Ken Easterling v. U.S. Bank Nat'Lass'N, Civil Action No. 3:16-CV-3403-L-BH
| Decision Date | 06 December 2018 |
| Docket Number | Civil Action No. 3:16-CV-3403-L-BH |
| Parties | KEN EASTERLING, Plaintiff, v. U.S. BANK NATIONAL ASSOCIATION, Defendant. |
| Court | U.S. District Court — Northern District of Texas |
By order of reference dated February 9, 2017 (doc. 5), before the court for recommendation are the defendant's "Motion to Dismiss and Motion for Summary Judgment," filed May 29, 2018 (doc. 17), and "Motion to Strike and Objections to Plaintiff's Affidavit of Thomas H. Hargreaves," filed July 3, 2018 (doc. 24), and the plaintiff's "Amended Motion to Correct," filed September 31, 2018 (doc. 31). Based on the relevant filings and applicable law, the defendant's motion to strike is DENIED, its motions to dismiss and for summary judgment should be GRANTED, and the plaintiff's motion should be DENIED.
This case involves the attempted foreclosure of real property located at 1233 High Bluff Drive, Desoto, Texas 75115 (the Property).1 (doc. 1-1 at 6.)2 On August 4, 2003, Ken Easterling (Plaintiff) executed a Note (Note) in favor of Military Mortgage, a DBA of American Investment (Military Mortgage), for a loan in the principal amount of $240,000.00. (doc. 18-1 at 6-7.) He also executed a Deed of Trust (Deed of Trust) that granted a security interest in the Property to Military Mortgage to secure repayment under the Note. (Id. at 9-28.) Under the terms of the Note and the Deed of Trust, Plaintiff would be in default if he failed to timely pay the full amount of each required monthly payment and subject to acceleration of the loan and foreclosure proceedings on the Property. (Id. at 6, 12.) On August 8, 2013, Military Mortgage executed an Assignment of Deed of Trust to CMS Mortgage Group, Inc. (CMS Mortgage), which executed an Assignment of Deed of Trust to MVB Mortgage Corporation (MVB Mortgage) on September 10, 2003. (Id. at 30-33.) On September 2, 2005, MVB Mortgage Corporation executed an Assignment of Deed of Trust to Mortgage Electronic Registration Systems, Inc. (MERS). (Id. at 34-35.)
Beginning June 1, 2011, Plaintiff failed to submit the required monthly payments under the Note and the Deed of Trust and was held in default by MERS. (doc. 18-1 at 3.) On August 5, 2011, Defendant, as the mortgage servicer of MERS, provided him with written notice of the default on the Note, an opportunity to cure the default, and notice that it intended to accelerate the Note and declare all outstanding principal and accrued unpaid interest to be immediately due and payable if he failed to cure the default (Notice of Default). (Id. at 39-42.) On October 21, 2011, MERS executed an Assignment of Deed of Trust to Defendant. (Id. at 36-37.) On December 6, 2011, Defendant's foreclosure counsel provided Plaintiff with a notice of acceleration, which noted its decision to accelerate all amounts due and owing under the Note (Notice of Acceleration). (Id. at 44-56.) Plaintiff was also provided with notice that the foreclosure sale of the Property was scheduled for January 3, 2012. (Id. at 45.)
On September 1, 2016, Plaintiff sued Defendant in Texas state court, alleging debt collection violations and seeking declaratory relief and a temporary restraining order to enjoin the foreclosure sale of the Property. (doc. 1-1 at 10). The next day, the state court entered a temporary restraining order enjoining the foreclosure sale of the Property. (Id. at 14-15.)
On November 10, 2016, Defendant filed its answer and asserted a counterclaim for breach of contract. (doc. 1-1 at 16-22.) It alleged that it "is the holder and owner of the Note, the assignee of rights under the Deed of Trust, and the mortgage servicer of [the Note and the Deed of Trust], as the term mortgage servicer is defined by Tex. Prop. Code § 51.001." (Id. at 18.) It also claimed that as of June 1, 2011, Plaintiff had failed to tender payments as contractually agreed to under the Note and the Deed of Trust. (Id. at 19.) It sought judgment declaring that it "may proceed with a foreclosure sale under the terms of the security instrument, Tex. Prop. Code §51.002 and applicable law with request to the secured Property." (Id. at 20.) Defendant also sought to recover its costs and attorneys' fees as permitted ." (Id.) On December 9, 2016, Defendant removed this action to federal court asserting diversity jurisdiction under 28 U.S.C. § 1332. (doc. 1 at 3-4.)
