United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE.
case has been referred to the undersigned United States
magistrate judge for pretrial management under 28 U.S.C.
§ 636(b) and a standing order of reference from United
States Chief District Judge Barbara M.G. Lynn. See
Dkt. No. 4.
JPMorgan Chase Bank, N.A. has filed a motion to dismiss.
See Dkt. No. 5 (Motion to Dismiss Under Rule
12(b)(6)). Plaintiff Brett Stacy has filed a response,
see Dkt. No. 15, and JPMC has filed a reply,
see Dkt. No. 16.
following reasons, the undersigned recommends that the motion
to dismiss should be denied.
purchased property located at 3209 Cornell Avenue in Dallas,
Texas, on October 11, 2007. See Dkt. No. 1-1 at
26-27 (General Warranty Deed with Vendor's Lien). To
finance the purchase, Plaintiff executed two notes, secured
by two separate deeds of trust, both payable to Washington
Mutual Bank, F. A. The first note was in the amount of $1,
320, 000 and was secured by a deed of trust. See Id.
at 28-32, 33-47. The second note was in the amount of $165,
000 and was secured by a second deed of trust. Plaintiff
borrowed a total amount of $1, 485, 000 to finance his
purchase of the property.
loans were transferred to JPMC, which obtained rights as the
mortgagee on Plaintiff's first and second mortgages.
fell behind on his first mortgage in April 2018. Plaintiff
cured the default on June 25, 2018.
thereafter, Plaintiff fell behind on his first mortgage
again, and he contacted JPMC for mortgage assistance.
October 2018, Plaintiff received a Request for Mortgage
Assistance form (“loss mitigation application”).
Plaintiff filled out the form and had his accountant prepare
a profit and loss statement for the entire year. Plaintiff
returned the completed application to JPMC and was told he
would receive a response in thirty days.
October 29, 2018, JPMC informed Plaintiff that it needed
additional information because the application was not signed
or dated and the profit and loss statement was not clear and
complete. See Id. at 48-49. JPMC requested that
Plaintiff submit a new loss mitigation application and profit
and loss statement by November 28, 2018. See Id.
Plaintiff called JPMC to inquire about the letter. He was
told that the application was signed, but not dated. He was
also told that the profit and loss statement needed to be for
the most current three months only, not an entire year. And
he was told that he had to reapply and submit a new loss
mitigation application and profit and loss statement.
was unable to get another appointment with his accountant to
prepare another profit and loss statement due to the holidays
and end-of-year tax consulting. In November 2018, Plaintiff
contacted JPMC to inquire whether it would provide him with
the financial information he had previously submitted to
assist him in “refilling out” the loss mitigation
application, but JMPC refused to do so.
December 2018, Plaintiff spoke with several different JPMC
customer care representatives regarding mortgage assistance.
He was told that, as long as he kept making payments on the
second mortgage and working on his mortgage assistance
package for the first mortgage, JPMC would not foreclose on
the property. Therefore, Plaintiff continued payments on his
second mortgage while gathering the necessary information he
needed to resubmit another loss mitigation application.
January 8, 2019, JPMC provided Plaintiff with Notice of
Acceleration. The Trustee's Sale was set for February 5,
2019. See Id. at 50-51 (Notice of Acceleration),
52-53 (Notice of Substitute Trustee Sale).
January 17, 2019, Plaintiff's mortgage assistance account
manager, Albert Omorege, informed Plaintiff that his property
was set for foreclosure and that, if Plaintiff wanted to stop
the foreclosure, Plaintiff needed to resubmit the loss
mitigation application. Plaintiff told Mr. Omorege about the
problem that he had with the accountant and that he did not
have some of the financial information needed to complete the
application, and Mr. Omorege provided Plaintiff with the
information that Plaintiff had requested from JPMC in
January 29, 2019, Plaintiff resubmitted a loss mitigation
application and profit and loss statement for the last three
January 31, 2019, Plaintiff filed a Verified Original
Petition, Application for Temporary Restraining Order, and
Request for Disclosure in County Court at Law No. 3 of Dallas
County, Texas. See Id. at 8-53 (Brett Stacy v.
JPMorgan Chase Bank, N.A.. No. CC-19-707-C) (the
“Petition”). Plaintiff asserts claims for
violations of the Real Estate Settlement Procedures Act
(“RESPA”) and the Texas Debt Collection Act
(“TDCA”). Plaintiff also seeks injunctive relief
under the TDCA.
removed the case to this Court on February 21, 2019,
see Dkt. No. 1-1, and filed its motion to dismiss on
February 27, 2019, see Dkt. No. 5.
asserts that Plaintiff has failed to state a claim for
violations of the RESPA or the TDCA because both of those
claims are founded on allegations that JPMC mailed a notice
of foreclosure and did not properly respond to
Plaintiff's loss mitigation application. The property has
not been foreclosed.
argues that the Petition fails to state a claim for violation
of the RESPA on which relief can be granted because most of
those claims are founded on Plaintiff's false, conclusory
allegation that he submitted a complete loss mitigation
application to JPMC on some unspecified date in October 2018.
JPMC further argues that Plaintiff's specific allegations
conclusively show that the application was incomplete. JPMC
further argues that Plaintiff's remaining RESPA claims
fail because nothing in the RESPA requires a servicer to
evaluate an incomplete application for loss mitigation
options. See Dkt. No. 6.
argues that the Petition fails to state a claim for violation
of the TDCA on which relief can be granted because the sole
basis for the TDCA claim is Plaintiff's erroneous
contention that JPMC violated a section of the RESPA. See
argues that the Petition fails to state a claim on which
relief can be granted for injunctive relief because Plaintiff
cannot show a likelihood of ultimate success on ...