Jelks v. Lakeview Loan Servicing, LLC et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JENNIFER JELKS,
Plaintiff,
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v. 	CIVIL ACTION NO. 4:25-cv-3123
LAKEVIEW LOAN SERVICING
LLC, AND LOANCARE, LLC,
Defendants.
MEMORANDUM AND RECOMMENDATION
Pending before the Court1 is Defendants Lakeview Loan Servicing, LLC
and LoanCare, LLC’s (collectively, “Defendants”) Motion for Judgment on the
Pleadings (ECF No. 4). 	Based on a review of the motion, arguments, and
relevant law, the Court RECOMMENDS pro se Plaintiff Jennifer Jelks’s
(“Plaintiff”) claims be DISMISSED for failure to state a claim unless she
timely files a motion seeking leave to amend her complaint within fourteen
days of this Memorandum and Recommendation. 	If Plaintiff fails to timely
move for leave to amend, the Court RECOMMENDS Defendants’ Motion for
Judgment on the Pleadings (ECF No. 4) be GRANTED and Plaintiff’s claims
be DISMISSED WITH PREJUDICE.
1 This case was referred to the Undersigned for all purposes pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B) and Federal Rule of Civil Procedure 72. (ECF No. 3).
United States District Court
Southern District of Texas
ENTERED
December 16, 2025
Nathan Ochsner, Clerk
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I. 	Background
On May 30, 2025, Plaintiff filed her Original Verified Petition and
Application for Temporary Restraining Order, Temporary Injunction, and
Permanent Injunction (“Original Petition”) in the 61st Judicial District Court
of Harris County, Texas. (See ECF No. 1 at 1). Per Plaintiff’s Original Petition,
she is the owner of residential property in Harris County, Texas, subject to a
mortgage serviced by Defendants. 	(ECF No. 1-4 at 1). 	Plaintiff alleges she
attempted to apply for a loan modification over the phone on or about April 15,
2025, but that the application was denied without timely notice. (Id.). Plaintiff
also states she “did not receive any written correspondence until after the 30-
day window ha[d] passed.” (Id.).
Plaintiff reapplied online, but her application was denied due to alleged
missing information. (Id. at 2). 	Plaintiff then states that she “never received
a 21-day foreclosure notice, and she has not been afforded an opportunity to
cure the alleged default.” 	(Id.). 	Plaintiff added that a foreclosure sale was
scheduled for June 3, 2025, and that she “is currently pursuing an SBA loan to
bring 	the 	mortgage 	current 	and 	has 	family 	support 	to 	resume 	ongoing
payments.” (Id.).
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On July 3, 2025, Defendants removed the case to this Court. 	(See ECF
No. 1). 	After removal, Defendants filed their Motion for Judgment on the
Pleadings. (ECF No. 4). Plaintiff did not file a response.
II. 	Legal Standard
“After the pleadings are closed—but early enough not to delay trial—a
party may move for judgment on the pleadings.” 	FED. R. C IV . P. 12(c). 	“A
motion for judgment on the pleadings under Rule 12(c) is subject to the same
standard as a motion to dismiss under Rule 12(b)(6).” 	Doe v. MySpace, Inc.,
528 F.3d 413, 418 (5th Cir. 2008).
Federal Rule of Civil Procedure (“Rule”) 12(b)(6) allows defendants to
move to dismiss a complaint for “failure to state a claim upon which relief can
be granted.” 	F ED. R. C IV . P. 12(b)(6). 	“To survive a 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 (2009) (quoting 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.’” York v. Welch, No. 20-cv-40580, 2024 WL 775179,
at *2 (5th Cir. Feb. 26, 2024) (quoting Iqbal, 556 U.S. at 678). 	“‘Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
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statements, do not suffice.’” Id. (quoting Iqbal, 556 U.S. at 678). In assessing
the sufficiency of the complaint, 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); see Edmiston v. Borrego, 75 F.4th 551, 557–58 (5th
Cir. 2023) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498
(5th Cir. 2000) (citing FED. R. C IV . P. 12(b)(6))).
III. 	Discussion
Plaintiff’s Original Petition does not assert specific causes of action. (See
ECF No. 1-4). 	However, Defendants acknowledge that, based on Plaintiff’s
allegations related to multiple loan modification applications and an allegation
that she never received a notice of sale and notice of default, violations of the
Real Estate Settlement Procedures Act (“RESPA”) (12 U.S.C. 1024, et seq.) can
be implied from the facts asserted. (See ECF No. 1 at 1–2).
Defendants move to dismiss Plaintiff’s Original Petition with prejudice.
(ECF No. 4 at 2). 	Plaintiff did not respond to Defendants’ motion. 	Pursuant
to Local Rule 7.4, failure to respond is taken as a representation of no
opposition. 	S.D. Tex. Local R. 7.4. 	The Court construes all pro se filings
liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 	Regardless of
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Plaintiff’s failure to respond to the motion, the Court will consider the merits
of Defendants’ motion before the Court. 	See Gonzalez v. Mongo, No. 24-cv-
5145, 2025 WL 2174763, at *2 (S.D. Tex. July 31, 2025); Chilton v. Texas S.
