United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION & ORDER
H. MILLER, UNITED STATES DISTRICT JUDGE
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). 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.
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.
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.
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.
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.
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.
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,
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.
Common Law Fraud
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