4:25-cv-03123•Jelks v. Lakeview Loan Servicing, LLC et al
Testo completo
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION JENNIFER JELKS, Plaintiff, § § § § § § § § § § v. CIVIL ACTION NO. 4:25-cv-3123 LAKEVIEW LOAN SERVICING LLC, AND LOANCARE, LLC, Defendants. MEMORANDUM AND RECOMMENDATION Pending before the Court1 is Defendants Lakeview Loan Servicing, LLC and LoanCare, LLC’s (collectively, “Defendants”) Motion for Judgment on the Pleadings (ECF No. 4). Based on a review of the motion, arguments, and relevant law, the Court RECOMMENDS pro se Plaintiff Jennifer Jelks’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 Defendants’ Motion for Judgment on the Pleadings (ECF No. 4) 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. 3). United States District Court Southern District of Texas ENTERED December 16, 2025 Nathan Ochsner, Clerk Case 4:25-cv-03123 Document 13 Filed 12/16/25 in TXSD Page 1 of 11
2 I. Background On May 30, 2025, Plaintiff filed her Original Verified Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction (“Original Petition”) in the 61st Judicial District Court of Harris County, Texas. (See ECF No. 1 at 1). Per Plaintiff’s Original Petition, she is the owner of residential property in Harris County, Texas, subject to a mortgage serviced by Defendants. (ECF No. 1-4 at 1). Plaintiff alleges she attempted to apply for a loan modification over the phone on or about April 15, 2025, but that the application was denied without timely notice. (Id.). Plaintiff also states she “did not receive any written correspondence until after the 30- day window ha[d] passed.” (Id.). Plaintiff reapplied online, but her application was denied due to alleged missing information. (Id. at 2). Plaintiff then states that she “never received a 21-day foreclosure notice, and she has not been afforded an opportunity to cure the alleged default.” (Id.). Plaintiff added that a foreclosure sale was scheduled for June 3, 2025, and that she “is currently pursuing an SBA loan to bring the mortgage current and has family support to resume ongoing payments.” (Id.). Case 4:25-cv-03123 Document 13 Filed 12/16/25 in TXSD Page 2 of 11
3 On July 3, 2025, Defendants removed the case to this Court. (See ECF No. 1). After removal, Defendants filed their Motion for Judgment on the Pleadings. (ECF No. 4). Plaintiff did not file a response. II. Legal Standard “After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” FED. R. C IV . P. 12(c). “A motion for judgment on the pleadings under Rule 12(c) is subject to the same standard as a motion to dismiss under Rule 12(b)(6).” Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008). Federal Rule of Civil Procedure (“Rule”) 12(b)(6) allows defendants to move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” F ED. R. C IV . P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 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.’” York v. Welch, No. 20-cv-40580, 2024 WL 775179, at *2 (5th Cir. Feb. 26, 2024) (quoting Iqbal, 556 U.S. at 678). “‘Threadbare recitals of the elements of a cause of action, supported by mere conclusory Case 4:25-cv-03123 Document 13 Filed 12/16/25 in TXSD Page 3 of 11
4 statements, do not suffice.’” Id. (quoting Iqbal, 556 U.S. at 678). In assessing the sufficiency of the complaint, 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.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010); see Edmiston v. Borrego, 75 F.4th 551, 557–58 (5th Cir. 2023) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (citing FED. R. C IV . P. 12(b)(6))). III. Discussion Plaintiff’s Original Petition does not assert specific causes of action. (See ECF No. 1-4). However, Defendants acknowledge that, based on Plaintiff’s allegations related to multiple loan modification applications and an allegation that she never received a notice of sale and notice of default, violations of the Real Estate Settlement Procedures Act (“RESPA”) (12 U.S.C. 1024, et seq.) can be implied from the facts asserted. (See ECF No. 1 at 1–2). Defendants move to dismiss Plaintiff’s Original Petition with prejudice. (ECF No. 4 at 2). Plaintiff did not respond to Defendants’ 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 Case 4:25-cv-03123 Document 13 Filed 12/16/25 in TXSD Page 4 of 11
