Estate of Betty Earl Moore v. Wells Fargo NA

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ESTATE OF BETTY EARL MOORE, 	§
Plaintiff, 	§
§
v. 	§ 	No. 3:25-CV-1789-L-BW
§
WELLS FARGO BANK, N.A., 	§
Defendant. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court is Defendant Wells Fargo Bank, N.A.’s Motion to Dismiss
Plaintiff’s Original Petition filed on September 5, 2025. (Dkt. No. 4.) Wells Fargo
has filed a brief (Dkt. No. 5 (“D. Br.”)) and appendix (Dkt. No. 6 (“D. App.”)) in
support. Plaintiff Estate of Betty Earl Moore (“the Estate”) filed its response (Dkt.
No. 10) and supporting brief (Dkt. No. 11 (“P. Br.”)) on November 5, 2025. Wells
Fargo filed a reply on November 12. (Dkt. No. 12 (“Reply”).)
After considering the briefs and relevant authority, the undersigned magistrate
judge recommends that Wells Fargo’s motion be granted.
I. BACKGROUND
The Estate, through independent administrator Rhonda Elkins, initiated this
action on June 26, 2025, by filing an Emergency Petition and Application for Ex
Parte Temporary Restraining Order and Temporary Injunction in County Court at
Law No. 1, Ellis County, Texas. (Dkt. No. 1-4 (“Compl.”).) The Estate sought
injunctive relief to prevent the noticed foreclose sale of property at 134 Hollie Drive
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in Red Oak, Texas. (Compl. at 1-2.) The Estate alleged that Wells Fargo failed to
provide notices that are required by Texas law to the Estate or Elkins. (See id. ¶¶ 11,
12-14.) A state court granted a temporary restraining order and set a hearing on the
request for a temporary injunction for July 10, 2025. (Dkt. No. 1-6.) Wells Fargo
filed an answer on July 9 (Dkt. No. 1-9) and, that same day, removed the action to
this Court (see Dkt. No. 1.).
Wells Fargo alleges that the Court has subject matter jurisdiction based on
party diversity under 28 U.S.C. § 1332(a). (Dkt. No. 1 at 3.) The Estate’s citizenship
is derived from the decedent’s citizenship, which Wells Fargo alleges on information
and belief as Texas. (Id.) Wells Fargo is a citizen of the state in which it maintains
its main location, South Dakota. (Id.) Based on property tax rolls, Wells Fargo
alleges that the value of the property at issue in this litigation exceeds the
jurisdictional threshold for amount in controversy. (Id.)
In the instant motion to dismiss, Wells Fargo urges the Court to grant its
motion to dismiss for three reasons. First, it argues that the Estate cannot maintain
any claim against Wells Fargo under the Texas Property Code because the Estate
was not a party to the loan agreement at issue and, therefore, is not entitled by law to
the notices that underlie its claim. (D. Br. at 3-4.) Second, it contends that Tex.
Prop. Code § 51.002 does not grant a private right of action. (Id. at 5.) Third, and
seemingly in the alternative, Wells Fargo asserts that a statutory claim under
§ 51.002 does not arise until after a foreclosure sale, which has not occurred in this
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case. (Id. at 5-6.) In response, the Estate acknowledges that a foreclosure sale has
not occurred and that the property is no longer slated for foreclosure. (P. Br. at 1.) It
disputes Wells Fargo’s assertion that the Estate was not entitled to notice and
suggests that the Estate’s lack of familiarity with the law “created the need for
Plaintiff to file this suit and request a Temporary Restraining Order.” (Id.) Plaintiff
accepts that dismissal of the suit may be appropriate but assures the Court that the
suit was brought in good faith and not for the purpose of delay, and it requests that
dismissal be without prejudice. (Id.)
II. LEGAL STANDARDS AND ANALYSIS
A motion under Rule 12(c) “is designed 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.” Hebert Abstract Co. v.
Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990) (internal citations omitted).
The standard for deciding a motion under Rule 12(c) is the same as a motion to
dismiss under Rule 12(b)(6). Gentilello v. Rege, 627 F.3d 540, 543-44 (5th Cir. 2010).
Under Federal Rule of Civil Procedure 8(a)(2), a complaint 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). 	“In deciding a Rule 12(b)(6) motion to dismiss, the court
evaluates the sufficiency of [the plaintiff’s] complaint by ‘accept[ing] all well-pleaded
facts as true, viewing them in the light most favorable to the plaintiff.” Bramlett v.
Med. Protective Co. of Fort Wayne, In., 855 F. Supp. 2d 615, 618 (N.D. Tex. 2012) (first
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alteration added, internal quotation marks omitted) (quoting In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)). To state a claim upon which relief
can be granted and defeat a Rule 12(b)(6) motion, a plaintiff must plead “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); Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir.
