Holland et al v. Federal National Mortgage Association et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
David 	K. 	Holland 	and 	Valeria
Holland,
Plaintiffs,
v.
Federal 	National 	Mortgage
Association, et al.,
Defendants.
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Civil Action No. 4:25-cv-03004
MEMORANDUM AND RECOMMENDATION
On November 7, 2025, Defendant LoanCare, LLC moved to dismiss
Plaintiff David K. Holland’s amended complaint, invoking Fed. R. Civ. P.
12(b)(6). 	Dkt. 51 (moving to dismiss Dkt. 44). 1 	Because Holland did not
respond, the motion is deemed unopposed. 	See S.D. Tex. L.R. 7.4. 	After
carefully considering LoanCare’s contentions, Holland’s live pleading, and the
applicable law, it is recommended that the motion to dismiss be granted in part
and denied in part.
1 Mr. Holland’s wife, Valeria Holland, did not join the amended complaint. See Dkt.
44 at 2 (explaining why Valeria was dropped). She has abandoned her claims.
United States District Court
Southern District of Texas
ENTERED
May 15, 2026
Nathan Ochsner, Clerk
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Background
This is a mortgage dispute. The following facts, which are taken as true
at this stage, come from Holland’s amended complaint—which incorporates his
original petition “by reference,” see Dkt. 44 at 3—and the limited universe of
extrinsic items that can properly be considered.
I. 	Factual background
In July 2012, Holland purchased a home at 12902 Tamarack Bend Lane,
Humble, Texas 77346 (the “Property”) with a home equity loan from Lending
Solutions, Inc. 	Dkt. 1-3 at 7. 	According to Holland, at closing, Lending
Solutions 	did 	not 	provide 	him 	a 	written 	property 	appraisal 	or 	signed
acknowledgement of the Property’s fair market value. Dkt. 44 at 5.
Holland made monthly payments of $3,088.23 to Ditech Financial until
it went bankrupt. 	Dkt. 1-3 at 11. 	Around April 1, 2019, Defendant NewRez
LLC (“NewRez”) acquired the servicing rights to Holland’s home equity loan,
and LoanCare assumed sub-servicing duties. Dkt. 44 at 5.
Soon after, NewRez issued a monthly payment statement indicating that
Holland owed $25,176.07 by May 1, 2019. Dkt. 1-3 at 11, 123 (PX-22, April 16,
2019 statement). Of that total, $24,550.15 was for past-due payments owed to
Ditech Financial between November 2018 and April 2019. 	Id. 	On April 24,
2019, Holland mailed NewRez a $4,400 check. 	Id. 	LoanCare responded that
Holland had paid less than half of the full amount due, and his account was in
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default. 	Id. at 12, 128 (PX-27, April 30, 2019 LoanCare letter regarding
insufficient payment). At some point, Holland’s check was returned. Id.
On 	May 	13, 	2019, 	Holland 	mailed 	NewRez 	a 	letter 	contesting 	its
calculation and claiming he had paid Ditech Financial $29,118.05 during the
disputed period—$3,941 more than he was claimed to owe. Dkt. 1-3 at 12, 129
(PX-28, Holland’s letter disputing figures in the April 16, 2019 statement). His
letter attached bank statements purporting to reflect those payments. 	Id.
Holland received no response. Id.
On May 22, 2019, Holland mailed NewRez and LoanCare a letter noting
that his $4,400 check was returned, referencing his initial dispute letter, and
requesting that they correct his account information. 	Id. at 129, 138 (PX-31,
May 22, 2019 letter). Holland did not receive a response. Id. at 13.
A monthly statement for June 1, 2019 indicated that Holland owed
$28,829.14. 	Id. at 13. 	Holland alleges that he submitted a payment of
$4,367.35, but the payment was returned. Id.
On May 28, 2019, LoanCare sent Holland a notice that his loan was in
default because he failed to make monthly payments from September 1, 2018
to May 28, 2019. 	Id. at 13, 143 (PX-36, LoanCare’s May 28, 2019 letter).
