US Bank National Association v. Malloy

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
U.S. BANK NATIONAL 	§
ASSOCIATION, as Trustee of the 	§
Citigroup Mortgage Loan Trust Inc. 	§
Asset-backed Pass-Through 	§
Certificates, Series 2007-AMC2 	§
Plaintiff, 	§ 	No. 3:24-CV-0382-B-BW
§
v. 	§
§
CHARLES FOSTER MALLOY, 	§
Defendant. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
In this diversity action, Plaintiff U.S. Bank National Association (“U.S.
Bank”) seeks to foreclose on a piece of real property located in Dallas, Texas
(“Property”). On July 1, 2025, U.S. Bank filed an amended motion to strike and
dismiss (Dkt. No. 40 (“Am. Mot.”)) in response to Defendant Charles Foster
Malloy’s (“Malloy”) amended answer (Dkt. No. 39 (“Am. Ans.”)). On August 20,
2025, U.S. Bank filed a motion for summary judgment (Dkt. No. 51 (“MSJ”)) and
appendix in support (Dkt. No. 52 (“MSJ App.”)). On September 12, 2025, U.S.
Bank filed a supplemental brief (Dkt. No. 57 (“Supp. Br.”)) and supplemental
appendix (Dkt. No. 58 (“Supp. App.”)) in support of its motion for summary
judgment. Malloy has failed to respond to either motion, and he has not requested
an extension of his deadline to do so. See N.D. Tex. L. Civ. R. 7.1(e) (requiring
response within 21 days of motion). United States District Judge Jane J. Boyle
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referred this case to the undersigned United States Magistrate Judge for pretrial
management. (Dkt. No. 21.)
Based on the relevant filings and applicable law, the undersigned recommends
that the amended motion to strike and dismiss be GRANTED IN PART and
DENIED IN PART and that the motion for summary judgment be GRANTED.
I. BACKGROUND
U.S. Bank, as trustee of a mortgage securitization trust, filed this action to
enforce, and to recover damages for alleged breach of, a mortgage loan agreement.
(See Dkt. No. 1 (“Compl.”).) In October 2006, Malloy executed a Texas Home
Equity Note (“Note”) in the principal sum of $320,000.00, payable to U.S. Bank’s
predecessor-in-interest. (See MSJ App. 6–8.) Malloy secured repayment of the Note
by executing a Texas Home Equity Security Instrument (“Deed of Trust”) granting
the original lender a first priority security interest in the Property at issue in this case.
(Id. 4 ¶ 7(a).) U.S. Bank acquired right, title, and interest in Malloy’s Note and Deed
of Trust in June 2008; the parties agreed to modifications of the loan agreement in
2008 and 2010. (See id. 28–30, 69–74, 75–81.)
U.S. Bank alleges that Malloy defaulted on the loan agreement, failing to
make required monthly installment payments due for February 1, 2020, and every
month since. (MSJ ¶ 12.) U.S. Bank further alleges that it has provided all necessary
notifications to Malloy, who has not cured his default. (Id. ¶¶ 13–16.) On February
16, 2024, U.S. Bank filed this lawsuit against Malloy for breach of contract, seeking
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judicial foreclosure on the Property. (See Compl.; MSJ ¶ 18.) U.S. Bank asserts that
Malloy’s amount owed as of July 23, 2025, is $482,697.38, with interest continuing
to accrue at a rate of five percent per year. (MSJ App. 84–88.)
Malloy, a licensed attorney appearing pro se in this action, filed his initial
answer (Dkt. No. 36 (“Ans.”)) on May 19, 2025. U.S. Bank filed a motion to strike
and dismiss (Dkt. No. 37 (“Mot.”)) on June 9, 2025, arguing that certain denials and
all affirmative defenses offered in Malloy’s answer should be struck pursuant to Rule
12(f) of the Federal Rules of Civil Procedure, while the putative counterclaim Malloy
asserted against U.S. Bank in the same pleading should be dismissed for failure to
state a claim. (Mot. at 1–2.) Malloy filed both a motion for leave to proceed in
forma pauperis (Dkt. No. 38 (“IFP”)) as well as an amended answer on June 18,
2025, altering only his putative counterclaim to include an additional paragraph of
accusations against U.S. Bank. (See Am. Ans. at 69.) U.S. Bank filed an amended
motion to strike and dismiss on July 1, 2025, reasserting its arguments from its
original motion. (Am. Mot. at 3.) Malloy did not respond.
