United States District Court, W.D. Texas, San Antonio Division
ORDER ON MOTION TO DISMISS
RODRIGUEZ UNITED STATES DISTRICT JUDGE.
date, the Court considered Defendant's Motion to Dismiss
(docket no. 4). Although Plaintiff did not respond, the Court
will evaluate the motion and applicable law. After careful
consideration, Defendant's motion is GRANTED.
Yvonne Baker purchased the property at 8965 E. Loop 1604 S,
Adkins, Texas, 78101. Docket no. 1-1 at 16. Plaintiff
purchased this property with a Home Equity Loan of $78,
001.79 issued by Defendant Walls Fargo USA Holdings, Inc.,
secured by a Texas Home Equity Security Instrument against
this property. Plaintiff is apparently in default on the
loan, a fact she does not dispute. Plaintiff alleges
Defendant noticed a foreclosure sale for May 7, but she
alleges she did not receive notice of this sale until she
received inquiries from the District Clerk's office.
Id. at 17.
6, 2019, Plaintiff filed her petition in the 225th Judicial
District Court of Bexar County, Texas. Plaintiff brings a
claim for breach of contract and seeks an accounting and
injunctive relief. Id. at 18. In state court,
Plaintiff sought and received an ex parte Temporary
Restraining Order that enjoined Defendant's planned sale.
Defendant removed to this Court on May 16. Docket no. 1. On
May 30, Defendant filed the Motion to Dismiss now before the
Court. Docket no. 4. Although Plaintiff's response
deadline has passed, Plaintiff did not file a response.
survive a 12(b)(6) motion to dismiss, “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)). A claim for relief must contain: (1)
“a short and plain statement of the grounds for the
court's jurisdiction”; (2) “a short and plain
statement of the claim showing that the pleader is entitled
to the relief”; and (3) “a demand for the relief
sought.” Fed.R.Civ.P. 8(a). In considering a motion to
dismiss under Rule 12(b)(6), all factual allegations from the
complaint should be taken as true, and the facts are to be
construed favorably to the plaintiff. Fernandez-Montez v.
Allied Pilots Assoc., 987 F.2d 278, 284 (5th Cir. 1993).
To survive a 12(b)(6) motion, a complaint must contain
“more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555.
Breach of Contract
Texas law, a breach-of-contract claim requires: (1) the
existence of a valid contract; (2) performance or tendered
performance by the plaintiff; (3) that the defendant breached
the contract; and (4) damages sustained by the plaintiff as a
result of the breach. Sport Supply Grp., Inc. v. Columbia
Cas. Co., 335 F.3d 453, 465 (5th Cir. 2003).
does not dispute that she is in default on the loan. Rather,
Plaintiff alleges Defendant breached the loan agreement by
“virtue of Defendant charging fees beyond those
allotted for in the contract, and by virtue of Defendant
failing to provide Plaintiff with an accurate accounting of
the amount Defendant claims is owed to it by Plaintiff
despite repeated requests from Plaintiff for Defendant to
provide such accounting.” Docket no. 1-1 at 18.
“a claim for breach of a note and deed of trust must
identify the specific provision in the contract that was
breached, ” Williams v. Wells Fargo Bank,
N.A., 560 Fed.Appx. 233, 238 (5th Cir. 2014), and once
that specific provision is identified, Plaintiff must state
how it was breached by alleging enough facts to state a
plausible breach-of-contract claim, Guajardo v. JP Morgan
Chase Bank, N.A., 605 Fed.Appx. 240, 244 (5th Cir.
2015). Here, Plaintiff points to no specific provision in the
loan agreement, and even if she had, her general allegations
that Defendant charged improper fees and failed to provide a
requested-for accounting do not state a plausible claim.
Further, Plaintiff has not ...