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Bottoms v. Wells Fargo Bank, N.A.

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

May 18, 2018

JOE BOTTOMS, Plaintiff,
WELLS FARGO BANK, N.A., Defendant.



         Before the Court is Defendant Wells Fargo Bank, N.A.'s Motion to Dismiss [ECF No. 20]. For the reasons stated, the United States magistrate judge recommends that the Court GRANT the Motion.


         This removed civil action arises out of foreclosure proceedings initiated against real property located in Barry, Texas (the “Property”). See Original Pet. 1 [ECF No. 1-5]. In the Original Petition filed in the 13th Judicial District Court, Navarro County, Texas, Plaintiff Joe Bottoms states that he and his wife acquired the Property in May of 2003, and that he generally made timely payments on the mortgage for the Property. Original Pet. 1. Plaintiff avers that he made one late mortgage payment in 2007, but that he caught up on his payments and did not have any issues with his mortgage loan until the summer of 2015, when Defendant returned his payment which caused his subsequent payments to be late. See Original Pet. 1. Plaintiff further avers that Defendant foreclosed on the Property on January 5, 2016, and Defendant now seeks to evict him from the Property. See Original Pet. 1-2.

         Plaintiff alleges that the foreclosure was improper because Defendant failed to provide him with a notice of default and acceleration, and that he was not notified of the foreclosure sale. See Original Pet. 1-2. Plaintiff also contends that the notice of foreclosure was defective, because the original mortgagee was improperly referenced on the Substitute Trustee's Deed as Mortgage Electronic Registration Systems (“MERS”). Original Pet. 2. Plaintiff further alleges that the trustee who sold the Property was not the same trustee listed in the Deed of Trust, and that there was no Notice of Substitute Trustee that properly substituted the trustee from David W. Mann to Sharon St. Pierre. See Original Pet. 2. Based on these allegations, Plaintiff asserts claims against Defendant for (1) unreasonable collection practices; (2) breach of the duty of good faith and fair dealing; and (3) wrongful foreclosure. See Original Pet. 3.

         Defendant filed a Motion to Dismiss [ECF No. 9] on December 16, 2016, which was denied without prejudice in response to Plaintiff's request that he be given an opportunity to amend his pleadings. See Pl.'s Resp. 4 [ECF No. 11]. The Court ordered Plaintiff to file an amended complaint by September 15, 2017. See Order 2 [ECF No. 18]. When Plaintiff failed to file his amended complaint as ordered by the Court, the Court directed Defendant to re-file its Motion to Dismiss. See Electronic Order [ECF No. 19]. Defendant re-filed its Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6), on September 28, 2017. Plaintiff never filed a response to the Motion. The Court therefore considers Defendant's Motion to Dismiss without the benefit of a response.


         In order to survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “To be plausible, the complaint's ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.'” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010) (quoting Twombly, 550 U.S. 555). “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.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged- but it has not ‘show [n]'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         The Court must “accept all well-pleaded facts as true and construe the complaint in the light most favorable to the plaintiff.” Great Lakes Dredge & Dock Co., 624 F.3d at 210 (citing Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008); Hughes v. Tobacco Institute, Inc., 278 F.3d 417, 420 (5th Cir. 2001)). However, the Court does not accept as true “conclusory allegations, unwarranted factual inferences, or legal conclusions.” Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007) (quoting Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005)). In addition, “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. 555. “While legal conclusions can provide the complaint's framework, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679.

         “On a Rule 12(b)(6) review, although generally the court may not look beyond the pleadings, the Court may examine the complaint, documents attached to the complaint, and documents attached to the motion to dismiss to which the complaint refers and which are central to the plaintiff's claim(s), as well as matters of public record.” Herrera v. Wells Fargo Bank, N.A., 2013 WL 961511, at *2 (S.D. Tex. Mar. 12, 2013) (citing Lone Star Fund V (U.S.), LP v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010); Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000); Cinel v. Connick, 15 F.3d 1338, 1341, 1343 n.6 (5th Cir. 1994); United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 379 (5th Cir. 2003)). “Taking judicial notice of public records directly relevant to the issue in dispute is proper on a Rule 12(b)(6) review and does not transform the motion into one for summary judgment.” Id. (citing Funk v. Stryker Corp., 631 F.3d 777, 780 (5th Cir. 2011)). “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Id. (citing Fed.R.Evid. 201(b)).


         Breach of Duty of Good Faith and Fair Dealing

         Defendant first moves to dismiss Plaintiff's claim for breach of the duty of good faith and fair dealing because the Original Petition fails to establish that such a duty exists in this case. “Under Texas law, absent a special relationship, there is no duty of good faith or fair dealing unless it is expressly created by contract.” Berry v. Fed. Nat'l Mortg. Ass'n, 2013 WL 1294008, at *11 (N.D. Tex. Mar. 29, 2013) (citing UMLIC VP, LLC v. T&M Sales & Envtl. Sys., Inc., 176 S.W.3d 595, 612 (Tex. App.-Corpus Christi 2005, pet. denied)). “‘Texas courts have found no special relationship between a mortgagor and a mortgagee . . . that would impose an independent common law duty of good faith and fair dealing.'” Berry, 2013 WL 1294008, at *11 (quoting UMLIC VP, LLC, 176 S.W.3d at 612; citing F.D.I.C. v. Coleman, 795 S.W.2d 706, 709-10 (Tex. 1990)).

         Here, Plaintiff failed to specify the conduct that forms the basis of his claim for breach of the duty of good faith and fair dealing. He has not alleged any facts that his mortgage documents create a duty of good faith and fair dealing or that a special relationship existed between him and Defendant that would give rise to such a duty. Accordingly, this claim should be dismissed. See Berry, 2013 WL 1294008, at *11 (“Plaintiffs have not alleged or shown the existence of a duty of good faith and fair dealing created expressly by the Note or Deed of Trust nor a special relationship between Plaintiffs and Defendants recognized under Texas law that would imply such duties. . . . [T]he court declines to recognize a special relationship between Plaintiffs and Defendants that would give rise to the duty of good faith and fair dealing when Texas courts have not recognized such a relationship in the mortgage context.”); Thomas v. EMC Mortg. Corp., 499 Fed.Appx. 337, 341 (5th Cir. 2012) (“We also agree with the district court that the banks could not have not breached a duty of good faith and fair ...

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