Benavides, Jr. v. Wells Fargo Bank, N.A.

Western District of Texas, txwd-5:2019-cv-01335

Motion to Dismiss for Failure to State a Claim by Wells Fargo Bank, N.A.

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3 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION JUAN BENAVIDES, JR., § § Plaintiff, § § v. § CIVIL ACTION NO. 5:19-cv-01335-XR § WELLS FARGO BANK, N.A. § § Defendant. § DEFENDANT'S MOTION TO DISMISS TO THE HONORABLE JUDGE OF SAID COURT: Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant Wells Fargo Bank, N.A. ("Wells Fargo" or "Defendant") files this Motion to Dismiss and requests that the Court dismiss Plaintiff's Original Petition, Application for Temporary Restraining Order, Temporary injunction, Permanent Injunction, and Request for Disclosures (the "Complaint") with prejudice. In support of its Motion, Wells Fargo respectfully shows the Court the following: I. INTRODUCTION Plaintiff Juan Benavides, Jr., ("Plaintiff") filed this lawsuit to prevent the foreclosure sale of real property located at 9218 Rue de Lis, San Antonio, Texas, 78250 (the "Property"). See Compl. at ¶¶ 9, 37. Plaintiff alleges that Wells Fargo failed to communicate loss mitigation options to him and failed to properly review his loss mitigation application while proceeding with foreclosure. Id. ¶¶ 13, 16. Additionally, Plaintiff alleges that Wells Fargo failed to provide a notice of default allowing Plaintiff at least 20 days to cure and notice of the foreclosure sale. Id. ¶¶ 20 – 24. Finally, Plaintiff claims that Wells Fargo did not properly manage his Loan and escrow account. Id. ¶ 13. Plaintiff asserts claims for negligence, violation of the Texas Property Code, 1 3 and breach of contract. See generally id. Based on these allegations, Plaintiff seeks temporary and permanent injunctive relief, actual damages and attorney's fees and costs. Id. Notably, Plaintiff's Complaint is devoid of specific factual allegations, instead asserting general, conclusory allegations and requesting relief based on insufficient facts and claims. For this reason, and for those further set forth below, Plaintiff's Complaint fails to state a claim. Because Plaintiff has failed to demonstrate "more than a sheer possibility that a defendant has acted unlawfully," this Court should be dismiss this lawsuit with prejudice. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). II. BACKGROUND Plaintiff asserts that on or about May 24, 2012, Plaintiff obtained a mortgage loan (the "Loan") in the original principal amount of $99,170 for the purchase of and secured by the Property. Compl. ¶ 9. Plaintiff does not deny that he is in default under the terms of the Loan. See generally id. The Property was scheduled for the November 5, 2019, foreclosure sale. Id. ¶ 7. Plaintiff filed suit in 166th District Court of Bexar County and obtained a temporary restraining order enjoining the sale. See Doc. 1-3 at 4 – 5. Wells Fargo removed the case to this Court and now seeks the Court to dismiss each of Plaintiff's claims. Each of Plaintiff's arguments fail. Consequently, Plaintiff's claims, which are premised on these arguments, also fail. Because Plaintiff fails to state a claim, the Court should dismiss this lawsuit in its entirety. III. ARGUMENT AND AUTHORITIES To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). "Factual allegations must. . . raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell 2 3 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While the allegations need not be overly detailed, a plaintiff's pleadings must still provide the grounds of his entitlement to relief, which "requires more than labels and conclusions," and "a formulaic recitation of the elements of a cause of action will not do." Id.; see also Iqbal, 556 U.S. at 678 ("'naked assertions' devoid of 'further factual enhancement,'" along with "legal conclusions" and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are not entitled to the presumption of truth). "[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). Demonstrating the facial plausibility of a claim requires a plaintiff to establish "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678. It is not enough that a plaintiff allege the mere possibility of misconduct; it is incumbent to "show that the [plaintiff] is entitled to relief." FED. R. CIV. P. 8(a)(2); Iqbal, 556 U.S. at 679. The court may dismiss a complaint under Rule 12(b)(6) if either the complaint fails to assert a cognizable legal theory or the facts asserted are insufficient to support relief under a cognizable legal theory. Stewart Glass & Mirror, Inc. v. U.S.A. Glass, Inc., 940 F. Supp. 1026, 1030 (E.D. Tex. 1996). A. Plaintiff's Negligence-Based Claims Fail because there is no Duty, the Claims are Barred by the Economic Loss Rule, and any Alleged Misrepresentations were not made for the Purpose of Plaintiff's Business. Plaintiff generally asserts that Wells Fargo was negligent in allegedly failing to comply with the notice provisions of the Deed of Trust and in reviewing and communicating with Plaintiff regarding loss mitigation. Compl. ¶¶ 13 – 19. However, Plaintiff's factual allegations relating to his negligence-based claims are devoid of any non-conclusory statements and are insufficient to support the claim. Additionally, the negligence-based claims further fail for the additional reasons set forth below. 3 3 To establish a claim for negligence, a plaintiff must prove (1) the existence of a legal duty, (2) a breach of that duty, and (3) damages proximately caused by that breach. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006). Here, Wells Fargo does not owe a duty to Plaintiff in tort. Duty is the threshold inquiry in a negligence claim. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); RT Realty, L.P. v. Tex. Utilities Elec. Co., 181 S.W.3d 905, 914 (Tex. App.—Dallas 2006, no pet.) ("The threshold inquiry regarding a gross negligence claim is whether a legal duty existed.). If there is no legal duty, liability for negligence cannot exist. See Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999) (dismissing negligence claim where the defendant did not owe the plaintiff a duty in tort). "In the mortgage context, there is no special relationship between a mortgagor and a mortgagee, or between a servicer and a borrower, that would impose an independent common law duty. . . ." Miller v. CitiMortgage, Inc., 970 F. Supp. 2d 568, 585 (N.D. Tex. 2013); see also Milton v. U.S. Bank Nat. Ass'n, 508 F. App'x 326, 329 (5th Cir. 2013) (negligence and gross negligence claims failed because "under Texas law, there is 'no special relationship between a mortgagor and mortgagee' that would give rise to a stand-alone duty"); Flowers v. Am. Nat'l Bank, N.A., No. 05-95-00761-CV, 1996 WL 743761, at *4 (Tex. App.—Dallas 1996, no pet.) (stating that a debtor-creditor relationship imposes no duties on the lender under a negligence cause of action). Plaintiff admits that he is the mortgagor and that Wells Fargo is the mortgagee. See Compl. ¶ 9. It is therefore clear that there is no special relationship and that Wells Fargo owes no duty in tort to Plaintiff. Further, Plaintiff's negligence-based claims also fail because they are barred by the economic loss rule. The economic loss rule precludes recovery in tort when the loss complained of is the subject matter of a contract between the parties. Sw. Bell Tele. Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex. 1991); see also Daryani, 2012 WL 3527924, at *3-4 ("Here, any complaints 4 3 by Plaintiffs about Defendant's misrepresentations, or their failure to provide information relating to the loan or alleged modification agreement, relate to the parties' contractual relationship, and cannot, as a matter of law, form the basis of a fraud claim."); Medistar, CIV.A. H-09-3828, 2010 WL 1996596, at *7 (recognizing the economic loss rule as a bar to fraud claims); Heil Co., 191 S.W.3d at 817 (holding that the economic loss rule barred fraud claim). The economic loss rule applies to claims for negligence that arise from a contract. See Essex Ins. Co. v. Blount, Inc., 72 F. Supp. 2d 722, 724. (E.D. Tex. 1999) (dismissing negligence claim under economic loss doctrine). Plaintiff has not alleged any facts supporting injury independent of the purported economic losses caused by the alleged failure to perform contractual obligations. Here, Plaintiff's negligence-based claims center on the alleged duties in the Deed of Trust, a contract. See Compl. ¶¶ 13 – 19. Thus, any complaints by Plaintiff