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Tabor v. Wells Fargo Bank, N.A.

United States District Court, W.D. Texas

September 26, 2019





         Before 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 (“Local Rules”).

         I. BACKGROUND

         In 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. Id.

         In 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).

         In this 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.

         On 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.


         Federal 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).

         III. ANALYSIS

         A. Trespass to Try Title

         Plaintiff 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.

         A 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)

         To 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).

         In the 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[1] 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 ...

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