Carr v. PHH Mortgage Corporation et al

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JAKEME I. CARR, 	§
§
Plaintiff, 	§
§
V. 	§ 	No. 3:25-cv-1840-E
§
PHH MORTGAGE SERVICES and
THE BANK OF NEW YORK
MELLON TRUST NATIONAL
ASSOCIATION FKA OF LB-THE
BANK OF NEW YORK, N.A.,
§
§
§
§
§
§
Defendants. 	§
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants PHH Mortgage Corporation d/b/a/ PHH
Mortgage Services and The Bank of New York Mellon Trust Company, National
Association’s joint Motion to Dismiss under Rule 12(b)(6) (ECF No. 17). Pro se
plaintiff Jakeme I. Carr did not respond to Defendants’ Motion. On January 30,
2026, 	the 	Magistrate 	Judge 	assigned 	to 	this 	case 	recommended 	that 	the
Defendants’ Motion be granted. See ECF No. 23. The Magistrate Judge later
withdrew that recommendation and recused himself in light of a Motion to
Substitute Counsel filed the same day as his recommendation. See Mot. (ECF No.
22); Order (ECF No. 24). The undersigned then vacated the case referral and
returned the case to chambers. See Order (ECF No. 26). The Court has conducted
its own independent review of Defendants’ Motion and the record. Based on that
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review, and on the applicable law, the Court GRANTS Defendants’ Motion for the
reasons explained below.
Background
Pro se Plaintiff Jakeme I. Carr filed this lawsuit against Defendants in state
court seeking to prevent foreclosure of her home in Dallas, Texas. See Not.
Removal, Ex. A-2 (ECF No. 1-1). Defendants removed the lawsuit to this Court
based on diversity jurisdiction. see id. (ECF No. 1). Following removal, Carr filed
an 	Amended 	Complaint 	asserting 	claims 	for 	breach 	of 	contract, 	wrongful
foreclosure, and violations of Real Estate Settlement Procedures Act (RESPA) and
Fair Debt Collections Practices Act (FDCPA). See Am. Compl. (ECF No. 15).
Defendants moved to dismiss Carr’s Amended Complaint under Rule 12(b)(6), see
ECF No. 17, and although the Magistrate Judge ordered Carr to respond, see ECF
No. 18, Carr failed to do so.
Legal Standards
To survive a Rule 12(b)(6) motion, a plaintiff's complaint must contain
sufficient factual matter to state a plausible claim for relief. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “To be plausible, the complaint's ‘[f]actual
allegations must be enough to raise a right to relief above the speculative level.’” In
re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010) (quoting
Twombly, 550 U.S. at 555).
This pleading standard does not require “detailed factual allegations,” but it
does demand more than an unadorned accusation devoid of factual support.
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw a reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). “[A] formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “While legal conclusions
can provide the framework of a complaint, they must be supported by factual
allegations.” Iqbal, 556 U.S. at 679. When the facts do not permit the Court to infer
more than the mere possibility of misconduct, the complaint has stopped short of
showing that the plaintiff is plausibly entitled to relief. Id. at 678 (citing Twombly,
550 U.S. at 557).
When applying the plausibility standard, the Court “accepts all well-pleaded
facts as true, viewing them in the light most favorable to the plaintiff.” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal
quotation marks and citations omitted). But a court may not look beyond the
pleadings. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). 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.” Smith v. Buffalo Wild Wings, No. 3:20-CV-2875-D,
2021 WL 4265849, at *2 (N.D. Tex. Sept. 20, 2021) (Fitzwater, J.) (citing Lone Star
Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010)); see
also Inclusive Communities Project, Inc. v. Heartland Cmty. Ass'n, Inc., 399 F.
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Supp. 3d 657, 665 (N.D. Tex. 2019), aff'd, 824 F. App'x 210 (5th Cir. 2020) (“In
ruling on [a Rule 12(b)(6)] motion, the court cannot look beyond the pleadings.”).
When, as here, a plaintiff fails to file a response to a motion to dismiss, the
Court cannot grant “the motion to dismiss for failure to state a claim solely because
the [plaintiff] failed to oppose the motion.” Webb v. Morella, 457 F. App’x 448,
452 n.4 (5th Cir. 2012) (citing John v. La., 757 F.2d 698, 707-10 (5th Cir. 1985)).
Indeed, “Rule 12 does not by its terms require an opposition; failure to oppose a
12(b)(6) motion is not itself grounds for granting the motion. Rather, a court
assesses the legal sufficiency of the complaint. Servicios Azucareros de Venezuela,
C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794, 806 (5th Cir. 2012) (citing Fed.
