Bonner v. PHH Mortgage Corporation

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Yvonne A. Bonner,
Plaintiff,
v.
PHH Mortgage Corporation,
Defendant.
§
§
§
§
§
§
§
Civil Action H-25-4273
MEMORANDUM AND RECOMMENDATION
This case has been referred to the undersigned magistrate
judge pursuant to 28 U.S.C. § 636(b)(1). ECF No. 6. Pending before
the court is Defendant PHH Mortgage Corporation’s (PHH) Motion
to Dismiss. ECF No. 24. The court recommends that the Motion be
GRANTED.
1. Background
This 	suit 	arises 	from 	an 	allegedly 	unlawful 	foreclosure
proceeding. Plaintiff Yvonne Bonner filed suit against PHH in
state court on August 29, 2025. ECF No. 1-1 at 5. Bonner alleges
that she owns a property that was “posted for foreclosure for
September 2, 2025.” ECF No. 1-1 at 6. Bonner alleges that she did
not receive the required notice of the foreclosure. Id.
The state court entered a Temporary Restraining Order
prohibiting the foreclosure from proceeding. ECF No. 1-1 at 18–20.
PHH then removed the case to federal court based on diversity
jurisdiction and filed a Motion to Dismiss. ECF No. 1; ECF No. 5.
Bonner 	proceeded 	pro 	se 	in 	federal 	court 	until 	she 	retained
counsel, who filed a Notice of Appearance on December 17, 2025.
ECF No. 17. Bonner’s counsel appeared at a scheduling conference
that same day. ECF No. 18. At that hearing, the court denied
PHH’s Motion to Dismiss and ordered Bonner to file an amended
United States District Court
Southern District of Texas
ENTERED
June 22, 2026
Nathan Ochsner, Clerk
Case 4:25-cv-04273 Document 26 Filed 06/22/26 in TXSD Page 1 of 5

2
complaint by January 20, 2026. Id. The court ordered that the
amended complaint shall address deficiencies listed in PHH’s
Motion to Dismiss and stated that “[a]dditional leave to amend is
unlikely to be granted to address deficiencies already raised.” Id.
Bonner failed to amend her complaint. See ECF No. 22.
Thus, the active pleading is Bonner’s state court Petition. See ECF
No. 23. Bonner’s Petition does not clearly state any specific causes
of action against PHH. Bonner merely states that she did not
receive 	notice 	of 	the 	foreclosure 	that 	was 	scheduled 	for
September 2, 2025. ECF No. 1-1 at 6. Bonner seeks declaratory
judgment and injunctive relief and argues that PHH must prove
that it has the right to foreclose upon the property. Id. at 6–8.
PHH filed a Motion to Dismiss, which is currently pending
before the court. ECF No. 24. PHH argues that Bonner failed to
plead sufficient facts to support a viable cause of action. Id.
According 	to 	PHH, 	Bonner’s 	claim 	for 	lack 	of 	notice 	of 	the
foreclosure fails because no foreclosure ever occurred. Id. at 1–3.
Bonner failed to respond to the Motion to Dismiss.
2. Legal Standard and Analysis
In the Southern District of Texas, a failure to timely respond
to a motion is taken as a representation of no opposition. S.D. Tex.
L.R. 7.4. However, a dispositive motion should not be granted
simply because there is no opposition, even if failure to respond
violated a local rule. See Hetzel v. Bethlehem Steel Corp., 50 F.3d
360, 362 n.3 (5th Cir. 1995). Thus, the court conducts the required
analysis under Rule 12(b)(6).
Rule 12(b)(6) authorizes the court to dismiss a complaint for
“failure 	to 	state 	a 	claim 	upon 	which 	relief 	can 	be 	granted.”
Fed. R. Civ. P. 12(b)(6). Generally, the court is constrained to the
“four corners of the complaint” to determine whether the plaintiff
Case 4:25-cv-04273 Document 26 Filed 06/22/26 in TXSD Page 2 of 5

