Clyde Wagner v. Green Tree Servicing LLC

Filing 34

MEMORANDUM OPINION AND ORDER. Signed by Judge Royce C. Lamberth. (mgr)

FILED
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

JUL 202018
CLERK,

U.S.

DISTRJCT CLERK

WESTERN,tRCT OF TEXAS
"

CLYDE WAGNER

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DEPUTY

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PLAINTIFF,

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v.

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CASE No. 15-cv-01002 (RCL)

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DITECH FINANCIAL LLC,

f/k/a Green Tree Servicing LLC

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DEFENDANT.

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Memorandum Opinion
Before the Court is the plaintiffs Motion to Reconsider and/or Clarify Order and for

Leave of Court to Amend Pleadings and for Remand. ECF No. 31. The Court will grant in part

and deny in part the plaintiff's motion. The Court will grant the plaintiffs request for
clarification of the Court's earlier memorandum [ECF No. 29] and order [ECF No. 30J dismissing
with prejudice the plaintiffs claims. The Court will deny the remainder of the plaintiffs requested
relief.

Procedural Backgrountt
The plaintiff sued the defendant in state court asserting causes of action for alleged

violations of the Real Estate Settlement Procedures Act ("RESPA") and breach of contract and
also requesting an accounting. The defendant removed the case to federal court on the basis of
federal question jurisdiction and filed a motion to dismiss the plaintiff's complaint. The Court

granted that motion and dismissed the case in its entirety with prejudice.
The plaintiff now asks the motion to reconsider that decision pursuant to Rules 5 9(e)
and 60(b) of the Federal Rules of Civil Procedure. As part of this motion, the plaintiff seeks the

following relief: (1) that the Court clarify its prior order; (2) that the Court reconsider its ruling on
the motion to dismiss; (3) in the alternative, that the Court remand the contract claims to state court

if the Court would dismiss the R.ESPA claims; and (4) in the alternative that the Court allow the
plaintiff leave to amend his pleadings. The Court will address type of relief requested in turn.
Legal Standard
Motions for reconsideration are treated as motions to alter or amend judgment under
Rule 59(e). The Fifth Circuit has emphasized that the purpose of a motion to alter or amend a

judgment is not to "rehash[] evidence, legal theories, or arguments that could have been offered or
raised before the entry of judgment." Templetv. Hydrochem Inc., 367 F.3d 473, 479 (5th Cir.
2004) (citing Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). Rather, its purpose is
to allow

"a

patty to correct manifest errors of law or fact or to present newly discovered

evidence." Id (quoting Waitman v. Int'l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989)). "Relief
under Rule 59(e) is also appropriate when there has been an intervening change in the controlling
law." Schiller v. Physicians Res. Grp., 342 F.3d 563, 567 (5th Cir. 2003).

I.

The Court Will Clarify Its Earlier
Dismissed.

OrderAll

of the Plaintiff's Claims Are

The plaintiff asks the Court to clarify its prior order. He asserts that the memorandum
opinion only address the alleged RESPA violations and does not address the breach of contract
and accounting claims. But the memorandum opinion clearly states that the defendant "did not

violate RESPA or breach the deed oftrust." ECF No. 29 at

1.

So the memorandum opinion did

address the breach of contract (deed of trust) claim. The opinion does not explicitly mention the

plaintiffs accounting claim. This is becaUse an accounting is not an independent cause of action;

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rather, an accounting is an equitable remedy. To the extent that further clarification is needed,

then, the accounting "claim" is specifically dismissed for that reason.

II.

The Court Will Not Reconsider Its Prior Ruling on the Motion to Dismiss.
A. The Plaintiff's RESPA Claim

The plaintiff asks the Court to reconsider its prior ruling dismissing his RESPA claim.
The Court declines to do so.
The plaintiff characterizes the Court's prior ruling dismissing his RESPA claims as
hinging on "the timing of the [defendant's] response" to his Qualified Written Request ("QWR").
ECF No. 31 at 2. This is not so. The Court's prior opinion clearly stated that its ruling was based

on the conclusion "that plaintiffs May 11, 2015, letter requesting all documents relating to the
loan at issue did not constitute a valid [QWR]" at all. ECF No. 29 at 1.

This conclusion was not a manifest error of law or fact justifying reconsideration.

RESPA defines a QWR as follows:

For purposes of this subsection, a [QWR] shall be a written
correspondence . . . that (i) includes, or otherwise enables the
servicer to identify, the name and account of the borrower; and (ii)
includes a statement of reasons for the belief of the borrower, to the
extent applicable, that the account is in error or provides sufficient
detail to the servicer regarding other information sought by the
borrower.
12 U. S .C. § 2605(e)( I )(B) (emphasis added). The plaintiffs May 11, 2015, letter to the defendant

requesting all information about the loan did not meet this definition. The letter was a written

correspondence. And the letter included information that allowed the defendant to identify the
name and account of the borrower (the plaintiff). But a general request for everything about a loan
does not "provide{] sufficient detail to the servicer regarding other information sought by the

borrower." Id.

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2605(e)( 1 )(B)(ii); see also Price v. US. Bank Nat. Ass 'n, No. 3:1 3-cv-00 175-0,

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2013 WL 3976624, at *9 (N.D. Tex. Aug. 2, 2013) (dismissing RESPA claim where the plaintiff

requested "all documents pertaining to the [mortgage] loan from its inception" because such a
broad request did not "provide[] Defendant with sufficient detail about the information Plaintiff
was seeking").