2008). To meet this “facial plausibility” standard, a plaintiff must “plead[] factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
court must accept well-pleaded facts as true and view them in the light most
favorable to the plaintiff. Sonnier v. State Farm Mut. Auto. Ins. Co., 509 F.3d 673, 675
(5th Cir. 2007). However, the court does not accept as true “conclusory allegations,
unwarranted factual inferences, or legal conclusions.” Ferrer v. Chevron Corp., 484
F.3d 776, 780 (5th Cir. 2007) (citation omitted). A plaintiff must provide “more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555 (citation omitted). “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).” Id.
(citations omitted).
In ruling on a Rule 12(b)(6) motion, the court limits its review to the face of
the pleadings. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999); see also
Beasley v. Greenlee, No. 3:22-CV-00532-X-BT, 2024 WL 3851382, at *3–4 (N.D. Tex.
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July 25, 2024) (applying Rule 12(b)(6) standards to a Rule 12(c) motion), adopted,
2024 WL 3851599 (N.D. Tex. Aug. 16, 2024). The pleadings include the complaint
and any documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d
496, 498 (5th Cir. 2000). The ultimate question is whether the complaint states a
valid claim when viewed in the light most favorable to the plaintiff. Great Plains Tr.
Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002). At the
motion to dismiss stage, the court does not evaluate the plaintiff’s likelihood of
success. It only determines whether the plaintiff has stated a claim upon which relief
can be granted. Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir. 1977).
Therefore, to survive a Rule 12(c) motion, a plaintiff's complaint must contain
sufficient factual matter to state a claim for relief that is plausible on its face. Beasley,
2024 WL 3851382, at *4 (citing Twombly, 550 U.S. at 570).
Resolution of Wells Fargo’s motion is appropriate based on its argument that
it is entitled to judgment on the pleadings based on the complaint’s failure to allege
that a foreclosure has occurred. (See D. Br. at 5-6.) “[A] claim for failure to provide
proper notice of foreclosure under Texas Property Code section 51.002 is only
cognizable after a foreclosure has taken place.” M Speed Motor Sports LLC v. Cap.
Fund I, LLC, No. 3:24-CV-02288-N, 2025 WL 1160007, at *2 (N.D. Tex. Apr. 21,
2025); see also Wilburn v. Pentagon Fed. Credit Union, No. 3:25-CV-116-L-BN, 2025
WL 1746673, at *4 (N.D. Tex. June 9, 2025), accepted, 2025 WL 1746280 (N.D. Tex.
June 24, 2025); Mahmood v. Bank of Am., N.A., No. 3:11-CV-3054-M-BK, 2012 WL
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527902, at *4 (N.D. Tex. Jan. 18, 2012), accepted, 2012 WL 527901 (N.D. Tex. Feb.
16, 2012). Here, the Estate’s pleading does not establish that a foreclosure sale
occurred, and, in response to the motion, it concurs in Wells Fargo’s representation
that there has been no foreclosure on the property. (See P. Resp. at 1 (noting that
“the property was lawfully removed from foreclosure”); id. at 3 (referring to a
“foreclosure attempt”).) Because no foreclosure has occurred, “Plaintiff’s claim
under Chapter 51 of the Texas Property Code for what could only be wrongful
foreclosure should . . . be denied.” Mahmood, 2012 WL 527902, at *4. And the
Court need not consider Wells Fargo’s other grounds for dismissal.
Recognizing that dismissal is appropriate, the Estate requests that the case be
dismissed without prejudice. (P. Br. at 3.) Its request, however, is seemingly based
on a mistaken belief that dismissal with prejudice would “effectively” preclude it
from pursuing legal action against Wells Fargo based on claims of wrongful
foreclosure or other causes of action that might accrue in the future. (See id.) The
Estate, however, brought a claim against Wells Fargo from wrongful foreclosure
based on allegations of a past foreclosure that did not occur. As explained above, the
Estate’s claim fails as a matter of law, and amendment would be futile here, as the
Estate cannot cure through amendment its inability to allege that foreclosure had
occurred. Dismissal with prejudice is therefore appropriate. See Wilburn, 2025 WL
1746673, at *4 (recommending dismissal of similar claim with prejudice on same
basis); see also Hernandez v. Shellpoint Mortg. Servicing, No. 1:20-CV-173, 2021 WL
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2384793, at *5 (S.D. Tex. May 14, 2021) (recommending dismissal of similar claim
with prejudice and noting that “dismissal with prejudice shall not be construed as
having any preclusive effect on a future claim of wrongful foreclosure after a
foreclosure has actually occurred”), accepted, 2021 WL 2380761 (S.D. Tex. June 10,
2021).
III. RECOMMENDATION
The undersigned magistrate judge recommends that Wells Fargo’s motion for
judgment on the pleadings under Fed. R. Civ. P. 12(c) be GRANTED and that this
action be dismissed with prejudice.
SO RECOMMENDED on December 8, 2025.
BRIAN McKAY
UNITED STATES MAGISTRATE JUDGE
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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). To be specific,
an objection must identify the finding or recommendation to which objection is
made, state the basis for the objection, and indicate the place in the magistrate
judge’s report and recommendation where 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 Services Automobile 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).
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