Gordon v. The Bank of New York Mellon

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ROBERT E. GORDON, §
PLAINTIFF, §
§
V. § CASE NO. 3:25-CV-1489-S-BK
§
THE BANK OF NEW MELLON, §
DEFENDANT. §
FINDINGS, CONCLUSIONS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this case has been referred to the
undersigned United States magistrate judge for pretrial management. Doc. 5. Before the Court
is Defendant’s Motion to Dismiss, Doc. 6. As detailed infra, the motion should be GRANTED.
I. BACKGROUND
In October 2024, Plaintiff initiated this civil action in state court seeking to prevent
Defendant from effecting a post-foreclosure eviction from his property at 2705 Raintree Drive,
Carrollton, Texas 75006 (the “Property”). Doc. 1-1 at 13, 86. Plaintiff alleges that he executed a
Texas Home Equity Note (“Note”), secured by a Deed of Trust on the Property (together, the
“loan documents”). Doc. 1-1 at 108. Defendant, The Bank of New York Mellon, is the assignee
of the Note and Deed of Trust. Doc. 1-1 at 108.
According to Plaintiff, he has not made a payment on the loan since before 2014. Doc. 1-
1 at 89. As a result of his default, Plaintiff alleges that Defendant has initiated foreclosure
proceedings on five-to-seven prior occasions. Doc. 1-1 at 87. As best as the Court can discern
from the record, the most recent of these proceedings culminated in a foreclosure sale of the
Property by auction in October 2024. Doc. 1-1 at 88, 102. This suit followed.
Case 3:25-cv-01489-S-BK Document 9 Filed 03/11/26 Page 1 of 14 PageID <pageID>

2
In his First Amended Original Petition, Plaintiff asserts claims for quiet title, trespass to
try title, breach of contract, and wrongful foreclosure, contending that Defendant lacked a valid
lien against the Property. Doc. 1-1 at 110-111. Plaintiff further seeks injunctive and declaratory
relief to prevent his imminent eviction and to declare Defendant’s deed void. Doc. 1-1 at 117-
118.
In May 2025, the state court issued a temporary restraining order (“TRO”) preventing
Plaintiff’s eviction from the Property. Doc. 1-1 at 135-138. In June 2025, the state court
extended the TRO, and Defendant—having not yet been served—removed the action to this
Court based on diversity jurisdiction. Doc. 1-1 at 149-151; Doc. 1 at 2-3.
Following removal, Defendant moved to dismiss the Complaint under Federal Rule of
Civil Procedure 12(b)(6). Doc. 6. Plaintiff, though represented by counsel, failed to timely
respond to the motion as required by the Court’s local rules. See N.D. Tex. Local Civ. R. 7.1(e)
(requiring a response within 21 days of the filing of an opposed motion). On September 11,
2025, the Court ordered Plaintiff to file a response by September 22, 2025, if he opposed the
relief sought. Doc. 8. As of the date of this recommendation, however, Plaintiff has neither
responded to Defendant’s motion nor otherwise appeared in this action since its removal from
state court.1
1 Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action sua sponte for failure
to prosecute or failure to comply with the federal rules or any court order. Larson v. Scott, 157
F.3d 1030, 1031 (5th Cir. 1998). “This authority flows from the court’s inherent power to control
its docket and prevent undue delays in the disposition of pending cases.” Boudwin v. Graystone
Ins. Co., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 629-30
(1962)). Despite being afforded ample opportunity to respond to Defendant’s motion in
compliance with the Court’s Order, Doc. 8, Plaintiff has impliedly refused or declined to do so.
On this basis alone, Plaintiff’s claims are subject to dismissal without prejudice. See FED. R. CIV.
P. 41(b).
Case 3:25-cv-01489-S-BK Document 9 Filed 03/11/26 Page 2 of 14 PageID <pageID>

