Capers v. NewRez LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SCOTT CAPERS,
Plaintiff,
v.
NEWREZ, LLC, et. al., 	~
Defendants.
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§ 	Civil Action No. H-25-5480
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ORDER
Pending before the Court are Defendant Goldwater Bank, N.A.' s Motion
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to Dismiss
Plaintiffs Claims and Supporting Memorandum of Law (Document No. 15), and
Defendant NewRez, LLC d/b/a Shellpoint Mortgage Servicing's Motion to Dismiss
(Document No. 19). Having considered the Defendants' motions, submissions, and
applicable law, the Court determines that both motions should be granted.
I. 	BACKGROUND
This 	is 	a matter 	involving an 	alleged wrongful 	foreclosure. 	Defendant
Goldwater Bank, N.A. ("Goldwater") originated a loan to Plaintiff Scott Capers in
the amount of $213,750. Plaintiff used the loan to purchase a piece of property. The
loan was secured by the property. Goldwater immediately sold the loan to a non-
party to this suit, AmeriHome Mortgage. Pursuant to this sale, Goldwater assigned
its 	rights 	to 	Defendant 	NewRez 	LLC 	d/b/a 	Shellpoint 	Mortgage 	Servicing
United States District Court
Southern District of Texas
ENTERED
April 30, 2026
Nathan Ochsner, Clerk
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("NewRez"). Plaintiff then defaulted on his loan and NewRez initiated foreclosure
proceedings. The property was ultimately sold at a foreclosure sale on December 2,
2025.
Based on the foregoing, on November 14, 2025, Plaintiff filed suit in this
Court pursuant to federal question jurisdiction asserting claims against Defendants
Goldwater and NewRez (collectively "Defendants") for: ( 1) "lack of subject-matter
jurisdiction and federal preemption of state foreclosure authority[;]" (2) "lack of
standing and defective chain of title[;]" (3) "violation of RESP A and TILA[;]" (4)
"mail and wire fraud[;]" and (5) "equitable and injunctive relieft.]" 1 On March 9,
2026, Defendant NewRez filed a motion to dismiss. On March 18, 2026, Goldwater
filed a motion to dismiss. Plaintiff has not responded to either of Defendants'
motions to dismiss either by the date required under the Federal Rules of Civil
Procedure or by the date of this Order.
II. STANDARD OF REVIEW
Rule 12(b)( 6) allows dismissal if a plaintiff fails "to state a claim upon which
relief can be granted." Fed. R. Civ. P. 12(b)(6). Under Rule 8(a)(2), a pleading 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). Although "the pleading standard Rule 8 announces
does not require 'detailed factual allegations,' ... it demands more than ... 'labels
1 Plaintiff's Complaint, Document No. 1 at 3-5.
2
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and conclusions."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell At!.
Corp. 	v. 	Twombly, 	550 U.S. 544, 555 (2007)). "[A] formulaic recitation of the
elements of a cause of action will not do." Id. (quoting Twombly, 550 U.S, at 555).
In deciding a Rule 12{b)(6) motion to dismiss for failure to state a claim, "[t]he
• 'court accepts all well-pleaded facts as true, viewing them in the light most favorable
to the plaintiff."' In re Katrina Canal Breeches Litig., 495 F.3d 191, 205 (5th Cir.
2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464,
467 (5th Cir. 2004)). To survive the motion, a plaintiff must plead "enough facts to
state a claim to relief that is plausible on its face." 	Twombly, 	550 U.S. at 570.
"Conversely, 'when the allegations in a complaint, however true, could not raise a
claim of entitlement to relief, this basic deficiency should ... be exposed at the point
of minimum expenditure of time and money by the parties and the court."' Cuvillier
v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Twombly, 550 U.S. at 558).
III. LAW & ANALYSIS
Both Defendants move to dismiss Plaintiffs claims contending that Plaintiff
fails to state a claim upon which relief can be granted. Plaintiff did not respond to
either motion to dismiss, failing to rebut or offer evidence to counter Defendants'
contentions. 	Pursuant 	to 	Local 	Rule 	7.4, 	failure 	to 	respond 	is 	taken 	as 	a
representation of no opposition. S.D. Tex. Local R. 7.4. Regardless of Plaintiffs
failure to respond to the pending motions to dismiss, the Court will consider, in tum,
the merits of Plaintiffs claims against each Defendant. Lastly, the Court will
3
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consider Plaintiffs claims against the remaining unserved Defendants, John Does
1-10. The Court construes all prose filings liberally. See Erickson v. Pardus, 551
U.S. 89, 94 (2007).