5 Plaintiff’s failure to respond to the motion, the Court will consider the merits of Defendants’ 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. Property Code Claim Defendants begin by noting Plaintiff alleges she did not receive the notice of acceleration and notice of sale. (ECF No. 4 at 4). However, Defendants argue Plaintiff’s claim fails because Texas Property Code § 51.002 does not create a private right of action. (Id.). “Texas Property Code § 51.002 requires a lender to provide notice of default and intent to accelerate, specify the action required to cure the default, and give the debtor an opportunity to cure the default within a minimum of twenty (20) days.” Carey v. Fargo, No. 15-cv-1666, 2016 WL 4246997, at *3 (S.D. Tex. Aug. 11, 2016); see TEX . PROP . C ODE § 51.002(d). However, Texas Property Code § 51.002 does not provide a private right of action. See Ashton v. BAC Home Loan Servicing, L.P., No. 4:13-cv-810, 2013 WL 3807756, at *4 (S.D. Tex. Jul. 19, 2013) (“This Court has not found any cases that interpret section 51.002 to establish an independent right of action for damages. The Case 4:25-cv-03123 Document 13 Filed 12/16/25 in TXSD Page 5 of 11
6 section also does not contain its own enforcement mechanism.”); see also Rucker v. Bank of Am., N.A., 806 F.3d 828, 830 n.2 (5th Cir. 2015) (“[T]he federal district courts that have addressed [this issue] seem to conclude that Section 51.002 does not intend an independent private cause of action.”). As such, to the extent Plaintiff asserts a claim under Texas Property Code § 51.002, her claim fails as a matter of law. See Solis v. U.S. Bank, N.A., No. 16- cv-661, 2017 WL 4479957, at *2 (S.D. Tex. June 23, 2017), aff’d, 726 F. App’x 221 (5th Cir. 2018). Defendants also argue that, to the extent Plaintiff’s claim can be interpreted as a wrongful foreclosure claim, Plaintiff’s claim still fails because Plaintiff has not and cannot plead a foreclosure sale has taken place. (See ECF No. 4 at 4). “Courts have construed claims under § 51.002 as claims for wrongful foreclosure.” Solis, 2017 WL 4479957, at *3. To state a claim for wrongful foreclosure under Texas law, plaintiffs 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.” Charter Nat. Bank--Houston v. Stevens, 781 S.W.2d 368, 371 (Tex. App.— Houston [14th Dist.] 1990, writ denied). Here, Plaintiff obtained a temporary restraining order preventing foreclosure. (ECF No. 1-4 at 11). Thus, because no foreclosure occurred, any claim for wrongful foreclosure would fail as a Case 4:25-cv-03123 Document 13 Filed 12/16/25 in TXSD Page 6 of 11
7 matter of law. See Solis, 2017 WL 4479957, at *3. “Additionally, any claim for attempted wrongful foreclosure would also fail as a matter of law because such claims are not cognizable under Texas law.” Id. at *3 n.2 (collecting cases). b. RESPA Defendants also argue Plaintiff vaguely asserts a claim pursuant to RESPA by alleging she attempted to apply for a loan modification over the phone on April 15, 2025, but did not receive a written denial until after the 30- day deadline. (ECF No. 4 at 5). Defendants infer Plaintiff is alleging a violation of 12 C.F.R. § 1024.41. (Id.). 12 C.F.R. § 1024.41—entitled “Loss mitigation procedures”—regulates loss mitigation procedures provided by loan servicers. See 12 C.F.R. § 1024.41. Section 1024.41 does not require that a servicer “provide any borrower with any specific loss mitigation option.” Id. § 1024.41(a). Instead, it specifies required procedures, including deadlines for reviewing timely loss mitigation applications, and requirements for notifying borrowers in writing, within 30 days of receipt of a complete loss mitigation application, of which loss mitigation options, if any, it will offer the borrower, or of the specific reasons for denying the application. Id. § 1024.41(c)(1)(ii), (d). To set out a claim under RESPA, Plaintiff must allege that: (1) Defendants violated 12 C.F.R. § 1024.41; (2) Plaintiff suffered actual or statutory damages; and (3) the amount of Case 4:25-cv-03123 Document 13 Filed 12/16/25 in TXSD Page 7 of 11
