MEMORANDUM & ORDER
EWING WERLEIN, Jr., District Judge.
Pending is Defendant U.S. Bank, N.A.'s Motion to Dismiss (Document No. 4). After carefully considering the motion, response, reply, and applicable law, the Court concludes as follows.
Plaintiff Juan Serna ("Plaintiff") and his ex-wife Maria purchased a home at 21934 East Hammond Drive, Porter, Texas 77365 (the "Property") on or about October 14, 2004. Plaintiff executed an Adjustable Rate Note (the "Note") to MILA, Inc. d/b/a Mortgage Investment Lending Associates, Inc. ("MILA") in the amount of $73, 600. To secure repayment of the loan, Plaintiff also executed a Deed of Trust on the Property (the "Deed of Trust") in which MILA is named as the lender. The Note and Deed of Trust were subsequently transferred to Defendant U.S. Bank, N. A. ("Defendant"), with America's Servicing Company ("ASC") acting as the loan servicer.
Plaintiff alleges that he began to experience financial difficulties and, in an effort to remedy the situation, entered into debt restructuring negotiations with Defendant to modify the terms and conditions of the Note. Plaintiff alleges that he was offered a loan modification by ASC and that during the next several months he obtained and submitted financial documents in response to ASC's requests. Plaintiff further alleges that ASC's representatives informed him "that he was not allowed to make any mortgage payments while in loan modification status, " that "he was to ignore any foreclosure notices that he received while in loan modification status, " and "that they would not take any action to foreclose on the Property while in loan modification status." Plaintiff alleges that while he was waiting for confirmation of the loan modification, believing that the discrepancy had been resolved, he was served with a Suit to Evict filed by Defendant.
Plaintiff filed suit against Defendant, alleging that Defendant wrongly conducted a foreclosure sale of the Property on March 5, 2013, in which Defendant sold the Property to itself, and that Defendant "wrongfully attempted to enter upon and dispossess [the Plaintiff] of his Property." Plaintiff alleges causes of action for trespass to try title, breach of contract, and common law fraud. Defendant moves to dismiss Plaintiff's Original Petition and to recover attorney's fees and costs.
II. Motion to Dismiss
A. Legal Standard
Rule 12 (b) (6) provides for dismissal of an action for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). When a district court reviews the sufficiency of a complaint before it receives any evidence either by affidavit or admission, its task is inevitably a limited one. See Scheuer v. Rhodes , 94 S.Ct. 1683, 1686 (1974). The issue is not whether the plaintiff ultimately will prevail, but whether the plaintiff is entitled to offer evidence to support the claims. Id.
In considering a motion to dismiss under Rule 12(b) (6), the district court must construe the allegations in the complaint favorably to the pleader and must accept as true all well-pleaded facts in the complaint. See Lowrey v. Tex. A&M Univ. Sys. , 117 F.3d 242, 247 (5th Cir. 1997). To survive dismissal, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 127 S.Ct. 1955, 1974 (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 , 129 S.Ct. 1937, 1949 (2009). While a complaint "does not need detailed factual allegations... [the] allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly , 127 S.Ct. at 1964-65. "[A] formulaic recitation of a cause of action's elements will not do." Id. at 1965.
1. Trespass to Try Title
Plaintiff's putative trespass to try title action is premised upon allegations that: "A. [Plaintiff] has physical control of the Property; B. [Plaintiff] owned or possessed the Property at the time of the injury; C. [Defendant] physically, intentionally, and voluntarily entered [Plaintiff's] Property; and D. [Defendant's] trespass caused an injury to [Plaintiff's] right of possession."
"A trespass to try title action is the method of determining title to lands, tenements, or other real property." TEX. PROP. CODE § 22.001 (a). "To state a claim for trespass to try title, the plaintiff must allege, inter alia, that the defendant unlawfully entered upon and dispossessed him of such premises, stating the date, and withholds from him the possession thereof.'" Martinez v. CitiMortgage. Inc., CIV.A. H-13-0727, 2013 WL 2322999, at *2 (S.D. Tex. May 28, 2013) (Atlas, J.) (citing TEX. R. CIV. P. 783 (e)) (granting motion to dismiss claim for trespass to try title where plaintiff maintained possession the property). Plaintiff has not alleged that Defendant dispossessed him of the ...