Univ., No. 4:24-cv-1646, 2024 WL 4282092, at *1 (S.D. Tex. Sept. 24, 2024)
(“[W]here a party does not respond to a motion to dismiss, such failure does not
permit the Court to enter a ‘default’ dismissal.”).
a. Property Code Claim
Defendants begin by noting Plaintiff alleges she did not receive the
notice of 	acceleration and 	notice of 	sale. 	(ECF 	No. 	4 	at 4). 	However,
Defendants argue Plaintiff’s claim fails because Texas Property Code § 51.002
does not create a private right of action. (Id.).
“Texas Property Code § 51.002 requires a lender to provide notice of
default and intent to accelerate, specify the action required to cure the default,
and give the debtor an opportunity to cure the default within a minimum of
twenty (20) days.” 	Carey v. Fargo, No. 15-cv-1666, 2016 WL 4246997, at *3
(S.D. Tex. Aug. 11, 2016); see TEX . PROP . C ODE § 51.002(d). 	However, Texas
Property Code § 51.002 does not provide a private right of action. 	See Ashton
v. BAC Home Loan Servicing, L.P., No. 4:13-cv-810, 2013 WL 3807756, at *4
(S.D. Tex. Jul. 19, 2013) (“This Court has not found any cases that interpret
section 51.002 to establish an independent right of action for damages. 	The
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section also does not contain its own enforcement mechanism.”); see also
Rucker v. Bank of Am., N.A., 806 F.3d 828, 830 n.2 (5th Cir. 2015) (“[T]he
federal district courts that have addressed [this issue] seem to conclude that
Section 51.002 does not intend an independent private cause of action.”). 	As
such, to the extent Plaintiff asserts a claim under Texas Property Code §
51.002, her claim fails as a matter of law. See Solis v. U.S. Bank, N.A., No. 16-
cv-661, 2017 WL 4479957, at *2 (S.D. Tex. June 23, 2017), aff’d, 726 F. App’x
221 (5th Cir. 2018).
Defendants 	also 	argue 	that, 	to 	the 	extent 	Plaintiff’s 	claim 	can 	be
interpreted as a wrongful foreclosure claim, Plaintiff’s claim still fails because
Plaintiff has not and cannot plead a foreclosure sale has taken place. (See ECF
No. 4 at 4). 	“Courts have construed claims under § 51.002 as claims for
wrongful foreclosure.” 	Solis, 2017 WL 4479957, at *3. 	To state a claim for
wrongful foreclosure under Texas law, plaintiffs must plead: “(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.”
Charter Nat. Bank--Houston v. Stevens, 781 S.W.2d 368, 371 (Tex. App.—
Houston [14th Dist.] 1990, writ denied). Here, Plaintiff obtained a temporary
restraining order preventing foreclosure. (ECF No. 1-4 at 11). 	Thus, because
no foreclosure occurred, any claim for wrongful foreclosure would fail as a
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matter of law. See Solis, 2017 WL 4479957, at *3. “Additionally, any claim for
attempted wrongful foreclosure would also fail as a matter of law because such
claims are not cognizable under Texas law.” Id. at *3 n.2 (collecting cases).
b. RESPA
Defendants also argue Plaintiff vaguely asserts a claim pursuant to
RESPA by alleging she attempted to apply for a loan modification over the
phone on April 15, 2025, but did not receive a written denial until after the 30-
day deadline. 	(ECF No. 4 at 5). 	Defendants infer Plaintiff is alleging a
violation of 12 C.F.R. § 1024.41. (Id.).
12 C.F.R. § 1024.41—entitled “Loss mitigation procedures”—regulates
loss mitigation procedures provided by loan servicers. See 12 C.F.R. § 1024.41.
Section 1024.41 does not require that a servicer “provide any borrower with
any specific loss mitigation option.” 	Id. § 1024.41(a). 	Instead, it specifies
required procedures, including deadlines for reviewing timely loss mitigation
applications, and requirements for notifying borrowers in writing, within 30
days 	of 	receipt 	of 	a 	complete 	loss 	mitigation 	application, 	of 	which 	loss
mitigation options, if any, it will offer the borrower, or of the specific reasons
for denying the application. Id. § 1024.41(c)(1)(ii), (d). To set out a claim under
RESPA, Plaintiff must allege that: (1) Defendants violated 12 C.F.R. § 1024.41;
(2) Plaintiff suffered actual or statutory damages; and (3) the amount of
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damages is causally connected. 	DeForge v. Wells Fargo Bank, No. 4:19-cv-
1412, 2020 WL 13411941, at *5 (S.D. Tex. July 16, 2020).