3
II. APPLICABLE LAW
A plaintiff fails to state a claim for relief under Rule 12(b)(6) when the complaint does
not contain “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). In making this determination, the court “accepts all well-
pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (cleaned up). But the court cannot
“accept as true conclusory allegations or unwarranted deductions of fact.” Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (cleaned up). To survive a Rule 12(b)(6)
motion, a plaintiff’s factual allegations “must be enough to raise a right to relief above the
speculative level on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Twombly, 550 U.S. at 555 (internal citations and footnote omitted). Put
differently, a court must be able to reasonably infer “that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
556).
In ruling on a 12(b)(6) motion, the court may consider “the complaint, its proper
attachments, documents incorporated into the complaint by reference, and matters of which a
court may take judicial notice.” Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763
(5th Cir. 2011) (cleaned up). Such matters include the record in prior related proceedings. Davis
v. Bayless, 70 F.3d 367, 372 (5th Cir. 1995); Basic Cap. Mgmt., Inc. v. Dynex Cap., Inc., 976
F.3d 585, 589 (5th Cir. 2020).
Case 3:25-cv-01489-S-BK Document 9 Filed 03/11/26 Page 3 of 14 PageID <pageID>

4
III. ANALYSIS
A. Quiet Title and Trespass to Try Title
Defendant argues that Plaintiff’s quiet title and trespass to try title claims fail as a matter
of law because he has failed to allege facts showing superiority of his title. Doc. 7 at 10-13.
Under Texas law, suits to quiet title and trespass to try title are two distinct causes of
action. Fricks v. Hancock, 45 S.W.3d 322, 327 (Tex.App.-Corpus Christi 2001, no pet.). A suit
to quiet title, also referred to as a suit to remove cloud from title, is an action that “enable[s] the
holder of the feeblest equity to remove his way to legal title any unlawful hinderance having the
appearance of better right.’” Morlock, L.L.C. v. JP Morgan Chase Bank, N.A., No. 12-20623,
2013 WL 2422778, at *1 (5th Cir. June 4, 2013) (quoting Bell v. Ott, 606 S.W.2d 942, 952 (Tex.
App.-Waco 1980, writ ref’d. n.r.e.)). To prevail on a claim to quiet title, a plaintiff must show
that: (1) they have an interest in the property; (2) title to the property is impaired by the
defendant’s claim; and (3) the defendant’s claim, while facially valid, is unenforceable. Hurd v.
BAC Home Loans Servicing, LP, 880 F. Supp.2d 747, 766 (N.D. Tex. 2012) (citing U.S. Nat.
Bank Ass’n v. Johnson, 2011 WL 6938507, at *3 (Tex. App.—Houston [1st Dist.] Dec. 30, 2011,
no pet.)). Plaintiffs must recover on the strength of their own title, not on the weakness of their
adversary’s title. Fricks, 45 S.W.3d at 327. In other words, a plaintiff must establish “a superior
interest in the property.” Thompson v. Bank of Am. Nat. Ass’n, 783 F.3d 1022, 1026 (5th Cir.
2015).
Here, Plaintiff has adequately alleged that he has an interest in the property by virtue of
his recorded warranty deed. Doc. 1-1 at 103; See Mortg. Elec. Registration Sys., Inc. v. Groves,
2011 WL 1364070, at *4 (Tex. App.—Houston [14th Dist.] Apr. 12, 2011, pet. denied) (mem.
op.) (holding plaintiff’s allegation that “she owned the property by virtue of her recorded deed”
Case 3:25-cv-01489-S-BK Document 9 Filed 03/11/26 Page 4 of 14 PageID <pageID>

