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Tib v. Canyon Community Bank

United States District Court, Fifth Circuit

January 15, 2014

TIB — THE INDEPENDENT BANKERSBANK, Plaintiff,
v.
CANYON COMMUNITY BANK, Defendant.

MEMORANDUM OPINION AND ORDER

SIDNEY A. FITZWATER, Chief District Judge.

In this removed action alleging claims for breach of contract, negligent misrepresentation, and unjust enrichment, defendant moves to dismiss under Fed.R.Civ.P. 12(b)(6), or for a more definite statement under Rule 12(e). For the following reasons, the court grants the motion to dismiss and also grants plaintiff leave to replead.[1]

I

In 2002 plaintiff TIB - The Independent BankersBank ("TIB") and defendant Canyon Community Bank ("CCB") entered into a Mortgage Loan Program Agreement ("2002 Agreement").[2] The 2002 Agreement was superseded by a Correspondent Bank Mortgage Loan Agreement entered into in 2009 ("2009 Agreement"). Under the 2002 and 2009 Agreements (collectively, the "Agreement, " unless it is necessary to distinguish between the two), TIB agreed to purchase from CCB various conventional, FHA, VA, and/or jumbo residential mortgage loans, including the servicing rights of these loans. CCB agreed to submit completed loan packages to TIB to assist it in marketing the loans to the secondary market. CCB also agreed that it would "originate and process all Loans in accordance with customary and prudent lending practices of financial institutions and in full compliance with the requirements of" the Federal National Mortgage Association ("Fannie Mae") and the Federal Home Loan Mortgage Association ("Freddie Mac"). Pet. ¶ 6. TIB alleges that "[a]t all times, the parties knew and intended for TIB to sell the loans to third party investors." Id. ¶ 5.

CCB warranted in the Agreement that, as of the time any loan package was submitted to TIB, each loan conformed to the specifications "set forth by TIB and in applicable investor and insurer regulations, rules, guides and handbooks for mortgage loans eligible for sale to, insurance by or pooling to back securities issued or guaranteed by, said investors and insurers."[3] Id. ¶ 9. CCB also agreed to indemnify TIB for any losses incurred as a result of any breach of warranty by CCB or of "[a]ny acts, errors or omissions of [CCB]... with respect to the origination of any Loan... prior to the date of sale to TIB or thereafter in connection with the performance of any of [CCB's] obligations." Id. ¶ 10 (quoting Ex. A at 6-7).

On January 21, 2005 TIB purchased a loan ("Loan B")[4] from CCB and, pursuant to the Agreement, sold the loan to Fannie Mae. On January 17, 2008 TIB purchased a loan ("Loan A")[5] from CCB and, pursuant to the Agreement, sold the loan to Freddie Mac. TIB alleges that Loans A and B did not fully comply with Freddie Mac and Fannie Mae guidelines, and, as a result, it was forced to indemnify Freddie Mac and Fannie Mae for their respective losses on the loans.

On August 7, 2013 TIB demanded indemnification from CCB under the Agreement. When CCB failed and refused, TIB sued CCB in state court on August 27, 2013, alleging claims for breach of contract, negligent misrepresentation, and unjust enrichment. CCB removed the case to this court and now seeks to dismiss TIB's claims under Rule 12(b)(6), or for a more definite statement under Rule 12(e).[6]

II

"In deciding a Rule 12(b)(6) motion to dismiss, the court evaluates the sufficiency of [plaintiff's] amended complaint by accepting all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." Bramlett v. Med. Protective Co. of Fort Wayne, Ind., 855 F.Supp.2d 615, 618 (N.D. Tex. 2012) (Fitzwater, C.J.) (quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)) (internal quotation marks and alteration omitted). To survive CCB's motion to dismiss under Rule 12(b)(6), TIB 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). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id .; see also Twombly, 550 U.S. at 555 ("Factual allegations must be enough to raise a right to relief above the speculative level[.]"). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown'-that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2)) (alteration omitted). Furthermore, under Rule 8(a)(2), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Although "the pleading standard Rule 8 announces does not require detailed factual allegations, '" it demands more than "labels and conclusions.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). And "a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555).

III

The court turns first to CCB's motion to dismiss TIB's breach of contract claim based on the statute of limitations.

A

"Although dismissal under Rule 12(b)(6) is ordinarily determined by whether the facts alleged in the complaint, if true, give rise to a cause of action, a claim may also be dismissed if a successful affirmative defense appears clearly on the face of the pleadings.'" Sivertson v. Clinton, 2011 WL 4100958, at *2 (N.D. Tex. Sept. 14, 2011) (Fitzwater, C.J.) (quoting Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)); see also White v. Padgett, 475 F.2d 79, 82 (5th Cir. 1973) (holding that claim is "subject to dismissal under Rule 12(b)(6)... when [an] affirmative defense clearly appears on the face of the complaint."). "In the usual case, this court is unable to grant dismissal under Rule 12(b)(6) based on an affirmative defense because it rarely appears on the face of the complaint." Simon v. Telsco Indus. Emp. Benefit Plan, 2002 WL 628656, at *1 (N.D. Tex. Apr. 17, 2002) (Fitzwater, J.). Furthermore, "[i]t is well settled... that in order for a defendant to prevail on the basis of limitations at the pleadings stage, the plaintiff must normally plead ...


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