United States District Court, W.D. Texas
REPORT AND RECOMMENDATION OF THE UNITED STATES
HIGHTOWER UNITED STATES MAGISTRATE JUDGE
THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT
this Court are Defendant’s Motion to Dismiss, filed on
May 14, 2019 (Dkt. No. 8); Plaintiff’s Response to
Defendant’s Motion to Dismiss, filed on May 23, 2019
(Dkt. No. 9); and Defendant’s Reply in Support of its
Motion to Dismiss, filed on June 6, 2019 (Dkt. No. 11). On
July 18, 2019, the District Court referred all pending and
future dispositive motions in this case to the undersigned
Magistrate Judge for Report and Recommendation pursuant to 28
U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72,
and Rule 1 of Appendix C of the Local Rules of the United
States District Court for the Western District of Texas
2002, Plaintiff Catherine Tabor (“Plaintiff”)
obtained a home equity loan (“Loan”) in the
amount of $210, 000 from World Savings Bank, F.S.B. secured
by her real property located at 1608 Hartford Road, Austin,
Texas 78703 (the “Property”). Defendant Wells
Fargo Bank, N.A. (“Defendant”) is the current
holder of the Loan and related Deed of Trust. In 2005,
Plaintiff alleges that she “fell upon hard times . . .
[and] got behind in her mortgage payments, ” thereby
defaulting on her Loan. Dkt. No. 1-1 at ¶¶ 11and
15. Plaintiff alleges that she has been “fighting to
retain the Property” for the last thirteen years.
Id. at ¶ 11. Since 2005, Plaintiff has filed
four separate bankruptcy cases and two civil lawsuits in
state court to prevent the foreclosure on the Property.
2016, Defendant filed a state court action pursuant to Texas
Rule of Civil Procedure 736.1 seeking foreclosure of the
Property due to Plaintiff’s default on the Loan.
See In re: Order of Foreclosure Concerning 1608 Hartford
Road, Austin, Texas 78703, No. D-1-GN-17-006077 (98th
Dist. Ct. Travis County, Tex. 2016). On August 3, 2017,
Plaintiff entered into an “Agreed Order Allowing
Foreclosure” allowing Defendant to foreclose on the
Property on or after November 7, 2017. Exh. K to Dkt. 1-1
(“Foreclosure Order”). However, on January 31,
2019, Plaintiff filed the instant lawsuit in state court in
order to stay the Foreclosure Order. See Tabor v. Wells
Fargo, N.A., D-1-GN-19-000573 (98th Dist. Ct.
Travis County, Tex. Jan. 31, 2019).
lawsuit, Plaintiff alleges that Defendant has made accounting
inconsistencies and misrepresentations regarding the amount
needed to reinstate her Loan. Specifically, Plaintiff alleges
that payments she made to the bankruptcy trustee in her most
recent Chapter 13 bankruptcy were not appropriately reflected
in Defendant’s statements regarding her Loan. Plaintiff
also alleges that there are several inconsistencies in the
accounting of her Loan related to the payoff and
reinstatement amounts. Plaintiff also contends that Defendant
misrepresented that it would stay foreclosure and allow her
to pay off her Loan if she agreed to the Foreclosure Order as
part of the 2016 foreclosure proceedings. Plaintiff’s
Petition alleges claims for trespass to try title, breach of
contract, negligent misrepresentation, common law fraud,
statutory fraud, wrongful foreclosure, and a violation of the
Texas Deceptive Practices Act (“TDTPA”), and
seeks injunctive and declaratory relief to enjoin Defendant
from foreclosing on the Property.
March 1, 2019, Defendant removed this case to federal court
on the basis of diversity jurisdiction pursuant to 28 U.S.C.
§ 1332. On May 14, 2019, Defendant filed the instant
Motion to Dismiss under Federal Rule of Civil Procedure
12(b)(6), arguing that Plaintiff has failed to state any
plausible claims for relief.