5
was sufficient to satisfy the requirement that she “allege [a] right, title, or ownership” in the
property). However, he has not alleged facts sufficient to establish that his interest is superior to
Defendant’s such that he is entitled to recovery.
Texas Courts have made clear that “a necessary prerequisite to the . . . recovery of title . .
. is tender of whatever amount is owed on the note.” Cook-Bell v. Mortg. Elec. Registration Sys.,
Inc., 868 F.Supp.3d 585, 591 (N.D. Tex. 2012) (citing Fillion v. David Silvers Co., 709 S.W.2d
240, 246 (Tex.App.—Houston [14th Dist.] 1986, writ ref’d n.r.e). This requirement has been
consistently applied to quiet title claims, meaning a plaintiff must generally allege or tender the
amount owed on the note before seeking to recover title. See, e.g., Lott v. Wells Fargo Bank,
N.A., No. 3:17-CV-1270, 2018 WL 4376413, at *3 (N.D. Tex. 2018) (Rutherford, J.), rep. & rec.
adopted 2018 WL 4362632 (N.D Tex. Sept. 13, 2018) (holding that the plaintiff’s failure to
allege that he tendered the amount owed on the note was fatal to his ability to state a claim for
quiet title”); Chowdhury v. Carrington Mortgage Servs. LLC, No. 3:23-CV-596, 2024 WL
628027, at *6 (N.D. Tex. Jan. 18, 2024) (Horan, J), rep & rec. adopted, 2024 WL 628213 (N.D.
Tex. Feb. 14, 2024) (same).
Although Plaintiff claims he has a recorded interest in the property, he concedes his
default and does not allege either the amount owed or that he has tendered the amount. Doc. 1-1
at 89. Because his failure to do so is fatal to his ability to state a claim for quiet title, this claim
should be dismissed.2 See Lott, 2018 WL 4376413, at *3.
2 Even assuming Plaintiff does not rely impermissibly on the weakness of Defendant’s title, he has
not alleged enough facts to show that Defendant’s interest is unenforceable. As best as the Court
can discern, Plaintiff contends that Defendant’s lien is invalid because the loan did not comply
with Section 50(a)(6) of the Texas Constitution and because the four-year limitations period to
foreclose has expired. Doc. 1-1 at 111, 89. But a lien’s noncompliance with § 50(a)(6) “is not
necessarily fatal to a home equity lender” because the Section provides lenders an opportunity to
Case 3:25-cv-01489-S-BK Document 9 Filed 03/11/26 Page 5 of 14 PageID <pageID>

6
Plaintiff likewise cannot maintain a trespass to try title claim. Unlike suit to quiet title,
trespass to try title is “an action to recover the possession of land unlawfully withheld from the
owner and to which he has an immediate right of possession.” Rocha v. Campos, 574 S.W.2d
233, 236 (Tex.App.-Corpus Christ 1978, no writ) (citing TEX. R. CIV. P. 783). To state a claim
for trespass to try title, the plaintiff must therefore allege “that the defendant unlawfully entered
upon and dispossessed him of such premises, stating the date, and withholds from him the
possession thereof.” Serena v. U.S. Bank, N.A., No. H-13-2559, 2014 WL 108732, at *2 (S.D.
Tex. Jan. 9, 2014) (Werlein, J.) (citation omitted). Where the pleadings do not allege facts
showing that the plaintiff has been dispossessed of the property, courts find that they fail to state
a trespass to try title claim. See, e.g., Hurd, 880 F.Supp.2d at 767 (dismissing trespass to try title
claim because plaintiff “failed to allege that she had lost possession of the property to
Defendant” following foreclosure sale); Ndukwe v. HSBC Bank USA, N.A., No. H-14-400, 2014
WL 1653088, at *3 (S.D. Tex. Apr. 24, 2014) (pleadings presented no reasonable basis for
recovery on trespass to try title claim where plaintiff possessed the home when he filed his state-
court petition and did not establish that the foreclosure sale itself was improper); Robinson v.
Bank of Am., N.A., No. 3:13-CV-869-L-BK, 2013 WL 7877027, at *2 (N.D. Tex. Sept. 11, 2013)
cure noncompliant provisions after receiving notice of the defect from the borrower. See Wells
Fargo Bank, N.A. v. Leath, 425 S.W.3d 525 (Tex. App.—Dallas 2014, pet. denied) (noting that
“[t]he cure provision of section 50(a)(6)(Q)(X) is triggered upon notice of the non-compliance to
the lender by the borrower.”). Plaintiff does not allege that he provided such notice or that
Defendant failed to cure. Accordingly, even if the loan did not comply with § 50(a)(6),
Defendant’s interest is not necessarily invalid. Id. Likewise Plaintiff’s statute of limitations
argument fails to show that Defendant’s interest is invalid because, as discussed infra, he has not
alleged sufficient facts to establish that the limitations period expired before Defendant initiated
foreclosure.
Case 3:25-cv-01489-S-BK Document 9 Filed 03/11/26 Page 6 of 14 PageID <pageID>

