Bravo et al v. Freedom Mortgage Corporation et al

Western District of Texas, txwd-5:2019-cv-00411

ORDER GRANTING [7] Motion to Dismiss ; GRANTING [8] Motion to Dismiss Signed by Judge Fred Biery.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION ANDREW BRAVO & FAITH R. BRAVO, § § Plaintiffs, § § VS. § CIVIL ACTION NO. SA-19-CA-0411-FB § FREEDOM MORTGAGE CORPORATION § and TRUSTEE CORPS, § § Defendants. § ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS Before the Court are Defendant MTC Financial, Inc., d/b/a Trustee Corps' Motion to Dismiss Pursuant to Rule 12(b)(6) and Texas Property Code § 51.007 filed on May 28, 2019 (docket #7), and Freedom Mortgage Corporation's Motion to Dismiss Plaintiffs' Amended Complaint filed on May 30, 2019 (docket #8). To date, the docket sheet in this case reflects that no response or opposition to either motion has been filed.1 Defendant MTC Financial, Inc. d/b/a Trustee Corps contends in its motion that plaintiffs' claims against it should be dismissed because plaintiffs failed to file a verified response to its verified denial made pursuant to § 51.007 of the Texas Property Code. Specifically, Trustee Corps points to § 51.007(b) which provides that "[w]ithin 30 days after the filing of the trustee's verified denial, a verified response is due from all parties to the suit or proceeding setting forth all matters, whether in law or fact, that rebut the trustee's verified denial," and § 51.007(c) which provides that "[i]f a party has no objection or fails to file a timely verified response to the trustee's verified denial, the trustee 1 Western District of Texas Local Rule CV-7(d) provides: If any party opposed a motion, the respondent shall file a response and supporting documents as are then available within 11 days of service of the motion. The response shall contain a concise statement of the reasons and opposition to the motion and citations of the specific legal authorities upon which the party relies. . . . If there is no response filed within the time period prescribed by this rule, the Court may grant the motion as unopposed. However, it is not proper for this Court to grant a motion to dismiss solely based on a party's failure to respond. Webb v. Morella, No. 11-30175, 2012 WL 45411 at *2 n.4 (5th Cir. Jan. 9, 2012). shall be dismissed from the suit or proceeding without prejudice." Defendant MTC Financial, Inc.'s Motion to Dismiss, docket #7 at pages 2-3. Because Trustee Corps filed its verified denial on April 18, 2019, and to date, plaintiffs have not objected and have not filed a verified response, Trustee Corps contends it is entitled to dismissal without prejudice pursuant to § 51.007 of the Texas Property Code. The Court agrees. Accordingly, IT IS HEREBY ORDERED that Defendant MTC Financial, Inc., d/b/a Trustee Corps' Motion to Dismiss Pursuant to Rule 12(b)(6) and Texas Property Code § 51.007 (docket #7) is GRANTED such that plaintiffs' claims against this defendant are DISMISSED WITHOUT PREJUDICE. In its motion to dismiss, defendant Freedom Mortgage Corporation contends that the substantive claims for breach of contract and violations of the Texas Finance Code fail because the Plaintiffs' Amended Complaint does not allege any of the elements required to assert a breach of contract claim or any violation of the Texas Finance Code. Plaintiffs' additional claims for declaratory and injunctive relief likewise fail because they are both dependent upon another cause of action. The Court has reviewed the motion and the arguments and authorities presented therein. Based on the arguments and authorities presented and a review of the record in this case, the Court finds the motion has merit and should be granted. Accordingly, IT IS HEREBY ORDERED that Freedom Mortgage Corporation's Motion to Dismiss Plaintiffs' Amended Complaint (docket #8) is GRANTED such that all claims asserted in this cause of action against Freedom Mortgage Corporation are DISMISSED WITH PREJUDICE. Motions pending, if any, are also DISMISSED, and this case is now CLOSED. It is so ORDERED. SIGNED this 31st day of July, 2019. _________________________________________________ FRED BIERY UNITED STATES DISTRICT JUDGE -2-