Martinez v. CitiMortgage, Inc., CIVIL ACTION NO. H-13-0727

• Decision Date: 28 May 2013
• Docket Number: CIVIL ACTION NO. H-13-0727
• Parties: PHILLIP MARTINEZ, Plaintiffs, v. CITIMORTGAGE, INC., Defendant.
• Court: U.S. District Court — Southern District of Texas

PHILLIP MARTINEZ, Plaintiffs,
v.
CITIMORTGAGE, INC., Defendant.

CIVIL ACTION NO. H-13-0727

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Signed: May 28, 2013

MEMORANDUM AND ORDER

This case is before the Court on the Motion to Dismiss [Doc. # 12] filed by Defendant CitiMortgage, Inc. ("CMI"), to which Plaintiff Phillip Martinez filed a Response [Doc. # 13], and CMI filed a Reply [Doc. # 15]. Having reviewed the full record and applicable legal authorities, the Court grants the Motion to Dismiss as to the trespass to try title and breach of contract claims, and denies the Motion as to the fraud claim.

I. BACKGROUND

On June 11, 2007, as part of his purchase of property in Channelview, Texas (the "Property"), Plaintiff executed a Note for $75,000.00 payable to Fieldstone Mortgage Company ("Fieldstone"). Plaintiff also executed a Deed of Trust with Fieldstone as the Lender, Mortgage Electronic Registration Systems, Inc. ("MERS")

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as the Beneficiary, and Rob V. Budhwa as the Trustee. The Note and Deed of Trust were transferred to CMI, who acted also as the loan servicer.

During the term of the loan, Plaintiff began to experience financial difficulties. Plaintiff alleges that he contacted CMI and "entered into debt restructuring negotiations in order to modify the terms and conditions of the Note." See First Amended Complaint [Doc. # 10], ¶ 8. Plaintiff alleges that during the course of the loan modification process, CMI's "representatives informed [him] that he was not allowed to make any mortgage payments while in loan modification status." Id., ¶ 9. Plaintiff alleges further that CMI's representatives "informed him that he was to ignore any foreclosure notices that he received while in loan modification status [and] that they would not take any action to foreclose on the Property while in loan modification status." Id. Plaintiff alleges that CMI wrongfully conducted a foreclosure sale of the Property on November 6, 2012.

Plaintiff filed this lawsuit in Texas state court, asserting causes of action for trespass to try title, breach of contract, and common law fraud. On March 15, 2013, CMI filed a timely Notice of Removal. CMI then filed a Motion to Dismiss, after which Plaintiff filed his First Amended Complaint. Defendant filed a Motion to Dismiss the First Amended Complaint, which has been fully briefed and is ripe for decision.

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II. STANDARD FOR MOTION TO DISMISS

When considering a motion to dismiss, the complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true. Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009). When there are well-pleaded factual allegations, a court should presume they are true, even if doubtful, and then determine whether they plausibly give rise to an entitlement to relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Although a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is viewed with disfavor and is rarely granted, Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (citing Harrington, 563 F.3d at 147), a complaint must contain sufficient factual allegations, as opposed to legal conclusions, to state a claim for relief that is "plausible on its face." See Iqbal, 556 U.S. at 678; Patrick v. Wal-Mart, Inc., 681 F.3d 614, 617 (5th Cir. 2012).

III. ANALYSIS

A. Trespass to Try Title Claim

"An action in trespass to try title is the method of determining title to lands, tenements, or other real property." Hurd v. BAC Home Loans Servicing, LP, 880 F. Supp. 2d 747, 767 (N.D. Tex. 2012) (quoting TEX. PROP. CODE § 22.001). In general, a trespass to try title claim is "to recover the possession of land unlawfully withheld

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from the owner and to which he has the right of immediate possession." Id. (quoting Rocha v. Campos, 574 S.W.2d 233, 236 (Tex. App. - Corpus Christi 1978, no writ)) To state a claim for trespass to try title, the plaintiff must allege, inter alia, that the defendant "unlawfully entered upon and dispossessed him of such premises, stating the date, and withholds from him the possession thereof." See TEX. R. CIV. P. 783(e); see also Tex. R. Civ. P. 784 ("The defendant in the action shall be the person in possession if the premises are occupied, or some person claiming title thereto in case they are unoccupied.").

Plaintiff does not alleges that CMI has dispossessed him of the Property. Indeed, he alleges specifically that he is "currently in possession of the Property." See First Amended Complaint, ¶¶ 12, 14. As a result, Plaintiff has failed to plead a viable trespass to try title claim, and Defendant's Motion to Dismiss the claim is granted.

B. Breach of Contract Claim

Plaintiff alleges that CMI breached a contract because it entered into an oral contract whereby it promised not to take any action to foreclose on the property while the parties were in loan...