7
(holding plaintiffs could not state a claim for trespass to try title where they had not alleged that
Defendant had dispossessed them of the property following the foreclosure sale).
Here, Plaintiff does not allege that he was dispossessed of the Property by Defendant. On
the contrary, he expressly sought to “preserve his possession” at the time this action was filed.
See Doc. 1-1 at 86. Because dispossession is required to state a trespass to try title claim,
Plaintiff cannot maintain this cause of action, and it should be dismissed. Hurd, 880 F.Supp.2d
at 767.
B. Breach of Contract
Plaintiff alleges that Defendant breached the loan agreement by: (1) charging interest and
tax rates inconsistent with the agreement; (2) permitting its agents to misrepresent the nature and
quality of his debt in violation of the Texas Finance Code; and (3) suing to obtain title to the
Property after the applicable statute of limitations had expired. Doc. 1-1 at 111-12. Defendant
argues that Plaintiff cannot maintain a breach of contract claim because his default prevents him
from showing performance, and he has not otherwise alleged facts sufficient to establish
Defendant’s breach. Doc. 7 at 14-16.
To state a claim for breach of contract under Texas law, a plaintiff must allege: “(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 to the plaintiff as a result of the
breach.” Williams v. Wells Fargo Bank, N.A., 884 F.3d 239, 244 (5th Cir. 2018) (citation
omitted). In general, “a party to a contract who is . . . in default cannot maintain a suit for
breach.” Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763, 767 (5th Cir. 2016) (citing
Dobbins v. Redden, 785 S.W.2d 377, 378 (Tex. 1990)); See, e.g., Obuekwe v. Bank of Am.,
N.A., 2012 WL 1388017, at *5 (N.D.Tex. Apr.19, 2012) (Means, J.) (holding that plaintiff
Case 3:25-cv-01489-S-BK Document 9 Filed 03/11/26 Page 7 of 14 PageID <pageID>

8
“cannot state a claim for breach of the deed of trust because [plaintiff] admits that she defaulted
on the loan,” and therefore cannot demonstrate her performance). However, if the allegedly
breached terms are terms that would arise only upon the lender’s assertion of a default, the fact
of plaintiff’s default does not preclude him from asserting breach of those terms. Miller v.
CitiMortgage, Inc., 970 F.Supp.2d 568, 580 (N.D. Tex. 2013) (citing Franklin v. BAC Home
Loans Serv., L.P., No. 3:10-CV-1174, 2011 WL 248445, at *2 (N.D. Tex. Jan. 26, 2011) (noting
that “it would be illogical” to bar a defaulting plaintiff from enforcing the defendant’s
contractual obligations which arise only after Plaintiff’s default) (Lynn, J.); Williams v. Wells
Fargo Bank, N.A., 884 F.3d 239, 245 (5th Cir. 2018)( “If performance of the terms of a deed of
trust governing the parties’ rights and obligations in the event of default can always be excused”
by the debtor’s default, those terms “have no meaning”).
Here, Plaintiff acknowledges that he has not made a loan payment since before 2014 and
is therefore in default. Doc. 1-1 at 89. Whether he may maintain a breach of contract claim thus
depends on whether the duties he contends were breached arise independently of his obligation
to make monthly payments. Williams, 884 F.3d at 245.
To the extent Plaintiff challenges the interest and tax rates charged under the loan
agreement, the Court concludes that Defendant’s duty to charge rates consistent with the
agreement depends on Plaintiff’s continued payment. Unlike obligations that arise only after
default, such as a lender’s duty to provide notice of default and intent to foreclose, the challenged
interest and tax rates appear to be part of the core contractual exchange. Once Plaintiff
defaulted, Defendant was no longer bound to these terms. Accordingly, Plaintiff cannot meet the
performance requirement, and contract claim based on the alleged overcharges of interest or
taxes should be dismissed.
Case 3:25-cv-01489-S-BK Document 9 Filed 03/11/26 Page 8 of 14 PageID <pageID>

