United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ UNITED STATES DISTRICT JUDGE.
day, the Court considered Defendant CitiMortgage, Inc.'s
Motion to Dismiss (Docket no. 3). After careful
consideration, the Court GRANTS the motion.
Roland Casillas filed suit in the 224th Judicial District
Court of Bexar County, Texas on March 7, 2016. Docket no. 1
at 1. Plaintiff, a Texas resident, alleges that he owns
“Lot 6, Block 5, the Hills of Shanefield Subdivision,
Unit 2, Bexar County, Texas, According to Plat Recorded in
Volume 9568, Page 180, Deed and Plat Records, Bexar County,
Texas.” Docket no. 1-3 at 2. Plaintiff financed the
purchase of the property by granting deeds of trust and
promissory notes, which have been transferred numerous times
since the loans were originally made. Id. Defendant,
a New York corporation with its principal place of business
in Missouri, is the current holder of the loans. Id.
Plaintiff alleges that his spouse received notice from
Defendant on March 5, 2017 about a foreclosure sale of the
property scheduled to take place at 10:00 AM on March 7,
2017. Docket no. 1-3 at 2.
addition to filing suit on March 7, Plaintiff applied for a
temporary restraining order and a permanent injunction to
prevent Defendant from foreclosing on the property.
Id. at 3. The state court granted the temporary
restraining order that day. Docket no. 1-4. Defendant removed
this case to this Court on March 14 and filed its Motion to
Dismiss on March 20. Docket no. 3. Plaintiff did not respond
to the Motion to Dismiss and the time for doing so has
Standard of Review
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 (2007).
“Factual allegations must be enough to raise a right to
relief above the speculative level.” Id.
argues that Plaintiff has failed to state a cause of action.
Docket no. 3 at 2. The Court agrees. See Docket no.
1-3. Plaintiff simply alleges that “the Foreclosure
Notice was legally ineffective, not timely mailed, [and]
improper, ” and that there are substantial
controversies regarding the amount of arrears owed on the
loan and whether the scheduled March 7 foreclosure sale would
go forward. Id. at 2. Plaintiff requested that the
state court grant a temporary restraining order to prevent
Defendant from holding the foreclosure sale or otherwise
taking steps to foreclose on the property. Id. He
does not otherwise identify a cause of action in his
complaint. See generally id.
and injunctive relief are procedural devices only; they fail
unless tied to a viable cause of action. See Aetna Life
Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227,
240 (1937) (noting that declaratory relief is a procedural
device for granting a remedy and does not create any
substantive rights or causes of action); Pajooh v.
Harmon, 82 F. App'x 898, 899 (5th Cir. 2003)
(affirming a district court's denial of injunctive relief
when a plaintiff failed to state a claim). Plaintiff alleges
no facts asserting a cause of action against Defendant, and
by failing to state a cause of action, Plaintiff has not
provided a short and plain statement showing that he is
entitled to the declaratory or injunctive relief he seeks.
See Fed. R. Civ. P. 8(a)(2). Accordingly,
Defendant's motion to dismiss for failure to state a
claim should be granted. See Fed. R. Civ. P.
assuming Plaintiff intended to assert a breach of contract
claim, he has failed to do so. To state a breach of contract
claim, Plaintiff needed to allege that: (1) there was a
valid, enforceable contract; (2) the plaintiff performed,
tendered performance, or was excused from performing his
contractual obligations; (3) the defendant breached the
contract; and (4) the defendant's breach caused the
plaintiff injury. Smith Int'l, Inc. v. Egle Group,
LLC, 490 F.3d 380, 387 (5th Cir. 2007) (citing
Valero Mktg. & Supply Co. v. Kalama Intern., 51
S.W.3d 345, 351 (Tex. App.-Houston [1st Dist.] 2001, no
pet.)). Plaintiff does not allege the existence of a valid
contract that Defendant breached in the first place. Docket
no. 1-3 at 2. Moreover, Plaintiff claimed that he was harmed
by Defendant's lack of notice regarding the foreclosure
sale, but failed to allege that he performed his own
contractual obligations. Id.; see Docket
no. 3 at 4-5. Accordingly, the Court finds that Plaintiff has
not alleged sufficient facts to maintain his breach of
Plaintiff fails to state a wrongful foreclosure claim. In
order to state a wrongful foreclosure claim, Plaintiff must
show: “(1) a defect in the foreclosure sale
proceedings; (2) a grossly inadequate selling price; and (3)
a causal connection between the defect and the grossly
inadequate selling price.” Miller v. BAC Home Loans
Servicing, L.P. 726 F.3d 717, 726-27 (5th Cir. 2013). At
best, Plaintiff has alleged the first element, but has not
alleged the second and third. See Docket no. 1-3 at
2. It is undisputed that the foreclosure sale did not occur.
Docket no. 1-4. “A claim for wrongful foreclosure
requires that the property in question be sold at a
foreclosure sale. Here, Plaintiff[ ] cannot state a claim for
wrongful foreclosure because no foreclosure sale has
occurred.” Marsh v. Wells Fargo Bank, 760
F.Supp.2d 701, 708 (N.D. Tex. 2011) (internal citations
omitted). Because Plaintiff has not alleged that the property
was sold, any claim for wrongful foreclosure fails.
Plaintiff fails to state a cause of action for an accounting.
He alleges that “substantial confusion exists with
respect to . . . the amount of arrears owed.” Docket
no. 1-3 at 2. Courts find that an “[a]ccounting is
appropriate when ‘the facts and accounts presented are
so complex adequate relief may not be obtained at
law.'” Williams v. Wells Fargo Bank, N.A.,
560 F. App'x 233, 243 (5th Cir. 2014) (quoting T.F.W.
Mgmt, Inc. v. Westwood Shores Prop. Owners Ass'n, 79
S.W.3d 712, 717 (Tex. App.-Houston [14th Dist.] 2002, pet.
denied)). Plaintiff's conclusory statement that
“substantial confusion” exists, however, does not