United States District Court, N.D. Texas, Fort Worth Division
RANDLE C. DANIELS, Plaintiff,
REGIONS BANK, d/b/a REGIONS MORTGAGE, Defendant.
MEMORANDUM OPINION AND ORDER
T. PITTMAN UNITED STATES DISTRICT JUDGE
the Court is Defendant Regions Bank, d/b/a/ Regions
Mortgage’s (Regions) Rule 12(b)(6) Motion to Dismiss
for Failure to State a Claim (ECF No. 6), filed May 28, 2019.
Having considered the Motion, briefing, and the applicable
law, the Court finds that Regions’ Motion to Dismiss
should be and is hereby GRANTED.
1988, Plaintiff Randle C. Daniels acquired certain property,
which is commonly known as 4630 Collinwood Avenue, Fort
Worth, Texas 76107 (“Property”), and more
particularly described as follows:
Being Lots 21, 22, and 23 in Block 41, Chamberlin Arlington
Heights, First Filing, an Addition to the City of Fort Worth,
Tarrant County, Texas, According to the Map Thereof Recorded
in Volume 63, Page 21, Map Records, Tarrant County, Texas.
See Pl.’s Orig. Pet. at ¶ 3.2, ECF No.
1-1. In June 2000, Plaintiff conveyed an undivided one-half
interest in the Property to his mother, Johnnie N. Daniels.
Id. Since he first acquired the Property, Plaintiff
has used and claimed it as his homestead. Id.
9, 2008, Johnnie signed a Texas Home Equity Note
(“Note”) with a principal amount of $315, 000
payable to Western Mortgage Co., a Texas Corporation.
Pl.’s Orig. Pet. at ¶ 3.1, ECF No.1-1. Also on May
9, 2008, Johnnie signed a Texas Home [Equity] Security
Instrument (“Security Instrument” or “Deed
of Trust”). Id. at ¶ 3.3.
Plaintiff’s purported signature also appears on the
Security Instrument, and the Security Instrument identifies
both Plaintiff and Johnnie as “Borrower[s].”
Id. at ¶ 3.4.
died on April 14, 2010, and Plaintiff claimed to be the sole
owner of the Property. Id. at ¶ 3.5. However,
Troy Lee Daniels disputes this claim and contends that
Johnnie’s one-half interest is part of her probate
March 14, 2017, Regions filed an Application for Expedited
Order pursuant to Texas Rule of Civil Procedure 736
(“736 Application”). Pl.’s Orig. Pet. at
¶ 3.6. Regions named Plaintiff and Troy Lee Daniels as
Independent Executor of the Estate of Johnnie N. Daniels,
Deceased, as respondents. Id. In the 736
Application, Regions asserted that it was the holder of the
Note and Security Instrument. Id. at ¶ 3.7.
Plaintiff contends that the Note attached to the 736
Application does not reflect any special indorsement to
Regions but instead contains an indorsement in favor of
Flagstar Bank, FSB and an allonge with a stamped blank
indorsement. Id. Plaintiff also alleges that the 736
Application failed to include a notice of default and
opportunity to cure that had been sent to him. Id.
at ¶ 3.8. The affidavit attached to Regions’ 736
Application stated that the Note had been in continuous
default for at least 47 months. Id.
the alleged deficiencies in Regions’ 736 Application,
the Tarrant County Probate Court No. 2 signed an order
granting the 736 Application and allowing an expedited
foreclosure. Id. at ¶ 3.11. Although Plaintiff
acknowledges that he was personally advised by a Regions
representative that the Property was scheduled for
foreclosure to take place on May 7, 2019, Plaintiff alleges
that he did not receive a written notice of the time or place
of the sale. Id. at ¶ 3.12. Plaintiff also
states that Regions has refused to provide information about
the loan to him and has, “on multiple occasions,
wrongfully interfered with his possession of and attempts to
sell the [P]roperty.” Id. at ¶ 3.13.
Prior to the foreclosure sale, Plaintiff filed the instant
lawsuit in Tarrant County Court, which automatically stayed
the sale. See Tex. R. Civ. P. 736.11. Id.
at ¶ 3.14.
21, 2019, Regions removed the case to this Court (ECF No. 1)
and shortly thereafter filed a Motion to Dismiss.
See Def.’s MTD, ECF No. 6. Plaintiff has
responded (ECF No. 7) and Regions has replied (ECF No. 10).
Thus, the Motion to Dismiss is now ripe for our
Rule of Civil Procedure 8(a) requires a claim for relief to
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Rule 8 does not require detailed
factual allegations, but “it demands more than an
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). If a plaintiff fails to satisfy Rule
8(a), the defendant may file a motion to dismiss the
plaintiff’s claims under Federal Rule of Civil
Procedure 12(b)(6) for “failure to state a claim upon
which relief may be granted.” Fed.R.Civ.P. 12(b)(6).
defeat a motion to dismiss pursuant to Rule 12(b)(6), a
plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “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.”
