United States District Court, N.D. Texas, Fort Worth Division
JOHN M. MEEKS, Plaintiff,
WELLS FARGO BANK, N.A., Defendant.
MEMORANDUM OPINION AND ORDER
McBRYDE United States District Judge
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.
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.
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.
says that defendant has violated 12 C.F.R. § 1024.41. He
seeks to recover actual and statutory damages.
Grounds of the Motion
urges that plaintiff has not stated a plausible claim because
he has not alleged that this was his first loss mitigation
application; 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.
Applicable Pleading Standards
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
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
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) .
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 ...