Holland responded by sending NewRez and LoanCare a third letter disputing
that he was behind on payments and requesting corrections to his account. Id.
citing PX-37, letter, and PX-38, certified mail receipt).
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The next monthly statement, for July 1, 2019, stated that Holland now
owed $32,482.21. Id. Although Holland tried to submit a $4,367.53 payment,
it was returned. Id.
On July 9, 2019, LoanCare sent Holland another letter stating that he
was in default, which had “resulted in the initiation of foreclosure proceedings
to seek resolution of the loan balance.” 	Id. at 14, 151 (PX-42, July 9, 2019
letter). A few days later, LoanCare confirmed that it received Holland’s notice
of error and that “a detailed written response will be sent” within 30 business
days. 	See id. at 14, 153 (PX-43, July 15, 2019 letter). 	Holland never received
a response. 	Id. at 14. 	Instead, he received a letter from NewRez’s and
LoanCare’s attorneys stating that they were retained to collect the debt. Id. at
15, 157 (PX-46, July 24, 2019 letter).
On June 14, 2023, almost two years later, Holland entered into a loan
modification agreement to prevent the Property’s foreclosure. Id. at 17, 77 (PX-
11, Loan Modification Agreement). 	In August 2023, NewRez d/b/a Shellpoint
Mortgage Servicing (“Shellpoint”) became the servicer for his home equity loan.
Dkt. 44 at 5.
On November 15, 2024, Shellpoint filed an application for an expedited
order under Texas Rule of Civil Procedure 736 to foreclose on the home equity
loan. 	See Application for an Expedited Order Under Rule 736 On a Home
Equity Loan, In re: Order for Foreclosure Concerning 12902 Tamarack Bend
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Lane Humble TX 77346, No. 202480884 (215th Jud. Dist. Ct., Harris Cnty.,
Tex. 	Nov. 	15, 	2024). 	That 	application 	was 	granted. 	Order 	Granting
Petitioner’s Application for Expedited Foreclosure Under Tex. R. Civ. Proc.
736, In re: Order for Foreclosure Concerning 12902 Tamarack Bend Lane
Humble TX 77346, No. 202480884 (215th Jud. Dist. Ct., Harris Cnty., Tex.
May 9, 2025).
II. 	Procedural history
On May 15, 2025, Holland and his wife, Valeria Holland (collectively,
“the Hollands”), sued NewRez, LoanCare, Shellpoint, and the Federal National
Mortgage Association in state court. Dkt. 1-3 at 5. They alleged common-law
claims for breach of contract and fraud, and statutory claims under the Texas
Debt Collection Act (“TDCA”), Tex. Fin. Code § 	392.304; the Fair Debt
Collection 	Practices 	Act 	(“FDCPA”), 	15 	U.S.C. 	§ 	1692; 	the 	Real 	Estate
Settlement and Procedures Act (“RESPA”), 12 U.S.C.A § 2605, and Regulation
X, 12 C.F.R. § 1024.35; the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et
seq., and Regulation Z, 12 C.F.R. § 1026.23; the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 (“FIRREA”), 12 U.S.C. § 3301 et seq.;
plus 12 C.F.R. § 34.43 and the Texas Constitution. See id. at 22-35. They also
sought quiet title, declaratory relief, recission of their mortgage agreement,
equitable 	redemption, 	and 	a 	temporary 	restraining 	order 	(“TRO”) 	and
permanent injunction preventing foreclosure. 	Dkt. 1-3 at 22-27, 38-40. 	After
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removing the suit to this Court, Dkt. 1, LoanCare filed a motion to dismiss,
Dkt. 3, to which Hollands responded, Dkt. 10, and LoanCare replied, Dkt. 13.
On August 21, 2025, the Hollands filed an emergency motion for a TRO
and 	preliminary 	injunction 	to 	prevent 	the 	scheduled 	foreclosure 	from
impairing their ability to close on a contract to sell the Property for $720,000.
Dkt. 29. 	Defendants agreed to refrain from foreclosing so that the sale could
occur. Dkt. 32. Relatedly, the parties filed a consent to the Property’s sale and
agreed that the sole remaining claims would be for monetary damages. 	Dkt.