A. Defendant Goldwater's Motion to Dismiss (Document No. 15)
Plaintiff alleges that "[t]he subject note and deed of trust were originated by
Goldwater Bank[.]" 2 Plaintiff further alleges that "Defendants . •.. created deposit
credit ex nihilo" and "failed to disclose this material fact, thereby violating the Truth
in Lending Act's disclosure requirements." 3 In response, Defendant Goldwater
contends that the only allegation against it is the aforementioned Truth in Lending
Act ("TILA") violation. 4 Goldwater further contends that Plaintiffs TILA claim is
barred by the statute of limitations. 5 Plaintiff offers no rebuttal.
TILA is designed to protect consumers by requiring certain disclosures at the
time of transaction. See Moor v. 	Travelers Inc. 	Co., 784 F.2d 632, 633 (5th Cir.
1986). TILA provides either a one- or three-year statute of limitations depending on
2 Plaintiff's Complaint, Document No. 1 at 2.
3 Plaintiff's Complaint, Document No. 1 at 2.
4 See Defendant Goldwater Bank, NA. 's Motion Pursuant to Rule12(b)(6) of the
Federal 	Rules 	of Civil 	Procedure 	to 	Dismiss 	Plaintiff's 	Claims 	and 	Supporting
Memorandum ofLaw, Document No. 15 at 3.
5 See Defendant Goldwater Bank, NA. 's Motion Pursuant to Rulel2(b)(6) of the
Federal 	Rules 	of Civil 	Procedure 	to 	Dismiss 	Plaintiff's 	Claims 	and 	Supporting
Memorandum of Law, Document No. 15 at 3.
4
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what section the claim is brought under. See 15 U.S.C. § 1640(e). The statute of
limitations begins running from the "date of the occurrence of the violation[.]" Id.
Here, Defendant Goldwater contends that "Plaintiffs loan originated on July
1, 2016" and that Plaintiffs "TILA claim is barred by the statute of limitations[.]" 6
Plaintiff offers no rebuttal. The Court has reviewed the record, in detail, and notes
Defendant Goldwater's contention that "Goldwater sold the loan ... immediately
after the loan transaction closed." 7 Considering that the loan was originated on July
1, 2016, and immediately sold, the Court finds that the latest possible statute of
limitations ran on July 1, 2019. Based on the foregoing, and the clear language of
TILA with regards to the statute of limitations, the Court finds that Plaintiffs claim
against Defendant Goldwater is barred. As such, the Court finds that Plaintiffs claim
6 Defendant Goldwater Bank, 	NA. 's Motion Pursuant to Rule12(b)(6) of the
Federal 	Rules 	of Civil 	Procedure 	to 	Dismiss 	Plaintiff's 	Claims 	and 	Supporting
Memorandum of Law, Document No. 15 at 3.
1 Defendant Goldwater Bank, 	NA. 's Motion Pursuant to Rule12(b)(6) of the
Federal 	Rules 	of Civil 	Procedure 	to 	Dismiss 	Plaintiff's 	Claims 	and 	Supporting
Memorandum of Law, Document No. 15 at 3.
5
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should be dismissed with respect to Defendant Goldwater. 8 The Court will now
consider Defendant NewRez's motion to dismiss.
B. Defendant NewRez's Motion to Dismiss (Document No. 19)
Defendant NewRez moves to dismiss all of Plaintiffs claims contending that
all claims fail to state a "legally cognizable cause of action[.]" 9 Plaintiff offers no
rebuttal. Despite Plaintiffs unresponsiveness, the Court will consider, in tum, the
merits of each claim Plaintiff brings against Defendant NewRez.
1. Subject-Matter Jurisdiction and Federal Preemption
Plaintiff brings a claim for "lack of subject-matter jurisdiction and federal
preemption 	of state 	foreclosure 	authority." 10 In response, 	Defendant NewRez
contends that no such claims exist and that, to the extent a claim can be construed,
it is inapplicable in this case. The Court will consider Plaintiffs claim to the extent
one can be construed.
