Davis et al v. Wells Fargo Bank, N.A. et al
Filing
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OPINION AND ORDER... Defendants' Verified 4 Motion to Abate is GRANTED. This action is ABATED until sixty (60) days after the date Plaintiffs provide Defendants with written notice that complies with Section 17.505 of the Texas Business and Commerce Code. The parties shall notify the Court when this has occurred. (Signed by Judge John D. Rainey) Parties notified.(ltesch, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
MACK DAVIS, et al.,
Plaintiffs,
v.
WELLS FARGO BANK, N.A., et al.,
Defendants.
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CIVIL ACTION NO. V-11-47
OPINION & ORDER
Pending before the Court is Defendants Wells Fargo Bank, N.A., Wachovia Bank, N.A.,
Wachovia Settlement Services, LLC, Greenlink, LLC, Wells Fargo Home Mortgage, Inc., and
America’s Servicing Company’s (“Defendants”) Verified Motion to Abate (Dkt. No. 4). Having
considered Defendants’ motion, Plaintiffs’ response (Dkt. No. 5), Defendants’ reply (Dkt. No.
12), the record, and the applicable law, the Court is of the opinion that Defendants’ motion
should be GRANTED.
I. Background
On August 31, 2011, Plaintiffs filed this proposed class action against Defendants for,
among other things, alleged violations of the Texas Deceptive Trade Practices Act (DTPA).
Specifically, Plaintiffs allege that Defendants violated the DTPA by implementing a scheme to
drive down property values in The Sanctuary at Costa Grande in Port O’Connor, Texas. Because
Plaintiffs did not give Defendants the statutorily required written notice of their DTPA claims
before filing this lawsuit, Defendants now move the Court to abate this action until the 60th day
after the date that Plaintiffs provide the written notice required by the DTPA.
II. Legal Standard
A plaintiff must give a defendant at least sixty days’ notice before filing a DTPA lawsuit.
TEX. BUS. & COM. CODE § 17.505(a). This notice requirement is meant “to discourage litigation
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and to encourage settlement of consumer complaints.” Hines v. Hash, 843 S.W.2d 464, 468
(Tex. 1992). As such, the DTPA provides in part:
As a prerequisite to filing a suit seeking damages under [section 17.50(b)(1)] of
this subchapter against any person, a consumer shall give written notice to the
person at least 60 days before filing the suit, advising the person in reasonable
detail of the consumer’s specific complaint and the amount of economic damages,
damages for mental anguish, and expenses, including attorneys’ fees, if any,
reasonably incurred by the consumer in asserting a claim against the defendant.
TEX. BUS. & COM. CODE § 17.505(a).
Notice is not required if it is impracticable because the statute of limitations is about to
expire or if the plaintiff’s claim is brought as a counterclaim. Id. § 17.505(b). “However, to
benefit from this exception, ‘[a] plaintiff must plead and prove that he qualifies for the
limitations exception.’” Camp v. RCW & Co., Inc., 2007 WL 1306841, *11 (S.D. Tex. May 3,
2007) (quoting Winkle Chevy-Olds-Pontiac, Inc. v. Condon, 830 S.W.2d 740, 745 (Tex. App.—
Corpus Christi 1992, writ dism’d)) (emphasis in Camp). If “[t]he complaint does not invoke the
limitations exception to the notice requirement, . . . it is therefore inapplicable.” Id.; see also
Christopher v. Nationwide Cas. and Property Co., 2011 WL 285143, *2 (S.D. Tex. Jan 25,
2011) (granting defendant’s motion to abate where “Plaintiff’s Original Petition ma[de] no
mention of the impending expiration of any statute of limitations, the requirement of pre-filing
notice and exceptions thereto, or any impracticability in submitting pre-filing notice,” and in
response to defendant’s motion to abate, “Plaintiff [did] not offer proof that it would not have
been possible for her to send notice to [defendant] in sufficient time to avoid the limitations
period’s bar on a lawsuit.”).
III. Analysis
In response to Defendants’ Verified Motion to Abate, Plaintiffs state for the first time that
they did not provide Defendants with notice advising Defendants of the substance of their DTPA
claims because the running of the statute of limitations was imminent. As proof, Plaintiffs offer
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the declaration of their attorney, Craig M. Sico, which states that pre-suit notice was
impracticable because the statute of limitations would have run on Harry Allen Fawcett’s DTPA
claim. (Dkt. No. 5, Ex. A ¶ 4.)
Here, as in Christopher v. Nationwide Cas. and Property Co., Plaintiffs’ Original
Complaint makes “no mention of the impending expiration of any statute of limitations, the
requirement of pre-filing notice and exceptions thereto, or any impracticability in submitting prefiling notice.” 2011 WL 285143 at *2. Moreover, Mr. Fawcett is not a plaintiff in this action,
and the named Plaintiffs fail to explain how the possible running of limitations on a potential
class member’s claim prevented them from providing Defendants with proper notice of their own
claims under the DTPA before filing suit. Thus, due to Plaintiffs’ failure to plead and offer proof
of impracticability, the Court finds that the limitations exception to the notice requirement is
inapplicable.
IV. Conclusion
For the aforementioned reasons, Defendants’ Verified Motion to Abate (Dkt. No. 4) is
GRANTED, and this action is ABATED until sixty (60) days after the date Plaintiffs provide
Defendants with written notice that complies with Section 17.505 of the Texas Business and
Commerce Code. The Parties shall notify the Court when this has occurred.
It is so ORDERED.
SIGNED this 7th day of December, 2011.
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JOHN D. RAINEY
SENIOR U.S. DISTRICT JUDGE
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