United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION TO DISMISS
R. Martinez, Judge
day, the Court considered Defendant Wells Fargo Bank LLC
d/b/a Champion Mortgage Company's [hereinafter
"Defendant"] unopposed "Motion to Dismiss and
Brief in Support Thereof (ECF No. 26) [hereinafter
"Motion"], filed on April 16, 2018, in the
above-captioned cause. After due consideration, the Court
concludes that Defendant's Motion should be granted for
the reasons that follow.
case arises from the foreclosure of the real property located
at 1308 Fewell Street, El Paso, Texas 79902 [hereinafter
"Property"]. On or about October 19, 2009,
Plaintiff Ernesto Padilla's [hereinafter
"Plaintiff'] mother, Gloria Padilla, executed a
Closed-End Fixed Rate Note on the Property [hereinafter
"Note"]. Mot. to Dismiss 1. Concurrently, Gloria
Padilla also secured a Closed-End Fixed Rate Home Equity
Conversion Deed of Trust [hereinafter "Deed of
Trust"]. Id. In securing the Note and Deed of
Trust, Gloria Padilla placed a reverse mortgage on the
Property for $113, 000 through Wells Fargo. Pl.'s
Original Compl. 1 [hereinafter "Amended
Complaint"], April 10, 2018, ECF No. 23. At "some
point, " the reverse mortgage was transferred from Wells
Fargo to Nationstar Mortgage LLC d/b/a/ Champion Mortgage
Company. Id. at 2.
Padilla passed away intestate on October 12, 2013.
Id. at 1. According to Plaintiff, Gloria
Padilla's legal heirs at the time of her death were
Plaintiff, Gloria Ytturalde, and Artuor
Padilla. Id. On May 29, 2015, Gloria
Ytturalde and Artuor Padilla then purportedly deeded their
interest in the Property to Plaintiff. Id. at
the death of Gloria Padilla, Wells Fargo had the Property
appraised by a licensed appraiser as required by law.
Id. The Property was appraised for approximately
$135, 000, and Plaintiff allegedly offered to buy the
Property for ninety-five percent of the appraised value.
Id. However, Plaintiff avers that Wells Fargo,
"through various bureaucratic issues, failed to
consummate the sale [of the Property to Plaintiff] and then
attempted to foreclose." Id.
October 30, 2017, Defendant sent a "Notice of
Acceleration and Notice of Trustee Sale" addressed to
Gloria Padilla at the Property. Id. Plaintiff
alleges that Defendant did not notify Gloria Padilla's
legal heirs, including Plaintiff, of the impending
foreclosure as required by law. Accordingly, Plaintiff filed
his Original Petition in state court. Id. Defendant
then removed the case on January 16, 2018, based upon
the Court's third occasion to consider Plaintiffs claims
in relation to the foreclosure of the Property. Plaintiff filed
his first case in state court on April 8, 2015, and brought
suit against Defendant Wells Fargo requesting accounting,
declaratory relief, and a temporary restraining order.
Padilla v. Wells Fargo Bank, N.A, EP:15-CV-00114
(W.D. Tex. 2015) (notice of removal). The case was removed to
the Court one week later. Id. However, on June 10,
2015, Plaintiff voluntarily dismissed the case before the
Court made any determinations on the merits. Id.
December 2, 2016, Plaintiff then filed a new Petition
alleging virtually identical claims. Padilla v. Wells
Fargo Bank, JV.A, EP:17-CV-00037 (W.D. Tex. 2017)
(notice of removal). Defendant Wells Fargo Bank again removed
the case to the Court on February 8, 2017, and subsequently
filed an unopposed Motion to Dismiss. Id.
Specifically, Defendant alleged that Plaintiffs claims failed
as a matter of law. Id. The Court granted
Defendant's Motion to Dismiss on June 28, 2017, finding,
in relevant part, that Plaintiff lacked standing to bring the
suit and failed to allege facts that demonstrate that a
judicially remediable controversy exists between Plaintiff
and Defendant Wells Fargo Bank. Id. Thus, the Court
dismissed Plaintiffs claims without prejudice.
December 1, 2017, Plaintiff then filed his third suit
regarding foreclosure of the Property which is presently
before the Court. In this case, Plaintiff filed his Original
Petition in state court raising a breach of contract claim
and seeking a Temporary Restraining Order preventing the
Property's foreclosure. Notice of Removal Ex. 3, Jan. 16,
2018, ECF No. 1. Defendant then removed the case on January
16, 2018. Id. Thereafter, Plaintiff filed his
Amended Complaint which raised only two claims against
Defendant-the first regarding Defendant's alleged breach
of contract and the second regarding Defendant's alleged
breach of the Housing and Urban Development ("HUD")
regulations. Am. Compl. 2-3. Defendant then filed its Motion
to Dismiss on April 16, 2018, contending that, like
Plaintiffs previous claims, these claims fail as a matter of
law. The Court now considers whether Plaintiffs claim should
again be dismissed.
to Federal Rule of Civil Procedure 12(b)(6), a court may
dismiss an action for "failure to state a claim upon
which relief can be granted." In determining whether a
plaintiff states a valid claim, a court "accept[s] all
well-pleaded facts as true and view[s] those facts in the
light most favorable to the plaintiffs." Gonzalez v.
Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting
Dorsey v. Portfolio Equities, Inc., 540 F.3d 333,
338 (5th Cir. 2008)) (internal quotation marks omitted).
considering a motion pursuant to Rule 12(b)(6), a district
court's review "is limited to the complaint, any
documents attached to the complaint, and any documents
attached to the motion to dismiss that are central to the
claim and referenced by the complaint." Lone Star
Fund V(U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383,
387 (5th Cir. ...