TFHSP, L.L.C. Series 11239 v. U.S. Bank, National Association

Filing 10

ORDER GRANTING 9 Motion for Judgment on the Pleadings. This case is DISMISSED. Signed by Judge Xavier Rodriguez. (rf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

TFHSP, L.L.C. SERIES 11239,
Plaintiff,
v.
U.S. BANK, N.A.,
Defendant.

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Civil Action No. SA-14-CV-364-XR

ORDER
On this day, the Court considered Defendant’s motion for judgment on the pleadings.
Doc. No. 9. For the following reasons, the motion is GRANTED.
BACKGROUND1
In 2006, Jose and Ubaldina Hernandez purchased real property located in San Antonio,
Texas. Am. Pet. ¶ 9, Docket No. 1-1. To finance their purchase, the Hernandezes obtained a
mortgage from Countrywide Home Loans, Inc. (“Countrywide”). Id. ¶¶ 9, 9A. In September
2013, Countrywide assigned the mortgage to Defendant U.S. Bank, N.A. Id. ¶ 12A.
The Hernandezes’ property was located in a Homeowner’s Association (“HOA”), which
required the payment of dues and assessments. Id. ¶ 10. The HOA obligations were secured by a
lien on the property. When the Hernandezes fell behind on their payments to the HOA, the HOA
foreclosed on its lien. Id. ¶ 11. On May 21, 2013, Plaintiff TFHSP, L.L.C. Series 11239
purchased the property at a foreclosure sale initiated by the HOA. Id. After the sale, Plaintiff
allegedly contacted Defendant to determine what interest, if any, Defendant claimed in the
property. Id. ¶ 12. Plaintiff asserts Defendant did not respond. Id. ¶ 12.
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The background facts are taken from Plaintiff’s amended petition, with all non-conclusory factual allegations
accepted as true. Docket No. 1-1; see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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On November 1, 2013, Plaintiff filed suit in the 131st Judicial District Court of Bexar
County, Texas. Orig. Pet., Doc. No. 1-1. Plaintiff’s original petition alleges that either the
purchase money mortgage held by Defendant has been satisfied, or the time to enforce the
mortgage has lapsed. Id. ¶ 9. The petition asserts claims for quiet title, equity of redemption, and
declaratory judgment. Id. ¶¶ 10–17.
On March 3, 2014, Plaintiff amended its petition in state court. Am. Pet., Doc. No. 1-1.
Plaintiff’s amended petition removes the previously asserted claims.

Instead, the petition

requests an order authorizing a pre-suit deposition of Defendant’s custodian of records, pursuant
to Texas Rule of Civil Procedure 202 (“Rule 202”). Id. ¶ 15; see TEX. R. CIV. P. 202.1.
Additionally, Plaintiff requests injunctive relief to enjoin Defendant from conducting a
foreclosure sale of the property during the pendency of the suit. Id. ¶ 24.
On March 3, 2014, the state court granted Plaintiff’s request for a temporary restraining
order. TRO, Doc. No. 1-1. On April 22, 2014, Defendant removed the case to this Court on the
basis of diversity jurisdiction. Doc. No. 1. Thereafter, Plaintiff filed a motion to remand, which
this Court denied. Doc. Nos. 4, 6. In its Order denying remand, the Court held that Plaintiff’s
Rule 202 petition is not a true pre-suit deposition request because it was not filed before suit and
because it requests affirmative relief. Order at 5. Consequently, the Court found Plaintiff’s
action removable. Id. 7–8; see 28 U.S.C. § 1441.2 In its Order, the Court noted, “Though the
exact nature of Plaintiff’s claim (or claims) is unclear, the purpose of the claim (or claims) is to
enjoin Defendant from transferring the property at a foreclosure sale and to preserve Plaintiff’s
ownership interest.” Order at 7.

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Additionally, the Court determined that it had diversity jurisdiction. See Order at 7–8.

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On July 1, 2014, Defendant filed a motion for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c). Doc. No. 9. Plaintiff has not responded to Defendant’s
motion.
LEGAL STANDARD
“After the pleadings are closed—but early enough not to delay trial—a party may move
for judgment on the pleadings.” FED. R. CIV. P. 12(c). The standard for deciding a Rule 12(c)
motion is the same as that for deciding a Rule 12(b)(6) motion to dismiss for failure to state a
claim. Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007).
“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.” Twombly, 550 U.S. at 555.
DISCUSSION
In its amended petition, Plaintiff makes two requests: (1) a request for authorization to
conduct a pre-lawsuit deposition under Rule 202; and (2) a request for injunctive relief
prohibiting Defendant from conducting a foreclosure sale. As the Court noted in its previous

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Order, neither a Rule 202 request nor a request for injunctive relief state a cause of action. See
Order at 6. Instead, Rule 202 merely authorizes an ancillary proceeding, in which a court may
order a pre-suit deposition, see In re Enable Commerce, Inc., 256 F.R.D. 527, 531 (N.D. Tex.
2009), while injunctive relief is merely a form of relief that must be supported by a viable cause
of action, see Turner v. United States, No. 4:13-CV-932, 2013 WL 5877358, at *13 (S.D. Tex.
Oct. 31, 2013). Although the Court also found that Plaintiff asserted a cause of action because it
requested and received temporary injunctive relief in state court, the Court noted it was unable to
determine the exact nature of Plaintiff’s claim (or claims). Order at 7. To date, Plaintiff has not
moved to amend its complaint to clarify what claim (or claims) it is pursuing, nor has it
responded to Defendant’s motion for judgment on the pleadings.
The Federal Rules require a complaint to contain “a short and plain statement . . .
showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Plaintiff’s amended
petition does not specify a cause of action. Instead, it merely lists allegations and demands
relief. By not specifying a legal cause of action, Plaintiff has not provided the requisite “short
and plain statement . . . showing that [it] is entitled to relief.” FED. R. CIV. P. 8(a)(2). Therefore,
the Court finds Plaintiff has not stated a claim. See id.; Iqbal, 556 U.S. at 678. Since Plaintiff
has not stated a claim, the Court grants Defendant’s motion for judgment on the pleadings. See
FED. R. CIV. P. 8(a), 12(c); Guidry, 512 F.3d at 180.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s motion for judgment on the
pleadings. Doc. No. 9. Accordingly, Plaintiff’s case is DISMISSED WITH PREJUDICE. The
Clerk of Court is directed to enter final judgment pursuant to Rule 58 and to close this case.
Defendant is awarded costs of court and may file a Bill of Costs pursuant to the Local Rules.

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It is so ORDERED.
SIGNED this 4th day of August, 2014.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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