36; see also Dkt. 37 at 2 (order allowing closing). Accordingly, the undersigned
concluded that the closing mooted the Hollands’ request for injunctive relief.
See Dkt. 42 at 2 (October 10, 2025 Memorandum and Recommendation). And
because the Property’s sale affected the scope of the Hollands’ claims, the Court
granted their motion for leave to amend (Dkt. 20) and denied LoanCare’s
motion to dismiss (Dkt. 3) without prejudice. Dkt. 42 at 2-4.
David Holland, alone, filed an amended complaint. 2 	Dkt. 44 at 2.
Holland’s amended complaint “incorporates by reference his Original Petition”
and “sets forth additional background facts and claims ….” Id. at 3. The only
new claim is a common-law claim for gross negligence. LoanCare filed a motion
to dismiss, Dkt. 51, which is ripe for resolution.
2 Although styled as a “Second Amended Complaint,” Dkt. 44 at 1, this is the only
(and therefore the first) amended complaint.
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Legal standard
Dismissal under Rule 12(b)(6) is warranted if a party fails “to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a
Rule 12(b)(6) motion to dismiss, a plaintiff must plead “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.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556).
“Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” 	Iqbal, 556 U.S. at 678. 	Rather,
“[t]he complaint (1) on its face (2) must contain enough factual matter (taken
as true) (3) to raise a reasonable hope or expectation (4) that discovery will
reveal relevant evidence of each element of a claim.” 	See Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009) (analyzing Twombly, 550 U.S.
at 555-56). When resolving a Rule 12(b)(6) motion, the court “accept[s] all well-
pleaded facts as true and view[s] those facts in the light most favorable to the
plaintiffs.” 	Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quotation
omitted).
Pro se pleadings are liberally construed. 	Butler v. S. Porter, 999 F.3d
287, 292 (5th Cir. 2021) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)
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(per curiam)). 	But “regardless of whether the plaintiff is proceeding pro se or
is 	represented 	by 	counsel, 	conclusory 	allegations 	or 	legal 	conclusions
masquerading as factual conclusions will not suffice to prevent a motion to
dismiss.” 	Prescott v. UTMB Galveston Tex., 73 F.4th 315, 318 (5th Cir. 2023)
(quoting Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)); see
also Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016) (per
curiam) (“[P]ro se plaintiffs must still plead factual allegations that raise the
right to relief above the speculative level.”).
Analysis
I. 	Holland’s live pleading properly incorporated by reference his
original allegations and claims.
Before considering LoanCare’s arguments for dismissal, the Court must
determine what claims are still part of this suit. 	LoanCare submits that
Holland cannot rely on allegations in his original petition, maintaining that
Holland 	has 	abandoned 	all 	claims 	not 	reasserted 	in 	his 	live 	amended
complaint. Dkt. 51 at 3-4. Federal law says otherwise.
As a general rule, an amended pleading supersedes and replaces an
earlier pleading. See Clark v. Tarrant Cnty., 798 F.2d 736, 740 (5th Cir. 1986).
But Federal Rule of Civil Procedure 10(c) provides that “[a] statement in a
pleading may be adopted by reference elsewhere in the same pleading or in any
other pleading or motion.” 	Fed. R. Civ. P. 10(c) (emphasis added). 	Together,
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those principles mean that “[a]n amended complaint supersedes the original
complaint and renders it of no legal effect unless the amended complaint
specifically refers to and adopts or incorporates by reference the earlier
pleading.” 	King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (per curiam)
(emphasis added); see also, e.g., Middaugh v. Interbank, 528 F. Supp. 3d 509,
537 	(N.D. 	Tex. 	2021) 	(amended 	complaint 	explicitly 	“incorporate[ed] 	by
reference all the causes of actions alleged” in the original complaint); Adger v.
TA Operating LLC, 2024 WL 5681959, at *2 (W.D. La. July 14, 2024) (same
where amended complaint expressly stated that “Plaintiff otherwise maintains
all claims, causes of action and allegations”).
