4:26-cv-01748•Ware v. MidFirst Bank et al
Texte intégral
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION Larry Robert Ware, individually and as executor of the Estate of William Tyrone Johnson, Plaintiff, v. MidFirst Bank, et al., Defendants. § § § § § § § § § § § § Civil Action No. 4:26-cv-01748 MEMORANDUM AND RECOMMENDATION In this foreclosure suit that was removed to this Court, Defendant MidFirst Bank and Defendants Israel Saucedo and Barrett Daffin Frappier Turner & Engel, LLP (the “Attorney Defendants”) filed motions to dismiss Plaintiff Larry Robert Ware’s claims under Fed. R. Civ. P. 12(b)(6). Dkt. 10 (MidFirst Bank’s motion); Dkt. 12 (Attorney Defendants’ motion). Because Ware did not respond to either motion, the motions are deemed unopposed. See S.D. Tex. L.R. 7.4. After carefully considering the motions, Ware’s pleading, and the applicable law, it is recommended that all claims against Attorney Defendants be dismissed for lack of subject matter jurisdiction because they were improperly joined, and that MidFirst Bank’s motion to United States District Court Southern District of Texas ENTERED June 04, 2026 Nathan Ochsner, Clerk Case 4:26-cv-01748 Document 16 Filed 06/04/26 in TXSD Page 1 of 9
2 dismiss (Dkt. 10) be granted. Attorney Defendants’ separate motion to dismiss (Dkt. 12) all claims on the merits should be denied as moot. Background This is a foreclosure dispute concerning real property located at 4030 Glen Cove Drive, Houston, Texas 77021 (the “Property”). Dkt. 1-4 at 3. Ware filed this suit in state court, individually and as executor of the estate of William Tyrone Johnson. Id. at 2. The petition asserted that an impending foreclosure sale scheduled for March 3, 2026 would be wrongful because “there are probate issues affecting authority.” Id. at 4. Ware pleaded a “Wrongful Foreclosure Attempt” claim and sought a declaration “regarding validity of lien, default, and authority to foreclose.” Id. He also requested a temporary restraining order and preliminary injunction to stop the foreclosure sale. Id. On March 3, 2026, MidFirst Bank removed the action to this Court based on diversity jurisdiction. Dkt. 1. Although the notice of removal implicitly concedes that Attorney Defendants share the same state of citizenship (Texas) as Ware, MidFirst Bank maintained that Attorney Defendants were improperly joined such that their non-diverse citizenships should be disregarded. See id. at 3-5. Invoking Fed. R. Civ. P. 12(b)(6), MidFirst Bank then filed a motion to dismiss (Dkt. 10), as did Attorney Defendants (Dkt. 12). Ware did not respond. Both motions are ripe for resolution. Case 4:26-cv-01748 Document 16 Filed 06/04/26 in TXSD Page 2 of 9
3 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) Case 4:26-cv-01748 Document 16 Filed 06/04/26 in TXSD Page 3 of 9
4 (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 Before addressing the merits of Defendants’ motions to dismiss, the Court must first determine whether it has subject matter jurisdiction under 28 U.S.C. § 1332, given that Attorney Defendants appear to share the same state of citizenship as Ware. Consistent with MidFirst Bank’s contentions in its notice of removal and Attorney Defendants’ arguments for dismissal, this Court should conclude that Attorney Defendants were improperly joined. Ware’s claims against Attorney Defendants should be dismissed for lack of jurisdiction. On the merits, and as MidFirst Bank correctly argues, Texas law does not recognize Ware’s attempted wrongful foreclosure claim, leaving no basis for his requests for declaratory and injunctive relief. All claims against MidFirst Bank should be dismissed with prejudice. Case 4:26-cv-01748 Document 16 Filed 06/04/26 in TXSD Page 4 of 9
5 I. Because Attorney Defendants were improperly joined, the claims against them must be dismissed. Asserting diversity jurisdiction, MidFirst Bank removed this suit from state court, contending that Attorney Defendants were improperly joined and that their non-diverse citizenships should be regarded for diversity purposes. Dkt. 1 at 3-5. According to MidFirst Bank, Ware’s petition does not state a claim against Attorney Defendants, and any such claim would be barred by attorney immunity. Id. at 5. The Court agrees. Under the improper joinder doctrine, “the presence of an improperly joined, non-diverse defendant does not defeat federal removal jurisdiction premised on diversity.” Borden v. Allstate Ins. Co., 589 F.3d 168, 171 (5th Cir. 2009). There are two ways to establish that a non-diverse defendant was improperly joined: “(1) actual fraud in the pleading of jurisdictional factors, or (2) inability of the plaintiff to establish a cause of action against the non- diverse party in state court.” Smallwood v. Ill. Cent. R.R., 385 F.3d 568, 573 (5th Cir. 2004) (en banc) (internal quotation marks omitted). Only the second theory is relevant here. Under that theory, the removing party must “demonstrate[e] that there is no possibility of recovery by the plaintiff against [the] in-state defendant ….” Id.; see also Gash v. Hartford Acc. Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007) (removing party bears burden of proof). Case 4:26-cv-01748 Document 16 Filed 06/04/26 in TXSD Page 5 of 9
