United States District Court, S.D. Texas, Houston Division
OPINION AND ORDER
MELINDA HARMON UNITED STATES DISTRICT JUDGE
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. 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
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.
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 ¶
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.
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.
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)).
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.
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
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 ...