3
has stated a claim. Morgan v. Swanson, 659 F.3d 359, 401 (5th Cir.
2011).
Under 	Rule 	12(b)(6), 	the 	court 	determines 	whether 	the
plaintiff’s complaint contains “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.” Calogero v. Shows, Cali & Walsh, L.L.P.,
970 F.3d 576, 	580 	(5th 	Cir. 	2020) 	(quoting 	Ashcroft 	v. 	Iqbal,
556 U.S. 662, 678 (2009)).
Courts accept “all well-pleaded facts as true” and “view[]
them in the light most favorable to the plaintiff.” Allen v. Walmart
Stores, L.L.C., 907 F.3d 170, 177 (5th Cir. 2018) (quoting Jones v.
Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). “A plaintiff need only
plausibly allege facts going to the ultimate elements of the claim
to survive a motion to dismiss.” Cicalese v. Univ. of Tex. Med.
Branch, 924 F.3d 762, 768 (5th Cir. 2019).
As 	the 	court 	explained 	above, 	Bonner 	does 	not 	clearly
identify any causes of action in her Petition. To the extent that
Bonner alleges that PHH violated Texas Property Code § 51.002
by attempting to foreclose without providing the required notice of
foreclosure, Bonner has failed to state a claim. Section 51.002 does
not create a private right of action. Carey v. Fargo, No. 15-1666,
2016 WL 4246997, at *3 (S.D. Tex. Aug. 11, 2016) (citing Ashton v.
BAC Home Loans Servicing, L.P., No. 13-810, 2013 WL 3807756,
at *4 (S.D. Tex. July 19, 2013)).
Courts have construed claims for violation of § 51.002 as
claims for wrongful foreclosure. Carey, 2016 WL 4246997, at *3.
Bonner has not alleged that any foreclosure sale occurred. It
appears 	that 	the 	state 	court 	enjoined 	the 	September 	2025
foreclosure before the case was removed to this court. Bonner does
Case 4:25-cv-04273 Document 26 Filed 06/22/26 in TXSD Page 3 of 5

4
not allege any other facts showing that a foreclosure took place. As
such, Bonner has failed to state a claim for wrongful foreclosure.
See Bishop Glob. Family Tr. v. Select Portfolio Servicing, Inc., No.
25-CV-0560, 2025 WL 1918848, at *3 (S.D. Tex. July 10, 2025)
(holding that a foreclosure sale is a precondition to recovery for
wrongful foreclosure); Smith v. J.P. Morgan Chase Bank N/A,
No. H-10-3730, 2010 WL 4622209, at *2 (S.D. Tex. Nov. 4, 2010).
Bonner also appears to request an accounting. See ECF
No. 1-1 	at 7. 	PHH 	argues 	that 	Bonner 	is 	not 	entitled 	to 	an
accounting. ECF No. 24 at 4. “An equitable accounting is proper
when 	the 	facts 	and 	accounts 	presented 	are 	so 	complex 	that
adequate relief may not be obtained at law.” Saenz v. JP Morgan
Chase Bank, N.A., No. 13-CV-156, 2013 WL 3280214, at *5 (S.D.
Tex. June 27, 2013) (quoting Hutchings v. Chevron U.S.A., Inc.,
862 S.W.2d 752, 762 (Tex. App.—El Paso 1993, writ denied)).
Nothing in the Petition suggests that the facts and accounts are so
complex that an adequate remedy cannot otherwise be obtained.
Bonner has not alleged that she is entitled to an accounting.
In her Petition, Bonner also states that she should receive
attorney’s fees “[i]n addition to the attorney fees granted by way of
TILA referred to above[.]” ECF No. 1-1 at 8. Bonner does not allege
any claims under the Truth in Lending Act (TILA) or otherwise
mention TILA in her Petition. Thus, the court recommends that
Bonner’s request for attorney’s fees be DENIED.
For all the foregoing reasons, the court recommends that
PHH’s 	Motion 	to 	Dismiss, 	ECF 	No. 	24, 	be 	GRANTED 	and
Bonner’s claims be DISMISSED.
“Dismissing an action after giving the plaintiff only one
opportunity to state his case is ordinarily unjustified.” Davoodi v.
Austin Indep. Sch. Dist., 755 F.3d 307, 310 (5th Cir. 2014) (quoting
Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986)). If the
plaintiff seeks leave to amend, she “must give the court at least
Case 4:25-cv-04273 Document 26 Filed 06/22/26 in TXSD Page 4 of 5

5
some notice of what . . . her amendments would be and how those
amendments would cure the initial complaint’s defects.” Scott v.
U.S. Bank Nat’l Ass’n, 16 F.4th 1204, 1209 (5th Cir. 2021) (citation
omitted). The court may deny leave “[i]f the plaintiff does not
provide a copy of the amended complaint [or] explain how the
defects could be cured[.]” Id. (citation omitted).
The court granted Bonner leave to amend, and she failed to
file an amended complaint. Bonner did not respond to the Motion
to Dismiss, did not request additional leave to amend, nor did she
propose any amendments to her claims. Bonner did not explain
how deficiencies in her Petition could be cured. Thus, any request
for leave to amend is DENIED.
3. Conclusion
The court recommends that PHH’s Motion to Dismiss, ECF
No. 24, be GRANTED.
The 	parties 	have 	fourteen 	days 	from 	service 	of 	this
Memorandum and Recommendation to file written objections. 28
U.S.C. 	§ 636(b)(1); 	Fed. 	R. 	Civ. 	P. 	72. 	Failure 	to 	timely 	file
objections will preclude appellate review of factual findings or legal
conclusions, except for plain error. See Thomas v. Arn, 474 U.S.
140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th
Cir. 1988).
Signed at Houston, Texas, on June 22, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
Case 4:25-cv-04273 Document 26 Filed 06/22/26 in TXSD Page 5 of 5