Pestova v. Velocity Mortgage et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SVETLANA PESTOVA,
Plaintiff,
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v. 	CIVIL ACTION NO. 4:25-cv-147
VELOCITY MORTGAGE
UA BANK NATIONAL
ASSOCIATION,
Defendants.
MEMORANDUM AND RECOMMENDATION
Pending before the Court1 is US Bank Trust Company as Trustee for
Velocity Commercial Loan Trust 2021-3’s (“Defendant”) Motion to Dismiss
(ECF No. 7). 	Based on a review of the motion, arguments, and relevant law,
the Court RECOMMENDS pro se Plaintiff Svetlana Pestova’s (“Plaintiff”)
claims be DISMISSED for failure to state a claim unless she timely files a
motion seeking leave to amend her complaint within fourteen days of this
Memorandum and Recommendation. If Plaintiff fails to timely move for leave
to amend, the Court RECOMMENDS Defendant’s Motion to Dismiss (ECF
No. 	7) 	be 	GRANTED 	and 	Plaintiff’s 	claims 	be 	DISMISSED 	WITH
PREJUDICE.
1 This case was referred to the Undersigned for all purposes pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B) and Federal Rule of Civil Procedure 72. (ECF No. 4).
United States District Court
Southern District of Texas
ENTERED
December 05, 2025
Nathan Ochsner, Clerk
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I. 	Background
Per Plaintiff’s Original Petition, she purchased property on or about
April 2013 and refinanced on July 30, 2021. (ECF No. 1 at 13). The property
allegedly suffered damages from a hurricane in May 2024. 	(Id.). 	Plaintiff
alleges, due to major repairs on the property, there was a delay on payments
and that she has “been trying to get reinstatement figures.” (Id.). The property
was allegedly “posted to be auctioned on November 5, 2024.” (Id.).
On January 7, 2025, Plaintiff sued Defendant for breach of contract and
injunctive relief in the 333rd District Court of Harris County, Texas, in Case
No. 2025-00894, to prevent a foreclosure sale on her property. 	(See id. at 12–
16). 	On January 13, 2025, Defendant removed the case to this Court. 	After
removal, Defendant filed the instant Motion to Dismiss. (ECF No. 7). Plaintiff
did not file a response.
II. 	Legal Standard
Federal Rule of Civil Procedure (“Rule”) 12(b)(6) provides for dismissal
of an action for “failure to state a claim upon which relief can be granted.” FED.
R. C IV . P. 12(b)(6). 	When considering a motion to dismiss, a court should
construe the allegations in the complaint favorably to the pleader and accept
as true all well-pleaded facts. Sullivan v. Leor Energy, LLC, 600 F.3d 542, 546
(5th Cir. 2010). 	In the Fifth Circuit, motions to dismiss under Rule 12(b)(6)
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are viewed with disfavor and rarely granted. 	Lormand v. U.S. Unwired, Inc.,
565 F.3d 228, 232 (5th Cir. 2009). To survive dismissal, a complaint 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).
However, a court is not bound to accept legal conclusions couched as
factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). Although all
reasonable inferences will be resolved in favor of a plaintiff, a plaintiff must
plead “specific facts, not mere conclusory allegations.” 	Tuchman v. DSC
Commc’ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994); see also Firefighters’ Ret.
Sys. v. Grant Thornton, L.L.P., 894 F.3d 665, 669 (5th Cir. 2018) (“Although a
complaint does not need detailed factual allegations, the allegations must be
enough to raise a right to relief above the speculative level . . . .”) (internal
quotations omitted)). “‘Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.’” 	Firefighters’ Ret.
Sys., 894 F.3d at 669 (quoting Iqbal, 556 U.S. at 678). 	“The court is not
required to conjure up unpled allegations or construe elaborately arcane
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scripts to save a complaint.” 	Santerre v. Agip Petrol. Co., Inc., 45 F. Supp. 2d
558, 568 (S.D. Tex. 1999) (internal quotations omitted).
