Gonzales v. Everbank
ORDER GRANTING 2 Motion to Dismiss for Failure to State a Claim. Plaintiffs claim for breach of the duty of good fair and fair dealing is DISMISSED WITH PREJUDICE. Plaintiffs claim for breach of contract is DISMISSED WITHOUT PREJUDICE. Plaintiff is granted leave to amend her complaint solely to replead her breach of contract claim. Plaintiff must replead by January 10, 2013, or her complaint will be dismissed with prejudice. Signed by Judge Xavier Rodriguez. (rg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
LINDA M. GONZALES,
Civil Action No. SA-13-CV-733-XR
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
On this date, the Court considered Defendant’s motion to dismiss (docket no. 2). For the
following reasons, the Court GRANTS the motion.
On August 6, 2013, Plaintiff Linda M. Gonzales filed a state-court petition with an
application for a temporary restraining order in the 45th Judicial District Court of Bexar County,
Texas. Docket No. 1-4. By her lawsuit, Plaintiff sought to prevent a foreclosure sale of her
home, scheduled for that day.
Plaintiff asserts in her petition that Defendant Everbank is the “noteholder/lienholder” of
her mortgage. Plaintiff alleges that, “Defendant has failed to act in good faith; it has noticed
acceleration of Plaintiff’s indebtedness against her said homestead and posted same for
foreclosure sale, having failed to negotiate fairly and justly toward fixing the extent of and curing
any default.” Additionally—and without providing further background information—Plaintiff
asserts that her “modification application has been submitted to Defendant and approved;
performance is pending as of [August 6, 2013].” Plaintiff does not allege a cause of action; she
simply states, “sale is unjust under the circumstances.” Plaintiff requests injunctive relief to stop
the impending foreclosure sale, an accounting of the loan, and a “reasonable opportunity to
satisfy or reinstate” her mortgage.
On August 6, 2013, the state court granted Plaintiff a temporary restraining order. Docket
No. 1-8. Thereafter, on August 8, 2013, Defendant removed the action to this Court based on
diversity jurisdiction.1 On August 21, 2013, Defendant filed a motion to dismiss Plaintiff’s
lawsuit for failure to state a claim. Docket No. 2. Plaintiff did not respond.
II. Legal Standard
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
for relief must contain (1) “a short and plain statement of the grounds for the court’s
jurisdiction”; (2) “a short and plain statement of the claim showing that the pleader is entitled to
the relief”; and (3) “a demand for the relief sought.” FED. R. CIV. P. 8(a). In considering a
motion to dismiss under Rule 12(b)(6), all factual allegations from the complaint should be taken
as true, and the facts are to be construed favorably to the plaintiff. Fernandez-Montez v. Allied
Pilots Assoc., 987 F.2d 278, 284 (5th Cir. 1993). To survive a 12(b)(6) motion, a complaint must
contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
See Docket No. 1 (Defendant asserting that it is a federal savings association with its principal office located in
Florida and attaching evidence showing a property value of $98,850); see also Farkas v. GMAC Mortg., L.L.C., No.
12-20668, 2013 WL 6231114, at *2 (5th Cir. Dec. 2, 2013) (explaining that for those cases in which a plaintiff seeks
to enjoin a foreclosure sale, the value of the property represents the amount in controversy).
Construing Plaintiff’s complaint generously, Plaintiff asserts claims against Defendant
for (1) breach of the duty of good fair and fair dealing and (2) breach of contract.
In Texas, a mortgagor and mortgagee do not share a fiduciary relationship. Lovell v. W.
Nat. Life Ins. Co., 754 S.W.2d 298, 303 (Tex. App.—Amarillo 1988, writ denied). Nor does
Texas law impose a duty of good faith and fair dealing in the lender-borrower relationships. See
Hall v. Resolution Trust Corp., 958 F.2d 75, 79 (5th Cir. 1992) (citing Cockrell v. Republic
Mortg. Ins. Co., 817 S.W.2d 106, 116 (Tex. App.—Dallas 1991, no writ). Accordingly, to the
extent that Plaintiff asserts a claim for breach of the duty of good faith and fair dealing, she fails
to state a claim for which relief can be granted.
Next, to succeed on a breach of contract claim, a plaintiff must show “(1) the existence of
a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the
contract by the defendant, and (4) resulting damages.” Rice v. Metro. Life Ins. Co., 324 S.W.3d
660, 666 (Tex. App.—Fort Worth 2010, no pet.). A valid contract in Texas requires (1) an offer,
(2) acceptance in strict compliance with the offer’s terms, (3) meeting of the minds, (4) each
party’s consent to the terms, (5) the contract to be executed and delivered with intent that it be
mutual and binding, and (6) consideration. Id. at 670. When considering an unsigned mortgage
modification agreement, the Fifth Circuit has stated, “Texas courts give significant weight to
express requirements that contracts be executed by the parties before they become binding.”
Pennington v. HSBC Bank USA, N.A., 493 F. App’x. 548, 554–55 (5th Cir. 2012) cert. denied,
133 S. Ct. 1272, 185 L. Ed. 2d 185 (2013); see also Jimenez v. Flagstar Bank, F.S.B., SA-13CV-186-XR, 2013 WL 6332128, at *5 (W.D. Tex. Dec. 5, 2013).
Here, Plaintiff fails to allege facts supporting the specific elements of her breach of
contract claim. She simply states, “Plaintiff’s modification application has been submitted to
Defendant and approved; performance is pending as of [August 6, 2013].” Plaintiff’s bare-bones
assertion does not allege facts that, if taken as true, show that the purported modification is a
valid contract. Plaintiff does not allege facts regarding (1) an offer, (2) acceptance in strict
compliance with the offer’s terms, (3) meeting of the minds, (4) each party’s consent to the
terms, (5) the contract to be executed and delivered with intent that it be mutual and binding, and
(6) consideration. Nor can the Court infer these elements. See Iqbal, 556 U.S. at 662, 678
(instructing courts to accept only reasonable inferences and to reject legal conclusions couched
as factual allegations). Moreover, Plaintiff does not allege sufficient facts as to her performance
or tendered performance. Plaintiff simply states “performance is pending,” without clarifying
whose performance is pending. Because Plaintiff does not allege facts on all of the necessary
elements of her breach of contract claim, she fails to state a claim upon which relief can be
granted. Since under limited circumstances a mortgagor may prevail under a breach of mortgage
modification claim, Plaintiff is granted the opportunity to replead her claim to meet federal
For the foregoing reasons, Defendant’s motion to dismiss (docket no. 2) is GRANTED.
Plaintiff’s claim for breach of the duty of good fair and fair dealing is DISMISSED
Plaintiff’s claim for breach of contract is DISMISSED WITHOUT PREJUDICE.
Plaintiff is granted leave to amend her complaint solely to replead her breach of contract claim.
Plaintiff must replead by January 10, 2013, or her complaint will be dismissed with prejudice.
It is so ORDERED.
SIGNED this 17th day of December, 2013.
UNITED STATES DISTRICT JUDGE
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