Case 1:13-cv SS Document 9 Filed 04/10/13 Page 1 of 8

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1 Case 1:13-cv SS Document 9 Filed 04/10/13 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT F I I E D FOR THE WESTERN DISTRICT OF TEAPR to PH 14:35 AUSTIN DIVISION DEBORAH PECK, Plaintiff, C1ER us DtSTP!CT CouRi!VESTER 015 T2ICT OF TEXAS 8 Y -vs- Case No. A-13-CA-168-SS FIRST STATE HOME LOAN, LTD.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS); METLIFE HOME LOANS LLC; and STEPHEN C. PORTER, Defendants. ORDER BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Defendants MetLife Home Loans LLC and Mortgage Electronic Registration Systems, Inc.'s Motion to Dismiss [#4], to which Plaintiff Deborah Peck has not responded; Defendant Stephen C. Porter's Motion to Dismiss [#6], to which Peck has not responded; and Defendant First State Home Loan, Ltd.' s Motion to Dismiss [#7], to which Peck has not responded. Having reviewed the documents, the governing law, and the file as a whole, the Court now enters the following opinion and orders. Background This is a foreclosure case, originally filed in the 358th Judicial District Court of Williamson County, Texas, by pro se Plaintiff Deborah Peck. At issue is the real property located at 8308 Ironweed Run, Round Rock, Texas On August 22, 2008, Peck executed a Note and Deed of Trust in favor of First State Home Loan, Ltd., in order to acquire the property. In August 2011, Peck

2 Case 1:13-cv SS Document 9 Filed 04/10/13 Page 2 of 8 defaulted on the mortgage, and was unable to make payments under various forbearance plans. Despite Peck's attempts to negotiate some sort of modification, Defendant MetLife Home Loans foreclosed on the property. The specific causes of action raised in Peck's state court petition are unclear. It is clear Peck alleges violations of the Texas Deceptive Trade Practices Act (DTPA), and asserts a cause of action for intentional infliction of emotional distress (TIED). The petition also includes various vague subheadings and arguments not tethered to any identifiable cause of action, such as allegations of "robo-signing" and the declaration "MERS has no authority to act." From these allegations, the various defendants conjure up additional causes of action, including wrongful foreclosure, violations of Texas Local Government Code section , fraud, and misrepresentation. All Defendants have now moved to dismiss under Rule 12(b)(6). Analysis I. Motion to DismissRule 12(b)(6)Legal Standard Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. Civ. P. 8(a)(2). A motion under Federal Rule of Civil Procedure 12(b)(6) asks a court to dismiss a complaint for "failure to state a claim upon which relief can be granted." FED. R. Civ. P. 12(b)(6). The plaintiff must plead sufficient facts to state a claim for relief that is facially plausible. Ashcroft v. Iqbal, 556 U.s. 662, 678 (2009); 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." Iqbal, 566 U.S. at 678. Although a plaintiff's factual allegations need not establish that the defendant is probably liable, they must -2-

3 Case 1:13-cv SS Document 9 Filed 04/10/13 Page 3 of 8 establish more than a "sheer possibility" that a defendant has acted unlawfully. Id. Determining plausibility is a "context-specific task," and must be performed in light of a court's "judicial experience and common sense." Id. at 679. In deciding a motion to dismiss under Rule 1 2(b)(6), a court generally accepts as true all factual allegations contained within the complaint. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164(1993). However, a court is not bound to accept legal conclusions couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). Although all reasonable inferences will be resolved in favor of the plaintiff, the plaintiff must plead "specific facts, not mere conclusory allegations." Tuchman v. DSC Commc 'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994). In deciding a motion to dismiss, courts may consider the complaint, as well as other sources such as documents incorporated into the complaint by reference, and matters of which a court may take judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). II. Application First, the Court grants all three motions to dismiss as unopposed. See Local Rule CV-7(e)(2). Peck has taken no action since this case was removed to this Court on February 27, 2013, and has wholly failed to respond in any manner to three separate dispositive motions. Alternatively, the Court will briefly address each cause of action it can discern from a generous construction of Peck's state court petition. A. DTPA Peck's DTPA claim fails because she lacks standing to sue under the statute. In order to have standing to sue under the DTPA, Peck must be a "consumer" as the statute defines the term, meaning -3-