U.S. Bank filed its motion for summary judgment with appendix in support on
August 20, 2025, following up with a supplemental brief and supplemental appendix
in support on September 12, 2025, to update its summary judgment facts with a new
exhibit. (Supp. Br. at 1.) Malloy again did not respond. U.S. Bank filed a motion to
compel Malloy’s discovery responses, (Dkt. No. 59), on September 29, 2025, which
the court granted on October 21, 2025, without any response from Malloy, (see Dkt.
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No. 61). U.S. Bank contends that Malloy has since deserted the Property and
allowed it to “substantially deteriorate” into a “state of disrepair.” (MSJ ¶ 20.)
Neighbors have filed numerous complaints with the City of Dallas regarding the
state of the Property, the City has filed six liens against the Property for services
performed related to code violations, and City officials who have inspected the
Property stated that it appeared to be abandoned. (MSJ App. 90–91.)
II. LEGAL STANDARDS
A. 	Rule 12(f)
In responding to a complaint, the defendant must “state in short and plain
terms its defense to each claim asserted against it and admit or deny the allegations
asserted against it by an opposing party.” Fed. R. Civ. P. 8(b)(1). In addition, Rule
8(c) allows a party to “affirmatively state any avoidance or affirmative defense.”
These pleading rules have been interpreted to require that affirmative defenses be
pleaded “with enough specificity or factual particularity to give the plaintiff ‘fair
notice’ of the defense that is being advanced.” Woodfield v. Bowman, 193 F.3d 354,
362 (5th Cir. 1999) (citation omitted). Under Rule 12(f), federal courts have the
authority to strike from a pleading “an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).
The decision to grant a motion to strike is within the court’s discretion, but
“because striking a portion of a pleading is a drastic remedy, and because it often is
sought by the movant simply as a dilatory tactic, motions under Rule 12(f) are
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viewed with disfavor and are infrequently granted.” Jacobs v. Tapscott, No. 3:04-CV-
1968-D, 2004 WL 2921806, at *2 (N.D. Tex. Dec. 16, 2004) (quoting FDIC v. Niblo,
821 F. Supp. 441, 449 (N.D. Tex. 1993)). A motion to strike on grounds of
immateriality or impertinence “should be granted only when the pleading to be
stricken has no possible relation to the controversy.” Thompson v. Tex. Dep’t of
Criminal Justice, 67 F.4th 275, 283–84 (5th Cir. 2023) (quoting Augustus v. Bd. of Pub.
Instruction, 306 F.2d 862, 868 (5th Cir. 1962)). A motion to strike a defense is
“proper when the defense is insufficient as a matter of law.” Kaiser Aluminum &
Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982)
(citation omitted).
B. 	Rule 12(b)(6)
A party may move to dismiss a claim if the complaint “fail[s] 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 complaint must allege “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). When considering a
Rule 12(b)(6) motion to dismiss, a court must “accept all well-pleaded facts as true
and view those facts in the light most favorable to” the nonmoving party. Sterling v.
City of Jackson, 159 F.4th 361, 372 (5th Cir. 2025). But this does not mean that courts
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are “bound to accept as true a legal conclusion couched as a factual allegation,”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555); nor does it require courts
to presume true mere “conclusory statements” or “threadbare recitals of the elements
of a cause of action,” Armstrong v. Ashley, 60 F.4th 262, 269 (5th Cir. 2023) (quoting
Harmon v. City of Arlington, 16 F.4th 1159, 1162–63 (5th Cir. 2021)). Rather, it simply
means that courts should take the well-pleaded factual allegations in a complaint
and, assuming their veracity, “determine whether they plausibly give rise to an
entitlement to relief.” Iqbal, 556 U.S. at 679.
C. 	Rule 56(a)
Summary judgment is proper when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The party moving for summary judgment
bears the initial burden of informing the court of the basis for its motion and
identifying the portion of the record “it believes demonstrates the absence of a
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A
factual “issue is material if its resolution could affect the outcome of the action.”
Weeks Marine, Inc. v. Fireman’s Fund Ins. Co., 340 F.3d 233, 235 (5th Cir. 2003) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “A dispute as to a material
fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.
2005) (citing Anderson, 477 U.S. at 251–52).
