Phillips v. JPMorgan Chase Bank, N.A.

Filing 6

ORDER GRANTING 5 Motion to Dismiss; all claims brought by Plaintiff Travis Phillips in this cause are DISMISSED WITHOUT PREJUDICE. Signed by Judge Sam Sparks. (kkc)

Fit
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

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MAR

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PM

2: 5L

TRAVIS R. PHILLIPS,

Plaintiff,
Case No. A-14-CA-054-SS

-vs-

JPMORGAN CHASE BANK, N.A.,
Defendant.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and
specifically Defendant JPMorgan Chase Bank, N.A.'s Motion to Dismiss [#5], to which pro se

Plaintiff Travis Phillips has not responded. Having reviewed the documents, the governing law, and
the file as a whole, the Court now enters the following opinion and orders.

Background
This is a suit to stop a foreclosure on the real property located at 2803 Hubbard Circle,
Austin, Texas 78746. Phillips apparently purchased the property in 1988 via a mortgage loan
currently assigned to JPMorgan. Phillips eventually defaulted, and unsuccessfully sought to modify

his mortgage. JPMorgan ignored or declined Phillips' requests, and subsequently noticed the

property for foreclosure. Phillips responded by filing suit in Texas state court, arguing a consent
decree between JPMorgan and the Office of the Comptroller of the Currency (0CC) obligated
JPMorgan to review his modification requests. The state court granted a temporary restraining order
to prevent the foreclosure. JPMorgan subsequently removed the case to this Court on the basis of

diversity jurisdiction, and now moves to dismiss.

Analysis
I.

Motion to DismissRule 12(b)(6)Legal Standard
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain "a short and plain

statement of the claim showing that the pleader is entitled to relief."

FED.

R. Civ. P. 8(a)(2). A

motion under Federal Rule of Civil Procedure 1 2(b)(6) asks a court to dismiss a complaint for
"failure to state a claim upon which relief can be granted." FED. R. Civ. P. 1 2(b)(6). The plaintiff
must plead sufficient facts to state a claim for relief that is facially plausible. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); Bell Atl. Corp.

v.

Twombly, 550 U.S. 544, 570 (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." Iqbal, 566 U.S. at 678. Although
a plaintiffs factual allegations need not establish that the defendant is probably liable, they must

establish more than a "sheer possibility" that a defendant has acted unlawfully. Id. Determining

plausibility is a "context-specific task," and must be performed in light of a court's "judicial
experience and common sense." Id. at 679.
In deciding a motion to dismiss under Rule 1 2(b)(6), a court generally accepts as true all

factual allegations contained within the complaint. Leatherman

v.

Tarrant Cnly. Narcotics

Intelligence & Coordination Unit, 507 U.S. 163, 164(1993). However, a court is not bound to accept
legal conclusions couched as factual allegations. Papasan

v.

Allain, 478 U.S. 265, 286 (1986).

Although all reasonable inferences will be resolved in favor of the plaintiff, the plaintiff must plead
"specific facts, not mere conclusory allegations." Tuchman v. DSC Commc 'ns Corp., 14 F .3 d 1061,
1067 (5th Cir. 1994). In deciding a motion to dismiss, courts may consider the complaint, as well
as other sources such as documents incorporated into the complaint by reference, and matters of

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which a court may take judicial notice. Tellabs, Inc.

v.

Makor Issues & Rights, Ltd., 551 U.S. 308,

322 (2007).

II.

Application
As an initial matter, the Court GRANTS JPMorgan's motion to dismiss as unopposed

because Phillips has failed to timely respond in any manner. See Local Rule CV-7(e)(2).
Alternatively, the Court briefly addresses the merits of the motion.

Phillips primarily argues the consent decree entitled him to "meaningful assistance and
information concerning loan modifications," which JPMorgan allegedly failed to provide. Not. of
Removal [#1-5], Ex. A2 (Orig. Pet.) ¶ 6. Phillips does not allegenor could hehe is a party to the
consent decree between JPMorgan and the 0CC. As a non-party to the consent decree, Phillips has
no legal ability to enforce it. Blue Chip Stamps

Shatteen

v.

JP Morgan Chase Bank, NA., 519

v.

Manor Drug Stores, 421 U.S. 723, 750 (1975);

F. App'x 320, 321 (5th Cir. 2013) (unpublished)

(holding homeowner "has no standing to enforce consent decrees to which she is not a party");

Bagala

v.

Bank of Am., No. H-13-0160, 2013 WL 4523562, at *2 (S.D. Tex. Aug. 27, 2013)

(granting motion to dismiss claims seeking to enforce consent judgment between Bank of America
and the Government); Pachecano

v.

JPMorgan Chase Bank Nat 'lAss 'n, No. SA- 11 -CV-805-DAE,

2013 WL 45208530, at *13 (W.D. Tex. Aug. 26, 2013) (granting summary judgment in favor of

bank and holding homeowner lacked standing to enforce consent decree between banks and
Government). Phillips therefore fails to state a claim to enforce (or for violation of) the consent
decree.
The only other semblance of a cause of action apparent from the face of Phillips' petition is
an allegation JPMorgan failed to comply with the Texas Property Code by providing a notice of sale

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before giving Phillips twenty days to cure his default. However, the notice of sale attached to

Phillips' petition set a sale date twenty-eight days after the date on the notice of acceleration. The
notice of acceleration reminded Phillips of his right to reinstate the loan pursuant to the Deed of
Trust. Phillips does not allege he was capable ofreinstating the loan, and his allegations further show
he had more than twenty days to do so before the foreclosure sale was scheduled to occur.

Additionally, because Phillips's lawsuit prevented the sale from going forward, any controversy with
respect to the timing of the notices has been mooted.

Conclusion
Phillips has failed to state any claim upon which relief can be granted, and has not shown

himself entitled to any relief in either lawor equity. Additionally, because Phillips has shown no
interest in prosecuting his case beyond making his initial filing, the Court declines to grant leave to
amend. Accordingly,
IT IS ORDERED that Defendant JPMorgan Chase Bank, N.A.'s Motion to Dismiss
[#5] is GRANTED;

IT IS FURTHER ORDERED that all claims brought by Plaintiff Travis Phillips in

the above-styled cause are DISMISSED WITHOUT PREJUDICE.

SIGNED this the

3

day of March 2014.

SAM SPARKS V
UNITED STATES DISTRICT JUDGE

054 mtd ord kkt.frm

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