United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD, UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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
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
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.
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)).
of Duty of Good Faith and Fair Dealing
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.
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 ...