United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS SENIOR UNITEJ3 STATES DISTRICT JUDGE
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.
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
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
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.
STANDARD FOR JUDGMENT ON THE PLEADINGS
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).
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).
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).
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.