3:25-cv-01242•Fuller v. MSR Asset Vehicle LLC et al
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1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION PETERICK FULLER, Plaintiff, v. MSR ASSET VEHICLE LLC et al., Defendants. § § § § § § § § § Case No. 3:25-cv-01242-E-BT FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Before the Court are separate Motions to Dismiss filed by Defendants MSR Asset Vehicle LLC and PHH Mortgage Services (ECF No. 16) and by Defendant PNC National Bank Association (ECF No. 29). As explained below, the District Judge should DISMISS with prejudice Plaintiff’s RESPA and Regulation X claim and decline to exercise supplemental jurisdiction over any pendent state-law claims. Background This case arises from the attempted foreclosure of Plaintiff Peterick Fuller’s home in Cedar Hill, Texas. See Pl. First Am. Compl. (ECF No. 11). Succinctly stated, Plaintiff alleges that he obtained a mortgage loan to purchase his home in August 2021. Id. ¶¶ 10–11. A year later, the original lender transferred Plaintiff’s mortgage loan to MSR. Id. ¶ 12. In early 2025, PHH, the mortgage loan servicer, approved Plaintiff for a loan modification. Id. ¶¶ 13 -14. Then, due to an error by Plaintiff’s personal bank, PNC Bank, Plaintiff missed a mortgage payment under Case 3:25-cv-01242-E-BT Document 34 Filed 02/17/26 Page 1 of 11 PageID <pageID>
2 the loan modification. Id. ¶¶ 15 -17, 19. As a result, PHH initiated foreclosure proceedings and scheduled a foreclosure sale. Id. ¶¶ 18, 22. A few days before the scheduled foreclosure, Plaintiff sued MSR, PHH, and PNC Bank in Texas state court to prevent the sale. Id. ¶¶ 1, 21. MSR and PHH timely removed the lawsuit to federal court.1 See Not. Removal 2–5 (ECF No. 1). In June 2025, Plaintiff filed an Amended Complaint asserting claims against MSR and PHH for: (1) breach of contract; (2) common law fraud; (3) violation of RESPA and Regulation X; (4) violation of the Texas Debt Collection Act; and (5) promissory estoppel. Plaintiff also asserts one claim against PNC Bank: common law fraud. In response, MSR and PHH moved to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). See Mot. Dismiss (ECF No. 16). Later, PNC appeared and filed its own motion to dismiss under Rules 12(b)(6) and 9(b). See Mot. Dismiss (ECF No. 29). Both motions have been fully briefed and are ripe for consideration. Legal Standards To survive a Rule 12(b)(6) motion, a plaintiff’s complaint must contain sufficient factual matter to state a plausible claim for relief on its face. Bell Atl. Corp. 1 MSR and PHH removed based on diversity and federal question jurisdiction. See Not. Removal 2–5 (ECF No. 1). But the jurisdictional allegations about MSR’s citizenship were deficient, so the Court ordered Defendants to file an amended notice of removal. See Not. Deficiency (ECF No. 6). The Amended Notice of Removal abandoned diversity jurisdiction as a basis for removal and instead relied solely on federal question jurisdiction. See Am. Not. Removal (ECF No. 8); see also Civil Cover Sheet (ECF No. 8-1). Case 3:25-cv-01242-E-BT Document 34 Filed 02/17/26 Page 2 of 11 PageID <pageID>
3 v. Twombly, 550 U.S. 544, 570 (2007). “To be plausible, the complaint’s ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010) (quoting Twombly, 550 U.S. at 555). This pleading standard does not require “detailed factual allegations,” but it does demand more than an unadorned accusation devoid of factual support. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). “[A] formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679. When the facts do not permit the Court to infer more than the mere possibility of misconduct, the complaint has stopped short of showing that the plaintiff is plausibly entitled to relief. Id. at 678 (citing Twombly, 550 U.S. at 557). When applying the plausibility standard, the Court “accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks and citations omitted). But a court may not look beyond the pleadings. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). Review is “limited to the complaint, any documents attached to the complaint, and any documents attached to the [motion to Case 3:25-cv-01242-E-BT Document 34 Filed 02/17/26 Page 3 of 11 PageID <pageID>