8 To the extent that Plaintiff intends to bring claims against Defendant Goldwater in
addition to his TILA claim, the Court finds that those should be dismissed for failure to
state a claim upon which relief can be granted. The Court has liberally construed Plaintiffs
pleadings but nonetheless notes Plaintiffs failure to respond and insufficient pleadings that
fail to tie Defendant Goldwater to any of his claims as required by the Federal Rules of
Civil Procedure. See Fed. R. Civ. P. 8(a)(2). Lastly, the Court notes that Plaintiff filed this.
action over nine years after Defendant Goldwater sold the loan in question. See Defendant
Goldwater Bank, NA. 's Motion Pursuant to Rule l 2(b)(6) of the Federal Rules of Civil
Procedure to Dismiss Plaintiff's Claims and Supporting Memorandum of Law, Document
No. 15 at 2.
9 Defendant NewRez LLC d/b/a Shellpoint Mortgage Servicing's Motion to Dismiss,
Document No. 19 at 7.
10 Plaintiff's Complaint, Document No. 1 at 3.
6
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Lack of subject-matter jurisdiction is a defense raised by a defendant and
generally presented in a motion to dismiss for lack of subject-matter jurisdiction. See
Fed. R. Civ. P. 12(b)(l). As such, any claim that Plaintiff is attempting to bring for
lack of subject-matter jurisdiction is not an appropriate cause of action. Nonetheless,
the Court will consider Plaintiff's contention that " [u]pon default of a federally
insured or securitized mortgage, enforcement lies exclusively with the United States
through its designated agencies-not with private entities or state tribunals."
Plaintiff's claim appears to rest on the allegation that "[t]he subject mortgage
is federally regulated ... placing its enforcement under the supervision of the OCC,
FHFA, and HUD." 11 In support of his claim, Plaintiff offers three cases that are not
binding on this Court. 12 Despite Plaintiff's total reliance on non-binding precedent,
the 	Court 	has 	reviewed, 	in 	detail, 	the 	cases 	provided 	by 	Plaintiff. 	The
aforementioned cases hold that when the United States forecloses on a mortgage,
federal law governs the remedies available to the United States. 13 Here, the United
States is not a party to this matter nor is the United States the holder of the mortgage.
11 Plaintiff's Complaint, Document No. 1 at 3.
12 See United States v. Stadium Apts., Inc., 425 F.2d 358 (9th Cir. 1970); United
States v. View Crest Garden Apts., 268F.2d 380 (9th Cir. 1959); United States v. Victory
Highway Village, Inc., 662 F.2d 488 (8th Cir. 1981).
13 See United States v. Stadium Apts., Inc., 425 F.2d 358 (9th Cir. 1970); United
States v. View Crest Garden Apts., 268 F.2d 380 (9th Cir. 1959); United States v. Victory
Highway Village, Inc., 662 F .2d 488 (8th Cir. 1981 ).
7
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Based on the foregoing, and the Court's inability to construe a cognizable claim, the
Court finds that Plaintiffs claim for "lack of subject-matter jurisdiction and federal
preemption" should be dismissed. 14 The Court will now consider Plaintiffs claim
for "lack of standing and defective chain oftitle." 15
2. 	Lack of Standing and Defective Chain of Title
Plaintiff contends, 	in 	relevant 	part, 	that 	"[d]efendants 	have 	failed 	to
demonstrate a continuous, lawful chain of assignments from the original lender to
themselves, nor physical possession of the original wet-ink note." 16 Plaintiff appears
to be bringing a claim to quiet title. "To state a claim in a suit to quiet title, Plaintiffs
must show (1) an interest in a specific property, (2) title to the property is affected
by a claim by the defendant, and (3) the claim, although facially valid, is invalid or
unenforceable."' Benavides v. EMC Mortg. Corp., 916 F.Supp.2d 776, 782 (S.D.
Tex. 2013) (citing Strange v. Flagstar Bank, FSB, No. 3:11-cv-2642-B, 2012 WL
987584, at *4 (N.D. Tex. Mar. 22, 2012)). Most pertinent here, a Plaintiff must
"prove their case on the strength of their own title, not the weakness of [defendant's]
title." Benavides, 916 F.Supp.2d at 782 (citation omitted).