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The court views all facts and inferences in the light most favorable to the
nonmoving party, id. at 540, and it “avoid[s] credibility determinations and weighing
of the evidence,” Dabbasi v. Motiva Enter., 107 F.4th 500, 505 (5th Cir. 2024) (quoting
Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 474 (5th Cir. 2015)). When, as
here, the moving party bears the burden of proof on a claim at trial, it must
demonstrate entitlement to summary judgment by establishing “beyond
peradventure all of the essential elements of the claim[.]” Fontenot v. Upjohn Co., 780
F.2d 1190, 1194 (5th Cir. 1986). “The court has noted that the ‘beyond
peradventure’ standard is ‘heavy.’” Carolina Cas. Ins. Co. v. Sowell, 603 F. Supp. 2d
914, 923–24 (N.D. Tex. 2009) (quoting Cont’l Cas. Co. v. St. Paul Fire & Marine Ins.
Co., 3:04-CV-1866-D, 2007 WL 2403656, at *10 (N.D. Tex. Aug. 23, 2007)).
III. ANALYSIS
A. 	Amended Motion to Strike and Dismiss
U.S. Bank moves to strike the lengthy and nonspecific “denial” Malloy repeats
in full in response to sixty of the Complaint’s sixty-two paragraphs. (Mot. at 3.) In
each denial, Malloy asserts that there is “some” part of the above paragraph that he
“may be unable to either affirmatively admit or deny,” claiming that U.S. Bank
“seized control of the subject [P]roperty” and took away many of his personal
property items, including “items of evidence . . . relevant to this case and . . .
necessary to reference in order to more fully and carefully answer [U.S. Bank]’s
complaint.” (E.g., Ans. at 2 (emphasis added).) U.S. Bank seeks to strike this denial
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for three reasons: (1) the vague and noncommittal language violates Rule 8(b)(4)’s
requirement that a party “admit the part” of each allegation “that is true and deny
the rest,” (2) Malloy’s purported “explanation” for why he can neither admit nor
deny the allegations is immaterial in an answer, and (3) the denial is prejudicial to
U.S. Bank because it seems to inject irrelevant tort claims into a straightforward
judicial foreclosure action. (Mot. at 4–6.)
U.S. Bank also seeks to strike Malloy’s proffered affirmative defenses, in
which he contends that the case is barred by the “applicable statute of limitations” as
well as by “res judicata,” asserts that “the judgment is unenforceable and stale,” and
pleads “payment by counterclaim and offset.” (Ans. at 66.) U.S. Bank maintains
that these affirmative defenses are improperly pleaded under Rule 8 because they
lack the requisite specificity to give U.S. Bank “fair notice” of the defense being
advanced. (Mot. at 6 (citing Woodfield, 193 F.3d at 362).)
Though Rule 12(f) provides an efficient means of disposing patently
insufficient defenses, see C&C Inv. Props., LLC v. Trustmark Nat’l Bank, 838 F.3d 655,
660–61 (5th Cir. 2016) (citation omitted), the Fifth Circuit has long held that “the
action of striking a pleading should be sparingly used by the courts” and “motions[s]
to strike should be granted only when the pleading to be stricken has no possible
relation to the controversy,” Augustus, 306 F.2d at 868 (citation omitted). Pleadings
may be ill-advised, unpersuasive, and lacking in detail yet still bear some possible
relation to the case. The act of separating the factual wheat from the meritless chaff
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is better undertaken at the summary judgment stage of a case. See Antares Reinsurance
Co. v. Nat’l Transp. Assocs., Inc., No. 4:23-CV-00928-P, 2024 WL 3313354, at *2 (N.D.
Tex. May 10, 2024). Recognizing the “established policies disfavoring motions to
strike and favoring the resolution of cases on their merits,” the Court should deny in
part U.S. Bank’s motion to strike and dismiss. Canady v. Erbe Elektromedizin GmbH,
307 F. Supp. 2d 2, 8 (D.D.C. 2004) (citations omitted).
Malloy concludes his amended answer with a putative counterclaim, alleging
that U.S. Bank owes him damages for negligently and recklessly seizing the Property,
repeatedly breaking into the premises to steal his private property, falsely reporting to
the City of Dallas that the Property is abandoned, and leaving the Property
unsecured, allowing “criminals” to physically damage and vandalize the premises.
(Am. Ans. at 68–69.) Pursuant to Rule 12(b)(6), U.S. Bank moves to dismiss this
putative counterclaim for failure to state a claim. (Am. Mot. at 4.)
Malloy fails to identify a specific cause of action against U.S. Bank. Rule 8
does not require detailed factual allegations, but “it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at
678. Malloy’s putative counterclaim amounts to little more than a list of
unsupported, nonspecific accusations of property damage. To survive a motion to
dismiss, a claim must contain more than a mere “formulaic recitation of the elements
of a cause of action,” Twombly, 550 U.S. at 555; Malloy’s counterclaim does not
even contain that much. Rather, it reads as a series of conclusory statements lacking
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any well-pleaded factual allegations that could “plausibly give rise to entitlement to
relief.” Iqbal, 556 U.S. at 679. The putative counterclaim should be dismissed.
