Lopez v. Freedom Mortgage Corporation

ISARY LOPEZ,
Plaintiff,
vs.
UNITED STATES DISTRJCT COURT
SOUTHERN DISTRJCT OF TEXAS
HOUSTON DIVISION
§
§
§
§
§ 	CIVIL ACTION NO. 4:25-CV-01111
§
FREEDOM MORTGAGE
CORPORATION,
§
§
§
Defendant. 	§
ORDER
Pending before the Court is Defendant Freedom Mortgage Corporation's ("Defendant")
Motion to Dismiss. (Doc. No. 6). Plaintiff Isary Lopez ("Plainti ff') filed a response, (Doc. No.
13) , and Defendant replied, (Doc. No. 14) . Having reviewed these documents, the record, and the
applicable law, the Court hereby CONDITIONALLY GRANTS Defendant's Motion to Dismiss.
(Doc. No. 6).
BACKGROUND
The facts described herein are alleged in Plaintiffs Petition and taken as true for purposes
of the Motion to Dismiss.
This is a dispute involving the real property located at 2542 Llano Springs Dr., Katy, Texas
77494 (the "Property" ). (Doc. No. 1-1 at 4) . Plaintiff has occupied this address as her primary
residence and homestead since June 2022. Freedom Mortgage Corporation is the lender on the
property and serves as the mortgage servicer. (Id.).
United States District Court
Southern District of Texas
ENTERED
April 02, 2026
Nathan Ochsner, Clerk
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Plaintiff testified in her Affidavit that she "fell behind" on her mortgage payments because
of a decrease in her income and a $1,000 increase in her monthly mortgage payments due to a
"miscalculation by the bank regarding property taxes combined with the county increasing [her]
home valuation by $100,000 in one year." (Doc. No. 1-1 at 14) (Affidavit oflsary Lopez). Plaintiff
alleges that Defendant "was negligent in the service of the loan" by failing to pay Plaintiff's
property taxes from "the escrow account." (Doc. No. 1-1 at 5). Plaintiff alleges that when she first
contacted Defendant about this, Defendant advised her that the taxes were her responsibility to pay
outside of her mortgage payment. (Id.). Three months later, Plaintiff avers that Defendant
"relented, admitted its mistake, and partially corrected the problem." (Id.). Plaintiff testified that it
"took three months of repeated calls and documentation" before the bank issued a $2,000 credit to
her account, which "did not bring the account current nor [make] up for the escrow shortfall caused
by the bank's error." (Doc. No. 1-1 at 14).
To resolve this situation, Plaintiff allegedly applied for a loan modification in August 2024
and was "placed on a forbearance while the lender reviewed the options." (Id.); (Doc. No. 1-1 at
14). Plaintiff testified that on December 6, 2024, she contacted the bank and was told that her
application was still "under review" and that they would contact her if they needed any additional
documents. (Doc. No. 1-1 at 14). Plaintiff avers that Defendant "never provided a written denial
of [her] modification request, as required by law, before moving forward with foreclosure
proceedings." (Id.). Further, Plaintiff maintains that Defendant failed to provide proper foreclosure
notices. Plaintiff alleges that Defendant did not send a 20-day default notice to cure or a Notice of
Acceleration. (Id.). Plaintiff avers that she only learned of the foreclosure from "real estate
investors." (Doc. No. 1-1 at 5).
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On February 28 , 2025 , Plaintiff filed her Original Verified Petition in the 268th Judicial
District of Fort Bend County, Texas. See (Doc. No. 	1-1). Plaintiff asserted claims against
Defendant for breach of contract, violations of the Real Estate Settlement Procedures Act
("RESP A"), negligence, and injunctive relief. Se e (id. at 6- 11 ). Plaintiff also requested that the
state court issue a Temporary Restraining Order ("TRO") preventing the foreclosure sale set for
March 4, 2025. See (id. at 11). The court did so. S ee (id. at 23). Defendant then removed the case
to this Court based on diversity jurisdiction and federal question jurisdiction. (Doc. No. 1).
Defendant has now filed a Motion to Dismiss each of Plaintiffs claims. See (Doc. No. 6).