R. Civ. P. 12(b)(6)).
Courts considering Rule 12(b)(6) motions generally hold pro se complaints
to less stringent standards than formal pleadings drafted by lawyers. Taylor v.
Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quoting Miller v.
Stanmore, 	636 	F.2d 	986, 	988 	(5th 	Cir. 	1981)). 	But 	“despite 	[the] 	general
willingness to construe pro se filings liberally,” courts “still require pro se parties
to fundamentally abide by the rules that govern the federal courts.” E.E.O.C. v.
Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014), as revised (Sept. 18, 2014)
(cleaned up). Thus, a pro se plaintiff is not excused from the requirements to
“properly plead sufficient facts that, when liberally construed, state a plausible
claim to relief[.]” Id. (citations omitted). The Court liberally construes Carr’s
Amended Complaint with all possible deference due a pro se litigant. See Erickson
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v. Pardus, 551 U.S. 89, 94 (2007) (pro se pleadings are “to be liberally construed,”
and “a pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.”). But such liberal treatment
does not require a court to “create causes of action where there are none.” Smith v.
CVS Caremark Corp., No. 3:12-CV-2465-B, 2013 WL 2291886, at *8 (N.D. Tex.
May 23, 2013). And pro se status does not provide an “impenetrable shield,” “for
one acting pro se has no license to harass others, clog the judicial machinery with
meritless litigation and abuse already overloaded court dockets.” Farguson v.
MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).
Even so, generally, a district court may not dismiss a pro se complaint for
failure to state a claim under 12(b)(6) without giving the plaintiff a chance to
amend. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998). But leave to amend
is not automatic and may be refused where it would be futile. See Morgan v.
Chapman, 969 F.3d 238, 248 (5th Cir. 2020) (citing Smith v. EMC Corp., 393 F.3d
590, 595 (5th Cir. 2004)). “The court may deny leave to amend ... if the defects are
incurable or the plaintiff[ ] ha[s] already alleged [his] best case.” Pierce v. Hearne
Indep. Sch. Dist., 600 F. App'x 194, 200 (5th Cir. 2015) (per curiam) (citing Great
Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.
2002); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (per curiam)).
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Analysis
I. 	Carr fails to state a RESPA claim.
Carr alleges that Defendants’ violated RESPA by failing (i) to take timely and
appropriate action related to servicing, (ii) to respond to [Carr’s] loss mitigation
requests, and (iii) to properly evaluate [Carr’s] foreclosure alternatives. See Am.
Compl. ¶ 11.
Carr appears to plead the following factual allegations in support of her
RESPA claim:
8. “[Carr] applied for mortgage assistance and communicated with PHH
regarding available options under federal loss mitigation guidelines.”
9. “Despite these efforts, PHH failed to provide proper responses, accurate
information, or reasonable assistance as required by RESPA.”
10. “Defendants provided misleading or conflicting information concerning the
default status and foreclosure process.”
See id. ¶¶ 8–10. Even liberally construed, however, these allegations fail to state a
claim because they are wholly conclusory. The Court need not “accept as true a
legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555).
Further, to survive a motion to dismiss under Rule 12(b)(6), a plaintiff must
plausibly allege that actual damages resulted from a RESPA violation. See Whittier
v. 	Ocwen 	Loan 	Servicing, 	L.L.C., 	594 	F. 	App’x 	833, 	836 	(5th 	Cir. 	2014)
(emphasis added). 	A 	conclusory 	statement 	regarding 	“actual 	damages” 	is
insufficient—the 	complaint 	must 	include 	“facts 	giving 	rise 	to 	a 	reasonable
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inference that [a plaintiff] suffered actual damages from the alleged violation of
RESPA.” See Allen v. Wells Fargo Bank, Nat’l Ass’n, No. 3:16-CV-0249-D, 2017
WL 3421067, at *4 (N.D. Tex. Aug. 9, 2017); Hurd v. BAC Home Loans Servicing,
LP, 880 F. Supp. 2d 747, 768 (N.D. Tex. 2012). Here, Carr does not allege any facts
which could give rise to an inference that Carr suffered actual damages as a result
of the alleged RESPA violation. Thus, the Court concludes that Carr has failed to
plausibly allege a RESPA claim.