To determine whether to grant a Rule 12(b)(6) motion, a court may only
look to allegations in a complaint to determine their sufficiency. 	Id.; Atwater
Partners of Tex. LLC v. AT & T, Inc., No. 2:10-cv-175, 2011 WL 1004880, at *1
(E.D. Tex. Mar. 18, 2011). 	“A court may, however, also consider matters
outside the four corners of a complaint if they are incorporated by reference,
items 	subject 	to 	judicial 	notice, 	matters 	of 	public 	record, 	orders, 	items
appearing in the record of a case, and exhibits attached to a complaint whose
authenticity is unquestioned.” Joubert on Behalf of Joubert v. City of Houston,
No. 4:22-cv-3750, 2024 WL 1560015, at *2 (S.D. Tex. Apr. 10, 2024). 	“A
document filed pro se is 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.” 	Erickson v. Pardus, 551 U.S. 89, 94
(2007) (internal citations and quotation marks omitted); see also F ED. R. C IV .
P. 8(e) (“Pleadings must be construed so as to do justice”).
III. 	Discussion
Plaintiff’s Original Petition alleges claims for (1) unjust enrichment; (2)
gross negligence; and (3) breach of contract. 	(ECF No. 1 at 14). 	Defendant
moves to dismiss each of these claims for failure to state a claim upon which
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relief can be granted. 	(ECF No. 7). 	Plaintiff did not respond to Defendant’s
motion. 	Pursuant 	to 	Local 	Rule 	7.4, 	failure 	to 	respond 	is 	taken 	as 	a
representation of no opposition. 	S.D. Tex. Local R. 7.4. 	The Court construes
all pro se filings liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Regardless of Plaintiff’s failure to respond to the motion to dismiss, the Court
will consider the merits of Defendant’s motion before the Court. See Gonzalez
v. Mongo, No. 24-cv-5145, 2025 WL 2174763, at *2 (S.D. Tex. July 31, 2025);
Chilton v. Texas S. Univ., No. 4:24-cv-1646, 2024 WL 4282092, at *1 (S.D. Tex.
Sept. 24, 2024) (“[W]here a party does not respond to a motion to dismiss, such
failure does not permit the Court to enter a ‘default’ dismissal.”).
a. Unjust Enrichment
In Texas, a plaintiff may recover under an unjust enrichment theory
where a person has “obtained a benefit from another by fraud, duress, or the
taking of an undue advantage.” Heldenfels Bros. v. City of Corpus Christi, 832
S.W.2d 39, 41 (Tex. 1992). Unjust enrichment is a quasi-contractual claim that
is based on the absence of an express agreement. 	See Fortune Prod. Co. v.
Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000); see also First Union Nat. Bank v.
Richmont Cap. Partners I, L.P., 168 S.W.3d 917, 931 (Tex. App.—Dallas 2005,
no pet.). “Generally speaking, when a valid, express contract covers the subject
matter of the parties’ dispute, there can be no recovery under a quasi-contract
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theory . . . because parties should be bound by their express agreements.”
Fortune, 52 S.W.3d at 684 (internal citations omitted). 	Further, whether a
plaintiff has a meritorious claim for breach of contract does not govern whether
that remedy precludes a claim for unjust enrichment. 	See VanHauen v. Am.
Home Mortg. Servicing, Inc., No. 4:11-cv-461, 2012 WL 874330, at *8 (E.D. Tex.
Feb. 17, 2012), report and recommendation adopted, No. 4:11-CV-461, 2012 WL
874328 (E.D. Tex. Mar. 14, 2012). Instead, “the mere existence of [a] potential
contract claim bars the unjust enrichment remedy.” In re Myles, 395 B.R. 599,
605 (Bankr. M.D. La. 2008).
