United States District Court, W.D. Texas, San Antonio Division
REYNA E. MCKINNEY, Plaintiff,
WELLS FARGO BANK, N.A., Defendant.
ORDER ON MOTION TO DISMISS
RODRIGUEZ UNITED STATES DISTRICT JUDGE.
date, the Court considered Defendant's Motion to Dismiss
(docket no. 3). Although Plaintiff did not respond, the Court
will evaluate the motion and applicable law. After careful
consideration, Defendant's motion is GRANTED.
April, Plaintiff Reyna McKinney's first lawsuit to
prevent foreclosure was dismissed by Judge Orlando Garcia.
See Williams v. Wells Fargo Financial, Texas, Inc.,
No. 5:18-CV-61-OLG, ECF No. 7. She brought this first case in
state court on December 31, 2018, it was removed to federal
court on January 24, 2019, and Wells Fargo's Motion to
Dismiss was granted on April 9. Judge Garcia's order
dismissed her petition with leave to amend, but McKinney did
not file an amended complaint.
two months later, she brought this substantially similar
case. On June 3, McKinney filed her Original Petition in the
45th Judicial District Court of Bexar County, Texas. Docket
no. 1-1. Defendant Wells Fargo Bank, N.A. removed to this
Court on June 13. Docket no. 1.
here attempts to prevent foreclosure sale-noticed for June
4-of real property at 4310 Wildt Road, San Antonio, Texas
78222. McKinney purchased this property with a Home Equity
Loan of $31, 450.09 secured by a Texas Home Equity Security
Instrument against this property. McKinney acknowledges, in
her petition, that she defaulted on payment obligations. She
states no independent cause of action but seeks injunctive
relief. Her grievance, it appears, is that “Defendant
has failed to act in good faith; it has noticed acceleration
of Plaintiff's indebtedness against her said homestead
and posted same for foreclosure said, having failed to
negotiate fairly and justly toward fixing the extent of and
curing any default.” Docket no. 1-1 at 5. She alleges
she can satisfy her debt obligation through financing or her
equity in the property. Id.
19, Defendant filed the Motion to Dismiss now before the
Court. Docket no. 3. 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.
initial matter, the Court agrees with Defendant that
McKinney's petition states no cause of action. Assuming
for argument that the petition could be construed liberally
as bringing a claim for breach of contract-as her earlier
case did-this claim would fail. Under 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). However,
“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). Plaintiff does not identify any specific provision
breached. Thus, to the extent she brings a breach of contract
claim, that claim is dismissed.
does seek injunctive relief. However, “[u]nder Texas
law, a request for injunctive relief is not itself a cause of
action but depends on an underlying cause of action.”
Cook v. Wells Fargo Bank, N.A., 2010 WL 2772445, at
*4 (N.D. Tex. July 12, 2010) (citing Brown v. Ke-Ping
Xie, 260 S.W.3d 118, 122 (Tex. App.-Houston [1st Dist.]