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Harris v. Cenlar FSB

United States District Court, N.D. Texas, Fort Worth Division

October 29, 2019

RODNEY D. HARRIS, Plaintiff,
CENLAR FSB, Defendant.



         Before 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.

         I. BACKGROUND[1]

         Plaintiff 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.

         After 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.

         Harris 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.

         Harris 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 limitations. Id.

         On 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.[2] 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 27-28.

         On 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.


         Federal 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 unadorned, the-defendant-unlawfully-harmed-me 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).

         To 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).

         In 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.

         “Generally, 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.

         III. ANALYSIS

         Harris 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 ΒΆΒΆ 22-37, ECF No. 1-3. Cenlar's motion to dismiss ...

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