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McEvoy v. Select Portfolio Servicing, Inc.

United States District Court, N.D. Texas, Dallas Division

May 22, 2017

TODD MCEVOY, Plaintiff,
v.
SELECT PORTFOLIO SERVICING, INC. and U.S. BANK, N.A., Successor Trustee to LaSalle Bank National Association, on Behalf of the Holders of Bear Stearns Asset Backed Securities I Trust 2006-HE2, Asset-Backed Certificates Series 2006-HE2, Defendants.

          MEMORANDUM OPINION AND ORDER

          JANE J. BOYLE, United States district judge

         Before the Court is Defendants Select Portfolio Servicing, Inc. (SPS) and U.S. Bank, N.A.'s (U.S. Bank) Motion to Dismiss. Doc. 9. For the reasons that follow, the Court GRANTS Defendants' Motion.

         I.

         BACKGROUND[1]

         This is a foreclosure case. In October 2005, Plaintiff purchased property located at 3328 Silver Creek, Mesquite, Texas 75181(the Property). Doc. 1-1, Pl.'s Orig. Pet. 3; Doc. 10, Defs.' Br. in Supp. of Mot. to Dismiss ¶ 1 [hereinafter Defs.' Br.]. Plaintiff executed a promissory note (Note) in the amount of $132, 288.00 in favor of Concord Mortgage Company. Doc. 1-1, Pl.'s Orig. Pet. 3; Doc. 10, Defs.' Br. ¶ 2. Plaintiff also executed a Purchase Money Deed of Trust that encumbered the Property in favor of Concord Mortgage Company. Id. The Note and Purchase Money Deed of Trust were later assigned to Defendant U.S. Bank. Id. And Defendant SPS is the “loan servicer” on Plaintiff's loan. Doc. 1-1, Pl.'s Orig. Pet. 3.

         Plaintiff was eventually unable to make his mortgage payments due to financial setbacks. Id. at 4. Plaintiff attempted to modify his loan in order to reduce the monthly payments, but he was unsuccessful. Id. In an attempt to avoid foreclosure, Plaintiff states that he listed the house for sale with Texas Premier Realtors, owned by Shirley Simmons. Id. at 4-5. According to Plaintiff, Simmons entered into negotiations with Defendants to short sale the Property. Id. at 5. In January 2015, Defendants allegedly agreed to a short sale, but conditioned their agreement on Simmons satisfying two liens. Id. Plaintiff states that Simmons satisfied the two liens immediately. Id. In August 2015, Defendants released the liens, and Simmons was therefore free to move forward with closing on the short sale. Id. When Simmons tried to move forward on the short sale, though, “the bank” allegedly cancelled the agreement to the short sale without any explanation and initiated foreclosure proceedings instead. Id.

         On July 11, 2016, Defendants notified Plaintiff that the Property would be sold at a Successor Trustee's sale on August 2, 2016. Id. After learning about the sale, Plaintiff filed this action in state court at the end of July 2016. Doc. 10, Defs.' Br. ¶ 5. Plaintiff asserted claims for detrimental reliance and violations of the Texas Property Code. Doc. 1-1, Pl.'s Orig. Pet. 5-7. Plaintiff also sought a temporary restraining order, declaratory judgment, injunctive relief, and damages. Id. at 6-7.

         Defendants removed the state court action to this Court in August 2016. Doc. 1, Notice of Removal. Defendants then filed the present Motion to Dismiss (Doc. 9). Plaintiff failed to respond.

         Thus, the Motion is ripe for the Court's review.

         II.

         LEGAL STANDARD

         Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) authorizes a court to dismiss a plaintiff's complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In considering a Rule 12(b)(6) motion to dismiss, “[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). The court will “not look beyond the face of the pleadings to determine whether relief should be granted based on the alleged facts.” Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).

         To survive a motion to dismiss, a plaintiff 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). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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.” Id. “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. When well-pleaded facts fail to achieve this plausibility standard, “the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Id. at 679 (internal quotation marks and alterations omitted).

         III.

         ANALYSIS

         A. Detrimental Reliance

         In Plaintiff's Original Petition, he alleges a “detrimental reliance” claim. Doc. 1-1, Pl.'s Orig. Pet. 5. Plaintiff contends that: (1) he and Defendants entered into an agreement for a short sale of the Property that was conditioned on the removal[2] of two liens; (2) Plaintiff relied on this agreement; (3) Simmons arranged for the liens' removal; (4) Defendants ...


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