Valid incorporation by reference requires “a degree of specificity and
clarity which would enable the responding party to easily determine the nature
and extent of the incorporation.” 	New Orleans Ass’n of Cemetery Tour Guides
& Cos. v. New Orleans Archdiocesan Cemeteries, 56 F.4th 1026, 1033 (5th Cir.
2023) (quoting Carroll v. Fort James Corp., 470 F.3d 1171, 1176 (5th Cir.
2006)). By its terms, however, Rule 10 does not allow a pleading to incorporate
contentions in filings other than pleadings—like briefs or motions. See Fed. R.
Civ. P. 10, commentary (making this observation).
Holland’s amended complaint declares that it “incorporates by reference
his Original Petition” and “sets forth additional background facts and claims
….” Dkt. 44 at 3 (emphasis added). This statement clearly and unambiguously
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incorporates both the allegations and the claims in his state-court petition.
See Carroll, 470 F.3d at 1176 (holding that analogous blanket incorporation
clause satisfied the specificity requirement).
The Court therefore must consider both the allegations and claims in the
live complaint and those in the original petition that Holland incorporated.
References to Holland’s prior briefing, which cannot be incorporated in a
pleading, will be disregarded when resolving the motion to dismiss. 	See Dkt.
44 at 4 (attempting to incorporate his “Gross Negligence Brief,” Dkt. 10-1).
II. 	Some, but not all, of Holland’s claims against LoanCare should
be dismissed.
As noted, LoanCare’s motion to dismiss is deemed unopposed pursuant
to this Court’s local rules because Holland did not file a response. See S.D. Tex.
L.R. 7.4. 	But “failure to oppose a 12(b)(6) motion is not in itself grounds for
granting the motion.” 	Servicios Azucareros de Venez., C.A. v. John Deere
Thibodeaux, Inc., 702 F.3d 794, 806 (5th Cir. 2012). 	The Court still must
consider the merits of a defendant’s motion to dismiss. 	See, e.g., Webb v.
Morella, 457 F. App’x 448, 452 n.4 (5th Cir. 2012) (per curiam); John v.
Louisiana, 757 F.2d 698, 709 (5th Cir. 1985) (“[A]lthough we have endorsed
the adoption of local rules that require parties to file responses to opposed
motions, we have not approved the automatic grant, upon failure to comply
with such rules, of motions that are dispositive of the litigation.”).
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Viewing the amended complaint alongside the properly incorporated
original petition, see supra Part I, Holland has asserted Texas common-law
claims for gross negligence, breach of contract, and fraud; statutory claims
under the TDCA, FDCPA, RESPA, TILA, FIRREA; a claim to homestead
protections 	under 	the 	Texas 	Constitution; 	and 	a 	regulatory 	claim 	under
12 C.F.R. § 34.43. 	Holland has also narrowed and limited those claims to
“monetary damages[.]” See Dkt. 44 at 2; see also Dkt. 37 at 2 (joint declaration
that Plaintiff’s remaining claims seek monetary damages only).
LoanCare’s motion to dismiss addresses only a few of those claims. 	As
explained below, LoanCare is correct that the gross negligence claim is barred
because Holland has not plausibly alleged that it owed him a legal duty. And
because LoanCare is not a “creditor,” it is not subject to the TILA and the Texas
constitutional provision that Holland invokes. 	Further, Holland’s FDCPA
claim is barred by the statute of limitations. Those claims should be dismissed.
Contrary to LoanCare’s assertions, however, Holland adequately alleged
a RESPA claim premised on LoanCare’s failure to timely respond to and
investigate his request for information. 	In addition, Holland has plausibly
alleged that LoanCare is a “debt collector” covered by the TDCA. 	Moreover,
LoanCare failed to address Holland’s claims for breach of contract, fraud, and
violations of FIRREA and 12 C.F.R. § 34.43. 	Those claims should survive
dismissal.
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A. 	Holland’s gross negligence claim fails for lack of plausible
duty.
Holland pleads that LoanCare was grossly negligent when it “recklessly
declared [him] in default, imposed unlawful charges, and initiated foreclosure
proceedings based on inaccurate and incomplete data.” 	Dkt. 44 at 8. 	Among
other arguments, LoanCare contends that Holland failed to plausibly allege
that the elements of gross negligence are met. See Dkt. 51 at 7.
