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 defendants Wells Fargo Bank,
National Association (“Wells Fargo”) and U.S.
Bank National Association (“U.S. Bank”) to
dismiss the claims of the plaintiffs Karen and Wendell Reese
(“Reeses”) (docket entry 4). For the reasons set
forth below, the motion is granted.
On August 4, 2005, [*] the Reeses executed a Texas
Home Equity Adjustable Rate Note (“note”) for
$225, 500 payable to Wells Fargo for a loan secured by a lien
on the property. Motion at 1. Subsequently, Wells Fargo
assigned the note and security instrument to U.S. Bank.
Original Petition at 3. According to loan closing documents,
on August 4, 2005, the date of the extension of credit, the
fair market value of the property was $282, 000. Id.
at 4. On January 1, 2005, a tax lien attached to the
property. Id. In 2005, the taxes on the property
amounted to $1, 183.54. Id.
total, the Reeses paid $124, 340.77 to Wells Fargo and $14,
828.32 to U.S. Bank on the note. Id. at 3. After
their last payment in September 2012, $511, 577.04 remained
on the Reeses' note. Id.
21, 2017, the Reeses filed this suit against Wells Fargo and
U.S. Bank in the 192nd Judicial District Court of Dallas
County seeking a declaratory judgment, monetary relief, and
to quiet title. Original Petition at 5-6. The Reeses alleged
that Wells Fargo and U.S. Bank violated the Texas
Constitution because the principal on the note plus the tax
liens on the property exceeded 80% of the fair market value
of the property on the date of the extension of credit.
Id. at 5. Wells Fargo and U.S. Bank filed an answer
generally denying the Reeses' claims and asserting
various affirmative defenses. Defendants' Original Answer
at 1-3 (docket entry 1, exhibit 5). On August 16, 2017, Wells
Fargo and U.S. Bank removed the case to this court. Notice of
Removal ¶ 9 (docket entry 1). On August 17, 2017, Wells
Fargo and U.S. Bank filed the instant motion to dismiss.
Motion. The Reeses filed a response on August 31, 2017.
Response to Motion to Dismiss (“Response”)
(docket entry 7). Shortly thereafter, on September 8, 2017,
Wells Fargo and U.S. Bank filed a reply. Reply in Support of
Motion to Dismiss (docket entry 8). On September 19, 2017,
the court granted the Reeses' motion for leave to file a
surreply, and on September 19, 2017, the Reeses filed a
surreply. Plaintiffs' Unopposed Motion and Brief for
Leave to File Surreply to Motion to dismiss (docket entry
11); Order (docket entry 12); Plaintiffs' Surreply to
Motion to Dismiss (docket entry 13). The motion to dismiss is
now 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, [the plaintiffs'] obligation to provide the
grounds of [their] 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 (citations, quotation
marks, and brackets 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
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 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[s]
[are] 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 defendants
“across the line from conceivable to plausible.”
See id. at 679, 683.
may review the contents of the pleadings and attachments in
considering a motion to dismiss for failure to state a claim.
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,
498 (5th Cir. 2000). Additionally, a court may consider
documents attached by the defendants to their motion to
dismiss if the document is referred to in the plaintiffs'
complaint and it is central to the claim. Id. at
498-99. Here, the Reeses referenced the sworn affidavit
attached by Wells Fargo and U.S. Bank in their pleadings.
Original Petition at 2-3; see generally Motion,
exhibit C. Also, the affidavit is central to the Reeses'
claim that the terms of the loan are unconstitutional.
Therefore, the court will consider the affidavit in
determining whether to grant the defendants' motion.