United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. Hanks, Jr. United States District Judge.
the Court is Defendant JPMorgan Chase Bank, N.A.'s Motion
to Dismiss Plaintiffs' First Amended Complaint. Dkt. 17.
Based on the pleadings; the motion, response, and reply; the
applicable law; and the arguments of counsel, the motion to
dismiss is granted. The reasons for the ruling are explained
John, Jr. and Diana H. Mahannah John (together,
"John") are owners of the real property and
improvements located at 3019 Sea Pines Place, League City,
Texas 77573 (the "Property"). In 2007, John
executed a Home Equity Loan, Promissory Note, and Homestead
Lien (together, the "Lien") with lender JPMorgan
Chase Bank, N.A. ("Chase"). John alleges that after
encountering financial difficulties, he entered into debt
restructuring negotiations with Chase. According to John,
Chase offered a loan modification in March 2016 that required
John to submit multiple documents. John alleges that in the
course of this modification agreement, Chase: (1) verbally
instructed him to cease making mortgage payments; and (2)
promised to take no foreclosure action while in loan
then received notice of foreclosure sale. In response, he
contacted Chase and requested written proof that the sale had
been canceled pursuant to the loan modification. According to
John, a Chase representative promised to follow up on this
request and failed to do so. John sued Chase in the 10th
Judicial District Court of Galveston County, Texas.
John's Petition for wrongful foreclosure asserted the
following causes of action: (1) anticipatory breach of
contract; (2) common law fraud; and (3) promissory estoppel.
The court entered a Temporary Restraining Order and Order
Setting Hearing for Temporary Injunction.
to the temporary injunction hearing, Chase timely removed the
case to this Court. John filed a First Amended Complaint that
asserted the same causes of action contained in the state
court petition. Dkt. 11. Chase filed the instant motion to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. Dkt. 17. John filed a Response. Dkt. 22.
Chase filed a Reply. Dkt. 23.
to Rule 8 of the Federal Rules of Civil Procedure, a pleading
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). A Rule 12(b)(6) motion tests the formal
sufficiency of the pleadings and is "appropriate when a
defendant attacks the complaint because it fails to state a
legally cognizable claim." Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001), cert,
denied sub nom. Cloud v. United States, 536 U.S. 960
defeat a motion to dismiss pursuant to Rule 12(b)(6), a
plaintiff must plead "enough facts to state a claim to
relief that is plausible on its face." Bell Ail.
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) (citing Twombly, 550 U.S. at 556). The court
must accept the factual allegations of the complaint as true,
view them in a light most favorable to the plaintiff, and
draw all reasonable inferences in the plaintiffs favor.
See Ramming, 281 F.3d at 161.
12(b)(6) motions to dismiss are "viewed with disfavor
and [are] rarely granted." Arnett v. Aetna Life Ins.
Co., No. CV H-15-2723, 2016 WL 6883203, at *2
(S.D. Tex. Apr. 14, 2016) (citing Turner v.
Pleasant, 663 F.3d 770, 775 (5th Cir. 2011)). A
complaint need not address every potential affirmative
defense to survive a motion to dismiss. Am. Surgical
Assistants, Inc. v. Great W. Healthcare of Texas, Inc.,
No. CIV.A.H-09-0646, 2010 WL 565283, at *2 (S.D. Tex. Feb.
17, 2010) (citing Hall v. Hodgkins, 305 F.App'x
224, 228 n.l (5th Cir.2008)). However, "[a]n exception
to this rule may apply if the plaintiff has alleged facts
plainly indicating that an affirmative defense does
apply." Id. Further, "where facts alleged
in Plaintiffs pleadings make clear that a claim is barred,
dismissal under Rule 12(b) may be granted." In re
Dynegy, Inc. Securities Litigation, 339 F.Supp.2d 804,
819 (S.D. Tex. 2004).
Anticipatory Repudiation, Common Law Fraud Claims
Chase argues that the statute of frauds bars John's
anticipatory repudiation and common law fraud claims. John
argues that the loan modification agreement is separate from
the Lien and therefore the statute of frauds does not apply.
According to John:
[The loan modification agreement] is a totally separate
agreement wherein Plaintiffs agreed to put forth the time and
effort to prepare and submit a loan modification application,
along with the supporting documents, and continue to exert
the time and effort necessary in order to comply with
Defendant's requests for further information (an
affirmative act) in exchange for Defendant declining to take
certain action (a negative act). This constitutes a separate
stand-alone agreement in which there was a ...