; Eason v. Thaler, 73 F.3d
-7-
1322, 1325 (5th Cir. 1996).
“‘[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment . . . .’”
State
Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990),
quoting Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 247-48
(1986).
“Nor is the ‘mere scintilla of evidence’ sufficient;
‘there must be evidence on which the jury could reasonably find for
the plaintiff.’”
Fifth
Circuit
Id., quoting Liberty Lobby, 477 U.S. at 252. The
requires
probative evidence.’”
the
nonmovant
to
submit
“‘significant
Id., quoting In re Municipal Bond Reporting
Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1978), and citing
Fischbach & Moore, Inc. v. Cajun Electric Power Co-Op., 799 F.2d
194, 197 (5th Cir. 1986).
“If the evidence is merely colorable,
or
probative,
is
not
granted.”
significantly
summary
judgment
may
be
Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th
Cir. 1999), citing Celotex, 477 U.S.
at 322, and Liberty Lobby,
477 U.S. at 249-50.
Allegations in a plaintiff’s complaint are not evidence.
Wallace
v.
Texas
Tech
Univ.,
80
F.3d
1042,
1047
(5th
Cir.
1996)(“[P]leadings are not summary judgment evidence.”); Johnston
v. City of Houston, Tex., 14 F.3d 1056, 1060 (5th Cir. 1995)(for the
party opposing the motion for summary judgment, “only evidence-–not
argument, not facts in the complaint--will satisfy’ the burden.”),
citing Solo Serve Corp. v. Westown Assoc., 929 F.2d 160, 164 (5th
Cir. 1991).
The nonmovant must “go beyond the pleadings and by
-8-
[his] own affidavits, or by depositions, answers to interrogatories
and admissions on file, designate specific facts showing that there
is a genuine issue of material fact for trial.”
Giles v. General
Elec. Co., 245 F.3d 474, 493 (5th Cir. 2001), citing Celotex, 477
U.S. at 324.
The court must consider all evidence and draw all inferences
from
the
factual
nonmovant.
record
in
the
light
most
favorable
to
the
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S.
574, 587 (1986); National Ass’n of Gov’t Employees v. City Pub.
Serv. Board, 40 F.3d at 712-13.
Court’s Decision
The Court has reviewed the record, the applicable law, and
United
States
Recommendation.
Magistrate
Judge
Stacy’s
Memorandum
and
The Court finds that the Magistrate Judge has
accurately summarized the facts, and correctly stated and applied
the law to them, and demonstrated with uncontroverted evidence why
Hunt’s seven causes of action fail as a matter of law.
Regarding Wells Fargo’s request for reasonable attorney’s fees
in the amount of $10,595.57, as permitted by paragraph 7 of the
Deed of Trust (#9-3), a contract, Magistrate Judge Stacy observed
that similar passages have been determined to support an award of
fees and costs relating to a Lender’s defense of a mortgagor’s
claims
See, e.g., Richardson v. Wells Fargo Bank, N.A., 740 F.3d
1035, 1037-40 (5th Cir. 2014)(recovery of attorney’s fees under Rule
54(d) is permissible when provided for by the terms of a deed of
trust like the one at issue here because fees for the prosecution
-9-
or defense of a claim are not damages under Texas law); In re
Velazquez, 660 F.3d 893, 899-900 (5th Cir. 2011).
Nevertheless she
recommended denial of such an award without prejudice to Wells
Fargo because it failed to submit a supporting affidavit.
With Wells Fargo’s response (#17) to the Magistrate Judge’s
Memorandum and Recommendation it submits an affidavit supporting
fees and costs through October 14, 2014 along with its counsel’s
contemporaneous time records, for a total amount of $19,065.73
($18,162.00 in fees and $903.73 in costs).
Again, Hunt has failed
to file any kind of a response.
After reviewing the motion and its
attachments,
the
the
Court
finds
request
for
fees
and
costs
reasonable and necessary, and accordingly grants the request in
full.
Thus the Court, with the exception of the recommendation
regarding fees and costs, ADOPTS the Memorandum and Recommendation
as its own.
The Court accordingly
ORDERS that Wells Fargo’s motion for summary judgment is
GRANTED, including its request for fees and costs in the total
amount of $19,065.73.
A final judgment will issue by separate
instrument.
SIGNED at Houston, Texas, this
12th
day of
December , 2014.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
-10-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?