4 Case 1:13-cv SS Document 9 Filed 04/10/13 Page 4 of 8 she must have sought or acquired, by purchase or lease, goods or services, and those goods or services must form the basis of her complaint. TEX. Bus. & C0M. CODE 17.45(4); Riverside Nat '1 Bankv. Lewis, 603 S.W.2d 169, 173 (Tex. 1980). Amortgageloanisnotagoodorservice, andeven if it were, the loan itself does not form the basis of Peck's complaint because her allegations relate to conduct by parties other than the original lender, and are unrelated to the furnishing of the purchase money. See Riverside, 603 S.W.3d at ; see also Manno v. BAG Home Loans Servicing, LP, No. A-i 1-CA-347-LY, 2011 WL , at *4_5 (W.D. Tex. Aug. 26, 2011); Broyles v. Chase Home Fin., No. 3:10-CV-2256-G, 2011 WL , at *4 (N.D. Tex. Apr. 13, 2011). Peck's DTPA claim is therefore dismissed. B. lied To recover on an lied claim, Peck must allege (1) Defendants acted intentionally or recklessly; (2) their conduct was "extreme and outrageous;" (3) their actions caused emotional distress; and (4) the emotional distress was severe. Kroger Tex. Ltd. P 'ship v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006). The Texas Supreme Court has intentionally cabined the use of the TIED tort, noting it is a "gap-filler" tort and therefore generally not available where the plaintiff would have other causes of action to assert. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005). In this case, there is no gap to fill. Were Peck's allegations otherwise sufficient, there are numerous avenues for recovery, such as the wrongful foreclosure cause of action. The Court thus concludes the lied tort is not available to Peck. Even if Peck could pursue an TIED cause of action, her allegations fall short of establishing the basic elements. Peck's state court petition contains no facts suggesting intentional or reckless conduct by Defendants. More importantly, there are no allegations of qualifying "extreme and

5 Case 1:13-cv SS Document 9 Filed 04/10/13 Page 5 of 8 outrageous" conduct. The type of conduct actionable under an lied theory is conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. at 817i 8 (internal quotation marks omitted). Refusing to agree to a loan modification with a defaulted homeowner does not meet this high threshold, nor does foreclosing on the property in the same circumstances. See Setzer v. Richards, No. A-i i-ca-214-ly, 2012 WL 32943, at *8 & n.6 (W.D. Tex. Jan. 5, 2012) ("Under Texas law, conduct associated with asserting a legal right cannot be extreme and outrageous."). Peck's lied claim is therefore dismissed. C. Wrongful Foreclosure The elements of a wrongful foreclosure claim are: (1) a defect in the foreclosure sale proceedings; (2) a grossly inadequate selling price; and (3) a causal connection between the defect and the grossly inadequate selling price. Sauceda v. GIvL4C Mortg. Corp., 268 S.W.3d 135, 139 (Tex. App.Corpus Christi 2008, no pet.). Peck does not allege the price the home sold for, and therefore cannot establish the home sold for a "grossly inadequate" price. See Miller v. BAC Home Loans Servicing, LP,No. 6:11CV22, 2012 WL , at *7(E.D. Tex. Mar.23, 2012) ("A sales price above 50% of the property value is not grossly inadequate as a matter of law." (citing Richardson v. Kent, 47 S.W.2d 420, 425 (Tex. Civ. App.Dallas 1932, no writ)). Nor does Peck connect any alleged defect to the selling price of the property. Peck's wrongful foreclosure claim is therefore dismissed. -5-

