Suissi v. Wells Fargo Bank

• Decision Date: 29 March 2023
• Docket Number: Civil Action 3:22-CV-01545-E
• Parties: MICHAEL SUISSI, Plaintiff, v. WELLS FARGO BANK NATIONAL ASSOCIATION AS TRUSTEE FOR SOUNDVIEW HOME LOAN TRUST 2007-OPT4, ASSET-BACKED CERTIFICATES, SERIES 2007-OPT4, Defendant.
• Court: U.S. District Court — Northern District of Texas

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MICHAEL SUISSI, Plaintiff, v. WELLS FARGO BANK NATIONAL ASSOCIATION AS TRUSTEE FOR SOUNDVIEW HOME LOAN TRUST 2007-OPT4, ASSET-BACKED CERTIFICATES, SERIES 2007-OPT4, Defendant.

Civil Action No. 3:22-CV-01545-E

United States District Court, N.D. Texas, Dallas Division

March 29, 2023

MEMORANDUM OPINION AND ORDER

ADA BROWN, UNITED STATES DISTRICT JUDGE.

Before the Court is Defendant Wells Fargo Bank N.A.'s^[1]Motion to Dismiss Plaintiff's Original Petition and Brief in Support (Motion to Dismiss). (Doc. 8). After review of the pleadings, the Motion to Dismiss Suissi's response, and the relevant law the Court GRANTS the Motion to Dismiss for the reasons enumerated hereunder.

I. Background

This is a dispute over the foreclosure of real property located at 22 Dunrobin, Garland, TX, 75044 (the Property). (Doc. 1-3 at 2-3). Suissi entered a deed of trust on the Property, which was ultimately assigned to Wells Fargo. (Doc. 1-3 at 2-6; Doc. 9-1). Suissi initiated this litigation by filing an Original Petition in the 14^th Judicial District Court of Dallas County, Texas (the Petition). (Doc. 1-3 at 1). The Petition asserts only the following in its “Material Predicate Facts” section:

Plaintiff is an owner of the property located at 22 Dunrobin, Garland, TX 75044. Defendant is the Plaintiff's mortgage holder, which is attempting to sell Plaintiff's property on July 5, 2022, through a foreclosure sale.

(Doc. 1-3 at 3). In the Petition, Suissi asserts claims against Wells Fargo (i) for breach of contract; (ii) for negligent misrepresentation; and (iii) for injunctive relief. (Doc. 1-3 at 3-4). Suissi asserts “Plaintiff has received a defective notice of default and an improper notice of acceleration of the note as required by both the security documents and the property code” and “Plaintiff asserts the lender made misrepresentations in communicating to Plaintiff the options of loss mitigation, upon which Plaintiff relied to his detriment in a transaction in which Plaintiff had a pecuniary interest.” (Doc. 1-3 at 3).

In response to the Petition, Wells Fargo removed this proceeding to this federal district court and, subsequently, moved to dismiss all of Suissi's claims under Federal Rule of Civil Procedure 12(b)(6). (Doc. 8). Suissi responded to the Motion to Dismiss. (Doc. 13). The issue is now ripe for consideration.

II. Legal Standards

Federal Rule of Civil Procedure 8(a) requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). If a plaintiff fails to satisfy Rule 8(a), the defendant may file a motion to dismiss the plaintiff's claims under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief may be granted.” Fed.R.Civ.P. 12(b)(6).

To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. In reviewing a motion to dismiss under Rule 12(b)(6), the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to plaintiff. Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir. 2019). The Court will not accept as true “legal conclusions couched as factual allegations.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “The court's review is limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)).

III. Analysis

A. Breach of Contract

Wells Fargo asserts that Suissi's breach of contract claims are too vague to support recovery and are otherwise bare bones allegations that cannot support a breach of contract claim. (Doc. 8 at 3). In response, Suissi restates selected content from the Petition and otherwise asserts generalizations without citation to the Petition or authority.^[2]

The essential elements of a breach of contract claim under Texas law are

(1) the existence of a valid contract;

(2) performance or tendered performance by the plaintiff;

(3) breach of the contract by the defendant; and

(4) damages sustained by the plaintiff as a result of the breach.

