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Jacobo v. Citimortgage, Inc.

United States District Court, Fifth Circuit

December 3, 2013

MARTHA JACOBO, et al, Plaintiffs,
v.
CITIMORTGAGE, INC., Defendant.

OPINION AND ORDER GRANTING MOTION TO DISMISS

MICAELA ALVAREZ, District Judge.

The Court now considers the self-styled "Defendant's Motion to Dismiss for Failure to State a Claim, "[1] filed by CitiMortgage, Inc. ("Defendant"). Martha and Carlos Jacobo ("Plaintiffs") have responded, [2] and Defendant has replied.[3]

After considering the motion, response, reply, and relevant authorities, the Court GRANTS the motion.

I. Loan Agreement, Acceleration, and Complaint

On July 5, 2007, Plaintiffs and Defendant executed a home equity note ("Note"), [4] under which Defendant provided a loan secured by Plaintiffs' residence.[5] Under the Note, Plaintiffs agreed to pay monthly installments on the principal amount lent them, plus interest. The Note provided that Plaintiffs would make their monthly mortgage payments on the first of every month.[6] If Plaintiffs paid less than the full amount on the first of the month, then Plaintiffs would be in default, [7] and owe an overdue payment of 5% of the amount due.[8] Paragraph 6 of the Note then provided:

"(C) Notice of Default
If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principal which has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is mailed to me or delivered by other means....
(D) No Waiver by Note Holder
Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in full as described above, the Note Holder will still have the right to do so if I am in default at a later time."

After executing the Note, Plaintiffs allege that they established "a course of conduct by which Plaintiffs gets [sic] behind on the mortgage and then catches up. Plaintiffs have come to rely upon the course of conduct with Defendant."[9] The parties fail to narrate any sort of case history that might show how and when Plaintiffs defaulted, and in what way Defendant responded. Presumably, however, Plaintiffs defaulted, could not repay the remaining principal, and Defendant then sought to foreclose. Plaintiffs sued in State court and Defendant removed.

Plaintiffs seek a declaratory judgment that Defendant "has waived its right to insist upon timely payment and have [sic] waived the right to accelerate the debt because of untimely payments based upon the prior pattern and course of conduct between the parties of allowing late payments."[10]

II. Standards for Dismissal

Before a party has answered a complaint, the proper mechanism for removing a claim from the Court's consideration is a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6);[11] since Defendant filed the motion to dismiss prior to filing its answer, it properly seeks dismissal under this rule. At the motion to dismiss stage, the Court limits its inquiry "to the facts stated in the complaint and the documents either attached to or incorporated in the complaint."[12] It is true that, although a court cannot look beyond the pleadings in considering a 12(b)(6) motion, [13] documents "attache[d] to a motion to dismiss are considered part of the pleadings, where they are referred to in the plaintiff's complaint and are central to [the] claim."[14]

"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.'"[15] This does not require detailed factual allegations, but it does require "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action."[16] The Court regards all such well-pleaded facts as true and views them in the light most favorable to the ...


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