about Wells Fargo's allegedly negligent conduct thereunder cannot, as a matter of law, form the basis of a negligence claim. See Daryani, 2012 WL 3527924, at *3-4. Plaintiff has not asserted any facts sufficient to support any claim for damages, let alone any injury independent of the purported economic losses caused by the alleged failure to perform contractual obligations. See Clark v. Bank of Am., No. 3:12-CV-1277-N-BK, 2012 WL 4793465, at *5 (N.D. Tex. Aug. 1, 2012); DeLanney, 809 S.W.2d at 494; Jim Walter Homes, Inc., 711 S.W.2d at 618; McCartney v. CitiFinancial Auto Credit, Inc., No. 4:10–CV–424, 2010 WL 5834802, at *5 (E.D. Tex. Dec. 14, 2010), rec. adopted, 2011 WL 675386 (E.D. Tex. Feb. 16, 2011). Each of Plaintiff's complaints about Wells Fargo's alleged misrepresentations relate to the parties' contractual relationship, and as such, cannot form the basis of a negligent misrepresentation claim. See Daryani, 2012 WL 3527924, at *3-4. Finally, to the extent that Plaintiff is asserting a negligent misrepresentation claim, under Texas law Plaintiff must prove that: (1) a representation made by the defendant in the course of its business or in a transaction in which it has a pecuniary interest; (2) the defendant supplies false 5 3 information for the guidance of others in their business; (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; (4) the plaintiff suffers pecuniary loss by justifiably relying on the representation. In re Absolute Res. Corp., 76 F. Supp. 2d 723, 732 (N.D. Tex. 1999). The negligent misrepresentation claim fails because the alleged misrepresentations related to the foreclosure notices, loss mitigation and/or account charges do not constitute a representation made for the guidance of Plaintiff in his business. A claim for negligent misrepresentation requires that the defendant supply false information for the guidance of others in their "business." Gen. Elec. Capital Corp. v. Posey, 415 F.3d 391, 395-96 (5th Cir. 2005); see also Douglas v. Wells Fargo Bank, N.A., 3:17-CV-02588-B, 2018 WL 2064388, at *3 (N.D. Tex. May 2, 2018); Hutton v. Nationstar Mortg. LLC, No. 3:16-CV-0266- B, 2018 WL 3392028, at *3 (N.D. Tex. July 10, 2018). "[N]egligent misrepresentation is a commercial tort; plaintiffs must show that the defendant negligently made a false representation 'in the course of his business. . . for the guidance of others in their business.'" Douglas, 2018 WL 2064388, at *3 (citing Posey, 415 F.3d at 395).1 The Court should dismiss the negligent misrepresentation claim because Plaintiff wholly fails to allege that the purported misrepresentation that forms the basis of the claim was made for the guidance of Plaintiff in his business. See generally Compl. For these reasons, Plaintiff's negligence-based claims further fail. 1 See also Weakly v. East, 900 S.W.2d 755, 759 (Tex. App.—Corpus Christi 1995, writ denied) (describing negligent misrepresentation as a "commercial tort"); Ayres v. Parker, No. SA-12-CV-621, 2013 WL 3929711, at *14 (W.D. Tex. Jul. 29, 2013) (rejecting negligent misrepresentation claim because plaintiffs failed to show representations were made for guidance in their business); Steele v. Green Tree Servicing, LLC, No. 3:09-CV-0603-D, 2010 WL 3565415, at *7-8 (N.D. Tex. Sept. 7, 2010) (disposing of a negligent misrepresentation claim sua sponte because, among other reasons, there was no evidence that "the information supplied was for the guidance of others in their business"); FloTrend Sys., Inc. v. Allwaste, Inc., 948 S.W.2d 4, 8 (Tex. App.—Houston [14 Dist.] 1997, no writ) (describing negligent misrepresentation as a "commercial tort"). 