United States District Court, N.D. Texas, Fort Worth Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RAY, JR. UNITED STATES MAGISTRATE JUDGE
the Court is the Motion for Judgment on the Pleadings and
Brief in Support (ECF No. 15) and Appendix in Support (ECF
No. 16) filed by Defendant Wells Fargo Bank, N.A. (âWells
Fargoâ) on February 21, 2019; âObjection to Wells Fargo's
Motion for Summary Judgmentâ (ECF No. 22) filed by Plaintiff
Aalen Norton (âNortonâ) on April 1, 2019; and Wells
Fargo's Response to Norton's Objection to its Motion
for Judgment on the Pleadings (ECF No. 23) filed on April 3,
2019, which the undersigned construes as a reply.
reviewing the pleadings and applicable legal authorities, the
undersigned RECOMMENDS that United States
District Judge Reed O'Connor GRANT Wells
Fargo's Motion for Judgment on the Pleadings (ECF No.
15); DISMISS WITH PREJUDICE Norton's
claim to quiet title and for violations of the Federal Trade
Commission Act of 1914 (“the FTCA”), and the Real
Estate Settlement Procedures Act of 1974
(“RESPA”); and DISMISS WITHOUT
PREJUDICE Norton's remaining claims and give him
an opportunity to file a second amended complaint within the
fourteen days allotted for objections to this recommendation.
If, however, Norton files a second amended complaint within
the prescribed time period, the Motion should be
DENIED as MOOT as to the claims not
dismissed with prejudice, and the action should be allowed to
proceed on the amended complaint.
filed this foreclosure-related case on December 27, 2018 in
the 352nd Judicial District Court of Tarrant County, Texas
regarding property located at 8107 Guadalupe Road, Arlington,
Texas 76002 (“the Property”). (ECF No. 1-3).
Wells Fargo removed the case to this Court on January 2,
2019. (ECF No. 1). The undersigned required the parties to
replead. (ECF No. 9). Norton filed his First Amended Original
Petition (“FAC”) on February 11, 2019. (ECF No.
14). He asserts the following claims against Wells Fargo: (1)
suit to quiet title; (2) violations of the FTCA; (3)
violations of the Fair Debt Collection Practices Act
(“FDCPA”); (4) violations of the Fair Credit
Reporting Act of 1970 (“the FCRA”); and (5)
violations of the RESPA. (See generally id.).
Although not listed in a separate count, he also asserts that
Wells Fargo does not have authority to foreclose because it
has not produced the original note and deed of trust.
(Id. at 13). Norton seeks statutory civil penalties;
attorneys' fees; declaratory, injunctive, and equitable
relief; economic, exemplary, and punitive damages; and costs
of court. (Id. at 22-25).
Wells Fargo filed its Motion for Judgment on the Pleadings.
Wells Fargo argues that Norton's claims fail as a matter
of law and that because he has no viable underlying claims,
his requests for declaratory and injunctive relief also fail.
(See generally ECF No. 15). Norton replies and
argues that Wells Fargo violated the Texas Finance Code and
Texas Debt Collection Act (“the TDCA”). (ECF No.
22 at 4). Norton reasserts his request for declaratory
relief. (Id.). Having fully brief the Motion for
Judgment on the Pleadings, it is now ripe for a decision.
standard for dismissal under Rule 12(c) is the same standard
for dismissal for failure to state a claim under Rule
12(b)(6). Chauvin v. State Farm Fire & Cas. Co.,
495 F.3d 232, 237 (5th Cir. 2007). The Rules require that
each complaint contain “a short and plain statement of
the claim showing that the pleader is entitled to relief . .
. .” Fed.R.Civ.P. 8(a). A complaint must include
sufficient factual allegations “to raise a right to
relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). In
considering a Rule 12(b)(6) motion, courts “take all
well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff . . . and ask whether the
pleadings contain ‘enough facts to state a claim to
relief that is plausible on its face.'”
Yumilicious Franchise, L.L.C. v. Barrie, 819 F.3d
170, 174 (5th Cir. 2016) (citing Twombly, 550 U.S.
at 547). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id. (citing Twombly, 550 U.S. at 555).
plaintiff's complaint should “contain either direct
allegations on every material point necessary to sustain a
recovery . . . or contain allegations from which an inference
may fairly be drawn that evidence on these material points
will be introduced at trial.” Campbell v. City of
San Antonio, 43 F.3d 973, 975 (5th Cir. 1995). The
complaint must contain facts that support the claim for
relief. The court cannot “accept as true conclusory
allegations or unwarranted deductions of fact.”
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,
498 (5th Cir. 2000) (quotation omitted). A complaint,
therefore, is not sufficient if it merely contains
“naked assertions” devoid of factual enhancement.
Iqbal, 556 U.S. at 678.
ruling on a motion to dismiss, a court may consider documents
outside the complaint when they are: (1) attached to the
motion to dismiss; (2) referenced in the complaint; and (3)
central to the plaintiff's claims. In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.
2007). Additionally, a court may take judicial notice of
matters of public record without converting a motion to
dismiss into a motion for summary judgment. See Randall
D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763
(5th Cir. 2011) (“Generally, a court ruling on a
12(b)(6) motion may rely on the complaint, its proper
attachments, documents incorporated into the complaint by
reference, and matters of which a court may take judicial
notice.”) (citation and quotation marks omitted).
exists a “well-established policy that the plaintiff be
given every opportunity to state a claim.” Ramming
v. United States, 281 F.3d 158, 161 (5th Cir. 2001)
(citing Hitt v. City of Pasadena, 561 F.2d 606, 608
(5th Cir. 1977)). It is federal policy to decide cases on the
merits rather than technicalities, and thus when possible the
Fifth Circuit has recommended that suits be dismissed without
prejudice on Rule 12 motions. Great Plains Tr. Co. v.
Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329
(5th Cir. 2002); Hines v. Wainwright, 539 F.2d 433,
434 (5th Cir. 1976) (vacating and remanding a Rule 12(c)
dismissal with instructions to the district court to dismiss
without, instead of with, prejudice). As a result, courts
generally allow plaintiffs at least one opportunity to amend
following a Rule 12 dismissal on the pleadings. Great
Plains Tr. Co., 313 F.3d at 329; see In re Online
Travel Co. (OTC) Hotel Booking Antitrust Litig., 997
F.Supp.2d 526, 548-49 (N.D. Tex. 2014) (Boyle, J.)
(dismissing for failure to state a claim without prejudice,
as dismissing with prejudice would be “too harsh a
sanction”). Nonetheless, courts may appropriately
dismiss an action with prejudice if a court finds that the
plaintiff has alleged its best case. Jones v.
Greninger, 188 F.3d 322, 327 (5th Cir. 1999).
Norton's Quiet Title Claim Fails as a Matter of
Fargo argues that Norton's claim to quiet title fails
because it had authority, as a mortgagee to whom the security
instrument was assigned, to initiate foreclosure proceedings
on the Property. (ECF No. 15 at 11-12). Norton responds that
Wells Fargo must produce the note to prove it has authority
to foreclose. (ECF No. 22 at 4). Norton further asserts that
Wells Fargo violated various sections of the TDCA.
(Id.). The undersigned notes that Norton's TDCA
claim was not part of his FAC. (See generally ECF
No. 14). As a result, he has not properly pleaded a claim
under the TDCA. St. Claire v. EnsureLink, No. CIV.A.
3:01CV1548-G, 2002 WL 663570, at *1 n.2 ...