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Dunn v. Citimortgage, Inc.

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

April 3, 2018

ERIN DUNN, Plaintiff,
v.
CITIMORTGAGE, INC., ITS SUCCESSORS AND/OR ASSIGNS, Defendant.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE, UNITED STATES DISTRICT JUDGE

         Came on for consideration the motion of defendant, Citimortgage, Inc., to dismiss amended complaint. Plaintiff, Erin Dunn, has failed to respond to the motion, which is ripe for ruling.[1] The court, having considered the motion, the record, and applicable authorities, finds that the motion should be granted.

         I.

         Plaintiff's Claims

         Plaintiff originally filed this action in the County Court at Law No. 2 of Tarrant County, Texas. On December 29, 2017, defendant filed its notice of removal, bringing the action before this court. Doc.[2] 1. By order signed January 30, 2018, the court ordered the parties to file amended pleadings in keeping with the requirements of the Federal Rules of Civil Procedure, the Local Civil Rules of this court, and the requirements of the undersigned. Doc. 10.

         On February 12, 2018, plaintiff filed her amended complaint. Doc. 11. In it, she alleges: On or about June 18, 2005, plaintiff entered into a contract for deed with Donald Burton ("Burton") for the purchase of property at 2 04 San Angelo Avenue, Benbrook, Texas (the "property"). Under the terms of the contract, plaintiff made payments directly to defendant. On several occasions, plaintiff was slow in being able to make payments and the property was posted for foreclosure by defendant. Plaintiff dealt directly with defendant in making payments. On March 3, 2014, plaintiff filed for relief under the United States Bankruptcy Code. The next day, defendant foreclosed on the property.

         Plaintiff asserts claims for relief based on promissory estoppel, fraud, unjust enrichment, wrongful foreclosure, and money had and received. Plaintiff seeks a declaratory judgment and damages.

         II.

         Grounds of the Motion

         Defendant urges that each of plaintiff's claims fails as a matter of law. Defendant says that plaintiff has not pleaded, and cannot plead, sufficient facts to state any plausible claim against it. Therefore, defendant seeks dismissal of plaintiff's claims with prejudice.

         III.

         Pertinent Lecral Principles

         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. Twombly, 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. Igbal, 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 ...


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