Here, there is a Deed of Trust. Plaintiff’s obligations are covered by this
loan document, which would preclude a claim for unjust enrichment. See
VanHauen, 2012 WL 874330, at *8. As such, Plaintiff fails to allege facts that
would make a claim for unjust enrichment plausible. 	Accordingly, the Court
recommends Defendant’s motion to dismiss should be granted with regard to
Plaintiff’s unjust enrichment claim.
b. Gross Negligence
Under Texas law, the elements of a negligence claim are (1) a legal duty
owed by one person to another; (2) a breach of that duty; and (3) damages
proximately resulting from the breach. 	Greater Hous. Transp. Co. v. Phillips,
801 S.W.2d 523, 525 (Tex. 1990). 	To state a claim for gross negligence, a
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plaintiff must show that (1) viewed objectively from the actor’s standpoint, the
act or omission complained of creates an extreme degree of risk of seriously
harming others, and (2) the actor had actual, subjective awareness of the risk,
but chose to proceed in conscious indifference to the rights, safety, or welfare
of others. 	See Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex.
2001).
Here, Plaintiff fails to identify (1) a duty Defendant owed to her, (2) what
acts Defendant did or failed to do that breached this duty, or (3) what damages
she incurred as a result of the alleged breach. See Watson v. Citimortgage, Inc.,
814 F. Supp. 2d 726, 736–37 (E.D. Tex. 2011); Fashina v. Fed. Home Loan
Mortg. Corp., No. 3:12-cv-822, 2012 WL 6772058, at *9 (N.D. Tex. Dec. 11,
2012), report and recommendation adopted, No. 3:12-cv-822, 2013 WL 67255
(N.D. Tex. Jan. 7, 2013).
As such, the Court recommends Defendant’s Motion to Dismiss be
granted as to Plaintiff’s gross negligence claim.2
2 The Court notes that, under Texas law, the economic loss rule precludes recovery in
tort when the loss complained of is the subject matter of a contract between the parties. See
Southwestern Bell Tele. Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex. 1991). However, if the
defendant’s conduct would give rise to liability independent of the fact that a contract exists
between the parties, the plaintiff may bring a tort claim in addition to a claim for breach of
contract. See Fashina, 2012 WL 6772058, at *7. The economic loss rule applies to real estate
transactions. Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986). To determine
whether a plaintiff may recover on a tort theory, courts look at the nature of the plaintiff’s
loss. 	See Sterling Chemicals, Inc. v. Texaco Inc., 259 S.W.3d 793, 796–98 (Tex. App.—
Houston [1st Dist.] 2007, pet. denied). However, Plaintiff’s Original Petition fails to allege
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c. 	Breach of Contract
The essential elements of a breach of contract claim in Texas are: “(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) 	damages
sustained by the plaintiff as a result of the breach.” 	Mullins v. TestAmerica,
Inc., 564 F.3d 386, 418 (5th Cir. 2009) (cleaned up).
As to the first prong, it does not appear that Plaintiff contests the
existence of a valid Deed of Trust, and that Defendant is the holder of the
promissory note that is secured by that Deed of Trust. (ECF No. 1 at 13).
As to the second prong, Plaintiff appears to concede that she did not
perform under the contract with respect to loan payments. 	(Id.). 	While the
Court agrees with Defendant (ECF No. 7 at 3) that this concession is fatal to
her breach of contract claim at this juncture, “there are some instances in
which a borrower’s default on a loan does not preclude them from maintaining
a breach of contract action against their lender.” Harvey v. Velocity Com. Cap.
Loan Tr., No. 20-cv-2129, 2021 WL 828621, at *2 (N.D. Tex. Feb. 17, 2021),
report and recommendation adopted, No. 20-cv-2129, 2021 WL 826416 (N.D.
Tex. Mar. 4, 2021); see also Williams v. Wells Fargo Bank, N.A., 884 F.3d 239,
enough for the Court to be able to make this determination. See Fashina, 2012 WL 6772058,
at *7.
