United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
J. BOYLE, UNITED STATES DISTRICT JUDGE
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.
plaintiff Patricia Banks 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, 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
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).
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).
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).
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.
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.
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. ¶¶ 8, 12. Wells Fargo argues that