Vela v. U.S. Bank National Association, as Trustee et al
ORDER GRANTING 3 Motion to Dismiss ; GRANTING 5 Motion to Dismiss. Plaintiff shall have 30 days to file an Amended Complaint. Signed by Judge David A. Ezra. (rf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
U.S. BANK NATIONAL
ASSOCIATION and ROB
CV NO. 5:13-CV-868-DAE
ORDER GRANTING DEFENDANTS‟ MOTIONS TO DISMISS
Before the Court are two Motions to Dismiss; one filed by Defendant
U.S. Bank National Association (Dkt. # 3); another filed by Defendant Rob
Valdespino (Dkt. # 5). Plaintiff Gloria Vela did not file a response to either
Motion. Pursuant to Local Rule 7(d), the Court finds this matter suitable for
disposition without a hearing. For the reasons that follow, the Court GRANTS
Defendant U.S. Bank‟s Motion to Dismiss WITH PREJUDICE (Dkt. # 3). The
Court also GRANTS Defendant Valdespino‟s Motion to Dismiss WITHOUT
PREJUDICE (Dkt. # 5).
On August 30, 2013, Plaintiff Gloria Vela (“Plaintiff”) filed an
Application for a Temporary Restraining Order, Temporary Injunction, and
Permanent Injunction (the “Application”) in the 73rd Judicial District Court in San
Antonio, Texas, to prevent a foreclosure of her property. (Dkt. # 1, Ex. B-1.)
The state court issued a temporary restraining order (“TRO”) on
August 30, 2013 and set a hearing on the temporary injunction application for
September 26, 2013. (Dkt. # 1, Ex. B-2.) Defendants U.S. Bank National
Association (“U.S. Bank”) and Rob Valdespino (“Valdespino”) removed the case
to this Court on September 23, 2013, alleging diversity jurisdiction. (Dkt. # 1.)
The Notice of Removal alleges the following facts in support of diversity of
jurisdiction: (1) Plaintiff is a citizen of Texas; (2) Defendant U.S. Bank is a citizen
of Ohio; (3) the amount in controversy exceeds $75,000; (4) and to the extent the
petition names Defendant Valdespino as the substitute trustee, he is improperly
U.S. Bank filed a Rule 12(b)(6) Motion to Dismiss on September 30,
2013. (Dkt. # 3.) On November 15, 2013, Valdespino filed a Motion to Dismiss
pursuant to Texas Property Code § 51.007 and, in the alternative, Federal Rule
12(b)(6). (Dkt. # 5.) Plaintiff has failed to file a response to either motion.
Defendants both rely on Federal Rule of Civil Procedure 12(b)(6) in
support of their Motions to Dismiss. Federal Rule of Civil Procedure 12(b)(6)
authorizes dismissal of a complaint for “failure to state a claim upon which relief
can be granted.” Review is limited to the contents of the complaint and matters
properly subject to judicial notice. See Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007). In analyzing a motion to dismiss for failure to
state a claim, “[t]he court accepts „all well-pleaded facts as true, viewing them in
the light most favorable to the plaintiff.‟” In re Katrina Canal Breaches Litig., 495
F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dallas Area
Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). 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.” 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A complaint need not include detailed facts to survive a Rule 12(b)(6)
motion to dismiss. See Twombly, 550 U.S. at 555–56. In providing grounds for
relief, however, a plaintiff must do more than recite the formulaic elements of a
cause of action. See id. at 556–57. “The tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to legal conclusions,”
and courts “are not bound to accept as true a legal conclusion couched as a factual
allegation.” Iqbal, 556 U.S. at 678 (internal quotations and citations omitted).
Thus, 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.3d 1061, 1067 (5th Cir. 1994); see also
Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005) (“We do not accept as
true conclusory allegations, unwarranted factual inferences, or legal conclusions.”).
When a complaint fails to adequately state a claim, such deficiency
should be “exposed at the point of minimum expenditure of time and money by the
parties and the court.” Twombly, 550 U.S. at 558 (citation omitted).
Local Rule 7(e)(2)
The Court first notes that pursuant to Local Rule 7(e)(2), “[i]f there is
no response filed within the time period prescribed by this rule, the court may grant
the motion as unopposed.” W.D. Tex. Civ. R. 7(e)(2). Plaintiffs never filed a
Response, let alone within the fourteen days permitted by the local rule. Therefore
the Court is justified in granting the Defendants‟ Motions as unopposed.
