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Guerrero v. Bank of America N.A.

United States District Court, S.D. Texas, Houston Division

July 6, 2017

Michael Guerrero, Plaintiff,
v.
Bank of America N.A., Mortgage Electronic Registration Systems, Inc. “MERS”, Defendants.

          MEMORANDUM OPINION & ORDER

          GRAY H. MILLER, UNITED STATES DISTRICT JUDGE

         Pending before the court is defendant Bank of America, N.A.'s (“BANA”) motion to dismiss a suit filed by plaintiff Michael Guerrero (Dkt. 1-1, Ex. A).[1] Dkt 6. The court granted Guerrero's motion for extension of time to respond to BANA's motion to dismiss. Dkt. 11. As of the date of this order, Guerrero has not responded to BANA's motion. Having considered the motion, related filings, and the applicable law, the court is of the opinion that BANA's motion to dismiss (Dkt. 6) should be GRANTED.

         I. Background

         This is a foreclosure case. Guerrero filed this lawsuit to preclude BANA and Mortgage Electronic Registration Systems, Inc. (“MERS”) from foreclosing on his property located at 8702 Sailing Drive, Humble, Texas 77346 (the “Property”). Dkt. 1-1, Ex. A at 7. Guerrero claims that BANA failed to review a pending loan modification application and wrongfully sent Guerrero a notice of foreclosure. Id. at 7-15.

         In April 2005, Guerrero purchased the Property and obtained a mortgage loan from Country Wide Mortgage in the amount of $128, 023.00, secured by a Deed of Trust. Dkt. 1-1, Ex. A at 7-8. In September 2008, Country Wide Mortgage assigned Guerrero's loan to BANA through MERS, and recorded an Assignment of Deed of Trust. Id. In 2010, Guerrero suffered a financial hardship, missed mortgage payments, and contacted BANA to resolve his delinquent mortgage loan. Id. Guerrero alleged that he applied to BANA for a loan modification several times and was denied without explanation. Id. at 8-9. At some unspecified time, Guerrero made a lump sum payment of “over $8, 000 to reinstate the loan, ” while continuing to seek a loan modification. Id. at 9.

         In mid-2014, Guerrero contacted BANA to resolve his delinquent loan and to re-apply for another loan modification. Id. Between mid-2014 and November 2016, Guerrero sent at least three loan modification applications to BANA. Id. On November 21, 2016, Guerrero received a letter from BANA stating that his application was under review. Id. at 36. Following this correspondence, on November 30, 2016, BANA sent Guerrero a notice of foreclosure. Id. at 39. The foreclosure was set for January 3, 2017. Id. Guerrero argues that BANA wrongfully sent him a notice of foreclosure, because he never received a notice of default or had an opportunity to cure the default. Id. at 10.

         On January 2, 2017, Guerrero filed suit against BANA and MERS in the 11th Judicial District Court for Harris County, Texas. Dkt. 1 at 1. Upon removal to federal court based on diversity jurisdiction and federal question, BANA filed this motion to dismiss under Rule 12(b)(6) for failure to state a claim. Fed.R.Civ.P. 12(b)(6); Dkt. 6. On February 22, 2017, Guerrero filed a motion for extension of time to respond to BANA's motion to dismiss (Dkt. 11) and the motion was granted. Dkt. 13. Guerrero's deadline to respond was March 8, 2017. Id. As of the date of this order, Guerrero has not responded to BANA's motion to dismiss.

         II. Legal Standard

         Federal Rule of Civil Procedure 8(a)(2) requires only that the pleading 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 court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955 (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, 129 S.Ct. 1937 (2009). “Factual 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, 550 U.S. at 555. As part of the Twombly-Iqbal analysis, the court proceeds in two steps. First, the court separates legal conclusions from well-pled facts. Iqbal, 556 U.S. at 678-79. Second, the court reviews the well-pled factual allegations, assumes they are true, and then determines whether they “plausibly give rise to an entitlement of relief.” Id. at 679.

         When considering a motion to dismiss for failure to state a claim, “a district court must limit itself to the contents of the pleadings, including attachments thereto.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). Here, the court will consider Guerrero's complaint and his attached exhibits. Dkt. 1-1, Ex. A.

         III. Analysis

         Guerrero brings the following claims against BANA: common law fraud, breach of contract, violations of Regulation X of the Code of Federal Regulations and the Real Estate Settlement Procedures Act (“RESPA”), and violations of the Texas Debt Collection Act. 12. C.F.R. § 1024; Tex. Prop. Code § 51.002; Tex. Fin. Code § 392.001; Dkt. 1-1, Ex. A. BANA moves to dismiss all of Guerrero's claims for failure to state a cognizable claim for relief. Dkt 6. Additionally, BANA argues Guerrero has not stated any claims or specific allegations against MERS and moves to dismiss MERS as a defendant. Id. The court will address each of these claims in turn.

         A. Common Law Fraud

         Guerrero argues that BANA's actions constitute common law fraud and misrepresentation of material facts which he “relied upon to [his] detriment.” Dkt. 1-1, Ex. A, at 11-12. Guerrero alleges that BANA agreed on “numerous occasions during 2010-2016” to consider Guerrero for a loan modification. Id. Guerrero claims that after BANA failed to respond to his requests, BANA proceeded to post his property for foreclosure. Id. BANA, however, argues that Guerrero's fraud claim should be dismissed because he makes general allegations and fails to meet the heightened pleading ...


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