United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
ROSENTHAL CHIEF UNITED STATES DISTRICT JUDGE
Rioccos Willis, representing himself, sued Rushmore Loan
Management Services, MTGLQ Investors, LP, Wilmington Savings
Fund Society, Chase Bank, and FSB D/B/A Christiana Trust as
Trustee for Premium Mortgage Acquisition Trust. (Docket Entry
No. 1-3). All the defendants except Chase Bank moved to
dismiss. (Docket Entry No. 8). Willis did not respond. Based
on the pleadings, the motion, and the applicable law, this
court grants the motion to dismiss, without prejudice to
repleading if the amended complaint is filed by July
6, 2018. The reasons for this ruling are set out
received a mortgage loan from Chase Bank in 2007. (Docket
Entry No. 1-3 at 9). The defendants assert that Chase secured
payment of the note by placing a lien on Willis's
property through a deed of trust. (Docket Entry No. 8 at
¶ 2). Willis defaulted on the loan and Chase Bank
accelerated and foreclosed. Id. MTGLQ bought
Willis's property at the foreclosure sale in January
2018. Id. Willis brought this lawsuit in response.
(Docket Entry No. 1-3).
The Legal Standard for a Motion to Dismiss
12(b)(6) allows dismissal if a plaintiff fails “to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). In Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009), the Supreme Court confirmed
that Rule 12(b)(6) must be read in conjunction with Rule
8(a), which requires “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). To withstand a Rule
12(b)(6) motion, a complaint must contain “enough facts
to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570; see also
Elsensohn v. St. Tammany Parish Sheriff's Office,
530 F.3d 368, 372 (5th Cir. 2008). The Supreme Court
explained that “the pleading standard Rule 8 announces
does not require ‘detailed factual allegations, '
but it demands more than an unadorned,
Iqbal, 556 U.S. at 678.
complaint consists of 11 “claims” and 11
“negative averments.” None sufficiently states a
claim for relief.
claims that: (1) he is an artificial person, referencing 18
U.S.C. § 1341, which criminalizes mail fraud; (2) there
are four elements to a contract; (3) he entered into a loan
agreement with Chase Bank; (4) Rushmore, MTGLQ, or Chase Bank
violated his Seventh Amendment right to a jury trial and
committed 35 other civil-rights violations, when they sold
his property at an auction; (5) neither Rushmore, MTGLQ, nor
Chase Bank lawfully loaned him money or credit; (6) he did
not receive lawful consideration for his loan contract with
Chase Bank; (7) the law leaves wrongdoers where it finds
them; (8) Chase Bank created money on account and violated
the United States Constitution; (9) national banks cannot
lend credit by guaranteeing the debt of another, Chase Bank
stole Willis's credit, and Chase Bank committed bank
fraud; (10) Chase Bank committed bank fraud because it
“fraudulently loaned [him his] credit without telling
[him]”; and (11) Chase Bank is not allowed to lend
assets. (Docket Entry No. 1-3 at 9-12).
these claims are factual statements that support no apparent
legal claim for relief or are legal maxims and doctrinal
principles stated without any factual allegations as to how
they were violated, much less whether a violation is a basis
for relief in court. This includes Willis's claims that
there are four elements to a contract, the law leaves no
wrongdoer where it finds them, and that Chase Bank entered
into a loan agreement with Willis. None of these sufficiently
plead a plausible claim that Willis is entitled to relief.
the remaining claims are conclusory legal statements with
none of the type of factual allegations needed to state a
plausible claim. Conclusory allegations that are unsupported
or implausible do not state a claim for relief. This includes
Willis's vague reference to a mail-fraud statute, the
claim that Chase did not “lawfully” loan him
credit asserted without facts alleging how Chase's
lending practice was illegal, the claim that Chase Bank
created money on account, the claim that Chase Bank committed
bank fraud and stole Willis's credit, and the claim that
Chase Bank is not allowed to lend assets.
claim that the foreclosure of his property and its sale at an
auction violated the Seventh Amendment right to a jury trial
not only fails to allege facts, it fails as a matter of law.
The Seventh Amendment provides that “[i]n Suits at
common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved
. . . .” U.S. Const. amend. VII. A foreclosure sale is
not a lawsuit with a jury trial right attached.
negatively alleges that: (1) the defendants have not shown
any documentation that they are the holder-in-due-course of a
deed of trust and note; (2) the defendants did not have legal
authority to foreclose; (3) Willis has not received proper
documents regarding the deed of trust; (4) Willis was not
given full disclosure of who is the holder-in-due-course for
the deed of trust; (5) Willis's property is “not
subject to unlawful and illegal, search, seizure, kidnaping
or levy;” (6) Willis did not receive an assessed value
for the deed of trust; (7) the defendants are not in
possession of any contract with Willis; and (8) Willis has
not been compensated for unauthorized use of his intellectual
property. (Docket Entry No. 1-3 at 12-16). Willis's
negative averments do not identify, or make readily
discernable, any causes of action.
the court construes these averments as claims for wrongful
foreclosure or failure to produce documents, Willis still
fails to plead adequately. Under Texas common law, a borrower
may recover for wrongful foreclosure when inconsistencies or
irregularities in the foreclosure process cause the borrower
to suffer a loss. See Wieler v. United Sav. Ass'n of
Tex., 887 S.W.2d 155, 158 (Tex. App.-Texarkana 1994,
writ denied); see also Cuauhtli v. Chase Home Finance
LLC, No. 406-CV-472-A, 2007 WL 548759, at *4 (N.D. Tex.
Feb. 22, 2007). Willis has not alleged facts that, if proved,
would show irregularities or inconsistencies in the
foreclosure process. Although Willis alleges that the
defendants did not have a contract or documents making them
holders-in-due-course of the deed of trust, “[a]
mortgage servicer may administer a foreclosure without the
note.” Grifin v. BAC Home Loans Servicing, LP,
No. H-09-03842, 2011 WL 675285, at *2 (S.D. Tex. Feb. 16,
2011); Cannon v. JP Morgan Chase Bank, N.A., No.
4:11-cv-458, 2011 WL 6838615, at *4-*5 (“Courts in
Texas have repeatedly recognized that Texas law allows either
a mortgagee or a mortgage servicer ...