Butler v. CIT Bank, N.A. et al

Filing 10

MEMORANDUM AND ORDER granting 8 MEMORANDUM for Ruling on Defensive Motion to Dismiss In Spite of Automatic Stay. (Signed by Judge Kenneth M Hoyt) Parties notified.(sanderson, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JESSIE M. BUTLER,

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Plaintiff,
VS.
CIT BANK, N.A., et al,
Defendants.

April 10, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 4:18-CV-268

MEMORANDUM AND ORDER
Before the Court is the defendant’s, CIT Bank, motion to dismiss the plaintiff’s, Jessie M.
Butler, suit [DE#s 3, 8].

The Court has reviewed the defendant’s motion and related

document(s) and, finding no response from the plaintiff, determines that the motion is
meritorious and should be granted.
The plaintiff entered into a home equity loan with the defendant on November 17, 2003.
Since that time, the plaintiff has failed to pay the Note according to its terms and the Note is in
default. In an effort to avoid foreclosure proceeding, the plaintiff filed suit against the defendant
asserting claims for deceptive trade practices, statutory fraud, common law fraud and breach of
contract.
The Court is of the opinion that the plaintiff’s claims, and in particular, the facts asserted
in his suit, fail to state a cognizable claim against the defendant beyond conclusory allegations.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Oppenheimer v. Prudential Sec., Inc.,
94 F.3d 189, 194 (5th Cir. 1996).
Federal Rule of Civil Procedure, 12 (b)(6) authorizes dismissal of a suit where a plaintiff
fails to state a claim upon which relief may be granted. In the case at bar, even taking the

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plaintiff’s allegations as true, and construing his allegations in the light most favorable to him,
his claim fails. Id. Therefore, the defendants’ motion should be and it is hereby Granted.
It is so Ordered.
SIGNED on this 10th day of April, 2018.
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Kenneth M. Hoyt
United States District Judge

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