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Suarez v. U.S. Bank, NA

United States District Court, W.D. Texas, San Antonio Division

July 31, 2019

FELIX ROBERT SUAREZ, Plaintiff,
v.
U.S. BANK, NA, AS TRUSTEE, Defendant.

          REPORT AND RECOMMENDATION AND SHOW CAUSE ORDER OF UNITED STATES MAGISTRATE JUDGE

          ELIZABETH S. ("BETSY") CHESTNEY, UNITED STATES MAGISTRATE JUDGE

         To the Honorable United States District Judge Fred Biery:

         This Report and Recommendation concerns Defendant's Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) and Brief in Support [#7]. All pretrial matters in this case have been referred to the undersigned for disposition pursuant to Western District of Texas Local Rule CV-72 and Appendix C [#3]. The undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and this show cause order pursuant to 28 U.S.C. § 636(b)(1)(A). By its motion, Defendants seeks dismissal of Plaintiff's Complaint for failure to state a claim upon which relief can be granted.

         Defendant's motion was filed on June 24, 2019 and served electronically on Plaintiff through his counsel. According to this Court's Local Rules, Plaintiff's response to Defendant's motion was due within 14 days of the motion's filing, on or before July 6, 2019. See Loc. R. CV-7(e) (responses to dispositive motions due within 14 days of motion's filing). To date, Plaintiff has not filed a response to the motion. Pursuant to Local Rule CV-7(e), if there is no response filed within the time period prescribed by the rules, the court may grant the motion as unopposed. In light of Plaintiff's lack of opposition and for the reasons set forth below, the undersigned recommends the motion be granted in part as to Plaintiff's claims of negligence and for violations of the Texas Property Code. However, the undersigned recommends the motion be denied in part as to Plaintiff's claim for breach of contract, but the undersigned will order Plaintiff to show cause as to why the claim should not be dismissed for failure to prosecute within 14 days of this order.

         I. Factual Allegations in the Pleadings

         Plaintiff filed his Original Petition [#1-1] in state court, and Defendant removed the Petition to this Court based on both federal question and diversity jurisdiction. Plaintiff's Petition sues U.S. Bank, NA, as Trustee, regarding the scheduled foreclosure of property located at 1252 Clower Street, San Antonio, TX 78201. This is the second lawsuit Plaintiff has filed in an attempt to stop foreclosure of this property. The first lawsuit was dismissed on April 12, 2019, when the Court granted Defendant's uncontested motion to dismiss pursuant to Rule 12(b)(6). See Suarez v. U.S. Bank, 5:18-cv-849-OLG (W.D. Tex. Apr. 12, 2019) (Doc. No. 16).

         Plaintiff's Petition in this case alleges the following wrongful acts of Defendant:

(1) A failure to use reasonable care in communicating the options as to loss mitigation;
(2) Avoiding and evading Plaintiff's inquires regarding an appeal of his loss mitigation application;
(3) Posting the subject property for foreclosure without offering more than one loan workout alternative or replying to Plaintiff's inquiries regarding an appeal of the denial of a HAMP modification; and
(4) Failing to comply inform Plaintiff of any assistance options before accelerating the loan and proceeding with foreclosure.

         Based on these factual allegations, Plaintiff asserts claims of negligence, violations of the Texas Property Code, and breach of contract. (Pet. [#1-1] at ¶¶ 9-30.) Defendant moves to dismiss these claims for failure to state a claim pursuant to Rule 12(b)(6).

         II. Legal Standard

         “To survive a 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 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Although a complaint “does not need detailed factual allegations, ” the “allegations must be enough to raise a right to relief above the speculative ...


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