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Adams v. Wells Fargo Bank, N.A.

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

November 8, 2017

GEORGE ADAMS, Plaintiff,
v.
WELLS FARGO BANK, N.A., Defendant.

          MEMORANDUM AND ORDER

          NANCY F. ATLAS SENIOR UNITEJ3 STATES DISTRICT JUDGE

         Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) filed a Motion for Judgment on the Pleadings [Doc. # 23] on October 3, 2017. After Plaintiff failed to respond to the Motion, the Court ordered Plaintiff to file any opposition by November 2, 2017, and cautioned Plaintiff that failure to respond would result in Defendant's Motion being granted as unopposed. Plaintiff neither responded to the Motion as ordered by the Court nor requested additional time to do so. Having reviewed the full record and the applicable legal authorities, and considering Plaintiff's failure to file any opposition, the Court grants the Motion.

         I. BACKGROUND

         On October 15, 2008, Plaintiff George Adams and his wife obtained a mortgage loan secured by a Deed of Trust on real property in Fort Bend County, Texas. See Deed of Trust, Exh. A to Motion. On July 15, 2011, the Deed of Trust was assigned to Wells Fargo. See Assignment, Exh. B to Motion.

         Plaintiff admits that he failed to make the required payments on the Loan. After the loan went into default, a Substitute Trustee was appointed. See Appointment of Substitute Trustee dated December 13, 2016, Exh. C to Motion. Notice of acceleration of the loan and of a trustee's sale scheduled for January 3, 2017, were provided to Plaintiff and filed in the public record. See Notice of Acceleration and Notice of Trustee's Sale, Exh. D to Motion. The foreclosure sale was completed on January 3, 2017. Wells Fargo purchased the property at foreclosure for $176, 505.00, approximately 73.7% of the property's fair market value.[1]

         Plaintiff filed this lawsuit in Texas state court on January 3, 2017, and Defendant filed a timely Notice of Removal to federal court. On September 19, 2017, Plaintiff filed his First Amended Petition asserting two causes of action - a claim for declaratory judgment and an alleged violation of the federal Truth-in-Lending Act (“TILA”), 15 U.S.C. § 1641(g). Defendant filed the pending Motion for Judgment on the Pleadings, which is now ripe for decision.

         II. STANDARD FOR JUDGMENT ON THE PLEADINGS

         Under Federal Rule of Civil Procedure 12(c), any party may move for judgment on the pleadings “[a]fter the pleadings are closed - but early enough not to delay trial.” Fed.R.Civ.P. 12(c). A Rule 12(c) motion “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.” Hebert Abstract Co., Inc. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990); United States v. Renda Marine, Inc., 750 F.Supp.2d 755, 763 (E.D. Tex. 2010), aff'd, 667 F.3d 651 (5th Cir. 2012). Motions for judgment on the pleadings are governed by the same legal standard as motions to dismiss under Rule 12(b)(6). See Ackerson v. Bean Dredging LLC, 589 F.3d 196, 209 (5th Cir. 2009).

         A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is viewed with disfavor and is rarely granted. Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (citing Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true. Harrington, 563 F.3d at 147. The complaint must, however, contain sufficient factual allegations, as opposed to legal conclusions, to state a claim for relief that is “plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Patrick v. Wal-Mart, Inc., 681 F.3d 614, 617 (5th Cir. 2012). When there are well-pleaded factual allegations, a court should presume they are true, even if doubtful, and then determine whether they plausibly give rise to an entitlement to relief. Iqbal, 556 U.S. at 679. Regardless of how well-pleaded the factual allegations may be, they must demonstrate that the plaintiff is entitled to relief under a valid legal theory. See Neitzke v. Williams, 490 U.S. 319, 327 (1989); McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997).

         III. ANALYSIS

         A. TILA Claim

         Plaintiff alleges that Defendant violated § 1641(g) of the TILA. That section provides that “not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer.” 15 U.S.C. § 1641(g). Plaintiff's TILA claim is time-barred. “The general statute of limitations for damages claims under the TILA is one year after the violation.” Williams v. Countrywide Home Loans, Inc., 504 F.Supp.2d 176, 186 (S.D. Tex. 2007), aff'd, 269 F. App'x 523 (5th Cir. 2008); Brewer v. Bank of Am., N.A., 627 F. App'x 358, 358-59 (5th Cir. Dec. 18, 2015); Johnson v. HomeBridge Fin. Servs., Inc., 2017 WL 1403300, *3 (S.D. Tex. Apr. 18, 2017) (citing Williams). Because § 1641(g) allows a creditor thirty days in which to provide notice to the borrower of a transfer or assignment, the statute of limitations begins to run when those thirty days have expired. See Benitez v. Am.'s Wholesale Lender, 2014 WL 3388650, *2 (S.D. Tex. July 9, 2014). Failure to provide timely disclosure is not a continuing violation. See Moor v. Travelers Ins. Co., 784 F.2d 632, 633 (5th Cir. 1986).

         The Deed of Trust was assigned to Wells Fargo on July 15, 2011, and the thirty-day period for notice expired on August 14, 2011. This suit was not filed until January 3, 2017, well beyond the one-year statute of limitations. As a result, Plaintiff's TILA claims are time-barred.

         B. Declaratory ...


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