Nevertheless, the Court will independently examine the merits of Defendants‟
Motions to Dismiss.
Defendants‟ Motions to Dismiss
At the outset, the Court reminds that in order to request injunctive
relief, there must be a cause of action supporting an entry of a judgment. Butnaru
v. Ford Motor Co., 84 S.W.3d 198, 210 (Tex. 2002). Plaintiff‟s Application for
injunctive relief does not provide for any specific causes of action. Rather,
Plaintiff only alleges:
6. [T]here are impediments to the sale and accounting relating to the
amounts owed or reinstatement amounts. Impediments alleged can
be those which would or should prevent foreclosure of the home.
Said impediments result from the actions of Mortgagee, its agents,
servants, employees or authorized representatives.
7. Plaintiff will be immediately and irreparabl[y] harmed as [a] result
of the foreclosure sale under the circumstances. Plaintiff has no
other adequate remedy at law and unless a TRO is entered the
Plaintiff will lose his [sic] homestead.
(Dkt. # 1, Ex. B-1 ¶¶ 6–7.) Although neither of these two paragraphs set forth
specific causes of action, liberally construing Plaintiff‟s request, it appears that
Plaintiff asserts claims for wrongful foreclosure and for an accounting.
U.S. Bank sets forth three theories to justify dismissing Plaintiff‟s
Application: (1) Plaintiff cannot bring a claim for wrongful foreclosure because
U.S Bank has not foreclosed on the property; (2) Texas law does not entitle
mortgagors to an accounting; and (3) because Plaintiff does not have a viable
claim, Plaintiff cannot request injunctive relief. (Dkt. # 3 at 2–4.) Valdespino
argues that because Plaintiff did not file a response to his verified denial, Texas
Property Code § 51.007(c) requires dismissal. (Dkt. # 5 at 2.) The Court will
address both Defendants‟ arguments in turn.
Plaintiff vaguely alleges in paragraph six of her Application that
foreclosure is improper because of “impediments to the sale and accounting
relating to the amounts owed or reinstatement amounts.” (Dkt. # 1, Ex. B-1 ¶ 6.)
U.S. Bank argues it has not proceeded with a foreclosure sale, and therefore,
Plaintiff‟s alleged wrongful foreclosure claim is not ripe. (Dkt. # 3 at 2–3.)
Assuming Plaintiff intended to state a claim for wrongful foreclosure,
Plaintiff‟s claim fails. Under Texas law, to state a claim for wrongful foreclosure a
plaintiff must allege (1) a defect in the foreclosure sale proceedings, (2) a grossly
inadequate selling price, and (3) a causal connection between the defect and the
grossly inadequate selling price. Sauceda v. GMAC Mortg. Corp., 268 S.W.3d
135, 139 (citing Charter Nat‟l Bank-Hous. v. Stevens, 781 S.W.2d 368, 371 (Tex.
App. 1989)). Plaintiff has not alleged that a foreclosure sale of her property has
occurred, so a claim alleging wrongful foreclosure is premature. See Allied
Capital Corp. v. Cravens, 67 S.W.3d 486, 492 (Tex. App. 2002) (holding that a
party cannot argue wrongful foreclosure if there has not been a foreclosure and
corresponding sale); see also Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp.
2d 1104, 1113 (E.D. Cal. 2009) (“[A] purported wrongful foreclosure claim is
premature [if] there has been no foreclosure of the property.”). Accordingly,
because Plaintiff has not alleged that a foreclosure took place (and indeed, sought a
temporary restraining order to prevent the foreclosure), Plaintiff fails to state a
claim for wrongful foreclosure.
The Plaintiff generally alleges in paragraph six that there are
accounting issues relating to “amounts owed or reinstatement amounts” that
warrant a delay in foreclosure. (Dkt. # 1, Ex. B-1 at 2.) U.S. Bank argues that
Plaintiff‟s claim is invalid because Plaintiff is not entitled to an accounting under
Texas law. (Dkt. # 3 at 3.)
To be entitled to an accounting, a plaintiff must have either a
contractual or fiduciary relationship with the party from whom a plaintiff seeks an
accounting. T.F.W. Mgmt., Inc. v. Westwood Shores Property Owners Ass‟n, 79
S.W.3d 712, 717 (Tex. App. 2002). However, Texas courts do not recognize a
fiduciary relationship between lenders and borrowers. Williams v. Countrywide
Home Loans, Inc., 504 F. Supp. 2d 176, 192 (S.D. Tex. 2007) (citing 1001
McKinney Ltd. v. Credit Suisse First Boston Mortg. Capital, 192 S.W.3d 20, 36
(Tex. App. 2005)). Plaintiff does not have a fiduciary relationship with U.S. Bank
that would entitle her to an accounting, so her claim for accounting also fails.