Rule of Civil Procedure 12(b)(6) allows a party to move to
dismiss an action for failure to state a claim upon which
relief can be granted. In deciding a Rule 12(b)(6) motion to
dismiss for failure to state a claim, the court
“accepts all well-pleaded facts as true, viewing them
in the light most favorable to the [nonmovant].” In
re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th
Cir. 2007) (internal quotation marks omitted). The Supreme
Court has explained that a complaint must contain sufficient
factual matter “to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the [nonmovant] pleads factual
content that allows the court to draw the reasonable
inference that the [movant] is liable for the misconduct
alleged.” Ashcroft, 556 U.S. at 678.
“While a complaint attacked by a Rule 12(b)(6) motion
to dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the grounds of his
entitle[ment] to relief requires 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 (internal quotations and citations omitted).
“Factual allegations must be enough to raise a right to
relief above the speculative level.” Id. The
court’s review is limited to the complaint, any
documents attached to the complaint, and any documents
attached to the motion to dismiss that are central to the
claim and referenced by the complaint. Lone Star Fund V
(U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387
(5th Cir. 2010).
Trespass to Try Title
alleges a trespass to try title claim and to remove cloud on
title under § 22.001(a) of the Texas Property Code.
Plaintiff alleges that she is the lawful owner of the
Property and that “Defendant does not possess and was
not transferred the right pursuant to the Deed to Trust and
therefore does not have the power of sale to foreclose on the
Property.” Dkt. No. 1-1 at ¶ 36.
trespass to try title action is the method of determining
title to lands, tenements, or other real property. Tex. Prop.
Code Ann. § 22.001(a) (West 2014). “In general,
the action of trespass to try title is in its nature a suit
to recover the possession of land unlawfully withheld from
the owner and to which he has the right of immediate
possession.” Hurd v. BAC Home Loans Servicing,
LP, 880 F.Supp.2d 747, 767 (N.D. Tex. 2012) (quoting
Rocha v. Campos, 574 S.W.2d 233, 236
(Tex.App.-Corpus Christi 1978, no pet.)). “A suit to
quiet title-also known as a suit to remove cloud from
title-is an equitable action that clears a valid title
against a defendant’s invalid claim to the
property.” James v. Wells Fargo Bank, N.A.,
2012 WL 778510, at *2 (N.D. Tex. Mar. 12, 2012)
prevail on a trespass to try title claim, a party must: (1)
prove a regular chain of conveyances from the sovereign; (2)
establish superior title out of a common source; (3) prove
title by limitations; or (4) prove title by prior possession
coupled with proof that possession was not abandoned.
Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004).
To prevail in a suit to quiet title action, a plaintiff must
show “(1) an interest in a specific property, (2) title
to the property is affected by a claim by the defendant, and
(3) the claim, although facially valid, is invalid or
unenforceable.” Bell v. Bank of Am. Home Loan
Servicing, 2012 WL 568755, at *6 (S.D. Tex. Feb. 21,
2012)). In both types of actions, the plaintiff “must
prove and recover on the strength of his own title, not the
weakness of his adversary’s title.” Fricks v.
Hancock, 45 S.W.3d 322, 327 (Tex.App.-Corpus Christi
2001, no pet.) (citations omitted).
instant case, Plaintiff has alleged no facts to support her
allegation that the Defendant does not possess and was not
transferred the Deed of Trust in this case. In fact,
Defendant has provided the Court with judicially noticeable
facts that it is in fact the successor in
interest to the Deed of Trust. See Norris v. Hearst
Tr., 500 F.3d 454, 461 n.9 (5th Cir. 2007) (noting that
“it is clearly proper in deciding a 12(b)(6) motion to
take judicial notice of matters of public record”).
Accordingly, Plaintiff’s trespass to try title and
quiet title claims fail. See Olaoye v. Wells Fargo Bank,
NA, 2012 WL 1082307, at *4 (N.D. Tex. April 2, 2012)
(“Because the allegations in Olaoye’s petition,
along with the facts of ...