9
To the extent Plaintiff bases his breach of contract claim on Defendant’s alleged
violations of the Texas Finance Code, he fares no better. Although Plaintiff asserts that
Defendant allowed its agents to make misrepresentations as to the nature and quality of a debt,
he does not specify which provision of the loan agreement this conduct allegedly breached. See
Williams v. Wells Fargo Bank, N.A., 560 F.App’x 233, 238 (5th Cir. 2014) (“[A] claim for
breach of a note and deed of trust must identify the specific provision in the contract that was
breached.”); Aston Custom Homes & Design, Inc. v. Wilmington Sav. Fund Soc’y FSB, 2023 WL
7706755, at *2 (N.D. Tex. Nov. 14, 2023) (Godbey, J.) (holding that “[a] general assertion of
rights and obligations without support of the specific provisions alleged to be breached does not
raise the right to relief beyond a speculative level”). Moreover, even if Plaintiff had identified
the relevant provision, the vague and conclusory allegation that Defendant, through its agents,
misrepresented a debt is insufficient to give Defendant fair notice of the factual basis for the
claim. See Twombly, 550 U.S. at 555 (pleadings must give defendant fair notice of the claim
“and the grounds upon which it rests[.]”). Accordingly, Plaintiff has failed to state a breach of
contract claim based on Defendant’s alleged misrepresentations.
Plaintiff’s final theory is that Defendant breached the loan agreement by pursuing
foreclosure and seeking title to the Property after the applicable statute of limitations had
expired. Doc. 1-1 at 112. Because this allegation concerns Defendant’s conduct in enforcing the
loan after Plaintiff’s default, it is not foreclosed solely by Plaintiff’s failure to fully perform his
contractual obligations. See, e.g., Miller, 970 F.Supp.2d at 580 (concluding that plaintiff’s
default did not preclude assertion that defendant breached the deed of trust because the allegedly
breached terms come into effect only when the borrower fails to make payments). Nevertheless,
Plaintiff has failed to allege sufficient facts to support this claim.
Case 3:25-cv-01489-S-BK Document 9 Filed 03/11/26 Page 9 of 14 PageID <pageID>

