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Banks v. Wells Fargo Bank N.A.

United States District Court, N.D. Texas, Dallas Division

March 23, 2018

PATRICIA BANKS et al, Plaintiffs,
v.
WELLS FARGO BANK N.A., Defendant.

          MEMORANDUM OPINION AND ORDER

          JANE J. BOYLE, UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Wells Fargo Bank N.A.'s (Wells Fargo) motion to dismiss. Doc. 6. For the reasons that follow, the Court GRANTS Defendant's motion.

         I.

         BACKGROUND[1]

         Pro se plaintiff Patricia Banks[2] filed suit in Texas state court seeking injunctive relief to stop the foreclosure sale of her home. Doc. 1-7, Compl., ¶¶ 18-19. Ms. Banks alleged that injunctive relief was proper because Wells Fargo, her mortgage servicer and lender, violated the Real Estate Settlement Procedures Act, the Home Affordable Modification Program[3], the National Housing Act, the Unfunded Mandates Reform Act, the Texas Debt Collection Act, and the Texas Property Code by failing to negotiate a loan modification with her in good faith. Id. ¶¶ 6-12. Wells Fargo removed the case to this Court on the basis of both diversity jurisdiction and federal question jurisdiction. Doc. 1, Notice of Removal, 2. Wells Fargo then filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Doc. 6, Def.'s Mot., 1. Wells Fargo's motion is ripe for review.

         II. LEGAL STANDARD

         Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 12(b)(6) authorizes a court to dismiss a plaintiff's complaint for “failure to state a claim upon which relief can be granted.” In considering a Rule 12(b)(6) motion to dismiss, “[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). The court will “not look beyond the face of the pleadings to determine whether relief should be granted based on the alleged facts.” Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).

         To survive a motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. When well-pleaded facts fail to achieve this plausibility standard, “the complaint has alleged - but it has not shown - that the pleader is entitled to relief.” Id. at 679 (internal quotation marks and alterations omitted).

         A pro se litigant's “pleadings are to be construed liberally.” Sama v. Hannigan, 669 F.3d 585, 599 (5th Cir. 2012). Nonetheless, courts “still require pro se parties to fundamentally ‘abide by the rules that govern the federal courts.'” E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014) (internal citations omitted). Thus, “pro se litigants must properly plead sufficient facts that, when liberally construed, state a plausible claim to relief.” Id. (internal citations omitted).

         III. ANALYSIS

         In its motion, Wells Fargo argues that all of Plaintiff's claims fail as a matter of law. Doc. 6, Def.'s Mot., 2. Ms. Banks responds to Wells Fargo's motion in only one page. Doc. 11, Pl.'s Resp., 1. She explains the reason for her late filing and then states only that Wells Fargo's motion is “completely false.” Id. Wells Fargo argues that because her response fails to address its arguments or the merits of her claims she has abandoned all her claims, which warrants dismissal of her case. Doc. 12, Def.'s Reply, 1-2.

         In support of its abandonment argument, Wells Fargo cites to several cases in which the court found that a plaintiff had abandoned his or her claims by failing to address the claims past the pleading stage. Id. But Wells Fargo's cases are distinguishable from the situation here. In the cases Wells Fargo cites, the court's finding that the plaintiff abandoned his or her claim by failing to pursue it destroyed only one of the plaintiff's claims, not the entire case. See Costello v. U.S. Bank Tr., 689 F. App'x 253, 256 n.8 (5th Cir. 2017)(finding that the plaintiff abandoned only his unjust enrichment claim); Henderson v. Wells Fargo Bank, N.A., 974 F.Supp.2d 993, 1016 (N.D. Tex. 2013) (finding plaintiff abandoned only his False Claims Act claim); Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006)(finding plaintiff abandoned only her retaliatory abandonment claim). Further, despite finding the claim abandoned, the courts nevertheless discussed the merits of the claim. See Id. And, all of the plaintiffs in Wells Fargo's cases had counsel. See Id. Finally, in a substantially similar case, which Wells Fargo cites repeatedly in its motion, the court addressed whether the plaintiff's complaint met the pleading standards despite the fact that the plaintiff failed to respond at all to the defendant's motion to dismiss. See Mahmood v. Bank of Am. N.A., No. 3:11-CV-3054-M-BK, 2012 WL 527902 (N.D. Tex., Jan. 18, 2012)(examining whether the plaintiff stated a claim under RESPA, the NHA, UMRA, the TDCA and Chapter 51 of the Texas Property Code). Therefore, the Court is disinclined to dismiss Ms. Banks's entire case solely because of her perfunctory response. The Court will consider Wells Fargo's arguments regarding each of Plaintiff's claims in turn.

         A.RESPA Claims

         First, Ms. Banks claims that Wells Fargo violated RESPA by failing to respond to her written request “seeking other information from the Defendant relating to the servicing of the Plaintiff's loan” and by failing to “thoroughly and completely conduct an investigation of the other information sought by the Plaintiff relating to the Plaintiff's loan.” Doc. 1-7, Compl., ¶ 8. Ms. Banks states that the “other information” she sought was a loss mitigation review and retention options. Id. ΒΆΒΆ 8, 12. Wells Fargo argues that ...


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