United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
T. PITTMAN UNITED STATES DISTRICT JUDGE
the Court is Defendants Ocwen Loan Servicing, LLC's
(“Ocwen”) and Wells Fargo Bank, N.A., as Trustee
for Option One Mortgage Loan Trust 2001-A, Asset-Backed
Certificates, Series 2001-A's (“Wells Fargo”)
Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim
(ECF No. 10), filed July 15, 2019; Plaintiffs Steve
Mitchell's and Patti Mitchell's Response (ECF No.
16); and Defendants' Reply (ECF No. 18). Having
considered the Motion, briefing, and the applicable law, the
Court finds that Defendants' Motion to Dismiss should be
and is hereby GRANTED.
about March 6, 2001, Plaintiffs purchased certain property
commonly referred to as 6354 Montego Court, Fort Worth, Texas
76116 (“Property”). Orig. Pet. at ¶¶
3-4, ECF No. 1-3. In connection with the purchase, Plaintiff
Steve Mitchell, signed a promissory note in the amount of
$208, 000, in favor of Option One Mortgage Corporation, and
Steve and his wife, Plaintiff Patti Mitchell, signed a Deed
of Trust naming Option One Mortgage Corporation as the Lender
and beneficiary. Id. at ¶ 4. The Property is
Plaintiffs' homestead. Id.
allege that Wells Fargo represented that it had purchased
Plaintiffs' Loan in 2010, but that such a representation
is not supported by an examination of the Tarrant County
public records. Id. Thus, Plaintiffs assert that
because Wells Fargo purportedly lacks authority over their
Loan, Ocwen's authority as Wells Fargo's mortgage
servicer is likewise unfounded. Id.
Plaintiffs acknowledge in their Original Petition, this is
not the first lawsuit between them and Defendants. Orig. Pet.
at ¶ 4(G); MTD at ¶ 5, ECF No. 10. On or about
August 3, 2015, Plaintiffs previously filed a lawsuit against
the same Defendants in Texas state court (“First
Lawsuit”). MTD at Ex. 1. The First Lawsuit was removed
to this Court. See Steve Mitchell and Patti Mitchell v.
Ocwen Loan Servicing, LLC and Wells Fargo Bank, N.A., as
Trustee for Option One Mortgage Loan Trust 2001-A
Asset-Backed Certificates, Series 2001-A, No.
4:15-CV-006680-O. In the First Lawsuit, the Court granted
Defendants' Motion to Dismiss in part (MTD Ex. 2) and
then granted Defendants' Motion for Summary Judgment
before entering a Modified Final Judgment against Plaintiffs.
See MTD Ex. 3. The Modified Final Judgment recited
in part that “Wells Fargo is the current legal owner
and holder of the Note and mortgagee of the Deed of Trust
pursuant to a series of assignments recorded as document
numbers D211014736 and D215140917 in the official public
records of Tarrant County, Texas.” MTD Ex. 3 at 2. The
Modified Final Judgment further provided that “due to
the event of default on the Note, Wells Fargo, or its
successors or assigns, may enforce its Deed of Trust against
the Property through non-judicial foreclosure of the Property
as provided in the [Deed of Trust] and section 51.002 of the
Texas Property Code.” MTD Ex. 3 at 3.
appealed the Modified Final Judgment to the Fifth Circuit
Court of Appeals, but the appeal was dismissed on August 10,
2018 for want of prosecution (MTD, Ex. 4). See Mitchell
v. Ocwen Loan Servicing, L.L.C., No. 18-10380.
filed the instant lawsuit on September 4, 2018. Orig. Pet.
Plaintiffs allege that the enforcement of the lien is barred
by Wells Fargo's failure to comply with section 505.004
of the Texas Estates Code and section 9.001 of the Texas
Business and Commerce Code, and Plaintiffs sought declaratory
judgment that any substitute trustee's deed resulting
from a September 4, 2018 substitute trustee's sale is
void. Id. at ¶ 5. Defendants removed the case
to this Court on October 4, 2018. ECF No. 1.
15, 2019, Defendants filed a Rule 12(b)(6) Motion to Dismiss
(ECF No. 10), seeking dismissal primarily on the basis of res
judicata. Plaintiffs filed a Response (ECF No. 16) and
Defendants filed a Reply (ECF No. 18). The Motion to Dismiss
is now ripe for the Court's consideration.
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 ...