Gross 	negligence 	requires 	a 	predicate 	finding 	of 	negligence. 	See
Dekelaita v. BP Amoco Chem. Co., 2008 WL 2964376, at *15 (S.D. Tex. July 30,
2008) 	(collecting 	Texas 	decisions 	for 	this 	principle); 	Hall 	v. 	Stephenson,
919 S.W.2d 454, 467 (Tex. App.—Fort Worth 1996, writ denied) (“[A] finding of
ordinary negligence is a prerequisite to a finding of gross negligence.”). 	To
state a negligence claim, the plaintiff must show that the defendant owed the
plaintiff a legal duty. 	See Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d
401, 404 (Tex. 2009). 	But under Texas law, a mortgage servicer does not owe
a common law duty of care to a borrower. See Milton v. U.S. Bank Nat’l Ass’n,
508 F. App’x 326, 329-30 (5th Cir. 2013) (per curiam) (affirming dismissal of
negligence claims against a mortgage servicer; “under Texas law, there is ‘no
special relationship between a mortgagor and mortgagee’ that would give rise
to a stand-alone duty of good faith and fair dealing” (quoting UMLIC VP LLC
v. T&M Sales & Envtl. Sys., Inc., 176 S.W.3d 595, 612 (Tex. App.—Corpus
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Christi, 2005, pet. denied))); Lerma v. CitiMortgage, Inc., 2014 WL 12599346,
at *1 (S.D. Tex. Apr. 17, 2014) (dismissing borrower’s negligence claim because
“a mortgage servicer does not owe a duty that would support” recovery).
Holland has not alleged that LoanCare owed him a legal duty. And the
facts on which Holland relies to establish gross negligence concern LoanCare’s
servicing of his mortgage, which does not create an independent tort duty. See
Sugarek v. Bank of Am., N.A., 2019 WL 13193216, at *9 (S.D. Tex. Sept. 11,
2019) (dismissing negligence claim against loan servicers for lack of duty). The
lack of a cognizable legal duty defeats Holland’s gross negligence claim.
B. 	Holland has not alleged that LoanCare is a “creditor” under
the TILA.
Holland alleges that “Defendants” violated the TILA by failing to give
him “proper notice of their ownership as a new creditor within 30 days.”
Dkt. 1-3 at 30; see also Dkt. 44 at 11 (seeking statutory damages for TILA
violations). 	The relevant statute provides that “not later than 30 days after
the date on which a mortgage loan is sold or otherwise transferred or assigned
to a third party, the creditor that is the new owner or assignee of the debt shall
notify the borrower in writing of such transfer.” 	15 U.S.C. § 1641(g)(1)
(emphasis added). “By its terms, § 1641(g) applies only to ‘the creditor that is
the new owner or assignee of the debt.’” 	Fowler v. U.S. Bank, Nat. Ass’n,
2 F. Supp. 3d 965, 982 n.55 (S.D. Tex. 2014) (quoting 15 U.S.C. § 1641(g)(1)).
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LoanCare, however, is not the creditor who owns or was assigned
Holland’s underlying debt. See Dkt. 51 at 8. Even Holland acknowledges that
LoanCare merely subservices the loan. 	See Dkt. 44 at 5. 	Holland cannot
pursue a TILA claim against LoanCare.
C. 	Holland 	cannot 	pursue 	his 	Texas 	constitutional 	claim
against LoanCare.
Holland 	alleges 	that 	his 	home 	equity 	loan 	violated 	the 	Texas
Constitution because he never received a written appraisal of the Property’s
value at closing and the original lender, Lending Solutions, Inc., did not
provide a signed acknowledgement of the Property’s fair market value. Dkt. 44
at 5, 7, 12. 	Because this defect was never cured, Holland seeks forfeiture of
principal and interest paid. 	Id. at 12. 	LoanCare asserts that the cited
provision does not apply to loan sub-servicers like LoanCare. See Dkt. 51 at 9.