LEGAL STANDARD
A defendant may file a motion to dismiss a complaint for "failure to state a claim upon
which relief may be granted." Fed. R. Civ. P. 12(b)(6). Similarly, a plaintiff may file a Rule
12(b)(6) motion to dismi ss a counterclaim. See Kansas v. Ne bras ka , 527 U.S. 1020 (1999). To
defeat a motion to dismiss under Rule l 2(b )( 6) , 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). "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." Ashcroft v. Iqbal,
556 U.S. 662, 663 (2009) (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin
to a 'probability requirement, ' but it asks for more than a sheer possibility that a defendant has
acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that
are ' merely consistent with' a defendant' s liability, it 'stops short of the line between possibility
and plausibility of entitlement to relief. "' Id. (quoting Twombly, 550 U.S . at 557).
In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the
complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm
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Mut. Auto. Ins. Co., 509 F.3d 673 , 675 (5th Cir. 2007). The Court is not bound to accept factual
assumptions or legal conclusions as true, and only a complaint that states a plausible claim for
relief survives a motion to dismiss. Iqbal, 556 U.S. at 678 - 79. When there are well-pleaded factual
allegations, the court assumes their veracity and then determines whether they plausibly give rise
to an entitlement to relief. Id. Additionally, in deciding a motion to dismiss, "the court may
consider documents attached to or incorporated in the complaint and matters of which judicial
notice may be taken." US ex rel. Willard v. Humana Health Plan of Tex. Inc. , 336 F.3d 375, 379
(5th Cir.2003).
ANALYSIS
Defendant's Motion asserts that Plaintiffs allegations lack any factual basis or legal basis
and cannot support plausible claims for relief. See (Doc. No. 6 at 1).
I. 	Plaintiff's Breach of Contract Claim
First, Defendant argues that Plaintiff cannot establish a claim that Defendant breached the
Deed of Trust by failing to comply with Section 51.002 of the Texas Property Code. (Doc. No. 6
at 3). Defendant avers that Plaintiff has no cause of action that Defendant breached the contract
when Plaintiffs initial breach (default on the loan) and failure to cure led to Defendant's notice of
foreclosure sale. (Id. at 3-4). Additionally, Defendant asserts that Plaintiff cannot establish actual
damages proximately caused by Defendant's alleged breach because she only pleads damages
related to the scheduled foreclosure sale and the state court TRO she obtained already prevented
such sale. (Id. at 4). Lastly, Defendant contends that Plaintiff only has a cause of action under the
relevant provisions of the Texas Property Code if a foreclosure sale has occurred, and Plaintiff is
currently still in possession of the Property and no future foreclosure sale is scheduled, meaning
Plaintiff has no cause of action. (Id.).
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The essential elements of a breach of contract claim 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 to the plaintiff as a result of the defendant's breach." Williams v.
Wells Fargo Bank, NA., 884 F.3d 239, 244 (5th Cir. 2018). Plaintiff asserts that Defendant
breached the Deed of Trust by violating Section 51.002 of the Texas Property Code when
Defendant (1) failed to send a 20-day notice to cure prior to sending a notice of sale, and (2) failed
to send the Notice of Acceleration via certified mail. (Doc. No. 1-1 at 6- 8).
Section 51.002( d) of the Texas Property Code requires mortgage servicers to "serve a
debtor in default ... with written notice by certified mail stating that the debtor is in default" and
give the debtor "20 days to cure the default before notice of sale can be given." 1 TEX. PROP.
CODE § 51.002(d). While Plaintiff argues that Defendant violated Section 51.002 by not sending
the Notice of Acceleration via certified mail, Plaintiff does not point the Court to any section of
the Texas Property Code supporting this argument. See (Doc. No. 1-1 at 7- 8). Generally, " [t]he
following two elements are required for a valid acceleration: (1) notice of intent to accelerate, and
(2) notice of acceleration." Morlock, L.L.C. v. HSBC Bank USA, NA., 2017 WL 9249490, at *3
(S.D. Tex. Jan. 17 , 2017), report and recommendation adopted, 2017 WL 1100940 (S.D. Tex.