14 Plaintiff's Complaint, Document No. 1 at 3.
15 Plaintiff's Complaint, Document No. 1 at 4.
16 Plaintiff's Complaint, Document No. 1 at 4.
8
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Here, Plaintiff contends that "[a] copy of a note endorsed in blank does not
confer standing absent proof of actual custody by the plaintiff at inception." 17 In
response, 	Defendant 	NewRez 	contends 	that 	Plaintiff 	challenges 	NewRez's
"authority to enforce the mortgage" rather than "establishing the strength of his own
title." 18 A review of the record in this matter reveals that Plaintiff has failed to offer
any argument in relation to the strength of his own title. Based on the foregoing, and
given the clear precedent that a claim to quiet title must be proved on the strength of
plaintiffs title, the Court finds that Plaintiff has failed to adequately plead a claim
to quiet title. As such, the Court finds that Plaintiffs claim to quiet title, to the extent
Plaintiff brings one, should be dismissed. The Court will now consider Plaintiffs
claims under the Real Estate Settlement Procedures Act ("RESPA") and TILA.
3. 	Violation of RESPA and TILA
Plaintiff brings claims against Defendant NewRez for "violation of RESPA
and TILA[. ]" 19 The Court will consider, in tum, Plaintiffs claims under RESP A and
TILA.
17 Plaintiff's Complaint, Document No. 1 at 4. The Court notes that in defense of
this position, Plaintiff provides a state court case from Florida. See McLean v. JP Morgan
Chase Bank Nat. Ass 'n, 79 So. 3d 170 (Fla. Dist. Ct. App. 2012).
18 Defendant NewRez 	LLC dlb/a 	Shellpoint Mortgage 	Servicing's Motion 	to
Dismiss, Document No. 19at11.
19 Plaintiff's Complaint, Document No. 1 at 4.
9
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i. 	Violation of RESPA
To state a RESP A claim, plaintiff must plead that their correspondence met
the requirements of a qualified written request ("QWR"), that defendant failed to
timely respond, and that said failure caused actual damages to plaintiff. See Williams
v. Wells Fargo Bank, NA., 560 Fed.Appx. 233,241 (5th Cir. 2014) (citing12 U.S.C.
§ 2605(e), (f)). RESPA further provides that if a "servicer of a federally related
mortgage loan receives a qualified written request . . . the servicer shall provide a
written response acknowledging receipt of the correspondence within 5 days[.]" 12
U.S.C. § 2605(e)(l)(A).
Here, Plaintiff alleges that "Defendants' non-response and concealment were
willful and caused continuing injury" but simultaneously contends that "Defendants
responded with generic 'validation' letters[.]" 20 In response, Defendant NewRez
raises this inconsistency in Plaintiffs complaint and contends that Plaintiff fails to
identify "any specific servicing information that was requested but not provided[.]" 21
Plaintiff offers no rebuttal. The Court has reviewed the record in this matter and
finds that Plaintiffs own complaint contemplates Defendant NewRez's response
that complies with RESP A. 	Based on the foregoing, 	and the well-established
requirement that a RESPA claim requires a showing of a defendant's failure to
20 Plaintiff's Complaint, Document No. 1 at 2, 4.
21 	Defendant NewRez 	LLC dlb/a 	Shellpoint Mortgage 	Servicing's Motion 	to
Dismiss, Document No. 19 at 13-14.
10
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timely respond, the Court finds that Plaintiffs RESPA claim should be dismissed. 22
The Court will now consider Plaintiffs TILA claim.
ii. 	Violation of TILA
TILA is designed to protect consumers by requiring certain disclosures at the
time of transaction. See Moor v. 	Travelers Inc. 	Co., 784 F.2d 632, 633 (5th Cir.
1986). Notably, TILA applies only to creditors. See 15 U.S.C. § 1638(a).
Here, Plaintiff further alleges that "Defendants . . . created deposit credit ex
nihilo" and "failure to disclose this material fact, thereby violating the Truth in
Lending Act's disclosure requirements." 23 In response, Defendant NewRez contends
that "Capers cannot maintain a TILA claim against NewRez because NewRez is a
loan servicer rather than a creditor or liable assignee." 24 In support of its argument,
Defendant NewRez relies on the language ofTILA stating that "TILA's disclosure
obligation applies to the 'creditor required to make disclosure,' and the statute
expressly provides that a servicer 'shall not be treated as an assignee[.] "' 25 Plaintiff
22 Considering the Court's finding that Plaintiffs RESPA claim fails 	due to
Defendant NewRez's adequate response to Plaintiffs alleged QWR, the Court declines to
consider Defendant NewRez's remaining arguments related to the inadequacy of Plaintiffs
QWR and damages.
