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Nichols v. Wells Fargo Bank N.A.

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

April 6, 2018

CHARLIE ROSE NICHOLS F/K/A SHERI LYNN SMITH Plaintiff,
v.
WELLS FARGO BANK, N.A. Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE

         By Special Order No. 3-251, this foreclosure case been automatically referred for full case management. Before the Court for recommendation is Defendant's Motion to Dismiss, filed September 21, 2017 (doc. 8). Based upon the relevant filings and applicable law, the motion should be GRANTED.

         I. BACKGROUND

         This case involves the attempted foreclosure of real property located at 7605 Coral Way, Rowlett, Texas 75088 (the Property). (See doc. 1-5 at 3.)[1] On July 27, 2017, Charlie Rose Nichols f/k/a Sheri Lynn Smith (Plaintiff) filed this lawsuit alleging breach of contract, common law fraud, and breach of the duty to deal in good faith against Wells Fargo Bank, N.A. (Defendant) in the 160th District Court of Dallas County, Texas (See doc. 1 at 1.) On August 9, 2017, Defendant removed this action to federal court on the basis of diversity jurisdiction under 28 U.S.C. § 1332. (doc. 1.)

         Plaintiff's original petition alleges that she executed a deed of trust (Deed of Trust) in favor of Washington Mutual Bank FA on November 20, 2002, which was secured by the Property. (doc.1-5 at 3.) Defendant is the successor in interest to the original mortgagee and the current holder of the note (Note) secured by the Property. (Id.) After Plaintiff began having financial difficulties, she entered into loan modification negotiations with Defendant. (Id.) Defendant's representatives allegedly told her they would not take any action to foreclose on the Property, but then scheduled a foreclosure sale for September 6, 2016. (Id. at 3-4.) She claims that her efforts to modify the loan were refused because of Defendant's “insistence” that there is a title issue with the Property arising from her divorce, despite the fact that she recorded the deed of trust to secure assumption and the special warranty deed with the “Real Property Records of Dallas County, Texas.” (Id. at 4.) Plaintiff seeks actual and exemplary damages, attorney's fees, court costs, and a permanent injunction preventing Defendant from foreclosing on the Property. (Id. at 4, 6-8.)

         On September 21, 2017, Defendant moved to dismiss the action for failure to state a claim. (doc. 8.) Plaintiff did not respond.

         II. RULE 12(b)(6)

         Defendant moves to dismiss Plaintiff's breach of contract claim under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted (doc. 8.)

         Rule 12(b)(6) allows motions to dismiss for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Under the 12(b)(6) standard, a court cannot look beyond the face of the pleadings. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); see also Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229, 120 S.Ct. 2659, 147 L.Ed. 274 (2000). Pleadings must show specific, well-pleaded facts, not mere conclusory allegations to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). The court must accept those well-pleaded facts as true and view them in the light most favorable to the plaintiff. Baker, 75 F.3d at 196. “[A] well-pleaded complaint may proceed even if its strikes a savvy judge that actual proof of [the alleged] facts is improbable, and ‘that a recover is very remote and unlikely.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citation omitted). Nevertheless, a plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555; accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasizing that “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions”). The alleged facts must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In short, a complaint fails to state a claim upon which relief may be granted when it fails to plead “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probably requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts are “merely consistent with” a defendant's liability, its “stops short of the line between possibility and plausibility of ‘entitlement to relief.'”

Iqbal, 556 U.S. at 678 (citations omitted). When plaintiffs “have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Twombly, 550 U.S. at 570; accord Iqbal, 556 U.S. at 678.

         A. Breach of Contract

         Defendant first moves to dismiss Plaintiff's claim for breach of contract based on her prior material breach and her failure to identify the contract and the specific provisions that it allegedly breached. (doc. 8 at 1.)

         The essential elements of a breach of contract claim in Texas are: “(1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach.” Mullins v. TestAmerica, Inc., 564 F.3d 386, 418 (5th Cir. ...


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