United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
FISH SENIOR UNITED STATES DISTRICT JUDGE.
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.
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).
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.
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.
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).
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.
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.
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 ...