10
Under Texas law, “[a] sale of real property under a power of sale in a mortgage or deed
of trust that creates a real property lien must be made not later than four years after the day the
cause of action accrues.” TEX. CIV. PRAC. & REM CODE § 16.035(b). If the note contains an
optional acceleration clause, the cause of action accrues, and the limitations period begins to run,
when the holder “actually exercises its option to accelerate.” Holy Cross Church of God in
Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001). Effective acceleration requires the holder to
provide “clear and unequivocal” notice both of its intent to accelerate and the acceleration itself.
Id. (citation omitted). However, a noteholder who has accelerated a note may subsequently
abandon acceleration, thereby restoring the contract to its original condition. Wells v. Bank of
Am., N.A., No. 3:13-CV-3658, 2014 WL 4594516, at *7 (N.D. Tex. Sept. 12, 2014) (Lynn, J.)
(citations omitted). Acceleration can be abandoned by agreement, formal notice, or acts
inconsistent with the holder’s right to collect the accelerated amount, such as by accepting partial
payments. Boren v. U.S. Nat’l Bank Ass’n, 807 F.3d 99, 104 (5th Cir. 2015) (citing G.T. Leach
Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 511 (Tex. 2015)). Once acceleration is
abandoned, the four-year limitations period resets and a does not begin to run again until the
borrower defaults and the holder renews its option to accelerate. Boren, 807 F.3d at 106.
In his First Amended Petition, Plaintiff alleges that, following prior accelerations of the
loan, Defendant wrongfully foreclosed on Plaintiff’s Property after the statute of limitations had
expired. Doc. 1-1 at 87. However, he does not clearly allege when any prior acceleration
occurred or when he allegedly received notice of such accelerations, if at all. Instead, Plaintiff
offers only vague assertions that “in the past, Defendant . . . had accelerated the loan . . . and
started the foreclosure process.” Doc. 1-1 at 87. Although the Petition suggests that at least one
foreclosure proceeding occurred between 2019 and 2021, see Doc. 1-1 at 109, it remains unclear
Case 3:25-cv-01489-S-BK Document 9 Filed 03/11/26 Page 10 of 14 PageID <pageID>

11
whether this followed Defendant’s most recent acceleration, particularly given Plaintiff’s
allegation that Defendant has initiated foreclosure “at least five times, and perhaps more than
seven times.” Doc. 1-1 at 87. Moreover, Plaintiff’s allegation that he never received any notice
of the acceleration of his loan appears to contradict his contention that Defendant’s prior
accelerations were effective. Doc. 1-1 at 114; Holy Cross, 44 S.W.3d at 566.
From these allegations, the Court cannot discern when the statute of limitations allegedly
began to run and thus cannot assess whether Defendant breached the agreement or otherwise
engaged in wrongful foreclosure. Accordingly, Plaintiff has failed to state a claim based on the
expiration of the limitations period, and this claim should be dismissed.
C. RESPA and TILA Claims
To the extent Plaintiff contends that Defendant has violated the Settlement Procedures
Act (RESPA) or the Truth in Lending Act (TILA), such claims likewise fail. See Doc. 1-1 at
112-13.
TILA protects against inaccurate and unfair credit practices by requiring that creditors
provide consumers with “meaningful disclosure of credit terms.” See 15 U.S.C. § 1601; Martin
v. New Century Mortg. Co., 377 S.W.3d 79, 87 (Tex.App.-Houston [1st Dist.] 2012, no
pet.). Similarly, “RESPA seeks to ensure that real estate consumers ‘are provided with greater
and more timely information on the nature and costs of the settlement process[.]’” O’Sullivan v.
Countrywide Home Loans, Inc., 319 F.3d 732, 738 (5th Cir.2003) (quoting 12 U.S.C. § 2601(a)).
Here, Plaintiff alleges only that he contacted Defendant regarding loan forbearance and
other loan modification programs after his default and, although he was willing and able to apply
for a program, Defendant did not present with any actual plan to assist him. Doc. 1-1 at 113,
Case 3:25-cv-01489-S-BK Document 9 Filed 03/11/26 Page 11 of 14 PageID <pageID>