On May 29, 2018, Defendant moved to dismiss Plaintiff's claim and for summary judgment on its counterclaim. (docs. 17, 18.) On June 4, 2018, Plaintiff filed the "Affidavit of Thomas W. Hargreaves" in response to Defendant's motion. (doc. 20.) On July 3, 2018, Defendant filed a motion to strike the affidavit. (doc. 24.) On September 4, 2018, Plaintiff moved to dismiss Defendant's counterclaim for foreclosure. (doc. 31.) With timely filed responses, the motions are ripe for determination.
Defendant moves to dismiss Plaintiff's complaint under Fed. R. Civ. P. 8 "because it fails to satisfy the requirements of Rule 8." (doc. 18 at 9.)
Under Rule 8(a)(2), "[a] pleading that states a claim for relief . . . must contain a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Bank of Abbeville & Tr. Co v. Commonwealth Land Title Ins. Co, 201 F. App'x 988, 990 (5th Cir. 2006) (quoting Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999) (emphases added)). For that reason, a complaint can satisfy Rule 8's formal pleading requirements even if "dismissal [is] nevertheless proper because the plaintiff 'would not be entitled to relief under any set of facts or any possible theory that it could prove consistent with the complaint's allegations.'" Body by Cook, Incorporated v. State Farm Mutual Automobile Insurance, 869 F.3d 381, 385-86 (5th Cir. 2017) (quoting Bank of Abbeville, 201 F. App'x at 990).
Plaintiff's complaint asserts a claim for violations of Texas's debt collection statutes as well as a judicial declaration regarding the Property and the debt he allegedly owes to Defendant. (doc. 1-1 at 10.) Despite not identifying the statutory provisions underlying his debt collection violation claims, his allegations provide "a short and plain statement of the claim showing that the pleader is entitled to relief." See Fed. R. Civ. P. 8(a)(2). To the extent that Defendant seeks dismissal solely under Rule 8, its motion should be denied.
Although Defendant only cites Rule 8 as the procedural basis for its motion to dismiss, it cites Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007), and argues that "[t]o avoid judgment on the pleadings or dismissal, a complaint must contain "enough facts to state a claim to relief that is plausible on its face'." (Id. at 9.) Because it cites the Twombly standard for dismissal under Rule 12(b)(6), Defendant appears to also seek dismissal under that rule.
Any motion filed under Rule 12(b) "must be made before pleading if a responsive pleading is allowed." Fed. R. Civ. Proc. 12(b). "'[M]otions to dismiss filed after responsive pleading are rarely dismissed as improper,' however." Moore v. Payson Petroleum Grayson, LLC, No. 3:17-CV-1436-M-BH, 2018 WL 793800, at *3 (N.D.Tex. Jan. 22, 2018) (quoting Reeves v. Wells Fargo Bank, N.A., No. EP-13-CV-318-DCG, 2014 WL 12492038, at *3 (W.D. Tex. Apr. 14, 2014)) "Courts will either treat the motion as if it were timely filed, or alternatively, construe such a motion to be a Rule 12(c) motion for judgment on the pleadings." Id. Where, as here, the defendant has not previously included failure to state a claim for which relief may be granted as a defense in its state court answer to the original petition, "thereby giving notice" of the defense, the motion may be considered as if asserted under Rule 12(c). Id.
Federal Rule of Civil Procedure 12(c) provides a means "to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts." Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir.2002) (citation omitted). The standard for deciding a Rule 12(c) motion is the same as a Rule 12(b)(6) motion to dismiss for failure to state a claim. See id. at 313 n.8 (); Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir.2007). As with a Rule 12(b)(6) motion, the question under Rule 12(c) is whether the plaintiff is entitled to offer evidence to support his claim, not whether he will ultimately prevail on the merits. Great Plains Trust, 313 F.3d at 313. Unlike a motion under Rule 12(b)(6), however, a party may file a motion under Rule 12(c) "[a]fter the pleadings are closed—but early enough not to delay trial." Fed.R.Civ.P. 12(c). Defendant's motion is therefore construed as arising under Rule 12(c).
Rule 12(b)(6) allows motions to dismiss for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Under the 12(b)(6) standard, a court cannot look beyond the face of the pleadings. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); see also Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229 (2000). It is well-established that "pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers." Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981). Regardless of whether the plaintiff is proceeding pro se or is represented by counsel, pleadings must show specific, well-pleaded facts, not mere conclusory allegations to avoid dismissal....
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