6 3 B. Plaintiff's Claim for Violation of the Texas Property Code Section 51.002 Fails because it does not Provide for a Private Right of Action and no Foreclosure has Occurred. Plaintiff generally claims that he did not receive notice of the default or notice of the foreclosure sale. Compl. ¶¶ 20 – 24. Plaintiff asserts that the notice was required under both the Texas Property Code and the Deed of Trust. Id. However, Plaintiff's claim for an alleged violation of the Texas Property Code Section 51.002 fails because there is no private right of action under Section 51.002. Texas Property Code Section 51.002 does not provide a private right of action. See also Nelson v. Wells Fargo Bank, N.A., No. 4:17-cv-298-A, 2017 WL 3405525, at *2 (N.D. Tex. Aug. 7, 2017); see also Palomino v. Wells Fargo Bank, N.A., No. 615CV00375RWSKNM, 2017 WL 989300, at *3 (E.D. Tex. Feb. 17, 2017) ("As Defendants correctly point out, Section 51.002 of the Texas Property Code, however, does not provide Plaintiffs with a private right of action.") (internal quotation omitted), report and recommendation adopted, No. 2017 WL 978930 (E.D. Tex. Mar. 14, 2017); Carey v. Wells Fargo, No. CV H-15-1666, 2016 WL 4246997, at *2-3 (S.D. Tex. Aug. 11, 2016) ("Section 51.002 of the Texas Property Code, however, does not provide Plaintiffs with a private right of action."); England v. JPMorgan Chase Bank, N.A., No. 4:14-CV- 183-Y, 2014 WL 12588508, at *1 (N.D. Tex. June 19, 2014) ("Plaintiff asserts a claim under Texas Property Code section 51.002, but there is no private right of action under that provision.. .."); Ashton v. BAC Home Loan Servicing, L.P., No. 4:13-cv-810, 2013 WL 3807756, at *2 (S.D. Tex. Jul. 19, 2013) ("This Court has not found any cases that interpret section 51.002 to establish an independent right of action for damages. The section also does not contain its own enforcement mechanism."). Consequently, courts have construed claims for violation of Section 51.002 as claims for wrongful foreclosure. See Nelson, 2017 WL 3405525, at *2, Palomino, 2017 WL 989300, at *3; 7 3 Carey, 2016 WL 4246997, at *3; England, 2014 WL 12588508, at *1; Anderson v. National City Mortg., No. 3:11-CV-1687-N, 2012 WL 612562, at *6 (N.D. Tex. Jan. 17, 2012); Johnson v. Vericrest Financial, Inc., No. 3:09-CV-1260-M, 2010 WL 3464971, at *4 (N.D. Tex. Aug. 27, 2010); Ashton, 2013 WL 3807756, at *2. However, any wrongful foreclosure claim made by Plaintiff here also fails as a matter of law. To state a wrongful foreclosure claim under Texas law, Plaintiff must plead: (1) a defect in the foreclosure sale proceedings; (2) a grossly inadequate selling price; and (3) a causal connection between the defect and the grossly inadequate selling price. See Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 253-56 (5th Cir. 2013); Barcenas v. Fed. Home Loan Mortg. Corp., No. H-12-2466, 2013 WL 286250, at *5 (S.D. Tex. Jan. 24, 2013). There must be evidence of an irregularity that "must have caused or contributed to cause the property to be sold for a grossly inadequate price." Barcenas, 2013 WL 286250, at *5. Texas law, however, does not recognize a cause of action for an attempted wrongful foreclosure. See Iroh v. Bank of Am., N A, No. 4:15-CV-1601, 2015 WL 9243826, at *4 (S.D. Tex. Dec. 17, 2015) ("Claims for attempted wrongful foreclosure, however, are simply not cognizable under Texas law.") (emphasis in original); Jolem, LLC v. Select Portfolio Servicing, Inc., No. H-14-3301, 2015 WL 3823642, at *8 (S.D. Tex. June 18, 2015) ("an attempted wrongful foreclosure claim is not recognized under Texas law"); Motten v. Chase Home Fin., 831 F. Supp. 2d 988, 1007 (S.D. Tex. 2011). In this case, Plaintiff obtained an ex parte temporary restraining order precluding the foreclosure sale of the Property. See Doc. No. 1-3 at 4 – 5. Nor does Plaintiff allege that the sale took place. See generally Compl. Because the foreclosure sale did not occur, Plaintiff cannot state a wrongful foreclosure claim as a matter of law. Regardless, Plaintiff cannot allege sufficient facts necessary to establish each element of a wrongful foreclosure claim. 8 3 Therefore, Plaintiff has failed to state a claim for violation of the Texas Property Code and wrongful foreclosure. C. Plaintiff's Breach of Contract Claim Fails Because Plaintiff has not Sufficiently Identified a Breach and Plaintiff has not Identified Damages. Plaintiff is alleging a breach of contract due to Defendant's alleged violation of the Deed of Trust and the HUD and/or RESPA regulations purportedly contained therein. Compl. ¶¶ 25 – 30. Plaintiff's breach of contract claim fails because Plaintiff has suffered no damages due to the alleged violation and the claim is insufficiently plead. Further, Plaintiff provides no support to show that the HUD and/or RESPA regulations are incorporated into the Deed of Trust, or that even if they are, he has the right to bring a private suit to enforce such as a breach of contract. Thus, Plaintiff's breach of contract claim must fail. To prevail on a breach of contract claim under Texas law, a plaintiff must show "(1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach." Sport Supply Group, Inc. v. Columbia Cas. Co., 335 F.3d 453, 465 (5th Cir. 2003); Steele v. Green Tree Servicing, LLC, No. 3:09-CV-0603-D, 2010 WL 3565415, at *4 (N.D. Tex. Sept. 7, 2010) (citations omitted); Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owners Ass'n, 205 S.W.3d 46, 55 (Tex. App.