B. 	Motion for Summary Judgment
U.S. Bank moves for summary judgment allowing it to proceed with
foreclosure against the Property. As noted, Malloy has not responded to U.S. Bank’s
motion. Although Malloy’s failure to respond does not permit the court to enter a
“default” summary judgment, see, e.g., Tutton v. Garland Indep. Sch. Dist., 733 F. Supp.
1113, 1117 (N.D. Tex. 1990), a “summary judgment nonmovant who does not
respond to the motion is relegated to [his] unsworn pleadings, which do not
constitute summary judgment evidence,” Bookman v. Shubzda, 945 F. Supp. 999,
1002 (N.D. Tex. 1996) (citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165
(5th Cir. 1991)). Moreover, when a party fails to “properly address another party’s
assertion of fact as required by Rule 56(c),” the court may “consider the fact
undisputed for purposes of the motion” and “grant summary judgment if the motion
and supporting materials—including the facts considered undisputed—show that the
movant is entitled to it.” Fed. R. Civ. P. 56(e)(2)–(3).
“To foreclose under a security instrument in Texas with a power of sale, the
lender must demonstrate: (1) a debt exists; (2) the debt is secured by a lien created
under Art. 16, § 50(a)(6) of the Texas Constitution; (3) the debtor is in default under
the note and security instrument; and (4) the debtor received notice of default and
acceleration.” PennyMac Loan Servs., LLC v. Beall, No. 3:23-CV-1909-B-BK, 2024
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WL 5256503, at *3 (N.D. Tex. Dec. 17, 2024) (citing Huston v. U.S. Bank Nat’l Ass’n,
988 F. Supp. 2d 732, 740 (S.D. Tex. 2013)), rec. adopted, 2025 WL 72105 (N.D. Tex.
Jan. 10, 2025). U.S. Bank has adduced undisputed summary judgment evidence that
establishes each of these elements beyond peradventure.
There is no dispute that Malloy’s debt exists. (MSJ App. 6–8.) U.S. Bank has
adduced evidence demonstrating that the debt, evidenced by the Deed of Trust, was
duly recorded in the Dallas County Official Public Records, (id. 57–58, 60, 65, 68),
that U.S. Bank is the last owner of the Note and assignee of public record of the
Deed of Trust, (id. 28–30), and that Malloy is in default, (id. 4–5 ¶ 7(c)). U.S. Bank
provides the written Deed of Trust, signed by Malloy, as summary judgment
evidence, which states that it was secured by a lien consistent with Section 50(a)(6) of
Article XVI of the Texas Constitution. (Id. 42.) U.S. Bank has established that,
under the terms of the Deed of Trust and the Note, Malloy is in default under the
loan agreement. (MSJ App. 4–5 ¶ 7(c)–(d).) And, finally, it has attached a written
copy of the Notice of Default and the Notice of Acceleration, (id. 31–36) and
produced evidence that it mailed the Notice of Default on December 28, 2021, and
mailed the Notice of Acceleration on January 4, 2022, (id. 37–40).
Based on U.S. Bank’s undisputed evidence, the undersigned concludes that
U.S. Bank has demonstrated beyond peradventure that it is entitled to summary
judgment allowing it to proceed with foreclosure in accordance with the Deed of
Trust and Tex. Prop. Code Ann. § 51.002.
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IV. RECOMMENDATION
For the foregoing reasons, the undersigned RECOMMENDS that the District
Judge GRANT IN PART and DENY IN PART Plaintiff U.S. Bank National
Association’s amended motion to strike and dismiss (Dkt. No. 40), GRANT its
motion for summary judgment (Dkt. No. 51), and enter judgment authorizing
judicial foreclosure.
SO RECOMMENDED on January 13, 2026.
BRIAN McKAY
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the
manner provided by law. Any party who objects to any part of this report and
recommendation must file specific written objections within 14 days after being
served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). To be specific,
an objection must identify the finding or recommendation to which objection is
made, state the basis for the objection, and indicate the place in the magistrate
judge’s report and recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to the briefing before the
magistrate judge is not specific. Failure to file specific written objections will bar the
aggrieved party from appealing the factual findings and legal conclusions of the
magistrate judge that are accepted or adopted by the district court, except upon
grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415,
1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1)
(extending the time to file objections to 14 days).
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