6 According to MidFirst Bank—and echoed by Attorney Defendants’ separate motion, Dkt. 12 at 3-4—Ware’s claims against Attorney Defendants raise the specter of attorney immunity. In Texas, attorney immunity is a “comprehensive affirmative defense protecting attorneys from liability to non- clients, stemming from the broad declaration … that attorneys are authorized to practice their profession, to advise their clients and interpose any defense or supposed defense, without making themselves liable for damages.” Cantey Hanger LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015) (quotation omitted). “Dismissal based on the attorney immunity defense is proper when the scope of the attorney’s representation—and thus entitlement to the immunity—[i]s apparent on the face of the complaint.” Burke v. Ocwen Loan Servicing, LLC, 855 F. App’x 180, 186 (5th Cir. 2021) (per curiam) (quotation omitted). In his petition, Ware complains that “Defendants” collectively had wrongfully attempted to foreclose on the Property. Dkt. 1-4 at 4. Regarding the Attorney Defendants’ role, however, he merely identifies them as “Substitute Trustees,” thereby reflecting that they were serving as MidFirst Bank’s foreclosure counsel. Id. at 3. Moreover, the petition does not suggest that Attorney Defendants took any actions outside of representing MidFirst Bank that could conceivably subject Attorney Defendants to liability. Because Attorney Defendants are immune from suit over the challenged acts related to foreclosure, Ware has no possibility of recovery against them, Case 4:26-cv-01748 Document 16 Filed 06/04/26 in TXSD Page 6 of 9
7 rendering them improperly joined. See, e.g., Rojas v. Wells Fargo Bank, N.A., 571 F. App’x 274, 278 (5th Cir. 2014) (per curiam); Jackson v. PHH Mortg., 2023 WL 2541993, at *2 (S.D. Tex. Feb. 22, 2023) (concluding that foreclosure counsel was improperly joined, including because of attorney immunity), adopted by 2023 WL 2542616 (S.D. Tex. Mar. 16, 2023). As a result, Ware’s claims against Attorney Defendants should be dismissed without prejudice for lack of jurisdiction. See Int’l Energy Ventures Mgmt., LLC v. United Energy Grp., Ltd., 818 F.3d 193, 209-10 (5th Cir. 2016) (“[T]he only ground for dismissing any improperly joined, nondiverse party is lack of subject matter jurisdiction.”). Attorney Defendants’ motion to dismiss those claims on the merits should be denied as moot. II. Ware has not pleaded a plausible basis for relief on any claim against MidFirst Bank. Ware’s remaining claims against MidFirst Bank are also barred, but on the merits rather than jurisdictional grounds. As his lead claim, Ware challenged an impending foreclosure sale scheduled for March 3, 2026, asserting a claim for “Wrongful Foreclosure Attempt[.]” Dkt. 1-4 at 4. But as MidFirst Bank correctly observes, see Dkt. 10 at 4-5, “Texas law does not recognize a cause of action for attempted wrongful foreclosure ….” See Owens v. BAC Home Loans Servicing, L.P., 2012 WL 1494231, at *3 (S.D. Tex. Apr. 27, 2012); see also Foster v. Deutsche Bank Nat’l Tr. Co., 848 F.3d 403, 406-07 Case 4:26-cv-01748 Document 16 Filed 06/04/26 in TXSD Page 7 of 9
8 (5th Cir. 2017) (per curium) (no wrongful foreclosure claim where foreclosure has not occurred). Because Ware does not allege the foreclosure has already occurred, his wrongful foreclosure claim is barred as a matter of law. Dismissal of Ware’s wrongful foreclosure claim leaves no hook for his further requests for declaratory and injunctive relief. “[W]here all the substantive, underlying claims have been dismissed, a claim for declaratory judgment cannot survive.” Bishop Global Fam. Tr. v. Mackie Wolf Zientz & Mann P.C., 2026 WL 549913, at *6 (S.D. Tex. Feb. 26, 2026) (quoting Longino v. Select Portfolio Servicing, Inc., 2019 WL 2369302, at *5 n.36 (S.D. Tex. June 5, 2019)). That same limitation also negates Ware’s request for injunctive relief. See, e,g. Johnson v. Lakeview Loan Servicing, LLC, 2025 WL 2617715, at *5 (S.D. Tex. Aug. 19, 2025) (dismissal of substantive claims required dismissal of requests for both declaratory and injunctive relief), adopted by 2025 WL 2617250 (S.D. Tex. Sept. 10, 2025). This Court should grant MidFirst Bank’s motion to dismiss all claims. Recommendation For the foregoing reasons, it is RECOMMENDED that Plaintiff Larry Robert Ware’s claims against Defendants Israel Saucedo and Barrett Daffin Frappier Turner & Engel, LLP be DISMISSED WITHOUT PREJUDICE for want of subject-matter jurisdiction. Case 4:26-cv-01748 Document 16 Filed 06/04/26 in TXSD Page 8 of 9
9 It is further RECOMMENDED that Defendants Israel Saucedo’s and Barrett Daffin Frappier Turner & Engel, LLP’s motion to dismiss (Dkt. 12) all claims on the merits under Fed. R. Civ. P. 12(b)(6) be DENIED AS MOOT. It is further RECOMMENDED that Defendant MidFirst Bank’s motion to dismiss (Dkt. 10) be GRANTED, and Ware’s claims against it be DISMISSED WITH PREJUDICE. It is further RECOMMENDED that this Court enter a final judgment consistent with the foregoing dispositions of Ware’s claims, pursuant to Fed. R. Civ. P. 58(a). 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 plain error. Ortiz v. City of San Antonio Fire Dep’t, 806 F.3d 822, 825 (5th Cir. 2015). Signed on June 4, 2026, at Houston, Texas. ______________________________ Yvonne Y. Ho United States Magistrate Judge ____________________________________ Yvvvooon n nn ne Y. Ho United States Magistrate Judge Case 4:26-cv-01748 Document 16 Filed 06/04/26 in TXSD Page 9 of 9
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