Iqbal, 556 U.S. at 663 (citing Twombly, 550
U.S. at 556). “The plausibility standard is not akin to
a ‘probability requirement, ’ but it asks for
more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 556). “Where a complaint pleads facts that
are ‘merely consistent with’ a defendant’s
liability, it ‘stops short of the line between
possibility and plausibility of entitlement to
relief.’” Id. (quoting Twombly,
550 U.S. at 557).
reviewing a Rule 12(b)(6) motion, the Court must accept all
well-pleaded facts in the complaint as true and view them in
the light most favorable to the plaintiff. Sonnier v.
State Farm Mut. Auto. Ins. Co., 509 F.3d 673, 675 (5th
Cir. 2007). The Court is not bound to accept legal
conclusions as true, and only a complaint that states a
plausible claim for relief survives a motion to dismiss.
Iqbal, 556 U.S. at 678–79. When there are
well-pleaded factual allegations, the Court assumes their
veracity and then determines whether they plausibly give rise
to an entitlement to relief. Id.
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.” Randall D. Wolcott,
M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir.
2011) (citations omitted); see also Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007). A court may also consider documents that a defendant
attaches to a motion to dismiss if they are referred to in
the plaintiff’s complaint and are central to the
plaintiff’s claims. Collins, 224 F.3d at
asserts claims in his Original Petition for breach of
contract, to quiet title, violations of the Texas Debt
Collection Practices Act (“TDCPA”) and Deceptive
Trade Practices Act (“DTPA”), and he seeks a
declaratory judgment. See Orig. Pet. at ¶¶
4–8, ECF No. 1-1. Regions’s motion to dismiss
seeks dismissal of each claim. See Def.’s MTD,
ECF No. 6. The Court examines each claim in turn.
Plaintiff’s Breach-of-Contract Claim
Texas law, an allegation of a breach of a deed of trust is
brought as a breach-of-contract claim. See Williams v.
Wells Fargo Bank, N.A., 884 F.3d 239, 244 (5th Cir.
2018). To state a claim for breach of a deed of trust
contract, a plaintiff must allege (1) the existence of a
valid contract; (2) performance by the plaintiff; (3) breach
by the defendant; and (4) the plaintiff sustained damages as
a result of the breach. See id.; S&S
Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d
843, 848 (Tex. 2018) (citing USAA Tex. Lloyds Co. v.
Menchaca, 545 S.W.3d 479, 501 n.21 (Tex. 2018)); see
also Oliphant Fin., LLC v. Galaviz, 299 S.W.3d 829, 834
(Tex.App.-Dallas 2009, no pet.) (citing Hussong v.
Schwan’s Sales Enters., Inc., 896 S.W.2d 320, 326
(Tex.App.-Houston [1st Dist.] 1995, no writ)).
asserts that Regions breached the Security Instrument by
failing to provide a notice of default and opportunity to
cure before accelerating (“notice of default”).
Orig. Pet. at ¶ 4.1, ECF No. 1-1. Plaintiff’s
Original Petition further alleges breaches of the Security
Agreement for failure to provide Plaintiff with a notice of
the foreclosure sale of the Property and for failure to
provide Plaintiff with a notice of acceleration. Id.
at ¶ 4.4.
Default for missed payments is not fatal to
on an unpublished opinion from the Fifth Circuit, Defendant
first argues that Plaintiff fails to state a claim for breach
of contract because Plaintiff does not allege the second
element of his breach-of-contract claim-performance by
Plaintiff.See Ybarra v. Wells Fargo Bank,
N.A., 575 Fed.Appx. 471, 474 (5th Cir. 2014). However,
more recently in Williams v. Wells Fargo Bank, N.A.,
the Fifth Circuit addressed a mortgage loan servicer’s
contention that the appellants could not maintain a suit for
breach of a deed of trust “because they have not
alleged facts supporting their own performance under the
contract, and therefore fail[ed] to satisfy the second
element of their breach of contract claim as a matter of
law.” 884 F.3d at 244. Williams explained that
Texas law recognizes several exceptions to the general rule
that a party in default cannot maintain a breach of contract
claim. Id. at 244–45. Namely, that “a
party’s default under a contract will only excuse the
other party’s performance of the contract’s terms
that are dependent upon the promises that the defaulting
party failed to perform.” Id. at 244. In
Williams, the Fifth Circuit concluded that the term
in the deed of trust that obligated the lender to provide
notice of a ...