6 Case 1:13-cv SS Document 9 Filed 04/10/13 Page 6 of 8 D. Texas Local Government Code section Peck alleges the Texas Local Government Code requires assignments of deeds of trust to be recorded, and further seeks to enforce this alleged requirement through her civil suit. The relevant statute provides: (a) To release, transfer, assign, or take another action relating to an instrument that is filed, registered, or recorded in the office of the county clerk, a person must file, register, or record another instrument relating to the action in the same manner as the original instrument was required to be filed, registered, or recorded. TEX. Loc. Gov'T CODE (a). As this Court has previously explained, section does not create a private right of action. See Hudson v. JPMorgan Chase Bank, NA., No. A- 13-CA-i 74- SS, slip op. at 4 (W.D. Tex. Mar. 29, 2013) (order granting motion to dismiss) ("Private plaintiffs do not have a roving commission to enforce the Texas Local Government Code through civil actions. If the Texas legislature intended for private plaintiffs to be able to sue other parties for failing to record assignments, it could have provided a cause of action. It did not do so, and this Court will not do so in its stead."). Additionally, even if section were enforceable through a civil suit, Peck is the wrong plaintiff. Subject to two narrow exceptions not relevant here, homeowners like Peck generally lack standing to challenge assignments to which they are not parties. See, e.g., Herrera v. Wells Fargo Bank, NA., No. H-13-68, 2013 WL , at *8 (S.D. Tex. Mar. 12, 2013) (collecting cases); Kramer v. Fed. Nat'l Mortg. Ass 'n, No. A-12-CA-276-SS, 2012 WL , at *4_5 (W.D. Tex. May 15, 2012). Alternatively, assuming a private right of action exists and Peck is the proper plaintiff to enforce the statute, her claim fails because her reading of the statute is wholly unsupported by Texas law. "Under Texas law, there is no requirement that the deed of trust

7 Case 1:13-cv SS Document 9 Filed 04/10/13 Page 7 of 8 assignment be recorded." Bittinger v. Wells Fargo Bank NA, 744 F. Supp. 2d 619, 625 (S.D. Tex. 2010). "Texas courts have consistently held that recordation is not necessary for liens, deeds, or deeds of trust to be enforceable against parties to those instruments." Bennett v. JPMorgan Chase, No. 3:12-CV-212-N, 2012 WL , at *4 (N.D. Tex. June 12, 2012). This claim is therefore dismissed. E. Fraud and Misrepresentation To the extent Peck's petition can be read to assert causes of action for fraud or misrepresentation, Peck's claims fail to allege sufficient facts under either Rule 1 2(b)(6) or the heightened pleading standards of Rule 9(b). Peck makes wide-ranging allegations of systemic fraud in the mortgage industry based on an unsubstantiated opinion letter written by a foreclosure-defense attorney, but fails to specifically allege any particular fraudulent acts or misrepresentations by any Defendant in this case. Peck's allegations of "robo-signing" against Defendant Stephen Porter fail for the same reason. Those claims also fail because Porter, the attorney hired by MetLife to assist in the foreclosure process, is immune from suit for acts taken in furtherance of his client's legal rights, absent substantiated allegations of intentional fraud. See Taco Bell Corp. v. Cracken, 939 F. Supp. 528, 532 (N.D. Tex. 1996). Conclusion Peck's state court petition is long on allegations, but short on relevant facts and meritorious legal theories. Peck has failed to state any claim upon which relief can be granted, and has not shown herself entitled to any relief in either law or equity. Because her substantive causes of action fail, Peck is not entitled to any declaratory or injunctive relief, either. -7-

8 Case 1:13-cv SS Document 9 Filed 04/10/13 Page 8 of 8 Accordingly, IT IS ORDERED that Defendants MetLife Home Loans LLC and Mortgage Electronic Registration Systems, Inc.'s Motion to Dismiss [#4] is GRANTED; IT IS FURTHER ORDERED that Defendant Stephen C. Porter's Motion to Dismiss [#6] is GRANTED; IT IS FURTHER ORDERED that Defendant First State Home Loan, Ltd.'s Motion to Dismiss [#7] is GRANTED; IT IS FINALLY ORDERED that Plaintiff Deborah Peck shall have TWENTY (20) DAYS from entry of this order in which to file an amended complaint, or this case will be closed. The Court notes, however, its invitation to replead is intended to allow Peck, who thus far is proceeding pro Se, a final opportunity to state any meritorious claims she may have against the Defendants. Amended pleadings merely repeating the same allegations, and ultimately dismissed on the same grounds, may result in Peck being required to pay the court costs and attorney's fees Defendants have incurred in defending this suit pursuant to Federal Rule of Civil Procedure 11. SIGNED this the /0 Thay of April SAr?r2 UNITED STATES DISTRICT JUDGE 168 mtd ord kkt.frm