—Dallas 2006, pet. denied). As an initial matter, Plaintiff does not provide any factual allegations or specificity in regard to his breach of contract claim. Mere conclusions and general claims are insufficient to state any claim or raise a right to relief against Wells Fargo above the speculative level. Twombly, 550 U.S. at 555. Further, Plaintiff provides no authority for his claim that the HUD2 and/or 2 Plaintiff fails to identify any provision in the Deed of Trust that expressly incorporates HUD regulations into the agreement, which is fatal to Plaintiff's claims. See e.g. Johnson v. World All. Fin. Corp., 830 F.3d 192, 196 (5th Cir. 2016) ("We now make explicit what we have held in unpublished, non-precedential opinions. HUD regulations govern the relationship between the reverse-mortgage lender and HUD as insurer of the loan. HUD regulations do 9 3 RESPA3 regulations are incorporated into the Deed of Trust. See generally Compl. Further, even if the regulations are incorporated into the Deed of Trust, Plaintiff provides no authority that he could bring a private suit against a lender for violation of such. See generally id. Thus, Plaintiff fails to plead facts sufficient to support a breach of contract claim. Moreover, "it is not enough to generally allege the existence of a contract and generally allege that a contract has been breached. Instead, to state a plausible breach of contract claim a plaintiff must allege which provision of an identified contract has been breached." Caine v. Wells Fargo Bank, N.A., No. H17-2046, Doc. No. 60 at 5 (S.D. Tex. Jun. 8, 2018). Thus, to survive a motion to dismiss, Plaintiff must identify the specific provisions of the contract that he alleges were breached, which he does not. See Williams v. Wells Fargo Bank, N.A., 560 F. App'x 233, 238 (5th Cir. 2014) ("It has been held that a claim for breach of contract of a note and deed of trust must identify the specific provisions in the contract that was breached."); Guajardo v. JP Morgan Chase Bank, N.A., 605 F. App'x 240, 244 (5th Cir. 2015) (affirming dismissal of breach of contract claim where plaintiff did not specify which provision in the deed of trust was breached). Plaintiff not give the borrower a private cause of action unless the regulations are expressly incorporated into the lender- borrower agreement."); Padilla v. Nationstar Mortg. LLC, No. EP–18–CV–14–PRM, 2018 WL 2209766, at *5 (W.D. Tex. May 14, 2018) (dismissing claim for breach of HUD regulations because, among other things, "Plaintiff does not allege or provide any evidence that the Deed of Trust expressly incorporates the HUD regulations."). 3 To the extent Plaintiff is asserting Wells Fargo violated RESPA, that claim would fail. While Plaintiff fails to allege a specific section of RESPA that Wells Fargo purportedly violated, generally in the Fifth Circuit, Plaintiff must plead that he submitted a single complete loss mitigation application to Defendant and that the single complete loss mitigation application was sent to Defendant more than 37 days before a scheduled foreclosure sale, and he fails to do so here. See 12 C.F.R. § 1024.41(g); Gresham v. Wells Fargo Bank, N.A., 642 F. App'x 355, 359 (5th Cir. 2016) (holding that "Section 1024.41(g) only applies where a servicer receives a complete loss mitigation application more than 37 days before a foreclosure sale" and affirming dismissal of RESPA claim where the plaintiff failed to plead that he submitted a complete loss mitigation application more than 37 days before the foreclosure sale date). Further, Plaintiff fails to plead any actual damages sustained as a result of the alleged RESPA violations, which is required to state a RESPA claim. See 12 