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Moore v. Lakeview Loan Servicing, LLC

United States District Court, W.D. Texas

December 23, 2019

STACIE MOORE, Plaintiff
v.
LAKEVIEW LOAN SERVICING, LLC ANDLOANCARE, LLC, Defendants

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          SUSAN HIGHTOWER, UNITED STATES MAGISTRATE JUDGE.

         TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

         Before 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”).

         I. BACKGROUND

         On July 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.

         On 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.

         While the foreclosure of the Property was originally scheduled for October 1, 2019, the foreclosure has yet to occur.

         On 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).

         II. LEGAL STANDARD

         Federal 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. 2010).

         III. ANALYSIS

         As 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.

         A. Breach of Contract

         Plaintiff 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 ...


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