II. 	Carr fails to state an FDCPA claim.
The FDCPA seeks “to protect consumers from a host of unfair, harassing,
and deceptive debt collection practices without imposing unnecessary restrictions
on ethical debt collectors.” Peter v. GC Servs. L.P., 310 F.3d 344, 351–52 (5th Cir.
2002) (citation omitted); see also 15 U.S.C. § 1692(e);
To state an FDCPA claim, a plaintiff must plausibly allege that (1) they have
been the object of collection activity arising from consumer debt; (2) the defendant
is a “debt collector” as defined by the FDCPA; and (3) the defendant has engaged
in an act or omission prohibited by the FDCPA. See, e.g., Vick v. NCO Fin. Sys.,
Inc., No. 2:09-cv-114-TJW-CE, 2011 WL 1193027, at *2 (E.D. Tex. Mar. 7, 2011),
rec. adopted, 2011 WL 1157710 (E.D. Tex. Mar. 28, 2011).
For purposes of the FDCPA, a “debt collector” is:
any 	person 	who 	uses 	any 	instrumentality 	of 	interstate
commerce or the mails in any business the principal purpose of which
is the collection of any debts, or who regularly collects or attempt to
collect, directly or indirectly, debts owed or due or asserted to be owed
or due another.
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15 U.S.C. § 1692a(6). With respect to her FDCPA claim, Carr’s Amended
Complaint contains the following allegations:
17. Defendants, while acting as servicers and agents, made deceptive
communications and demands inconsistent with federal law.
18. Defendants’ conduct constitutes collection activity under FDCPA
and harmed [Carr].
Am. Compl. ¶¶ 17–18. These allegations are wholly conclusory and devoid of
factual support. Furthermore Carr pleads no facts sufficient to show that either
Defendant is a debt collector. “This failure is fatal to [Carr’s] FDCPA claim.” Bent
v. Mackie Wolfe Zientz & Mann, P.C., No. 3:13-CV-2038-D, 2013 WL 4551614, at
*3 (N.D. Tex. Aug. 28, 2013) (Fitzwater C.J.) (citing Iqbal, 556 U.S. at 678)
(citation modified); see also Garcia v. Jenkins/Babb LLP, No. 3:11-CV-3171-N-
BH, 2012 WL 3847362, at *6 (N.D. Tex. July 31, 2012), rec. adopted, 2012 WL
3846539 (N.D. Tex. Sept. 5, 2012) (holding that the plaintiffs' recitation of the
statutory definition of “debt collector” without any facts in support was insufficient
to plausibly allege that the defendants were debt collectors under the FDCPA).
Moreover, Carr’s FDCPA claim fails because she alleges PHH is “a mortgage
servicer”—mortgage servicing companies are not debt collectors under the FDCPA.
See Am. Compl. ¶ 4; see Bent, 2013 WL 4551614, at *3 (“[C]ourts in this Circuit
have held that the term debt collector does not include lenders, the consumer's
creditors, a mortgage servicing company, or an assignee of a debt, as long as the
debt 	was 	not 	in 	default 	at 	the 	time 	it 	was 	assigned.”) 	(citation 	modified)
(quoting Gipson v. JPMorgan Chase, No. 3:13-CV-2477-L, 2013 WL 3746003, at
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*2 (N.D. Tex. July 17, 2013)); see also Perry v. Stewart Title Co., 756 F.2d 1197,
1208, modified 	on 	reh'g 	on 	other 	grounds, 761 	F.2d 	237 	(5th 	Cir.1985)).
Accordingly, Carr has failed to state a claim under the FDCPA.
III. 	Carr fails to state a breach of contract claim.
To prevail on a claim for breach of contract under Texas law, a plaintiff must
establish: (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)
resulting damages to the plaintiff. Smith Int'l, Inc. v. Egle Grp., LLC, 490 F.3d 380,
387 (5th Cir. 2007). And for a breach of contract claim to survive dismissal under
Rule 12(b)(6), a plaintiff must allege “facts that, credited in her favor, plausibly
establish each of the elements of the breach of contract claim.” Hoffman v. L & M
Arts, 774 F. Supp. 2d 826, 835–36 (N.D. Tex. 2011) (quoting Iqbal, 556 U.S. at
678). This requires, among other things, that the plaintiff “point to a specific
provision of a specific contract that was allegedly breached.” See Sheddy v.
JPMorgan Chase Bank, N.A., No. 3:12-CV-2804-M BF, 2013 WL 5450288, at *8
(N.D. Tex. Sept. 30, 2013) (Stickney, J.), rec. adopted (Lynn, J.).