Subject 	to 	certain 	exceptions, 	the 	Texas 	Constitution 	protects 	a
homestead from foreclosure. 	Tex.. Const. art. XVI, § 50(a)(1-8); Garofolo v.
Ocwen Loan Servicing, LLC, 497 S.W.3d 474, 477 (Tex. 2016). 	Section 50
provides:
The homestead of a family, or of a single adult person, shall be, and
is hereby protected from forced sale, for the payment of all debts
except for … (6) an extension of credit that … (Q) is made on the
condition that … (ix) the owner of the homestead and the lender
sign a written acknowledgement as to the fair market value of the
homestead property on the date the extension of credit is made; (x)
except as provided by Subparagraph (xi) of this paragraph, the
lender or any holder of the note for the extension of credit shall
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forfeit all principal and interest of the extension of credit if the
lender 	or 	holder 	fails 	to 	comply 	with 	the 	lender’s 	or 	holder’s
obligations under the extension of credit and fails to correct the
failure to comply not later than the 60th day after the date the
lender or holder is notified by the borrow of the lender’s failure to
comply ….
Tex. Const. Art. XVI, § 50(a)(6)(Q)(x-xi) (emphasis added).
Section 50(a) “does not create substantive rights beyond a defense to
foreclosure of a home-equity lien securing a constitutionally noncompliant
loan” 	because 	“the 	terms 	and 	conditions 	in 	section 	50(a)(6) 	‘are 	not
constitutional rights and obligations unto themselves.’” 	Wood v. HSBC Bank
USA, N.A., 505 S.W.3d 542, 546 (Tex. 2016) (quoting Garofolo, 497 S.W.3d at
478)). Instead, Section 50(a) “simply describes what a home-equity loan must
look like if a lender wants to foreclose on a homestead upon borrower default.”
Garofolo, 497 S.W.3d at 478. “The forfeiture provision in section 50(a)(6)(Q)(x)
does not create a constitutional cause of action to access that remedy and must
be litigated in the context of the borrower’s loan agreement.” 	Wood, 505
S.W.3d. at 551.
Holland cannot maintain a claim under Section 50(a) against LoanCare.
As a sub-servicer who came along years after-the-fact, LoanCare was not a
“lender” who needed to “sign a written acknowledgement as to the fair market
value” when the loan closed. Nor is LoanCare the “lender or holder of the note”
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who would “forfeit all principal and interest” for failing to comply with the
requirements. Section 50(a) provides no relief against LoanCare.
Moreover, Holland fails to assert his Section 50(a) claim in conjunction
with any cause of action. 	Holland cannot bring a freestanding claim for
violations of that provision. See Mata v. De Pasol, 2022 WL 17722431, at *4-5
(S.D. Tex. Sept. 27, 2022) (same flaw merited dismissing Section 50 claim),
adopted by 2023 WL 2226800 (S.D. Tex. Feb. 24, 2023). 	And foreclosure is no
longer a concern because the Property has been sold. The Texas constitutional
claim should be dismissed.
D. 	Holland’s FDCPA claim is barred by limitations, but he has
sufficiently 	alleged 	that 	LoanCare 	is 	a 	“debt 	collector”
under TDCA.
LoanCare contends that Holland’s FDCPA claim is untimely and that
both his FDCPA and TDCA claims fail because LoanCare is not a “debt
collector” under either statute. Dkt. 51 at 9-10. That is only partly true.
LoanCare is correct that Holland’s FDCPA claim is barred by the
operative one-year statute of limitations. 	See 15 U.S.C. § 1692(k). 	That
limitations period “begins to run on the date on which the alleged FDCPA
violation occurs, not the date on which the violation is discovered.” Rotkiske v.
Klemm, 589 U.S. 8, 10 (2019). 	LoanCare stopped servicing Holland’s loan in
2023, more than a year before Holland brought this suit on May 15, 2025. See
Dkt. 1-3 at 5. The FDCPA claim is therefore barred.
