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Richter v. Nationstar Mortgage, LLC

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

September 19, 2017

RONALD E. RICHTER AND THE ESTATE OF MARY T. RICHTER, Plaintiffs,
v.
NATIONSTAR MORTGAGE, LLC, Defendant.

          MEMORANDUM AND OPINION

          Lee H. Rosenthal, Chief United States District Judge.

         Ronald E. Richter and the Estate of Mary T. Richter sued Nationstar Mortgage, LLC in Texas state court. (Docket Entry No. 1, Ex. 3). The petition alleged that after Mary and Herbert Richter died, their son, Ronald Richter, became the executor of their estate and continued to pay the mortgage loans they had taken in 2005 to buy their home. Richter defaulted on the loan payments, and Nationstar, the loan servicer, accelerated and began foreclosure proceedings. Richter sued in state court, seeking to enjoin the foreclosure. Nationstar timely removed on the basis of federal-question jurisdiction, (Docket Entry No. 1), and filed a Rule 12(c) motion for judgment on the pleadings, (Docket Entry No. 3). Fed.R.Civ.P. 12(c). Richter did not respond.

         Based on the petition, the motion to dismiss, the record, and the applicable law, this court grants Nationstar's motion and dismisses this case, with prejudice, because further amendment would be futile. An order of final judgment is separately entered. The reasons are explained below.

         I. Background

         In 2012, Ronald Richter faced difficulties making the mortgage payments on the home his parents had purchased, financed by a $184, 000 loan and a $46, 000 loan. Bank of America, N.A. was the mortgage servicer at that time. Richter offered to purchase the property at a short-sale to lower the mortgage payments, but according to his petition, Bank of America initiated foreclosure proceedings rather than responding to the short-sale offer. Nationstar, which had become the mortgage servicer, denied Richter's short-sale offer and proceeded to foreclose. Richter filed for bankruptcy. Nationstar filed a proof of claim in the bankruptcy and accepted payments from the trustee, reinstating the loan. The bankruptcy was dismissed on April 28, 2016. Following the dismissal, Richter, again in default, tried to get a loan modification from Nationstar, but it initiated foreclosure. This lawsuit followed.

         Richter asserts a variety of claims under statute statutory and common law and under the Federal Real Estate Settlement Procedures Act, 12 C.F.R. § 1024. Each claim is examined under the applicable legal standards.

         II. The Legal Standards

         “A motion brought pursuant to Fed.R.Civ.P. 12(c) is designed to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts.” Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002) (quotation marks and citation omitted). The Rule 12(c) and Rule 12(b)(6) standards are the same. Gentilello v. Rege, 627 F.3d 540, 543-44 (5th Cir. 2010). Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court confirmed that Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To withstand a Rule 12(b)(6) motion, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see also Elsensohn v. St. Tammany Parish Sheriff's Office, 530 F.3d 368, 372 (5th Cir. 2008). The Supreme Court explained that “the pleading standard Rule 8 announces does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 677.

         A court considers only the pleadings in deciding a motion for judgment on the pleadings, see Brittan Commc'ns Int'l Corp. v. Sw. Bell Tel. Co., 313 F.3d 899, 904 (5th Cir. 2002), but “[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to her claim.” See, e.g., Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004); In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007); see also 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 509-10 (3d ed. 2004) (stating that “matters incorporated by reference or integral to the claim [and] items appearing in the record of the case . . . may be considered by the district judge without converting the [Rule 12(b)(6)] motion into one for summary judgment”). Exhibits attached to a complaint are part of the complaint “for all purposes.” Fed.R.Civ.P. 10(c); U.S. ex rel. Riley v. St. Luke's Episcopal Hosp., 355 F.3d 370, 375 (5th Cir. 2004) (“[I]t is not error to consider the exhibits to be part of the complaint for purposes of a Rule 12(b)(6) motion.”). Because the standards for Rule 12(c) and Rule 12(b)(6) are the same, a court may consider the same kinds of documents in a Rule 12(c) motion that it could consider in a Rule 12(b)(6) motion.

         Under Federal Rule of Civil Procedure 9(b), “a party must state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). Rule 9(b) applies to all fraud allegations, including those in which fraud is not an element of the claim. Lone Star Ladies Inv. Club v. Schlotzky's, Inc., 238 F.3d 363, 368 (5th Cir. 2001).

         III. Analysis

         A. The Allegations in the Complaint

         Richter asserts the following causes of action:

• Nationstar engaged in unfair debt collection practices under the Texas Debt Collection Act, Tex. Fin. Code Ann. §§ 392.301-392.304, by filing an inaccurate proof of claim and using “false ...

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