12
106. While Plaintiff suggests that this conduct violated the TILA3 and/or RESPA, he does not
identify any specific statutory or regulatory duty imposed by either of these provisions that
Defendant failed to satisfy. Doc. 1-1 at 113. Accordingly, to the extent the Petition asserts
claims under either statute, it fails to provide sufficient factual details to place Defendant or the
Court on notice of the specific duties allegedly breached. These claims should therefore be
dismissed.
D. Wrongful Foreclosure
Plaintiff next asserts a claim for wrongful foreclosure based on Defendant’s failure to
provide notice of its intent to foreclose or of the foreclosure sale as required by the Texas
Property Code. Doc. 1-1 at 118-19. To establish a wrongful foreclosure claim, a plaintiff must
show “(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.” Villareal,
814 F.3d at 768 (cleaned up).
Even assuming Defendant’s alleged failure to provide notice constitutes a “defect” under
the first element, Plaintiff has not alleged that the Property’s selling price was “grossly
inadequate” or that the deficient notice caused such a result. See Doc. 1-1 at 118-19. Because he
fails to allege any facts in support of the remaining two elements, the Petition fails to state a
claim for wrongful foreclosure and this claim should be dismissed. See, e.g., Moore v. Fed.
Nat’l Mortg. Ass’n, No. H-12-1518, 2012 WL 6048999, at *3 (S.D. Tex. Dec. 5, 2012) (Miller,
J.) (petition failed to state a wrongful foreclosure claim because it did not allege that there was a
grossly inadequate selling price or a casual connection between the defect and the selling price).
3 Plaintiff specifically refers to “Regulation Z,” the set of regulations implementing the TILA.
See Doc. 1-1 at 113; 12 C.F.R. Part 226 et seq.
Case 3:25-cv-01489-S-BK Document 9 Filed 03/11/26 Page 12 of 14 PageID <pageID>

13
E. Injunctive Relief and Declaratory Judgment
Finally, Plaintiff seeks both a temporary injunction and a declaratory judgment
invalidating Defendant’s deed. Doc. 1-1 at 117-18. Both declaratory and injunctive relief are
forms of relief grounded on underlying claims. See Sid Richardson Carbon & Gasoline Co. v.
Interenergy Res., Ltd., 99 F.3d 746, 752 n. 3 (5th Cir. 1996) (reasoning that declaratory relief is a
procedural device and does not establish any substantive rights or causes of action); Cook v.
Wells Fargo Bank, N.A., No. 3:10–CV–0592–D, 2010 WL 2772445, at *4 (N.D. Tex. July 12,
2010) (noting that “a request for injunctive relief is not itself a cause of action but depends on an
underlying cause of action.”). Because the Court finds that Plaintiff has failed to state any
substantive claim for relief, his claims for declaratory and injunctive relief likewise fail. As
such, Defendant is entitled to dismissal of these claims.
IV. LEAVE TO AMEND
Although a court may dismiss a claim that fails to meet the pleading requirements, “it
should not do so without granting leave to amend, unless the defect is simply incurable or the
plaintiff has failed to plead with particularity after repeated opportunities to do so.” Hart v.
Bayer Corp., 199 F.3d 239, 248 n.6 (5th Cir. 2000). Here, Plaintiff is represented by counsel and
has not sought leave to amend in response to the deficiencies identified in Defendant’s motion.
In fact, Plaintiff appears to have abandoned this action by failing to appear in any way since its
removal to federal court, including by failing to defend against the motion sub judice. Under
these circumstances, the Court concludes that granting leave to amend sua sponte would only
cause unnecessary delay.
Case 3:25-cv-01489-S-BK Document 9 Filed 03/11/26 Page 13 of 14 PageID <pageID>

14
V. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss, Doc. 6, should be
GRANTED, and Plaintiff’s claims should be DISMISSED WITHOUT PREJUDICE. As no
claims will remain pending, the Clerk of Court should be directed to close this case.
SO RECOMMENDED on March 11, 2026.
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the manner
provided by law. Any party who objects to any part of this report and recommendation must file
specific written objections within 14 days after being served with a copy. See 28 U.S.C. §
636(b)(1); FED. R. CIV. P. 72(b). An objection must identify the finding or recommendation to
which objection is made, state the basis for the objection, and indicate where in the magistrate
judge’s report and recommendation the disputed determination is found. An objection that merely
incorporates by reference or refers to the briefing before the magistrate judge is not specific.
Failure to file specific written objections will bar the aggrieved party from appealing the factual
findings and legal conclusions of the magistrate judge that are accepted or adopted by the district
court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d
1415, 1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending
the time to file objections to 14 days).
Case 3:25-cv-01489-S-BK Document 9 Filed 03/11/26 Page 14 of 14 PageID <pageID>