Mar. 24, 2017) (citing Holy Cross Church of God in Chri st v. Wolf, 44 S.W.3d 562, 566 (Tex.
2001)).
The Court agrees with Defendant that Plaintiff has not asserted a valid breach of contract
claim against Defendant. "The Fifth Circuit has held that a mortgagor who has defaulted on the
underlying note cannot maintain a cause of action for a mortgagee's subsequent breach of the deed
1 Plaintiff's Petition quotes Texas Property Code Section 51.002( d) but states that it is Section 5 l .002(b ).
See (Doc. No. 1-1 at 6) . For the purposes of this order, the Court treats this claim as arising under Section
51.002(d).
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of trust because 'a party in default cannot assert a claim for breach against the other party.'" James
v. Wells Fargo Bank, NA. , 2014 WL 2123060, at *7 (S.D. Tex. May 21, 2014) (citing Water
Dynamics, Ltd. v. HSBC Bank USA , Nat. Ass 'n, 509 F. App'x 367, 369 (5th Cir.2013); Thomas v.
EMC Mortgage Corp., 499 F. App'x 337, 341 (5th Cir.2012)). Plaintiff openly admits in her
Petition and Affidavit that she was in default on her mortgage payments. See (Doc. No. 1-1 at 5 1
15); (Doc. No. 1-1 at 13 14) ("I fell behind on my mortgage" ). Thus, Plaintiff cannot maintain a
cause of action for breach of contract against Defendant. That being the case, the Court need not
address Defendant's other arguments for dismissal.
Accordingly, the Court grants Defendant's Motion to Dismiss regarding Plaintiff's breach
of contract claim.
II. 	Plaintiff's RESP A Claims
Second, Defendant argues that Plaintiff's claims for violations ofRESPA under 12 C.F.R.
§ 1024.39 and 12 C.F.R. § 1024.41 should be dismissed.2 Section 1024.39 provides that:
[A] servicer shall establish or make good faith efforts to establish live contact with
a delinquent borrower no later than the 36th day of a borrower' s delinquency and
again no later than 36 days after each payment due date so long as the borrower
remains delinquent. Promptly after establishing live contact with a borrower, the
servicer shall inform the borrower about the availability of loss mitigation options
2 Plaintiff's Petition states that "Defendants violated RESP A section 6(f), 12 U .S .C. § 2614, 12 C.F .R. §
1024.39, and 12 C.F.R. § 1024.41." (Doc. No. 1-1 at 8) . 12 U.S.C. § 2614, however, concerns the
jurisdiction of courts. See 12 U.S .C. § 2614. Additionally, RESPA section 6(f) is merely the provision by
which a borrower "may enforce the provisions" of Section 1024.41. 12 C.F.R. § 1024.41. While the
section of Defendant' s Motion concerning this claim avers that the Court should dismiss only Plaintiff's
claim for violation of 12 C.F.R. § 1024.41 , Defendant' s argument appears to combine Plaintiff's two
alleged RESP A violations . See (Doc. No. 6 at 5) ("Plaintiff alleges that Freedom violated 12 CFR §
l 024.4 l by scheduling a foreclosure sale for March 4, 2025 [even though Plaintiff] 'had not been offered
any loss mitigation options. "' ). The Court, therefore, will discuss Plaintiff's RESPA claims under 12
C.F.R. § 1024.39and 12C.F.R. § 1024.41.
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12 C.F.R. § 1024.39(a). Section 1024.41 applies where "a servicer receives a complete loss
mitigation application more than 37 days before a foreclosure sale," and requires the servicer
"within 30 days ofreceiving the complete loss mitigation application" to"[ e]valuate the borrower
for all loss mitigation options available to the borrower; and ... [p ]rovide the borrower with a
notice in writing stating the servicer's determination of which lo ss mitigation options, if any, it will
offer to the borrower on behalf of the owner or assignee of the mortgage." 12 C .F .R. § 1024 .41.
Defendant asserts that Plaintiffs RESP A claims fail because Plaintiff failed to assert that
her alleged complete loss mitigation application was her first loss mitigation application. (Doc.