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But LoanCare has not shown that Holland failed to plead a plausible
violation of the TDCA, Tex. Fin. Code 392.304(a)(8) and (19). 	To recover, a
plaintiff must show: (1) the debt is a consumer debt; (2) the defendant is a debt
collector within the meaning of the TDCA; (3) the defendant committed a
wrongful act in violation of the TDCA; (4) the wrongful act was committed
against the plaintiff; and (5) the plaintiff was injured. 	Putty v. Fed. Nat’l
Mortg. Ass’n, 2017 WL 5070423, at *3 (N.D. Tex. Nov. 3, 2017) (quotation
omitted), aff’d, 736 F. App’x 484 (5th Cir. 2018).
As its sole contention, LoanCare’s argues that Holland has not plausibly
alleged that it is a “debt collector” under the TDCA. 	See Dkt. 51 at 9-10.
LoanCare is incorrect. 	The only authority it cites is a case addressing the term
“debt collector” under the FDCPA. 	See id. at 10 (citing LSR Consulting, LLC
v. Wells Fargo Bank, N.A., 835 F.3d 530, 535 (5th Cir. 2016)). 	But “[t]he
TDCA’s definition of debt collector is broader than the FDCPA’s definition.”
Miller v. BAC Home Loans Servicing, L.P., 726 F.3d 717, 722 (5th Cir. 2013).
Indeed, the relevant TDCA provision defines “debt collector” broadly to reach
any “person who directly or indirectly engages in debt collection.” 	Tex. Fin.
Code § 392.001(5) (definition of debt collector). 	The term “debt collection” is
“an action, conduct, or practice in collecting, or in soliciting for collection,
consumer debts that are due or alleged to be due a creditor.” Id. § 392.001(4).
These expansive definitions 	confirm 	that “[m]ortgage servicers 	and their
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assignees are debt collectors under the TDCA.” 	Williams v. Lakeview Loan
Servicing LLC, 694 F. Supp. 3d 874, 884 (S.D. Tex. 2023); see also Miller,
726 F.3d at 723 (same principle).
The 	only 	other 	argument 	that 	LoanCare 	proffers 	characterizes 	as
“baseless” Holland’s allegation that LoanCare issued a foreclosure notice while
subservicing the loan. 	Dkt. 51 at 10. 	LoanCare insists that “no proof is
attached or provided.” 	Id. 	But the original petition did attach a July 9, 2019
letter from LoanCare accusing Holland of being in default and warning that
foreclosure proceedings had been initiated “to seek resolution of the loan
balance.” 	Dkt. 1-3 at 151. 	And elsewhere, the pleading explicitly accuses
LoanCare of attempting to collect on the debt. See id. at 27.
More fundamentally, LoanCare misconstrues the standard of review. At
this stage, the analysis focuses solely on allegations, not proof. LoanCare offers
no valid reason why the TDCA claim is deficient when taking Holland’s
allegations 	as 	true—as 	the 	Court 	must 	do 	at 	this 	Rule 	12(b)(6) 	stage.
LoanCare has not articulated a valid basis to dismiss the TDCA claim.
E. 	Holland 	sufficiently 	alleged 	that 	he 	sent 	LoanCare 	a
Qualified Written Request to support his RESPA claim.
Holland’s 	RESPA 	claim 	alleges 	that 	LoanCare 	ignored 	multiple
Qualified Written Requests (“QWR”) and Notices of Error. 	Dkt. 44 at 6.
LoanCare argues that Holland has not attached “proof” that he sent it a QWR
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or Notice of Error. 	Dkt. 51 at 11-12. 	That is incorrect as a matter of fact and
immaterial under the operative standard of review.
RESPA requires a loan servicer to timely respond to and investigate a
borrower’s request for information relating to the servicing of that loan. 	See
Whittier v. Ocwen Loan Servicing, LLC, 594 F. App’x 833, 836 (5th Cir. 2014)
(per curiam) (stating this principle); 12 U.S.C. § 2605(e); 12 C.F.R. § 1024.35.