But Carr’s breach of contract claim is based soley on conclusory allegations
which lack factual support. See Am. Compl. ¶¶ 13–16. And Carr fails to identify a
specific provision of the contract that was allegedly breached. See Hoffman, 774 F.
Supp. 2d at 835–36. Accordingly, Carr fails to state a breach of contract claim.
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IV. 	Carr fails to state claim for wrongful foreclosure.
To state a wrongful foreclosure claim under Texas law, a plaintiff 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. See Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 256
(5th Cir. 2013). But a plaintiff cannot “state a viable claim for wrongful foreclosure
[when] they never lost possession of the [p]roperty. See James v. Wells Fargo
Bank, N.A., 533 F. App’x 444, 446–447 (5th Cir. 2013) (per curiam); see also
Peterson v. Black, 980 S.W.2d 818, 823 (Tex. App.—San Antonio 1998, no pet.)
(“Recovery [for wrongful foreclosure] is conditioned on the disturbance of the
mortgagor’s possession based on the theory that the mortgagee must have
committed a wrong similar to the conversion of personal property.”).
Here, Carr describes his wrongful foreclosure claim as “[a]nticipated,”
alleges that “no foreclosure sale has occurred,” and “seeks injunctive relieve to
prevent wrongful foreclosure.” See Am. Compl. ¶¶ 19–20 (ECF No. 15) (emphasis
added). Because no foreclosure sale has occurred, and because Carr does not
otherwise assert that she lost possession of her property, Carr fails to state a claim
for wrongful foreclosure. See James, 533 F. App’x at 446–447.
Additionally, under Texas law, a request for injunctive relief is not a
standalone claim, “but instead necessarily depends on an underlying cause of
action.” Grace v. Everhome Mortg. Co., No. 3:13-CV-4563-B, 2015 WL 5146678,
at *6 (N.D. Tex. Sept. 2, 2015). Thus, because Carr has failed to plausibly allege any
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viable claim, her request for injunctive relief cannot stand on its own and must be
dismissed. See id.
V. 	Carr is not entitled to leave to amend.
When a court dismisses a pro se plaintiff's claims under Rule 12(b)(6), it
generally 	should 	give 	the 	plaintiff 	at 	least 	one 	opportunity 	to 	amend 	the
complaint. See Hart v. Bayer Corp., 199 F.3d 239, 247 n.6 (5th Cir. 2000) (citation
omitted). Even so, “[t]he court may deny leave to amend . . . if the defects are
incurable or the plaintiffs have already alleged their best case.” Pierce v. Hearne
Indep. Sch. Dist., 600 F. App'x 194, 200 (5th Cir. 2015) (per curiam) (citing Great
Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.
2002) (Fitzwater, J.); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (per
curiam)). And when, as here, a plaintiff does not file a response to a Rule
12(b)(6) motion or request leave to amend, the court may deny leave to amend
because the plaintiff has already pleaded his or her best case. Lee v. BONY, No.
3:13-CV-1033-L BF, 2013 WL 4603584, at *4 (N.D. Tex. Aug. 9, 2013) (citation
omitted) (“[S]ince Plaintiff did not file a response to the Motion to Dismiss or
request to amend his pleadings, the Court finds that Plaintiff pled his best case and
providing leave to amend would be futile and unnecessary.”), rec. adopted, 2013
WL 4623608 (N.D. Tex. Aug. 29, 2013); see also Cruz v. CitiMortgage, Inc., No.
3:11-CV-2871-L, 2012 WL 1836095, at *7 (N.D. Tex. May 21, 2012) (concluding
that plaintiffs “have pled their best case and granting leave to amend would be
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futile and cause needless delay” where plaintiffs did not file a response to motion
to dismiss or request to amend pleadings).
Carr 	did 	not 	respond 	to 	Defendants’ Rule 12(b)(6) motion 	despite 	the
Court’s order requiring her to do so. Nor has Carr requested leave to amend.
Further, Carr has already amended her complaint once. Thus, the Court concludes
that Carr has pleaded her best case and that granting leave to amend would be
futile, unnecessary, and cause needless delay. See Lee, 2013 WL 4603584, at
*4; Cruz, 2012 WL 1836095, at *7.
Conclusion
For the foregoing reasons, the Court GRANTS Defendants’ Motion to
Dismiss (ECF No. 17).
SO ORDERED: March 2, 2026
ADA BROWN
UNITED STATES DISTRICT JUDGE
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