No. 6 at 5). Defendant contends that 12 C.F.R. § 1024.41 "only applies to a borrower's first lo ss
mitigation application." (Id.). Further, Defendant maintains that Plaintiff must show a causal link
between the RESP A violations and her alleged injuries. Defendant avers that given the fact that
Plaintiff admitted default, she cannot sufficiently allege that the noticed foreclosure was a result
of Defendant's alleged violations of RESP A. (Id. at 6). Defendant argues that Plaintiff does not
allege actual damages resulting from the RESP A violations, considering she remains on the
Property and no foreclosure sale occurred. Moreover, Defendant claims that Plaintiff cannot
demonstrate that Defendant engaged in a pattern of noncompliance entitling her to statutory
damages, as required by 12 U .S .C . § 2605 . (Id.).
In her Petition, Plaintiff argues that Defendant violated 12 C.F.R. § 1024.39 by "failing to
provide accurate information to Plaintiff[] for loss mitigation options and foreclosure." (Doc. No.
1-1 at 8). Although not raised by Defendant, the Court notes that courts in the Southern District of
Texas have recognized that Section 1024.39 does not provide a private cause of action. See Vallier
v. Nationstar Mortg. , LLC, 2018 WL 1319166, at *5 (S.D. Tex. Feb. 1, 2018), report and
recommendation adopted, 2018 WL 1322247 (S.D. Tex. Mar. 13 , 2018) ("[T]here is no private
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cause of action for any violation of 12 C.F.R. §§ 1024.35 or 1024.39."); Solis v. US. Bank, NA. ,
2017 WL 4479957, at *4 (S.D. Tex. June 23 , 2017), aff'd, 726 F. App'x 221 (5th Cir. 2018)
("Section 1024.39 'do[es] not explicitly provide a cause of action to private individuals. "' (citing
Brown v. Bank of N. Y Mellon , 2016 WL 2726645, at *2 (E.D. Va. May 9, 2016) (citing Gresham
v. Wells Fargo Bank, NA ., 642 Fed.Appx. 355, 359 (5th Cir. 2016)))). Accordingly, Plaintiff's
RESPA claim under 12 C.F.R. § 1024.39 fails, and the claim is dismissed.
Next, Plaintiff contends that Defendant violated 12 C.F.R. § 1024.41 by "failing to provide
the Plaintiffl] with a specific reason or reasons for denial of all loan workout alternatives prior to
posting [her] home for foreclosure." (Doc. No. 1-1 at 8). Section 1024.41 explicitly provides a
private right of action. See 12 C.F.R. § 1024.41(a) ("A borrower may enforce the provisions of
this section pursuant to section 6(f) of RESP A (12 U.S.C. 2605(f))."); Gresham, 642 Fed.Appx. at
359. Plaintiff may enforce violation of 12 C.F.R. § 1024.41 pursuant to 12 U.S.C. 2605(f). Under
12 U.S.C. 2605(f), whoever fails to comply with this provision may be liable for "an amount equal
to the sum of ... any actual damages to the borrower as a result of the failure ; and .. . any additional
damages, as the court may allow, in the case of a pattern or practice of noncompliance with the
requirements of this section, in an amount not to exceed $2,000." 12 U.S.C. § 2605(f)(l).
Therefore, to survive a motion to dismiss under Rule 12(b)( 6), a plaintiff must allege actual
damages resulting from a violation of 12 C.F.R. § 1024.41. See Whittier v. Ocwen Loan Servicing,
L.L.C. , 594 F. App'x 833, 836 (5th Cir.2014) ("To recover, a claimant must show that actual
damages resulted from a RESP A violation.").
Plaintiff's Petition makes only the conclusory allegation that "Defendant[] [has] violated
at least RESP A procedures causing Plaintiff[] to suffer actual damages." (Doc. No. 1-1 at 9). While
Plaintiff states in her Response that these actual damages "include the assessment of fees and
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penalties for the delay in payment of escrowed taxes," Plaintiff does not plead these damages in
her Petition. (Doc. No. 13 at 6) . Further, even considering these fees and penalties, Plaintiff does
not plead a plausible causal relationship between these alleged damages and Defendant' s alleged
violation of 12 C.F.R. 	§ 1024.41. 	Indeed, Plaintiff testified that she submitted her loan
modification application after Defendant had allegedly negligently handled Plaintiff's property tax
payments. Thus, Plaintiff allegedly incurred these fees and penalties before Defendant even
obtained Plaintiff's submitted loan modification application. Plaintiff, therefore, has not pleaded
actual damages resulting from Defendant' s alleged violation of 12 C.F.R. § 1024.41. Accordingly,
Plaintiff has failed to state a plausible claim for relief under 12 C.F.R. § 1024.41.
