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 in this pro se civil action are Defendant
Freedom Mortgage Corporation's Motion for Judgment on the
Pleadings (ECF No. 12) and Defendant First Mortgage
Corporation's Motion for Judgment on the Pleadings (ECF
No. 17). For the reasons stated, the motions should be
August 27, 2012, Plaintiff Linda Henderson
(“Henderson”) executed a promissory note payable
to First Mortgage Corporation (“First Mortgage”),
its successors, and assigns, as evidence of a loan she
obtained to purchase a home in Desoto, Texas (the
“Property”). See Def.'s App., Ex. A
at 1-10 (ECF No. 14-1). the same day, Henderson signed a deed
of trust (the “Deed of Trust”) naming Mortgage
Electronic Registration Systems, Inc. (“MERS”) as
nominee for First Mortgage to secure the loan represented by
the promissory note. Id.
September 2015, Henderson lost her job. Pl.'s Original
Pet. 2 (ECF No. 1-3). Then, she admits, she became delinquent
on her mortgage payments. Id. Henderson alleges she
contacted First Mortgage to request mortgage assistance while
seeking a new job, and, in response a First Mortgage
representative purportedly told her that if she found gainful
employment she would receive a loan modification.
on November 5, 2015, First Mortgage assigned the Deed of
Trust to Freedom Mortgage Corporation (“Freedom
Mortgage”). Def.'s App., Ex. B at 1-3 (ECF No.
14-2). After the transfer, Henderson claims she worked
temporary jobs and continued to update First Mortgage on her
financial situation. Pl.'s Original Pet. 2. She even
states “there was no problem” until the transfer
to Freedom Mortgage, after which time she claims she was
denied a loan modification eight times from 2016 to 2018
despite having obtained gainful employment. Id.
Specifically, she avers Freedom Mortgage told her she was
denied a loan modification because Freedom Mortgage mistook
her as the owner of Henderson's Chicken, a restaurant in
significant debt. Id. With the help of a
“mortgage assistance agency, ” Henderson was able
to show she did not own On Henderson's Chicken.
Id. 3. Further, she claims Freedom Mortgage agreed
to cooperate with First Mortgage to process a new loan
modification application for her. Id.
February 3, 2018, however, Freedom Mortgage notified
Henderson she did not qualify for loan modification.
Id. Then, on February 6, 2018, Freedom Mortgage
conducted a foreclosure sale of the Property and purchased
the Property at that sale. Id.; Def.'s Br. 3,
¶ 12 (ECF No. 13). To memorialize the sale, a substitute
trustee's deed and affidavit was filed in the real
property records of Dallas County, Texas, on February 28,
2018. Def.'s App., Ex. C at 1-3 (ECF No. 14-3).
the foreclosure sale, Henderson remained at the Property.
See Pl.'s Original Pet. 3. She avers sixty
couples and thirty realtors visited the Property for a tour
despite the fact that she was still living there.
Id. On March 7, 2018, Henderson claims a man visited
the Property and told her relative who was then present at
the Property that the Property needed to be vacated in 24
hours or the locks would be changed. According to Henderson,
this individual told Henderson's relative that he was a
Freedom Mortgage representative. Id.
days later, on March 9, 2018, Henderson, proceeding pro
se, filed a petition in state court naming First
Mortgage and Freedom Mortgage as defendants. Specifically,
she alleges claims under (1) sections of the Real Estate
Settlement Practices Act (“RESPA”) and associated
regulations; (2) 21 C.F.R. § 203.355, the National
Housing Act (the “NHA”), 12 U.S.C. § 1715v,
and the Unfunded Mandates Reform Act (the
“UMRA”); and (3) the Texas Property Code and the
Texas Debt Collection Act (the “TDCA”).
Id. 3-4. She also requested injunctive relief to
enjoin and restrain Freedom Mortgage from “completing
the foreclosure sale process.” Id. 4.
Mortgage and First Mortgage timely removed the case to
federal court. Defendants each filed a separate motion for
judgment on the pleadings. Henderson never filed a response
to either motion. Therefore, the Court considers the motions
without the benefit of a response from Henderson.
standard for deciding a Rule 12(c) motion is the same as a
Rule 12(b)(6) motion to dismiss.” Guidry v. Am.
Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007)
(citing In re Katrina Canal Breaches Litig., 495
F.3d 191, 205 (5th Cir. 2007)). To survive a Rule 12(b)(6)
challenge, “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)). The factual
allegations must “‘raise [the plaintiff's]
right to relief above the speculative level, '” but
they do not need to be detailed. Lee v. Verizon
Commc'ns, Inc., 837 F.3d 523, 533 (5th Cir. 2016)
(citing Rosenblatt v. United Way of Greater Hous.,
607 F.3d 413, 417 (5th Cir. 2010). When evaluating a Rule
12(b)(6) motion, the court's review is limited to the
live complaint, any documents attached to that 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. 2010)
(citing Collins v. Morgan Stanley Dean Witter, 224
F.3d 496, 498-99 (5th Cir. 2000)). A document filed pro
se is to be liberally construed, and a pro se
[petition], however inartfully pleaded, must be held to a
less stringent standard than formal pleadings drafted by
lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Claims Against First ...