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Pantoja v. JPMorgan Chase Bank, N.A.

United States District Court, S.D. Texas, Houston Division

October 23, 2019

MARIA E. PANTOJA, Plaintiff,



         Plaintiff Maria E. Pantoja ("Plaintiff"), sued defendant JPMorgan Chase Bank, N. A. ("Defendant") in the 164th Judicial District Court of Harris County, Texas.[1] Defendant timely removed the action to this court.[2] Pending before the court is Defendant's Fed.R.Civ.P. 12(b) (6) Motion to Dismiss Plaintiff's Complaint for Failure to State a Claim ("Motion to Dismiss") (Docket Entry No. 5). For the reasons stated below, the Motion to Dismiss will be granted, and this action will be dismissed with prejudice.

         I. Factual Allegations and Procedural Background

         Plaintiff's Original Petition alleges that she and her ex-husband, Ascencion Zarate, owned the real property located at 7801 Pecan Villas Drive, Houston, Texas 77061 ("the Property") under a warranty deed. They financed the home through loans from New Century Mortgage Corporation. The loans were transferred to Defendant in 2006. On September 26, 2006, the loans were refinanced into a single loan in the amount of $137, 748.72. Both Plaintiff and Zarate signed the deed of trust, but only Zarate signed the promissory note that named him "Borrower."[3]

         By 2019 Plaintiff and Zarate had failed to pay property taxes on the Property for the past two years. In February of 2019 Defendant exercised its right under the deed of trust to pay the taxes on the property and demand reimbursement from the owners.[4] Defendant demanded immediate payment of the full amount of taxes paid plus expenses incurred for a total of $4, 414.82. Plaintiff offered a partial payment and sought to negotiate a payment plan, but Defendant insisted on immediate repayment as provided by the terms of the deed of trust. When Plaintiff and Zarate did not timely pay, Defendant exercised its right under the deed of trust to declare a default for failure to pay taxes.[5] Pursuant to the default, Defendant accelerated the entire amount owed under the note and took steps to begin foreclosure proceedings.[6]

         On August 29, 2019, Plaintiff brought an action in state district court seeking an injunction to halt foreclosure proceedings and alleging claims of breach of contract, negligence per se, unreasonable debt collection efforts under Texas common law, the Texas Debt Collection Act, and the Texas Deceptive Trade Practices Act.[7] On September 12, 2019, Defendant removed the action to this court alleging diversity jurisdiction under 28 U.S.C. § 1441.[8] On September 23, 2019, Defendant moved to dismiss Plaintiff's claims for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12 (b) (6).[9] Plaintiff has not filed a response to Defendant's Motion to Dismiss. Each claim in Plaintiff's Original Petition will be analyzed under the standard of review set forth below.

         II. Standard of Review

         Under the Federal Rules of Civil Procedure a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8 (a) (2). A plaintiff's pleading must provide the grounds of his entitlement to relief and "a formulaic recitation of the elements of a cause of action will not do. . . .” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). "' [N]aked assertion [s]' devoid of 'further factual enhancement'" or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Fernandez-Montes v. Allied Pilots Association, 987 F.2d 278, 284 (5th Cir. 1993). Instead, "[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, 129 S.Ct. at 1949.

         A Rule 12(b) (6) motion tests the formal sufficiency of the pleadings and is "appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied sub nom. Cloud v. United States, 122 S.Ct. 2665 (2002). To defeat a motion to dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 127 S.Ct. at 1974. The court does not "strain to find inferences favorable to the plaintiffs" or "accept conclusory allegations, unwarranted deductions, or legal conclusions." Southland Securities Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004) (internal quotation marks and citations omitted). "[C]ourts are required to dismiss, pursuant to [Rule 12(b) (6)], claims based on invalid legal theories, even though they may be otherwise well-pleaded." Flynn v. State Farm Fire and Casualty Insurance Co. (Texas), 605 F.Supp.2d 811, 820 (W.D. Tex. 2009) (citing Neitzke v. Williams, 109 S.Ct. 1827, 1832 (1989)).

         In ruling on a Rule 12(b) (6) motion the court must "accept the plaintiff's well-pleaded facts as true and view them in the light most favorable to the plaintiff." Chauvin v. State Farm Fire & Casualty Co., 495 F.3d 232, 237 (5th Cir. 2007). 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 claims and referred to 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. Breach of Contract

         Plaintiff alleges Defendant breached the parties' contract by refusing to accept her partial payment for the delinquent taxes, failing to provide a reasonable right to cure, and failing to provide notice of default prior to acceleration in 2016 .[10] Defendant argues this claim must be dismissed because the facts pled by Plaintiff do not show a violation of the contract's terms. To determine if Plaintiff has stated a valid claim, the court may consider both the deed of trust attached to Plaintiff's Original Petition and the promissory note attached to Defendant's Motion to Dismiss. Lone Star Fund V (U.S.), 594 F.3d at 387.

         Plaintiff must plead facts showing that Defendant failed to act in accordance with the agreement in order to state a claim for breach of contract. Henry v. Masson, 333 S.W.3d 825, 835 (Tex. App.- Houston [1st Dist.] 2010, no pet.). Plaintiff must identify the specific provision of the contract that the Defendant allegedly breached. Baker v. Great Northern Energy, Inc., 64 F.Supp.3d 965, 971 (N.D. Tex. 2014). The deed of trust obligates the Plaintiff and Zarate to timely pay all taxes levied on the property.[11] It states that the Defendant may hold the Plaintiff and Zarate in default for failure "to make any payment for taxes."[12] Default may be avoided if the issue is cured within fifteen days of receiving notice of the failure precipitating default.[13] Once in default, the lender may demand the entire amount of indebtedness due.[14] Contrary to Plaintiff's allegations, the deed of trust contains no provision specifying the manner, timing, or necessary recipient of any notice the lender may be obligated to send under Texas law.[15]

         The Original Petition states that Plaintiff fell into arrears for failure to pay taxes, and Plaintiff did not fully reimburse Defendant for those unpaid taxes when asked to do so.[16] Under the plain terms of the contract Defendant was therefore within its rights to declare a default and accelerate the loan. Plaintiff does not allege Defendant gave less than the contractually provided fifteen days to cure. Plaintiff points to no provision that required Defendant to accept partial payment of the taxes or send her notice of default or acceleration. Because Plaintiff has not identified any provision in the contract that Defendant's conduct allegedly breached, her breach of contract claim fails as a matter of law. Baker, 64 F.Supp.3d at 971.

         B. Negligence Per Se

         Plaintiff asserts a claim in negligence per se for Defendant's alleged violation of section 51.002 of the Texas Property Code. "The unexcused violation of a statute or ordinance constitutes negligence as a matter of law if such statute or ordinance was designed to prevent injury to the class of persons to which the injured party belongs." Nixon v. Mr. Property Management Co., Inc.,690 S.W.2d 546, 549 (Tex. 1985). To sustain her negligence per se claim Plaintiff must plead facts that would demonstrate Defendant violated ...

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