8 damages is causally connected. DeForge v. Wells Fargo Bank, No. 4:19-cv- 1412, 2020 WL 13411941, at *5 (S.D. Tex. July 16, 2020). Here, as noted by Defendants (ECF No. 4 at 6), Plaintiff has failed to set out the first element in her pleadings as she must allege that the acts in question concern her first complete application for loss mitigation. See DeForge v. Wells Fargo Bank, No. 4:19-cv-1412, 2020 WL 13411941, at *5 (S.D. Tex. July 16, 2020) (“Plaintiff has failed to set out the first element in his pleadings as he must allege that the act in question was his first complete application for loss mitigation. It is a condition precedent to maintaining this action.”); see also Solis, 726 F. App’x at 223 (“The district court did not err when it held that the [plaintiffs] failed to allege that this application was their first complete loss mitigation application. Moreover, it does not appear to be complete. Thus, [plaintiffs] again failed to plead the prequisites of a plausible claim.”). As such, to the extent Plaintiff alleges a violation of 12 C.F.R. § 1024.41, the Court finds the claim should be dismissed.2 See Ruiz v. PennyMac Loan Services, LLC, No. 3:18-cv-1544, 2018 WL 4772410, at *2 (N.D. Tex. Oct. 3, 2018). 2 Defendants also argue, “[t]o the extent Plaintiff’s RESPA claims extend to her second stated application, Plaintiff admits that the application was incomplete.” (ECF No. 4 at 6 (citing ECF No. 1-4 at 2)). Similar to above, to the extent Plaintiff alleges a violation of 12 C.F.R. § 1024.41 in relation to her second application, the Court finds the claim should be dismissed. See Solis, 726 F. App’x at 223. Case 4:25-cv-03123 Document 13 Filed 12/16/25 in TXSD Page 8 of 11
9 c. Injunctive Relief Defendants also argue that, because Plaintiff has not asserted any viable cause of action against Defendants, Plaintiff is not entitled to any injunctive relief, and such a request should be denied. (ECF No. 4 at 6). “[T]he law is clear that injunctive relief is an equitable remedy, not a cause of action, and a claim for such relief should be dismissed when no substantive legal claims are pled.” Scott v. JP Morgan Chase Bank, N.A., No. 4:13-cv-3211, 2014 WL 4167980, at *7 (S.D. Tex. Aug. 19, 2014). Here, because Plaintiff does not have a viable cause of action, her request for injunctive relief cannot stand alone. See Sanchez v. Wells Fargo Bank, N.A., No. 20-cv-188, 2020 WL 2086549, at *3 (W.D. Tex. Apr. 30, 2020). 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 Case 4:25-cv-03123 Document 13 Filed 12/16/25 in TXSD Page 9 of 11
10 already pleaded his ‘best case.’” Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009). Here, Plaintiff has neither responded to Defendants’ 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 her complaint. If Plaintiff fails to seek leave to amend within that time period, the Court recommends Defendants’ 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 Case 4:25-cv-03123 Document 13 Filed 12/16/25 in TXSD Page 10 of 11
11 Defendants’ Motion for Judgment on the Pleadings (ECF No. 4) 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 15, 2025. ______________________________ Richard W. Bennett United States Magistrate Judge Case 4:25-cv-03123 Document 13 Filed 12/16/25 in TXSD Page 11 of 11
Ti chiedi come si applica questo testo alla tua situazione?
Consulenza gratuita, senza impegno
Descrivi la tua situazione. Il nostro team ti ricontatterà via e-mail per la tua consulenza.
Continua la tua ricerca in ChatGPT o Claude
Collega Omnilex per cercare nel corpus legale dal tuo assistente IA.