United States District Court, S.D. Texas, Houston Division
RONALD E. RICHTER AND THE ESTATE OF MARY T. RICHTER, Plaintiffs,
NATIONSTAR MORTGAGE, LLC, Defendant.
MEMORANDUM AND OPINION
Rosenthal, Chief United States District Judge.
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.
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.
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.
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.
The Legal Standards
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,
Iqbal, 556 U.S. at 677.
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)
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.
The Allegations in the Complaint
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 ...