United States District Court, W.D. Texas
REPORT AND RECOMMENDATION OF THE UNITED STATES
HIGHTOWER, UNITED STATES MAGISTRATE JUDGE.
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
this Court is Defendants' Motion to Dismiss
Plaintiff's Complaint Pursuant to Fed.R.Civ.P. 12(b)(6),
filed October 7, 2019 (Dkt. No. 5). Plaintiff did not file a
Response. On September 30, 2019, the District Court referred
the above case to the undersigned Magistrate Judge pursuant
to 28 U.S.C. § 636(b)(1), Federal Rule of Civil
Procedure 72, and Rule 1 of Appendix C of the Local Rules of
the United States District Court for the Western District of
Texas (“Local Rules”).
19, 2017, Plaintiff Stacie Moore (“Plaintiff”)
obtained a home equity loan (“Loan”) from
Georgetown Mortgage, LLC in the amount of $240, 562.00 on
residential property located at 102 Reinhardt Court,
Georgetown, Texas 78626 (the “Property”). On that
same day, Plaintiff executed a deed of trust (“Deed of
Trust”), and signed a promissory note
(“Note”) (hereinafter referred together as the
“Loan Agreement”) to obtain the Loan. The Loan
was later assigned to Lakeview Loan Servicing, LLC
(“Lakeview”). After Plaintiff failed to make
monthly payments on her Loan, LoanCare, LLC
(“LoanCare”), a loan servicing company, notified
Plaintiff that her Loan was in default.
September 10, 2019, Plaintiff filed this lawsuit against
Lakeview and LoanCare (“Defendants”) in state
court to stop the foreclosure of her property. See Moore
v. Lakeview Loan Servicing, Cause No. 19-1419-C395
(395th Dist. Ct., Williamson County, Tex. Sept. 10, 2019).
Plaintiff alleges that Defendants failed to properly notify
her of the default, and that Defendants failed to properly
credit certain payments she made towards her Loan. Plaintiff
alleges breach of contract, violations of the Texas Debt
Collection Act, and violations of the Deceptive Trade
Practices Act. Plaintiff also seeks injunctive relief to stop
the foreclosure of the Property was originally scheduled for
October 1, 2019, the foreclosure has yet to occur.
September 23, 2019, Defendants removed this case to federal
court on the basis of diversity jurisdiction under 28 U.S.C.
§§ 1332 and 1441(a). On October 7, 2019, Defendants
filed the instant Motion to Dismiss arguing that all of
Plaintiff's claims should be dismissed under Federal Rule
of Civil Procedure 12(b)(6).
Rule of Civil Procedure 12(b)(6) allows a party to move to
dismiss an action for failure to state a claim on which
relief can be granted. In deciding a Rule 12(b)(6) motion to
dismiss for failure to state a claim, the court
“accepts all well-pleaded facts as true, viewing them
in the light most favorable to the [nonmovant].” In
re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th
Cir. 2007) (internal quotation marks omitted). The Supreme
Court has explained that a complaint must contain sufficient
factual matter “to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the [nonmovant] pleads factual
content that allows the court to draw the reasonable
inference that the [movant] is liable for the misconduct
alleged.” Ashcroft, 556 U.S. at 678.
“While a complaint attacked by a Rule 12(b)(6) motion
to dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550
U.S. at 555 (internal quotations and citations omitted).
“Factual allegations must be enough to raise a right to
relief above the speculative level.” Id. The
court's 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 claim and
referenced by the complaint. Lone Star Fund V (U.S.),
L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.
noted, Plaintiff failed to respond to Defendants' Motion
to Dismiss. Pursuant to Local Rule CV-7(e), if there is no
response filed within the time period prescribed by the
rules, the court may grant the motion as unopposed.
See Local Court Rule CV-7(e)(2) (responses to
dispositive motions due within 14 days of motion's
filing). However, the Court will address the merits of the
Motion because dismissing a case other than on the merits of
the claims is disfavored.
Breach of Contract
alleges that Defendants breached the Loan Agreement by (1)
failing to provide Plaintiff with “proper notice”
of the default, and (2) failing to credit her account with
the four payments she allegedly made between October 25, 2018
and January 28, 2019. The essential elements of a breach of
contract claim under Texas law are (1) the existence of a
valid contract; (2) performance or tendered performance by
the plaintiff; (3) breach of the contract by the defendant;
and (4) damages to the plaintiff as a result of the
defendant's breach. Williams v. Wells Fargo Bank,
N.A., 884 F.3d 239, 244 (5th Cir. 2018). Plaintiff's
breach of ...