To establish a RESPA violation, a plaintiff must show that: (1) he made a QWR
to a qualified loan servicer; (2) the loan servicer failed to either acknowledge
the request within five days or investigate the request and answer it within
thirty days; and (3) the plaintiff suffered actual damages or, alternatively, the
servicer engaged in a pattern of non-compliance that which would entitle the
plaintiff to $2,000 in statutory damages. 	See Wright v. First Nat’l Bank of
Livingston, 2025 WL 736634, at *4 (E.D. Tex. Jan. 29, 2025) (citing 12 U.S.C.
§ 2605(e) and (f)), adopted by 2025 WL 904394 (E.D. Tex. Mar. 25, 2025).
Section 2605 defines a QWR as:
[A] written correspondence … that includes, or otherwise enables
the servicer to identity, the name and account of the borrower;
and 	[that] 	… 	includes 	a 	statement 	of 	the 	reasons 	for 	the
borrower’s belief, to the extent applicable, that the account is in
error or provides sufficient detail to the servicer regarding other
information sought by the borrower.
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12 U.S.C. § 2605(e)(1)(B). 	To constitute a QWR, a request must relate to the
“servicing” of the loan. Id. § 2605(e)(1)(A); In re Parker, 655 F. App’x 993, 997-
98 (5th Cir. 2016) (per curiam).
Holland explicitly pleaded that he sent LoanCare a QWR while it was
servicing his loan—and attached a copy of the request. 	As asserted in the
original petition, Holland sent both NewRez and LoanCare a June 18, 2019
letter contesting the amount that remained unpaid. 	Dkt. 1-3 at 13. 	He also
cited and attached a copy of a letter bearing the date “08/18/2019” but included
a certified mail receipt with a delivery date of June 24, 2019. 	Id. at 145, 147;
see also Dkt. 1-3 at 13 (citing both exhibits). 	Resolving this inconsistency in
Holland’s favor, which is necessary at this stage, the Court treats the letter as
having been sent in June 2019.
The contents of Holland’s letter meet all requirements for a QWR. 	It
includes Holland’s full-name, address, and loan number, disputes Holland’s
default, alleges that Holland made payments throughout the disputed months,
provides bank statements purporting to show that he made these payments,
and requests that Holland’s account balance be corrected. 	Id. at 145-46. 	In
addition, Holland attached a letter from LoanCare acknowledging its receipt
of Holland’s notice of error and promising to send him a “detailed written
response” no later than thirty days “in compliance with applicable federal law
….” Id. at 153 (July 15, 2019 letter from LoanCare). According to the pleading,
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however, Holland never received a response, much less a timely one. Id. at 14.
He has plausibly stated a RESPA claim against LoanCare.
In any event, LoanCare’s demands for “proof” are misplaced at this stage.
Holland does not need to prove anything now. Instead, the Court must accept
his allegations as true. 	Because Holland adequately pleaded a basis for
recovery under RESPA, LoanCare is not entitled to dismissal of this claim.
Recommendation
For the foregoing reasons, it is RECOMMENDED 	that Defendant
LoanCare LLC’s motion to dismiss (Dkt. 51) be GRANTED IN PART and
DENIED IN PART, as follows:
x 	Holland’s claims for gross negligence and for violations of the
Truth-in-Lending Act, the Texas Constitution, and the Federal
Debt Collection Protection Act should be DISMISSED WITH
PREJUDICE; and
x 	regarding 	Holland’s 	claims 	for 	breach 	of 	contract, 	fraud, 	and
violations of the Real Estate Settlement and Procedures Act, the
Texas Debt Collection Act, the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989, and 12 C.F.R. § 34.43,
LoanCare’s motion to dismiss should be DENIED.
The parties have fourteen days from service of this Report and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed.
R. 	Civ. 	P. 	72(b). 	Failure 	to 	file 	timely 	objections 	will 	preclude
appellate review of factual findings and legal conclusions, except for
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plain error. 	Ortiz v. City of San Antonio Fire Dep’t, 806 F.3d 822, 825
(5th Cir. 2015).
Signed on May 15, 2026, at Houston, Texas.
______________________________
Yvonne Y. Ho
United States Magistrate Judge
________________________________________
Yvooon	n	nn	ne Y. Ho
United States Magistrate Judge
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