United States District Court, N.D. Texas, Fort Worth Division
RODNEY D. HARRIS, Plaintiff,
CENLAR FSB, Defendant.
MEMORANDUM OPINION AND ORDER
T. PITTMAN UNITED STATES DISTRICT JUDGE.
the Court is Defendant Cenlar FSB's Rule 12(b)(6) Motion
to Dismiss for Failure to State a Claim (ECF No. 6), filed
August 20, 2019. Having considered the Motion, briefing, and
the applicable law, the Court finds that Cenlar's Motion
to Dismiss should be and is hereby GRANTED in
part and DENIED in part.
Rodney D. Harris alleges in his Original Petition that he
owns and resides at 8509 Cactus Flower Drive, Fort Worth,
Texas 76131 (“Property”). Orig. Pet. at ¶ 8,
ECF No. 1-3. Harris states that in connection with his
purchase of the Property, on or about February 8, 2005, he
“allegedly signed a Promissory Note” in the
amount of $176, 550 in favor of Military Mortgage DBA of
American Investment. Id. at ¶ 9. Harris
acknowledges that the Note is secured by a Deed of Trust.
Id. at ¶ 10. Harris alleges that the loan was
assigned to CitiMortgage, Inc. as the mortgagee and servicer.
Id. at ¶ 11.
suffering financial hardship, Harris contacted CitiMortgage
to request loss mitigation assistance. Id. at ¶
12. Harris states that he submitted a complete loan
modification application to CitiMortgage on or about March
28, 2019, but while he was in the process of seeking a
modification, Harris was able secure a third-party, bona-fide
purchaser to buy the Property. Id. at ¶¶
13-14. Harris claims that he requested a payoff amount from
CitiMortgage in May 2019, and had June 30, 2019, as a closing
date. Id. at ¶ 15. However, Harris states that
sometime in April 2019, the servicing of the loan was
transferred to Cenlar, and when he requested an updated
payoff figure for closing, the payoff amount that Cenlar sent
had increased by approximately $55, 000. Id. at
¶ 16. This increased payoff amount stopped the sale of
the Property. Id.
asked Cenlar for an explanation as to why the payoff amount
had increased, but he has not received any information from
Cenlar. Id. at ¶ 17. Harris further alleges
that he has not received any mortgage statements from Cenlar,
so he has no way to determine or calculate the balance due on
the loan. Id. at ¶ 18.
states that he has yet to receive any notification whether
his loan modification application has been approved.
Id. at ¶ 19. Then, Harris received a notice of
foreclosure, scheduled for August 6, 2019. Id. at
¶ 20. According to Harris, the loan has been accelerated
for more than four years, so a foreclosure is barred by
August 5, 2019, Harris filed his Original Petition and
Application for Temporary Restraining Order against Cenlar
and CitiMortgage in the 48th District Court of Tarrant
County, Texas. See ECF No. 1-3 at 4. Harris
asserted claims violations of three sections of the Texas
Debt Collection Practices Act (“TDCPA”) and
negligent misrepresentation and sought declaratory judgments
and injunctive relief. Id. at 4-7. The same day, the
48th District Court granted a temporary restraining order
against Cenlar and CitiMortgage restraining them from
conducting the August 6, 2019 foreclosure. Id. at
August 13, 2019, Cenlar removed the case to this Court. ECF
No. 1. On August 20, 2019, Cenlar filed a 12(b)(6) Motion to
Dismiss. MTD, ECF No. 6. On September 10, 2019, Harris filed
a Motion to Extend time to File a Response, which the Court
granted thereby extending Harris's deadline to respond to
October 1, 2019. See ECF Nos. 8-9. It is now more
than three weeks after Harris's new deadline and no
response has been filed.
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 498-99.
asserts claims against Cenlar in his Original Petition for
violations of the TDCPA and negligent misrepresentation and
he also seeks a declaratory judgment and injunctive relief.
See Orig. Pet. at ¶¶ 22-37, ECF No. 1-3.
Cenlar's motion to dismiss ...