Suarez v. U.S. Bank, N.A., as Trustee

Western District of Texas, txwd-5:2019-cv-01339

Exhibit B - Suit1 Order

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EXHIBIT B Case Case 5:19-cv-01339-XR 5:16-cv-00040-DAE Document Document4-2 6 Filed Filed 03/11/16 12/02/19 Page Page 12 of of 89 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION FELIX SUAREZ and JOYCE § No.5:16-CV-040-DAE SUAREZ, § § Plaintiffs, § § vs. § § OCWEN LOAN SERVICING LLC and § ROB VALDESPINO et al., § TRUSTEES, § § Defendants. § ORDER GRANTING MOTION TO DISMISS Before the Court is a Motion to Dismiss for Failure to State a Claim filed by Ocwen Loan Servicing, LLC ("Ocwen" or "Defendant"). (Dkt. # 5.) Pursuant to Local Rule CV-7(h), the Court finds this matter suitable for disposition without a hearing. After careful consideration and upon reviewing the memorandum filed1, the Court, for the reasons that follow, GRANTS Defendant's Motion to Dismiss. 1 Felix and Joyce Suarez ("Plaintiffs") failed to file a response to Ocwen's Motion to Dismiss. 1 Case Case 5:19-cv-01339-XR 5:16-cv-00040-DAE Document Document4-2 6 Filed Filed 03/11/16 12/02/19 Page Page 23 of of 89 BACKGROUND On August 25, 2000, Felix Suarez obtained a loan on property he owned located at 1246 Clower Street, San Antonio, Texas 78201 ("the Property"), by signing an Adjustable Rate Note ("the Note") in the amount of $52,500. (Dkt. # 5, Ex. A.) That same day, Plaintiffs executed a Deed of Trust which granted Ocwen a security interest in the Property to secure repayment of the Note.2 On January 4, 2016, Plaintiffs filed an Original Petition for Injunctive Relief in the 37th Judicial District of Bexar County, Texas to enjoin Ocwen from foreclosing on the Property,3 alleging a violation of Section 51.002 of the Texas Property Code, and asserting a claim for promissory estoppel. ("Original Pet.," Dkt. # 1-1, Ex A at 9.) That same day, the 37th Judicial District issued a Temporary Restraining Order that enjoined the foreclosure sale. (Id. DW í 2 The Court takes judicial notice of the deed of trust and all assignments pursuant to Federal Rule of Evidence 201 as properly recorded and official property records of Bexar County, Texas. The Court also notes that Plaintiffs referenced these records and the records are central to Plaintiff's claims. Accordingly, the Court may rely on these documents to adjudicate the pending motion. Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) ("Generally, a court ruling on a 12(b)(6) motion may rely on the complaint, its proper attachments, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.") 3 The Court presumes Plaintiffs' state court action was precipitated by defaulting on their loan payments to Ocwen. Inexplicably, Ocwen provides no evidentiary support in the form of affidavits, sworn declarations, or authenticated business records to show Plaintiffs' default. 2 Case Case 5:19-cv-01339-XR 5:16-cv-00040-DAE Document Document4-2 6 Filed Filed 03/11/16 12/02/19 Page Page 34 of of 89 On January 15, 2016, Ocwen timely removed the state court action to this Court. (Dkt. # 1.) On February 5, 2016, Ocwen filed the instant motion. (Dkt. # 5.) Plaintiffs have not filed a response. LEGAL STANDARD Federal Rule of Civil Procedure 8(a) requires that a pleading include a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). If a plaintiff fails to satisfy Rule 8(a), the opposing party may file a motion to dismiss the claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In analyzing a motion to dismiss for failure to state a claim, the court "accept[s] 'all well pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" United States ex rel. Vavra v. Kellogg Brown & Root, Inc., 727 F.3d 343, 346 (5th Cir. 2013) (quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although "detailed factual allegations" are not 3 Case Case 5:19-cv-01339-XR 5:16-cv-00040-DAE Document Document4-2 6 Filed Filed 03/11/16 12/02/19 Page Page 45 of of 89 necessary, a plaintiff must provide "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. The statements in the complaint must be sufficiently detailed to "give the defendant fair notice of what the. . . claim is and the grounds upon which it rests." Id. A pro se plaintiff's pleadings are construed liberally with all well- pleaded allegations taken as true. Sama v. Hannigan, 669 F.3d 585, 599 (5th Cir. 2012). DISCUSSION I. Violation of Texas Property Code Section 51.002 In the Original Petition filed in state court, Plaintiffs allege that Defendants failed to comply with Section 51.002 of the Texas Property Code by failing to send the required 20 day notice of default and failing to file a proper notice of sale. (Original Pet. ¶ 4.03.) Under Texas law, the mortgage servicer must serve written notice of the default to give the debtor at least twenty days to cure the default before conducting a foreclosure sale. Tex. Prop. Code Ann. § 51.002(d). Upon passage of the twenty-day curing period, a mortgage servicer must provide a notice of sale by posting it at the county courthouse, filing notice in the office of the county clerk, and serving written notice of the sale on each debtor. Id. § 51.002(b)(1)-(3). 