RESPA places the burden on the borrower either to provide reasons justifying the

borrower's belief that the account is in error or to provide sufficient detail allowing the servicer to
find other information that the borrower wants. A borrower does not meet that burden simply by

saying, "I want everything." Such a request contains no detail. Such a request is not a QWR. And
a borrower cannot make such a general request and then sue when the servicer for failing to provide
a specific piece of information that was actually wanted. In this case, the plaintiff has made it very

clear that what he really wanted was a payoff amount. That beiig the case, he should simply have
asked for one in his May 11, 2015, letter. He did not. Instead, he sent a general and vague request
that he himselfacknowledges may have been "unclear." ECF No. 16 ¶12. And when he did finally

provide sufficient detail of what information he
asked for a payoff amount in his June 25, 2015,

soughtin

other words, when he specifically

letterthe defendant provided the payoff amount

the next day.
The point is that the plaintiff's May 11, 2015, letter to the defendant did not provide

sufficient detail regarding the information he actually sought. Therefore, the letter was not a QWR.
And because the letter was not a QWR, no RESPA claim can be maintained based on the

defendant's response to the letter. This conclusion is not a manifest error of law. Therefore, the
Court will not alter or amend its prior order dismissing the plaintiff's RESPA claim with prejudice.

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B. The Plaintiff's Breach-of-Contract Claim

As mentioned above, the Court's prior order clearly dismissed the plaintiff's breach-

of-contract claim with prejudice. The plaintiff also asks the Court to reconsider this ruling. The
Court declines to do so.

The Fifth Circuit has interpreted Texas contract law to require a plaintiff raising a

breach-of-contract claim to "identify the specific provision in the contract that was breached."
Williams

Wells Fargo Bank, NA., 560 F. App'x 233, 238 (5th Cir. 2014) (citing Watson

v.

Citimorigage, Inc., 814 F. Supp. 2d 726, 732 (E.D. Tex. 2011)).

v.

The plaintiffs amended

complaint does not identify any specific provision of the deed of trust that was breached. Rather,
it merely makes conclusory allegations that the defendant's actions breached some portiOn or

another of the contract. Such allegations are not enough to sustain a breach-of-contractclaim, and
it was not a manifest error of law or fact for the Court to dismiss that claim with prejudice.

Therefore, the Court declines to alter or amend its earlier judgment.

C. The Plaintiff's Accounting Claim
As the Court explained above, there is no independent cause of action for an
accounting. Rather, an accounting is an equitable remedy. Therefore, it was not a manifest error

of law to dismiss the accounting claim and the Court declines to alter or amend that determination.
III.

The Court Will Not Remand the Plaintiff's Contract Claim.
Because the Court refuses to alter or amend its previous judgment concerning the

RESPA claim, the plaintiff requests that the Court reinstate his breach-of-contract claim and
remand it to state court for lack of subject matterjurisdiction. The Court denies this request. When
the defendant removed this case to this Court, there was a live RESPA claim. And the plaintiffs

breach-of-contract claim is so related to that RESPA claim as to be a part of the same case or

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controversy. 28 U.S.C. § 1367(a). Therefore, the Court had federal question jurisdiction over the
RESPA claim and supplemental jurisdiction over the breach-of-contract claim at the time of

removal. That the RESPA claim was later denied did not affect the Court's jurisdiction over the

contract claim because the existence of subject matter jurisdiction over a removed case as a whole
is determined at the time of removal. Bissonetlnvs.

The Court could have, under 28 U.S.C.

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v.

Quinlan, 320 F.3d 520, 525 (5th Cir. 2003).

367(c)(3), exercised its discretion to decline to exercise

jurisdiction over the contract claim when the RESPA claim was dismissed. But given the claim's
facial lack of merit, the Court elected not to. And the Court will not now, after twice rejecting the

contract claim on its merits, revisit that decision, revive the claim, and remand it to stató court.
Therefore, the plaintiff's request to remand the contract claim to state court is denied.
IV.

The Court Denies Leave to Amend the Plaintiff's Pleadings.
The final relief the plaintiff requests is leave to amend his pleadings. The general rule

is that a "court should freely give leave when justice so requires."

FED. R.

Civ. P. 1 5(a)(2). But

justice does not so require in this case. The plaintiff already amended his pleadings once before
the Court dismissed his case. And the plaintiff did not seek leave to amend pleadings again until
his case had already been dismissed with prejudice. Justice does not require that plaintiffs be given

leave to amend whenever their cases are dismissed.

The plaintiff has already had multiple

opportunities to state a claim. The Court will not protract this litigation any longer by giving him
another. Therefore, the Court denies the plaintiffs request for leave to amend his pleadings.

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Conclusion
For the reasons given above, the Court will grant in part and deny in part the
plaintifFs motion [ECF No. 311. Specifically, the Court will grant the plaintiff's request for
clarification of its prior order. The Court's prior order dismissed with prejudice all claims brought
by the plaintiff in this case without exceptions. The Court will deny the remainder of the motion

and deny all other relief requested by the plaintiff.

A separate order shall issue.

Signed: July

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,

2018.

HON( ABLE ROYCE LAMBERTH
UNITED STATES DISTRICT JUDGE