The Court grants Defendant' s Motion to Dismiss regarding Plaintiff's RESPA claims.
III. 	Plaintiff's Negligence Claim
Third, Defendant contends Plaintiff's negligence claim should be dismissed because (1) it
is barred by the economic loss doctrine since the relationship between Plaintiff and Defendant is
contractual in nature; and (2) even if not barred by the economic loss doctrine, Plaintiff cannot
state a cognizable claim for negligence because she cannot establish that Defendant owed Plaintiff
a legal duty. (Doc. No. 6 at 7- 8).
Notably, Plaintiff's Response addresses this claim as a "breach of contract" claim
concerning Defendant failing to "pay taxes from escrow" and inflating "Plaintiff's monthly
payment without cause." (Doc. No. 13 at 7- 9). Plaintiff's Petition, however, titles this claim,
"Negligence in Servicing the Loan and Breach of Contract" and proceeds to lay out allegations
aligning with the elements of negligent misrepresentation. See (Doc. No. 1-1 at 9- 10) ("Defendant
represented to Plaintiff that it was her responsibility . .. to pay the property taxes, which was false.
Defendant made the representation in the course of [D]efendant's business. Defendant made the
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representation for the guidance of others."). Accordingly, the Court treats this claim as a negligent
misrepresentation claim.
The economic loss doctrine generally "preclude[ s] tort claims brought to recover economic
losses when those losses are the subject matter of a contract." Pugh v. General Terrazzo Supplies,
Inc., 243 S.W.3d 84, 90 (Tex. App.- 	Houston [1st Dist.] 2007, pet. denied). "Simply stated, under
the economic loss rule, a duty in tort does not lie when the only injury claimed is one for economic
damages recoverable under a breach of contract claim." Sterling Chemicals, Inc. v. Texaco Inc. ,
259 S.W.3d 793, 796 (Tex. App.- 	Houston [1st Dist.] 2007, pet. denied). If parties are in
contractual privity, "a plaintiff may not bring a claim for negligent misrepresentation unless the
plaintiff can establish that he suffered an injury that is distinct, separate, and independent from the
economic losses recoverable under a breach of contract claim." Id. at 797. The burden is on the
plaintiff to provide evidence of the independent injury. Id.
Plaintiff alleges in her Petition that Defendant's negligent misrepresentations resulted in
Plaintiff "facing the foreclosure of her primary residence and all of the costs, both economic and
emotional, that go along with that experience." (Doc. No. 1-1 at 10). Additionally, Plaintiff sought
"declaratory relief that Defendant/Lender is not entitled to foreclose" and requested that the state
court grant her request for a TRO (which it did). (Id.). Importantly, Plaintiff also sought this relief
in her breach of contract claim: "Plaintiff seeks declaratory relief that Defendant/Lender is not
entitled to foreclose and requests that this court grant the request for a [TRO]." See (Doc. No. 1-1
at 7- 8).
Since Plaintiff's only alleged damages for her negligence claim concern the foreclosure on
her Property subject to the Deed of Trust at issue between the parties, Plaintiff's damages are not
sufficiently "distinct, separate, [or] independent from the economic losses recoverable under [her]
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breach of contract claim." Sterling Chemicals, Inc., 259 S. W.3d at 797. Indeed, as discussed above,
Plaintiff herself seems to confuse her negligence and breach of contract claims, as evidenced in
her pleadings. See (Doc. No. 13 at 7- 9) (discussion of this claim titled "Breach of Contract -
Defendant failed to pay taxes from escrow and inflated Plaintiff's monthly payment without
cause"); (Doc. No. 1-1 at 9- 10) (discussion of this claim titled "Negligence in Servicing the Loan
and Breach of Contract"). The economic loss doctrine, therefore, bars Plaintiff's negligence claim.