4 Case Case 5:19-cv-01339-XR 5:16-cv-00040-DAE Document Document4-2 6 Filed Filed 03/11/16 12/02/19 Page Page 56 of of 89 Here, based on the facts set forth in the Original Petition, Plaintiffs have not pled that a foreclosure sale actually occurred. Indeed, it is undisputed that Plaintiffs obtained a Temporary Restraining Order to prevent a foreclosure sale and now seek injunctive relief to prevent foreclosure. It is apparent to the Court that no foreclosure sale of the Property has occurred. Under Texas law, a valid foreclosure sale must occur to state a claim for a violation Section 51.002's notice requirements. Accordingly, Plaintiffs cannot state a claim pursuant to Section 51.002. See Johnson v. Wells Fargo Bank, NA, 999 F. Supp. 2d 919, 932 (N.D. Tex. 2014) (holding that no violation of the notice occurred because no foreclosure sale had occurred); Anderson v. J.P. Morgan Chase, 2013 WL 6524630, at * 2 (S.D. Tex. Dec. 11, 2013) (holding that because there has been no sale of the property, plaintiff cannot state a claim for violations of § 51.002.) Consequently, the Court finds that Plaintiffs have failed to state a claim under Section 51.002 of the Texas Property Code. II. Promissory Estoppel Plaintiffs appears to assert a claim for promissory estoppel by alleging that Defendants sent them a mortgage assistance package and instructed them to file a temporary restraining order to allow more time to process the modification. (Original Pet. ¶ 4.04.) 5 Case Case 5:19-cv-01339-XR 5:16-cv-00040-DAE Document Document4-2 6 Filed Filed 03/11/16 12/02/19 Page Page 67 of of 89 The elements of a promissory estoppel claim are: (1) a promise; (2) foreseeability of reliance thereon by the promisor; and (3) substantial detrimental reliance by the promisee. Trevino & Assocs. Mech., L.P. v. Frost Nat. Bank, 400 S.W.3d 139, 146 (Tex. App. 2013). Under Texas law, a loan agreement for more than $50,000 is not enforceable unless it is in writing. Tex. Bus. & Com. Code Ann. § 26.02(b). "An agreement regarding the. . . modification of a loan must therefore be in writing to be valid." Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 256 (5th Cir. 2013). In Texas, promissory estoppel may overcome the statute of frauds requirement, but "there must have been a promise to sign a written a contract which had been prepared and which would satisfy the requirements of the statute of frauds." Id. DW í LQWHUQDO FLWDWLRQV RPLWWHG Here, the alleged agreement falls within the statute of frauds because the loan assistance package would have been a document pertaining to a loan greater than $50,000. Plaintiffs allege only that Defendants "communicated" with them and sent a "Mortgage Assistance" package. Plaintiffs do not allege that Defendants promised to sign an agreement validating commemorating the oral agreement; this is necessary to satisfy the statute of frauds. Id. Accordingly, promissory estoppel does not overcome the statute of frauds and the Court finds that Plaintiffs have failed to state a claim. 6 Case Case 5:19-cv-01339-XR 5:16-cv-00040-DAE Document Document4-2 6 Filed Filed 03/11/16 12/02/19 Page Page 78 of of 89 III. Injunction Plaintiffs also seek an injunction to prevent Defendants from conducting a foreclosure sale of the Property. To obtain a permanent injunction, a plaintiff must demonstrate: (1) actual success on the merits of the substantive claims, (2) a substantial threat of irreparable injury if the injunction is not granted, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest. Dresser-Rand Co. v. Virtual Automation, Inc., 361 F.3d 831, 847 (5th Cir. 2004). Injunctive relief "should only be granted when the movant has clearly carried the burden of persuasion" on all four requirements. Anderson v. Jackson, 556 F.3d 351, 360 (5th Cir. 2009). Here, as explained above, Plaintiffs cannot show actual success on the merits of any of their substantive claims. Accordingly, the Court denies Plaintiffs' request for an injunction. CONCLUSION For the reasons stated above, Plaintiffs have failed to state any claims upon which the Court can grant relief. Accordingly, the Court GRANTS Defendant's Motion to Dismiss (Dkt. # 5) and ORDERS that this case be DISMISSED WITHOUT PREJUDICE. IT IS SO ORDERED. 7 Case Case 5:19-cv-01339-XR 5:16-cv-00040-DAE Document Document4-2 6 Filed Filed 03/11/16 12/02/19 Page Page 89 of of 89 DATED: San Antonio, Texas, March 11, 2016. _____________________________________ DAVID ALAN EZRA UNITED STATES DISTRICT JUDGE 8