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Meeks v. Wells Fargo Bank, N.A.

United States District Court, N.D. Texas, Fort Worth Division

January 18, 2018

JOHN M. MEEKS, Plaintiff,
v.
WELLS FARGO BANK, N.A., Defendant.

          MEMORANDUM OPINION AND ORDER

          JOHN McBRYDE United States District Judge

         Came on for consideration the motion of defendant, Wells Fargo Bank, N.A., to dismiss. The court, having considered the motion, the response of plaintiff, John M. Meeks, the reply, the record, and applicable authorities, finds that the motion should be granted.

         I. Plaintiff's Claims

         The operative pleading is plaintiff's first amended complaint filed October 20, 2017. The amended complaint was filed in response to the court's order of October 10, 2017, requiring plaintiff to meet the pleading requirements of the Federal Rules of Civil Procedure, the case having originally been filed in state court.

         Plaintiff alleges: He signed a promissory note in the amount of $142, 3 73.00 secured by a deed of trust. He was unable to work and requested loss mitigation assistance from defendant. He submitted a complete loss mitigation package to defendant but never received any written communication from defendant regarding approval or denial of loan modification.

         Plaintiff says that defendant has violated 12 C.F.R. § 1024.41. He seeks to recover actual and statutory damages.

         II. Grounds of the Motion

         Defendant urges that plaintiff has not stated a plausible claim because he has not alleged that this was his first loss mitigation application[1]; nor has he alleged actual damages. In addition, defendant says that plaintiff's claims based on alleged oral instructions not to pay his mortgage are barred by the statute of frauds.

         III. Applicable Pleading Standards

         Rule 8(a)(2} of the Federal Rules of Civil Procedure provides, in a general way, the applicable standard of pleading. It requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), "in order to give the defendant fair notice of what the claim is and the grounds upon which it rests, " Bell Atl. Corp. v. Twomblv, 550 U.S. 544, 555 (2007) (internal quotation marks and ellipsis omitted). Although a complaint need not contain detailed factual allegations, the "showing" contemplated by Rule 8 requires the plaintiff to do more than simply allege legal conclusions or recite the elements of a cause of action. Twombly, 550 U.S. at 555 & n.3. Thus, while a court must accept all of the factual allegations in the complaint as true, it need not credit bare legal conclusions that are unsupported by any factual underpinnings. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.").

         Moreover, to survive a motion to dismiss for failure to state a claim, the facts pleaded must allow the court to infer that the plaintiff's right to relief is plausible. Iqbal, 556 U.S. at 678. To allege a plausible right to relief, the facts pleaded must suggest liability; allegations that are merely consistent with unlawful conduct are insufficient. Id. In other words, where the facts pleaded do no more than permit the court to infer the possibility of misconduct, the complaint has not shown that the pleader is entitled to relief. Id. at 679. "Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

         As the Fifth Circuit has explained: "Where the complaint is devoid of facts that would put the defendant on notice as to what conduct supports the claims, the complaint fails to satisfy the requirement of notice pleading." Anderson v. U.S. Dep't of Housing & Urban Dev., 554 F.3d 525, 528 (5th Cir. 2008). In sum, "a complaint must do more than name laws that may have been violated by the defendant; it must also allege facts regarding what conduct violated those laws. In other words, a complaint must put the defendant on notice as to what conduct is being called for defense in a court of law." Id. at 528-29. Further, the complaint must specify the acts of the defendants individually, not collectively, to meet the pleading standards of Rule 8(a). See Griggs v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir. 1999); see also Searcy v. Knight (In re Am. Int'1 Refinery), 402 B.R. 728, 738 (Bankr. W.D. La. 2008) .

         In considering a motion to dismiss for failure to state a claim, the court may consider documents attached to the motion if they are referred to in the plaintiff's complaint and are central to the plaintiff's claims. Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003) . The court may also refer to matters of public record. Davis v. Bayless, 70 F.3d 367, 372 n.3 (5th Cir.1995); Cinei v. Connick. 15 F.3d 1338, 1343 n.6 (5th Cir. 1994). This includes taking notice of pending judicial proceedings. Patterson v, Mobil Oil Corp., 335 F.3d 476, 481 n.l (5th Cir. 2003). And, it includes taking ...


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