Accordingly, 	the 	Court 	grants 	Defendant's motion to 	dismiss regarding Plaintiff's
negligence claim. Plaintiff's negligence claim is dismissed with prejudice.
IV. 	Plaintiff's Requests for Injunctive Relief and Attorney Fees
Lastly, Defendant maintains that Plaintiff's requests for injunctive relief, attorney's fees,
and any other damages should be denied since Plaintiff cannot prevail on any of her substantive
claims. (Doc. No. 6 at 8). The Court agrees with Defendant that these requests should be dismissed
as each relies on an underlying claim, and all of Plaintiff's underlying substantive claims fail. See
Cook v. Wells Fargo Bank, NA., 2010 WL 2772445, at *4 (N.D. Tex. July 12 , 2010) ("Under
Texas law, a request for injunctive relief is not itself a cause of action but depends on an underlying
cause of action."); Everhart v. CitiMortgage, Inc., 2013 WL 264436, at * 10 (S.D. Tex. Jan. 22,
2013) ("[B]ecause Plaintiffs have not pled any viable causes of action, their request for exemplary
damages and attorney's fees should be dismissed.").
Accordingly, the Court denies without prejudice Plaintiffs requests for injunctive relief,
attorney's fees, and any other damages.
V. 	Plaintiff's Request for Leave to Amend
In her Response, Plaintiff requests that the Court grant her leave to amend her Petition
under Fed. R. Civ. P. 15(a)(2). See (Doc. No. 13 at 9). Defendant contends Plaintiff's request
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should be denied because any amendments to her Petition would be "futile" and Plaintiff does not
support her request with any "additional facts or substance that she would allege in an amended
complaint that would survive a motion to dismiss under Rule 12(b)(6)." (Doc. No. 14 at 4- 5).
Under Rule 15(a)(2), courts "should freely give leave when justice so requires." Fed. R.
Civ. P. 15(a)(2). Generally, "district courts often afford plaintiffs at least one opportunity to cure
pleading deficiencies before dismi ss ing a case, unless it is clear that the defects are incurable or
the plaintiffs advise the court that they are unwilling or unable to amend in a manner that will
avoid di smissa l. " Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co ., 313 F.3d 305,329
(5th Cir. 2002). In this case, the defects in Plainti ffs breach of contract claim, 12 C.F. R. § 1024.39
RESP A claim, and negligence claim are incurable. Each of these claims contained defects that
cannot be cured with additional facts or substance- 	the breach of contract claim was dismissed
due to Plaintiffs prior default, the 12 C.F.R. § 1024.39 claim was dismissed because that provision
does not provide a private cause of action, and the negligence claim was dismissed because it is
barred by the economic lo ss doctrine.
The Court will, however, allow Plaintiff to amend her Petition regarding her 12 C.F.R. §
1024.41 RESP A claim. Here, it is not clear that the de fects in this claim are incurable- 	Defendant
does not argue that Plaintiff does not have any actual damages related to this claim, but rather that
she did not plead that she did. As such, the Court finds it appropriate to grant Plaintiff leave to
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amend her complaint to cure pleading deficiencies regarding only her RESP A claim under 12
C.F.R. § 1024.41.
Defendant's Motion to Dismiss is granted, but Plaintiff is given leave to rep lead this claim
if she does so by April 24, 2026. If she fails to do so , this Court will dismiss the case. If Plaintiff
does replead timely, Defendant will have 21 days to respond as it deems appropriate.
CONCLUSION
Based on the foregoing analysis, the Court CONDITIONALLY GRANTS Defendant' s
Motion to Dismiss. (Doc. No. 6). All of Plaintiffs claims, other than her RESP A claim under 12
C.F.R. § 1024.41 , are hereby dismissed. Plaintiff is granted leave to amend her complaint as to the
12 C.F.R. § 1024.41 RESP A claim only if she does so by April 24 , 2026. Failure to comply with
this deadline will result in dismissal.
'L.....
Signed on this .1:__ day of April 2026.
Andrew S. Han en
United States District Judge
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