C. Injunctive Relief
Plaintiff requests that U.S. Bank be enjoined from pursuing
foreclosure. (Dkt. # 1, Ex. B-1 ¶ 7.) However, “[i]njunctive relief is an equitable
remedy, not an independent cause of action,” therefore, a request for injunctive
relief must be dismissed unless it is supported by a viable claim. Denman v. Wells
Fargo Bank, N.A., No. SA-13-CV-11-XR, 2013 WL 1866580, at *5 (W.D. Tex.
May 2, 2013). Indeed, to obtain a preliminary injunction, a plaintiff must
demonstrate, among other things, a likelihood of success on the merits of his or her
claim. Rodriguez v. Bank of Am., N.A., SA-12-CV-00905-DAE, 2013 WL
1773670, at *13 (W.D. Tex. Apr. 25, 2013) (citing Harris Cnty. v. CarMax Auto
Superstores, Inc., 177 F.3d 306, 312 (5th Cir. 1999)). Because Plaintiff has not
pleaded a single viable cause of action, she cannot make this showing and his
request for injunctive relief fails. See Pajooh v. Harmon, 82 F. App‟x 898, 899
(5th Cir. 2003) (affirming the district court‟s denial of injunctive relief when
plaintiff failed to state a claim).
Trustee‟s Verified Denial
Defendant Valdespino, as the trustee, argues that after Plaintiff did not
respond to his verified denial, Texas Property Code § 51.007(c) requires dismissal
of Plaintiff‟s action against him.
Section 51.007(a) of the Texas Property Code provides that a trustee
named in a suit may plead that they are not a necessary party by a verified denial
stating the basis for their reasonable belief that they were named as a party solely
in their capacity as a trustee. Tex. Prop. Code § 51.007(a). The other parties to the
suit may then file a verified response rebutting the trustee‟s verified denial within
30 days after the filing of the verified denial. Id. § 51.007(b). However, if there is
no timely verified response filed, “the trustee shall be dismissed from the suit
without prejudice.” Id. § 51.007(c) (emphasis added); see also WAMCO XXVII,
Ltd. v. Casa Grande Cotton Fin. Co., 314 F. Supp. 2d 655 (N.D. Tex. 2004)
(dismissing the defendant without prejudice based on failure to file a verified
response to verified answer).1
Valdespino filed his verified denial, in accordance with the above
section, on September 13, 2013. (Dkt. # 1, Ex. B-4.) Plaintiff failed to file a
timely response rebutting Valdespino‟s verified denial. Because of Plaintiff‟s
Section 51.007 entitled “Trustee Under Deed of Trust, Contract Lien or Security
Instrument” provides, in relevant part:
(a) The trustee named in a suit or proceeding may plead in the answer
that the trustee is not a necessary party by a verified denial stating the
basis for the trustee‟s reasonable belief that the trustee was named as a
party solely in the capacity as a trustee under a deed of trust, contract
lien, or security instrument.
(b) Within 30 days after the filing of the trustee‟s verified denial, a
verified response is due from all parties to the suit or proceeding
setting forth all matters, whether in law or fact, that rebut the trustee‟s
(c) If a party has no objection or fails to file a timely verified response to
the trustee‟s verified denial, the trustee shall be dismissed from the
suit or proceeding without prejudice.
Tex. Prop. Code § 51.007(a)–(c).
failure to respond, § 51.007(c) requires that Valdespino be dismissed from the suit
without prejudice. See Tex. Prop. Code § 51.007(c).
For the foregoing reasons, the Court GRANTS Defendant U.S.
Bank‟s Motion to Dismiss WITH PREJUDICE (Dkt. # 3). The Court also
GRANTS Defendant Valdespino‟s Motion to Dismiss WITHOUT PREJUDICE
(Dkt. # 5). Plaintiff shall have thirty (30) days upon which to file an Amended
Complaint or the dismissal shall be with prejudice.
IT IS SO ORDERED.
DATED: San Antonio, Texas, March 24, 2014.
David Alan Ezra
Senior United States Distict Judge
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