Anderson v. PHH Mortgage et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
HATTIE M. ANDERSON,
Plaintiff,
VS.
PHH MORTGAG E, et al. ,
Def endants.
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ORDER
CIVIL ACTION NO. 4:25-cv-3796
Pending before this Court is Defendants PHH Mortgage and O~wen Financial 's Partial
Motion to Dismiss Plaintiff's Claims Under Texas Property Code § 51.002. (Doc. No. 6) . Plaintiff
Hattie Anderson has not responded, and the time to do so has since passed. After reviewing the
motion, the pleadings, and the applicable law, this Court GRANTS the motion.
I. 	BACKGROUND
This is a contested foreclosure suit brought by Plaintiff Hattie M. Anderson ("Plaintiff'' or
"Anderson") against PHH Mortgage and Ocwen Financial (collectively "Defendants"), arising out
of Defendants' attempted foreclosure of the real property located at 5426 Bent Bough Lane,
Houston, Texas 77088. (Doc. No. 6 at 1). Plaintiff originally filed her case in the 333rd Judicial
District Court of Harris County, and Defendants removed to this Court under diversity jurisdiction.
(Doc. No. 1-3 at 1; Doc. No. 1 at 2). In her state-court Petition, Plaintiff brought four causes of
action against Defendants: (1) forgery and fraud, (2) quiet title, (3) violation of Chapter 51.002 of
the Texas Property Code, and (4) declaratory judgment that Defendants violated the Notice of Sale
statute. (Doc. No. 1-4 at 4-6). She also sought injunctive relief to prevent the foreclosure and was
United States District Court
Southern District of Texas
ENTERED
January 27, 2026
Nathan Ochsner, Clerk
Case 4:25-cv-03796 Document 12 Filed 01/26/26 in TXSD Page 1 of 4

granted that relief the same day she filed her state-court Petition-August 4, 2025. (Id. at 7; Doc.
No. 1-3 at 2).
Subsequently, Defendants moved to dismiss Plaintiff's claims arising under section 51.002
of the Texas Property Code for failure to state a claim under Rule 12(b)(6). (Doc. No. 6 at 2). That
motion is ripe for resolution.
II. LEGALSTANDARD
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 dismiss a counterclaim. See Kansas v. Nebraska, 527 U.S. 1020 (1999). To defeat a
motion to dismiss under Rule 12(b)( 6), a plaintiff must plead "enough facts to state a claim to relief
that is plausible on its face." Bell At!. 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
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
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allegations, the court assumes their veracity and then determines whether they plausibly give rise
to an entitlement to relief. Id.
III.ANALYSIS
In her Petition, Plaintiff alleges that Defendants violated section 51.002 of the Texas
Property Code by failing to provide the minimum 20-day notice of default and the notice of intent
to accelerate before the scheduled foreclosure sale. (Doc. No. 1-4 at 6). In their Motion, Defendants
argue that any claims Anderson has brought under section 51.002 must be dismissed because this
section does not provide a private right of action, so Plaintiff has failed to state a claim upon which
relief can be granted. (Doc. No. 6 at 3).
Under Texas law, there is no private right of action for violation of Texas Property Code
§ 51.002. Carey v. Wells Fargo, NA. , No. H-15-1666, 2016 WL 4246997, at *3 (S .D. Tex. Aug.
11 , 2016 ); Ashton v. BAC Home Loan Serv., L.P , No. 4: 13-CV-810, 2013 WL 3807756, at *2 (S .D.
Tex. July 19, 2013). Instead, courts have construed complaints about a violation of section 51.002
as claims for wrongful foreclosure. Carey , 2016 WL 4246997, at *3. In Texas, an inadequate
selling price is a necessary element of a wrongful foreclosure action, so a foreclosure sale is
precondition to recovery. Bigge rs v. BAC Home Loans Servicing, LP, 767 F. Supp. 2d 725, 730
(N.D. Te x. 2011 ).
Here, Plaintiff has not pleaded that a foreclosure sale has occurred or that she is no longer
in possession of the property. In fact, based upon the record, the state court restrained the
foreclosure sale. (Doc. No. 1-3 at 2) (Order Granting Temporary Restraining Order). Defendants
also maintain that foreclosure has not occurred, and Plaintiff does not refute that assertion. (Doc.
No. 6 at 3). Plaintiff has therefore failed to plead a plausible claim for wrongful foreclosure . S ee,
e.g. , Smith v. JP Morgan Chase Bank NIA, No. H-10-3730 , 2010 WL 4622209, at *2-3 (S .D.
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Tex. Nov. 4, 2010) (Rosenthal, J.) (dismissing wrong ful foreclosure claim under Rule 12 (b) (6 )
where no foreclosure sale occurred, because of failure to state claim recognized under state law) .
Accordingl y, Defendants' Partial Motion to Dismiss is GRANTED and Plaintiff's claims arising
under Te x as Property Code § 51.002 are DISMISSED without prejudice under Rule 12 (b )(6), and
alternatively as not being ripe.
IV. CONCLUSION
For the foregoing reasons, Defendants' Partial Motion to Dismiss is GRANTED, and
Plaintiff' s claims arising under Texas Property Code § 51.002 are DISMISSED without prejudice.
It is so ordered.
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Signed on this the 	2,(c; 	day of January, 2026.
~ b 	1\~.~Andrew S. Hanen
United States District Judge
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