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Kennedy v. JPmorgan Chase Bank N.A.

United States District Court, N.D. Texas, Dallas Division

November 3, 2017

BENNY KENNEDY, ET AL., Plaintiffs,



         Before the court is the motion of the defendant JPMorgan Chase Bank, National Association (“Chase”) to dismiss the claims of the plaintiffs Benny Kennedy, Sharon Kennedy, and Marci Clark (docket entry 5). For the reasons stated below, the motion is granted.

         I. BACKGROUND

         The defendant, Chase, is a national banking association with its main office located in Columbus, Ohio. Defendant's Notice of Removal (“Notice”) ¶ 11 (docket entry 1). The plaintiffs are individuals residing in Hunt County, Texas. Plaintiff's [sic] Original Petition with Application for Temporary Restraining Order and Permanent Injunction (“Original Petition”) ¶ 2 (docket entry 1, exhibit A-2).

         On May 31, 2017, the plaintiffs commenced this suit in the 354th Judicial District Court of Hunt County, Texas. Notice ¶ 1. In their Original Petition, the plaintiffs assert two causes of action. In count one, the plaintiffs assert a breach of contract claim in light of the defendant's alleged violation of the terms of the parties' mortgage note. See Original Petition ¶ 22. Specifically, the plaintiffs allege that that the “[d]efendant breached [the] agreement by failing to review [the plaintiffs'] application for modification under the qualifying terms of the mortgage.” Id. In count two, the plaintiffs assert a claim under the Real Estate Settlement Procedures Act (“RESPA”) because, according to the plaintiffs, the defendant did not review their application for loss modification and failed to provide a good faith estimate of the settlement of the parties' mortgage note. Id. ¶ 25.

         On August 25, 2017, the defendant, asserting both a federal question and diversity of citizenship as bases for subject matter jurisdiction, removed the case to federal court. Notice ¶¶ 5-11. On September 1, 2017, the defendant filed its motion to dismiss. Defendant JPMorgan Chase Bank N.A.'s Motion to Dismiss (“Chase's Motion”); Defendant's Brief in Support of its Motion to Dismiss (“Chase's Brief”) (docket entry 6). Under rule 7.1(e) of the court's local rules, “[a] response and brief to an opposed motion must be filed within 21 days from the date the motion is filed.” To date, the plaintiffs have not filed a response to the defendant's motion to dismiss. Because the plaintiffs' 21-day time limit for filing a response has expired, the defendant's motion is ripe for decision.

         II. ANALYSIS

         A. Legal Standard

         1. Rule 12(b)(6)

         “To survive a Rule 12(b)(6) motion to dismiss, the plaintiff[s] must plead ‘enough facts to state a claim to relief that is plausible on its face.'” In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570 (2007)), cert. denied, 552 U.S. 1182 (2008). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal quotation marks, brackets, and citation omitted). “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).” In re Katrina Canal, 495 F.3d at 205 (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). “The court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff[s].” Id. (quoting Martin K. Eby Construction Company, Inc. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)) (internal quotation marks omitted).

         The Supreme Court has prescribed a “two-pronged approach” to determine whether a complaint fails to state a claim under Rule 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The court must “begin by identifying the pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. The court should then assume the veracity of any well-pleaded allegations and “determine whether they plausibly give rise to an entitlement of relief.” Id. The plausibility principle does not convert the Rule 8(a)(2) notice pleading standard to a “probability requirement, ” but “a sheer possibility that a defendant has acted unlawfully” will not defeat a motion to dismiss. Id. at 678. The plaintiffs must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not ‘show[n]' -- ‘that the pleader is entitled to relief.'” Id. at 679 (alteration in original) (quoting Fed.R.Civ.P. 8(a)(2)). The court, drawing on its judicial experience and common sense, must undertake the “context-specific task” of determining whether the plaintiffs' allegations “nudge” their claims against the defendant “across the line from conceivable to plausible.” See id. at 679, 683.

         B. Application

         In pursuit of a wide variety of relief, including a temporary restraining order, a permanent injunction, and damages, the plaintiffs have asserted two claims against the defendant. See Original Petition at 6. In count one, the plaintiffs have asserted a claim against the defendant for breach of contract. Id. ¶¶ 21-23. In count two, the plaintiffs have asserted a claim against the defendant under RESPA, 12 U.S.C. § 2604(c). Id. ¶¶ 24-26.

         As to count one, the defendant argues that the court should dismiss the claim because the plaintiffs have failed to provide or identify any specific contractual provision the defendant allegedly violated. See Defendant's Brief at 3. As to count two, the defendant contends that the court should dismiss the claim because not only does § 2604 not apply to the parties' dealings, but § 2604 simply does not provide a private cause of action. Id. at 4-5. Chase also argues that the plaintiffs' request for temporary and permanent injunctive relief should be denied because ...

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