Williams v. Wells Fargo Bank, N.A., 560 Fed.Appx. 233, 238 (5th Cir. 2014) (internal quotation omitted); see, e.g., Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882, 890 (Tex. 2019) (enumerating the same elements for breach of contract). “[A] claim for breach of a note and deed of trust must identify the specific provision in the contract that was breached.” Williams, 560 Fed.Appx. at 238; see, e.g., King v. Wells Fargo Bank, N.A., No. 3-11CV-0945-M-BD, 2012 WL 1205163, at *2 (N.D. Tex. Mar. 20, 2012) (concluding plaintiffs failed to sufficiently allege a breach of a deed of trust), report and recommendation adopted, No. 3-11-CV-0945-M-BD, 2012 WL 1222659 (N.D. Tex. Apr. 11, 2012), aff'd, 533 Fed.Appx. 431 (5th Cir. 2013). “Moreover, if . . . plaintiffs fail to allege they were current on their payments under the deed of trust, dismissal of their breach of contract claim is proper.” Williams, 560 Fed.Appx. at 238 (ultimately dismissing plaintiffs' claim for breach of the deed of trust).

At the outset, the Court recognizes that Suissi's Petition refers in an unclear manner to “loan documents in question” and “security documents and the property code” in his breach of contract claim. (Doc. 1-3 at 3). Though it is evident Suissi disputes the foreclosure on his property and corresponding notice of default, Suissi attached no corresponding documents to his Petition. (Doc. 1-3). Nevertheless, Suissi refers to a deed of trust. (Doc. 1-3 at 2). And, Wells Fargo filed an appendix to the Motion to Dismiss, which contains the deed of trust and corresponding assignment documents, and the Court considers those documents as central to Suissi's claim(s) and referenced by the Petition. See Lone Star Fund, 594 F.3d at 387.^[3]Thus, the Court includes the appendix in its review. See Lone Star Fund, 594 F.3d at 387.

Here, as in Williams, Suissi's Petition does not identify any specific provision in the deed of trust or any other contract that Wells Fargo breached. See Williams, 560 Fed.Appx. at 238; (Doc. 1-3 at 2-3). Furthermore, as in Williams, Suissi fails to allege whether he was current on his payments under the deed of trust. See Williams, 560 Fed.Appx. at 238; (Doc. 1-3 at 2-3).^[4] Although the Petition complains of “defective” or “improper” notice, the Petition contains no other assertions of fact regarding the notice. That is, without (i) factual allegations as to what was agreed for effective or proper notice and (ii) the manner in which Wells Fargo provided “defective” or “improper” notice, the Court cannot reasonably infer that notice was defective or improper such that Wells Fargo is liable for breach of contract. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

Lastly, the Petition avers that “the loan documents provide that acceleration and foreclosure are subject to the limitations of the [Department of Housing and Urban Development] HUD regulations” and that Wells Fargo failed to “make reasonable efforts to inform Plaintiff of any assistance option [sic] before accelerating the note.” But, again, the Petition alleges no facts as to what the “loan documents” required regarding (i) acceleration of the note; (ii) applicable HUD regulations; or (iii) Well's Fargo's efforts to inform Suissi of assistance option(s) before accelerating the note.^[5]Correspondingly, the Court cannot reasonably infer that Wells Fargo is liable for breach of contract for such alleged failure(s). See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

In effect, Suissi's allegations that form the basis of his breach of contract claim amount to legal conclusions couched as factual allegations that the Court may not accept as true. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. For the reasons enumerated above, the Court must find and conclude Suissi has failed to state a claim for breach of contract. The Court GRANTS the Motion to Dismiss as to the breach of contract claim.

B. Negligent Misrepresentation

Wells Fargo asserts Suissi's negligent misrepresentation claim should be dismissed (i) because no legal duty exists in the context of a negligence or negligent misrepresentation claim under Texas law or under HUD regulations; (ii) because Suissi fails to specify facts related to negligent misrepresentation; and (iii) because of the economic loss doctrine. (Doc. 8 at 6-8).^[6]Suissi only responds to Wells Fargo's third basis for dismissal-the economic loss doctrine- generally asserting that such an “affirmative defense . . . is more properly the subject of a motion for summary judgment.” (Doc. 13 at 3).

Under Texas law, a claim for negligent misrepresentation consists of the following elements:

(1) the defendant made a representation in the course of his business, or in a transaction in which he has a pecuniary interest;

(2) the defendant supplied false information for the guidance of others in their business;

(3) the defendant did not exercise reasonable care or competence in obtaining or communicating information; and

(4)

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