23 Plaintiff's Complaint,·Document No. 1 at 2.
24 Defendant NewRez 	LLC dlb/a 	Shel/point Mortgage 	Servicing's 	Motion 	to
Dismiss, Document No. 19 at 16.
25 Defendant NewRez 	LLC d/b/a 	Shel/point Mortgage 	Servicing's 	Motion 	to
Dismiss, Document No. 19 at 16 (quoting 15 U.S.C. §§ 1640(a), 1641(±)(1)).
11
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offers no rebuttal. Based on the foregoing, and given the clear language of TILA,
the Court finds that TILA is inapplicable to Defendant NewRez as a loan servicer,
and thus, that Plaintiffs TILA claim should be dismissed. The Court will now
consider Plaintiffs claims for mail and wire fraud.
4. 	Mail and Wire Fraud
Plaintiff brings claims for mail and wire fraud under 18 U.S.C. §§ 1341, 1343
contending that "Defendants transmitted false representations of creditor authority
by U.S. mail and by electronic means[.]"26 The statutes which Plaintiff attempts to
bring claims under are criminal statutes. See Napper v. Anderson, et. al., 500 F.2d
634,636 (5th Cir. 1974). Given the clear guidance of the Fifth Circuit that 18 U.S.C.
§§ 1341, 1343 are criminal statutes that create no private cause of action, the Court
finds that Plaintiffs claims brought under these statutes should be dismissed. Lastly,
the Court will consider Plaintiffs claim for equitable and injunctive relief.
5. 	Equitable and Injunctive Relief
Plaintiff brings 	a 	claim 	for 	"equitable 	and 	injunctive 	relief, 	including
disgorgement and restitution[.]"27 The Court notes that the aforementioned relief
sought by Plaintiff are remedies rather than an independent cause of action. See Fed.
R. Civ. P. 65. Based on the foregoing, and considering the Court's findings that all
26 Plaintiff's Complaint, Document No. 1 at 5.
27 Plaintiff's Complaint, Document No. 1 at 4.
12
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of Plaintiffs other claims should be dismissed for failure to state a claim upon which
relief can be granted, the Court finds that Plaintiffs claim for equitable and
injunctive relief, to the extent that it is an independent claim, should be dismissed.
The Court will now consider Plaintiffs claims against the unserved Defendants,
John Does 1-10.
C. 	Unserved Defendants
Plaintiff brings suit against "John Does 1-10" contending that they "are
unknown persons or entities who participated in or benefitted from the unlawful
servicing, assignment, or enforcement of Plaintiffs federally insured mortgage." 28
Nothing in the record indicates that any of the aforementioned Defendants have been
served in compliance with the Federal Rules of Civil Procedure. If all defendants are
not served within ninety days after the complaint is filed, the Court must: (I) dismiss
the action without prejudice; or (2) order service be made within a specified time.
Fed. R. Civ. P. 4(m). The Court notes that the Complaint in this matter was filed on
November 14, 2025. 29 It has been well over ninety days since the Complaint was
filed. 	Therefore, 	the 	Court 	finds 	that Plaintiffs 	claims 	against the unserved
Defendants John Does 1-10 should be dismissed.
28 Plaintiff's Complaint, Document No. 1 at 2.
29 Plaintiff's Complaint, Document No. 1 at 1.
13
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IV. CONCLUSION
Based on the foregoing, the Court hereby
ORDERS that Defendant Goldwater Bank, N.A.'s Motion Pursuant to Rule
12(b)( 6) of the Federal Rules of Civil Procedure to Dismiss Plaintiffs Claims and
Supporting Memorandum of Law (Document No. 15) is GRANTED. The Court
further
ORDERS 	that 	Defendant 	NewRez, 	LLC 	d/b/a 	Shellpoint 	Mortgage
Servicing's Motion to Dismiss (Document No. 19) is GRANTED. The Court further
ORDERS that Plaintiffs claims against Defendant Goldwater Bank, N.A. are
hereby DISMISSED. The Court further
ORDERS that Plaintiffs claims against Defendant NewRez, LLC d/b/a
Shellpoint Mortgage Servicing are hereby DISMISSED. The Court further
ORDERS that Plaintiffs claims against Defendants John Does 1-10 are
hereby DISMISSED.·
SIGNED at Houston, Texas, on this~ day of April, 2026.
\~: . •
14
DAVID HITTNER
United States District Judge
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