U.S.C. § 2605(f)(1); Smith v. JPMorgan Chase Bank, N.A., 519 Fed. Appx. 861, 864 (5th Cir. 2013) (requiring a showing of "particular damages as a result" of the alleged RESPA violation); Kareem v. Am. Home Mortg. Servicing, Inc., 479 F. Appx. 619, 620 (5th Cir. 2012) (holding that plaintiff could not recover on his RESPA claim because he did not allege what actual damages he suffered); Armendariz v. Bank of Am., N.A., No. EP-15-CV-00020-DCG, 2015 WL 3504961, at *5 (W.D. Tex. May 21, 2015) ("[E]ven assuming that Plaintiff did not receive the required notification under RESPA, Plaintiff's claim still fails because the Complaint contains no facts explaining how this alleged violation impeded Plaintiff's ability to pay the mortgage, or otherwise caused Plaintiff to incur actual damages."). 10 3 has not alleged any specific provision of a contract between the parties that was allegedly breached. See generally Compl. Plaintiff fails to provide a single non-conclusory allegation in support of a breach of contract claim. Id. Finally, Plaintiff has not properly pled recoverability of damages for the alleged breach of contract. No foreclosure sale has occurred, and the damages Plaintiff pleads are speculative at best. See CQ, Inc. v. TXU Min. Co., L.P., 565 F.3d 268, 278 (5th Cir. 2009) ("[a] party may not recover damages for breach of contract if those damages are remote, contingent, speculative, or conjectural") (citations omitted); Maldonado v. Bank of Am., SA-12-CA-442-FB, 2013 WL 12108679, at *3 (W.D. Tex. June 14, 2013) (citing Peoples v. BAC Home Loans Serv., LP, No. 4:10-CV-489-A, 2011 WL 1107211, at *4 (N.D. Tex. Mar. 25, 2011) (holding mortgagor failed to establish she actually sustained damages for breach of contract claim where mortgagor admitted no foreclosure had occurred, she remained in continuous possession and occupation of the residence, and title remained in her name). Plaintiff merely alleges that "Plaintiff has suffered harm as he has incurred additional charges to his loan balance and escrow account" Compl. ¶¶ 19, 29. Plaintiff provides no further factual enhancement as to what these charges are or how they stem from Wells Fargo's alleged breach of contract. See generally id. This is simply insufficient to support a breach of contract claim and such claim should be dismissed. For these reasons, the breach of contract claim further fails and should be dismissed. D. The Requests for Injunctive Relief and Attorney's Fees Should Be Dismissed Because the Underlying Claims Fail. Plaintiff seeks attorney's fees and injunctive relief precluding foreclosure of the lien. See Compl. ¶¶ 37 – 49, 34. Because Plaintiff's claims fail for the reasons discussed above, and because Plaintiff has otherwise failed to plead any cognizable claim against Wells Fargo, this Court should 11 3 decline to consider Plaintiff's request for injunctive relief. See Cook v. Wells Fargo Bank, N.A., No. 3:10-CV-592-D, 2010 WL 2772445, at *4 (N.D. Tex. July 12, 2010). Likewise, Plaintiff's request for attorney's fees is also barred, because Plaintiff has not plead any viable causes of action that would allow for recovery of attorney's fees. E.g., Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). IV. CONCLUSION Plaintiff fails to state a claim upon which relief can be granted. Accordingly, Wells Fargo respectfully requests that the Court grant this Motion, and pursuant to Federal Rule of Civil Procedure 12(b)(6), enter an order dismissing this lawsuit in its entirety with prejudice. Wells Fargo further requests all relief, at law or in equity, to which it is justly entitled. Respectfully submitted, LOCKE LORD LLP /s/ Elizabeth Hayes B. David L. Foster Texas Bar No. 24031555 600 Congress Ave., Suite 2200 Austin, Texas 78701 (512) 305-4700 (512) 305-4800 (Facsimile) Robert T. Mowrey State Bar No. 14607500 Elizabeth Hayes Texas Bar No. 24069001 2200 Ross Avenue, Suite 2800 Dallas, Texas 75201-6776 (214) 740-8000 (214) 740-8800 (facsimile) ATTORNEYS FOR WELLS FARGO 12 3 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served as indicated on this 2nd day of December, 2019, to the following: VIA ECF Robert C. Newark, III 1341 W. Mockingbird Lane, Suite 600W Dallas, Texas 75247 Attorney for Plaintiff /s/ Elizabeth Hayes Elizabeth Hayes 13