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Payrovi v. Wells Fargo Bank, NA

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

October 31, 2017

PARHAM PAYROVI, Plaintiff,
v.
WELLS FARGO BANK, NA, Defendant.

          OPINION AND ORDER

          MELINDA HARMON UNITED STATES DISTRICT JUDGE

         Pending before the Court in the above-referenced cause is Defendant Wells Fargo Bank, N.A.'s ("Wells Fargo") Motions to Dismiss ("Motion"). Doc. 6. Plaintiff, Parham Payrovi ("Payrovi"), has not filed a response to Defendant's Motions. Thus, under Local Rule 7.4, the Motion is deemed unopposed.[1] Having considered Defendant's Motion, the facts in the record, and the applicable law, the Court concludes that the Motion should be granted and Plaintiffs case be dismissed with respect to all claims.

         I. Background

         As alleged in his Original Petition, filed on July 31, 2017, in the 55th Judicial District Court in Harris County, Texas, Payrovi filed this lawsuit seeking declaratory and injunctive relief for the attempted foreclosure of real property located at 6851 Drewlaine Fields Lane, Katy, Texas 77449 (the "Property"). Doc. 1-5 at 2-4. Payrovi purchased the Property on or about May 19, 2000 and gave Wells Fargo a promissory note and deed of trust on January 7, 2003. Docs. 1-5 at 3 ¶ 5; 1-6 at 3 ¶ 7, 9 ¶ 4. Payrovi paid Wells Fargo monthly, until November of 2015, when he fell behind. Doc. 1-6 at 9 ¶ 5. As a result, Wells Fargo posted a "Notice of Substitute Trustee Sale" for August 1, 2017 at 10:00 a.m. Doc. 1-5 at 3 ¶ 6. Payrovi asserts that he "NEVER RECEIVED NOTICE" of the sale. Doc. 1-5 at 3 ¶ 6.

         After filing suit, Payrovi sought and received a temporary restraining order ("TRO") against the foreclosure sale. Doc. 1-7. In an affidavit attached to the TRO, Payrovi contradicted his earlier statement indicating that he had not received notice: "I was given notice of the Bank's intention to foreclose on my home." Doc. 1-6 at 9 ¶ 4.

         On August 14, 2017, Wells Fargo removed the state-court action to federal court on the basis of diversity jurisdiction. Doc. 1 ¶ 6. According to his petition, Payrovi "resides in Harris County, Texas." Doc. 1-5 at 2 ¶ 1. Wells Fargo's main office is located in South Dakota, and is therefore a citizen of South Dakota for diversity purposes. Doc. 1 ¶ 11; 28 U.S.C. § 1348; Wachovia Bank, N.A. v. Schmidt, 546 U.S. 303, 307, 318 (2006). The parties agree that the amount in controversy is greater than $75, 000. Docs. 1 ¶ 12-15, 1-5 at 3 ¶ 5. Accordingly, under 28 U.S.C. §§ 1332, 1441, and 1446, the Court has jurisdiction.

         Defendant subsequently filed its Motion to Dismiss, alleging Payrovi "fails to state a claim upon which relief can be granted." Doc. 6 at 1. Plaintiff did not file a response. The Motion is now ripe for adjudication.

         II. Legal Standard

         To survive a Rule 12(b)(6) motion to dismiss, a complaint, viewed in the light most favorable to the plaintiff, must be "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal quotation marks omitted). "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." Id. While a court must accept all of plaintiff s allegations as true, it is not bound to accept as true "a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555 (quoting Papasan v. Attain, 478 U.S. 265, 286 (1986)).

         III. Discussion

         In his Original Petition, Payrovi asserts a wrongful-foreclosure claim against Wells Fargo in violation of "Rule 736" and seeks a declaration and injunction. Tex.R.Civ.P. 736 (expedited foreclosure proceedings). Payrovi seeks a declaration that "notices of default, acceleration, and application must be given to [him] before any foreclosure" sale. Doc. 1-5 at 4 ¶ 9. Payrovi also seeks permanent injunctive relief precluding foreclosure on the Property. See Doc. 1-6 at 7 ¶ E.

         A. Wrongful-Foreclosure Claim

         Under Texas law, to state a claim for wrongful foreclosure a plaintiff must show (1) a defect in the foreclosure sale proceedings; (2) a grossly inadequate selling price; and (3) a causal connection between the defect and the grossly inadequate selling price. Sauceda v. GMAC Mortg. Corp., 268 S.W.3d 135, 139 (Tex. App-Corpus Christi 2008, no pet.) (citing Charter Nat. Bank-Houston v. Stevens, 781 S.W.2d 368, 371 (Tex. App-Houston [14th Dist] 1989, writ denied)). Because wrongful foreclosure "is premised upon one's lack of possession of real property, individuals never losing possession of the property cannot recover on a theory of wrongful foreclosure." Baker v. Countrywide Home Loans, Inc., No. 3:08-CV-0916-B, 2009 WL 1810336, *4 (N.D. Tex. June 24, 2009). Thus, courts in Texas "do not recognize an action for attempted wrongful foreclosure." Id. See also, e.g., Reynoso v. Wells Fargo Bank, N.A., No. 4:16-CV-01059, 2017 WL 4270718, at *5 (S.D. Tex. Sept. 26, 2017) (wherein this Court adopted the reasoning of its sister courts).

         Here, Payrovi asserts three "reasons" in support of his wrongful-foreclosure claim, but does not indicate that he lost possession of the property: (1) "[p]roper notice was not given" for the intended foreclosure sale; (2) the "[p]ayoff amount" Wells Fargo provided to Payrovi was "insufficient of details of total fees, charges and past due amounts" to give Payrovi "the opportunity to cure"; and because (3) the Property is "unique in its value to [Payrovi] as his equitable investment, " foreclosure would "unfairly and unreasonably deprive [Payrovi] of the opportunity to cure any default and to retain the property." Doc. 1-5 ¶ 7. The state court granted Payrovi's TRO, preventing the initial foreclosure sale. Doc. 1-7. The record does not show that Wells Fargo completed a later foreclosure sale. Thus, the Court finds that Payrovi never lost possession of the Property. Accordingly, the Court concludes ...


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