Here, as noted by Defendants (ECF No. 4 at 6), Plaintiff has failed to set
out the first element in her pleadings as she must allege that the acts in
question 	concern 	her 	first 	complete 	application 	for 	loss 	mitigation. 	See
DeForge v. Wells Fargo Bank, No. 4:19-cv-1412, 2020 WL 13411941, at *5 (S.D.
Tex. July 16, 2020) (“Plaintiff has failed to set out the first element in his
pleadings as he must allege that the act in question was his first complete
application for loss mitigation. It is a condition precedent to maintaining this
action.”); see also Solis, 726 F. App’x at 223 (“The district court did not err when
it held that the [plaintiffs] failed to allege that this application was their first
complete loss mitigation application. 	Moreover, it does not appear to be
complete. Thus, [plaintiffs] again failed to plead the prequisites of a plausible
claim.”). 	As such, to the extent Plaintiff alleges a violation of 12 C.F.R. §
1024.41, the Court finds the claim should be dismissed.2 See Ruiz v. PennyMac
Loan Services, LLC, No. 3:18-cv-1544, 2018 WL 4772410, at *2 (N.D. Tex. Oct.
3, 2018).
2 Defendants also argue, “[t]o the extent Plaintiff’s RESPA claims extend to her second
stated application, Plaintiff admits that the application was incomplete.” 	(ECF No. 4 at 6
(citing ECF No. 1-4 at 2)). Similar to above, to the extent Plaintiff alleges a violation of 12
C.F.R. § 1024.41 in relation to her second application, the Court finds the claim should be
dismissed. See Solis, 726 F. App’x at 223.
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c. 	Injunctive Relief
Defendants also argue that, because Plaintiff has not asserted any viable
cause of action against Defendants, Plaintiff is not entitled to any injunctive
relief, and such a request should be denied. (ECF No. 4 at 6).
“[T]he law is clear that injunctive relief is an equitable remedy, not a
cause of action, and a claim for such relief should be dismissed when no
substantive legal claims are pled.” 	Scott v. JP Morgan Chase Bank, N.A., No.
4:13-cv-3211, 2014 WL 4167980, at *7 (S.D. Tex. Aug. 19, 2014).
Here, because Plaintiff does not have a viable cause of action, her request
for injunctive relief cannot stand alone. See Sanchez v. Wells Fargo Bank, N.A.,
No. 20-cv-188, 2020 WL 2086549, at *3 (W.D. Tex. Apr. 30, 2020).
d. Leave to Amend
Because Plaintiff is proceeding pro se, her failure to meet the specific
pleading requirements should not automatically result in dismissal of the
complaint with prejudice to re-filing. 	Hart v. Bayer Corp., 199 F.3d 239, 248
n.6 (5th Cir. 2000). While pro se plaintiffs generally should be afforded at least
one opportunity to amend, exceptions exist when, for example, “the defect is
simply incurable or the plaintiff has failed to plead with particularity after
being afforded repeated opportunities to do so.” 	Id. 	Additionally, the Court
need not grant leave to amend, even to a pro se plaintiff, “if the plaintiff has
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already pleaded his ‘best case.’” Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir.
2009).
Here, Plaintiff has neither responded to Defendants’ motion nor sought
leave to amend her Original Petition. Given her silence, it is unclear whether
Plaintiff has pleaded her best case. 	See Bishop v. Bennett, No. 3:24-cv-126,
2024 WL 5330028, at *3 (S.D. Miss. Dec. 20, 2024), report and recommendation
adopted, 	No. 	3:24-cv-126, 	2025 	WL 	209164 	(S.D. 	Miss. 	Jan. 	15, 	2025)
(comparing cases).
Out of an abundance of caution, given Plaintiff’s pro se status, the Court
recommends 	Plaintiff 	be 	allowed 	fourteen 	days 	from 	the 	entry 	of 	this
Memorandum and Recommendation to file a motion seeking leave to amend
her complaint. If Plaintiff fails to seek leave to amend within that time period,
the 	Court 	recommends 	Defendants’ 	Motion 	to 	Dismiss 	be 	granted 	and
Plaintiff’s claims be dismissed with prejudice. See id. at *3–4.
IV. 	Conclusion
Based on the foregoing, the Court RECOMMENDS Plaintiff’s claims be
DISMISSED unless she timely files a motion seeking leave to amend her
complaint within fourteen days of this Memorandum and Recommendation. If
Plaintiff fails to timely move for leave to amend, the Court RECOMMENDS
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Defendants’ Motion for Judgment on the Pleadings (ECF No. 4) be GRANTED
and Plaintiff’s claims be DISMISSED WITH PREJUDICE.
The Clerk shall send copies of this Memorandum and Recommendation
to the respective parties who have fourteen days from the receipt thereof to file
written objections thereto pursuant to Federal Rule of Civil Procedure 72(b)
and General Order 2002-13. Failure to file written objections within the time
period mentioned shall bar an aggrieved party from attacking the factual
findings and legal conclusions on appeal.
SIGNED in Houston, Texas on December 15, 2025.
______________________________
Richard W. Bennett
United States Magistrate Judge
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