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245 (5th Cir. 2018) (“If performance of the terms of a deed of trust governing
the parties’ rights and obligations in the event of default can always be excused
by pointing to the debtor’s default under the terms of the note, the notice terms
have no meaning. Such a reading is inconsistent with the intent of the parties
and with Texas law.”).
As to the third prong, Plaintiff alleges Defendant failed to provide status
mortgage statements and accurate information to Plaintiff related to her
account. (ECF No. 1 at 14). However, Plaintiff did not identify the provisions
in the Deed of Trust that was allegedly breached by Defendant. 	See Mitchell
v. Prestige Default Servs. LLC, No. 3:23-cv-2534, 2024 WL 3237170, at *3 (N.D.
Tex. June 6, 2024), report and recommendation adopted, No. 3:23-cv-2534,
2024 WL 3239934 (N.D. Tex. June 28, 2024).
Finally, as to the fourth prong, Plaintiff fails to plead that she suffered
actual damages as a result of Defendant’s actions. 	See Langen v. Sanchez Oil
& Gas Corp., No. 4:18-cv-2840, 2019 WL 1674348, at *3–4 (S.D. Tex. Apr. 17,
2019).
As such, the Court recommends Defendant’s motion to dismiss should be
granted with regard to Plaintiff’s breach of contract claim.
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d. Leave to Amend
Because Plaintiff is proceeding pro se, her failure to meet the specific
pleading requirements should not automatically result in dismissal of the
complaint with prejudice to re-filing. 	Hart v. Bayer Corp., 199 F.3d 239, 248
n.6 (5th Cir. 2000). While pro se plaintiffs generally should be afforded at least
one opportunity to amend, exceptions exist when, for example, “the defect is
simply incurable or the plaintiff has failed to plead with particularity after
being afforded repeated opportunities to do so.” 	Id. 	Additionally, the Court
need not grant leave to amend, even to a pro se plaintiff, “if the plaintiff has
already pleaded his ‘best case.’” Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir.
2009).
Here, Plaintiff has neither responded to Defendant’s motion nor sought
leave to amend her Original Petition. Given her silence, it is unclear whether
Plaintiff has pleaded her best case. 	See Bishop v. Bennett, No. 3:24-cv-126,
2024 WL 5330028, at *3 (S.D. Miss. Dec. 20, 2024), report and recommendation
adopted, 	No. 	3:24-cv-126, 	2025 	WL 	209164 	(S.D. 	Miss. 	Jan. 	15, 	2025)
(comparing cases).
Out of an abundance of caution, given Plaintiff’s pro se status, the Court
recommends 	Plaintiff 	be 	allowed 	fourteen 	days 	from 	the 	entry 	of 	this
Memorandum and Recommendation to file a motion seeking leave to amend
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her complaint. If Plaintiff fails to seek leave to amend within that time period,
the 	Court 	recommends 	Defendant’s 	Motion 	to 	Dismiss 	be 	granted 	and
Plaintiff’s claims be dismissed with prejudice. See id. at *3–4.
IV. 	Conclusion
Based on the foregoing, the Court RECOMMENDS Plaintiff’s claims be
DISMISSED unless she timely files a motion seeking leave to amend her
complaint within fourteen days of this Memorandum and Recommendation. If
Plaintiff fails to timely move for leave to amend, the Court RECOMMENDS
Defendant’s Motion to Dismiss (ECF No. 7) be GRANTED and Plaintiff’s
claims be DISMISSED WITH PREJUDICE.
The Clerk shall send copies of this Memorandum and Recommendation
to the respective parties who have fourteen days from the receipt thereof to file
written objections thereto pursuant to Federal Rule of Civil Procedure 72(b)
and General Order 2002-13. Failure to file written objections within the time
period mentioned shall bar an aggrieved party from attacking the factual
findings and legal conclusions on appeal.
SIGNED in Houston, Texas on December 5, 2025.
______________________________
Richard W. Bennett
United States Magistrate Judge
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