4 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). ANALYSIS I. Plaintiff fails to state a plausible claim for violating RESPA and Regulation X. Regulation X regulates loss mitigation procedures provided by loan servicers, see 12 C.F.R. § 1024, and RESPA provides a private right of action for borrowers to enforce Regulation X, see 12 U.S.C. § 2605(f). Plaintiff alleges that MSR and PHH violated RESPA and Regulation X by: failing, neglecting, or refusing to send Plaintiff the Loan Modification Agreement to sign and instead canceled the agreement and failed to provide any written denial or approval to Plaintiff after Plaintiff had fully performed and tendered the April 2025 trial payment under that agreement, Defendants PHH and MSR wholly failed to provide him with a loan modification agreement to execute, even though the Defendant had received and accepted his accepted trial period payment for April 2025, and instead engaged in “dual-tracking” and proceeded to accelerate the loan and post Plaintiff’s homestead property for foreclosure sale. See Am. Compl. ¶ 39 (ECF No. 11). Plaintiff further alleges that Defendants’ conduct is the “producing cause of the actual damages sustained and incurred by Plaintiff in excess of the minimum jurisdictional limits of this Court.” Id. ¶¶ 36, 39. But RESPA applies only to mortgage loan servicers—not lenders. See, e.g., Christiana Tr. v. Riddle, 911 F.3d 799, 804 (5th Cir. 2018) (“By its plain terms, [RESPA] imposes duties only on servicers.”); see also Robins v. PHH Mortg. Corp., No. 4:20-CV-1163, 2020 WL 5604042, at *3 (S.D. Tex. Sept. 18, 2020) (advising “[t]he precedent is clear” that claims under RESPA and Regulation X against a mortgagee fail as a matter of law”). Case 3:25-cv-01242-E-BT Document 34 Filed 02/17/26 Page 4 of 11 PageID <pageID>
5 Plaintiff specifically alleges that PHH is “the current servicer of [his] mortgage loan.” Am. Compl. ¶¶ 4, 36 (ECF No. 11). As to MSR, Plaintiff alleges that MSR is “the current mortgagee and owner and holder of Plaintiff’s mortgage loan.” Id. ¶ 3. Accordingly, because Plaintiff’s allegations establish that MSR is a lender and not a servicer, Plaintiff has failed to state a claim against MSR for violating RESPA and Regulation X. See Christiana, 911 F.3d at 804. Further, to survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plausibly allege that actual damages resulted from a RESPA violation. See Whittier v. Ocwen Loan Servicing, L.L.C., 594 F. App’x 833, 836 (5th Cir. 2014) (emphasis added). A conclusory statement regarding “actual damages” is insufficient—the complaint must include “facts giving rise to a reasonable inference that [Plaintiff] suffered actual damages from the alleged violation of RESPA.” See Allen v. Wells Fargo Bank, Nat’l Ass’n, No. 3:16-CV-0249-D, 2017 WL 3421067, at *4 (N.D. Tex. Aug. 9, 2017); Hurd v. BAC Home Loans Servicing, LP, 880 F. Supp. 2d 747, 768 (N.D. Tex. 2012). Here, Plaintiff alleges that the RESPA violations “are a producing cause of the actual damages sustained and incurred by Plaintiff in excess of the minimum jurisdictional limits of this Court.” Am. Compl. ¶ 40. But this conclusory statement is insufficient to plausibly allege actual damages under RESPA. See Allen, 2017 WL 3421067, at *4; Hurd, 880 F. Supp. 2d at 768. Plaintiff fails to explain what his actual damages are or how Defendants’ violation of RESPA caused those damages to occur. In his response to the Motion to Dismiss, Plaintiff attempts to clarify that his “actual damages” under RESPA were “in the form of attorney’s fees, costs and Case 3:25-cv-01242-E-BT Document 34 Filed 02/17/26 Page 5 of 11 PageID <pageID>
6 expenses to file suit to stop Defendant PHH’s illegal actions.” See Resp. Mot. Dismiss ¶¶ 25, 36, 52 (ECF No. 30). But this allegation does not appear in the Amended Complaint, and counsel’s arguments in a brief are no substitute for properly pleaded allegations. See Sheppard v. Cheeks, No. 6:19-CV-01366, 2020 WL 2301367 (W.D. La. Apr. 13, 2020), rec. adopted, 2020 WL 2248134 (W.D. La. May 7, 2020), aff'd, No. 20-30355, 2022 WL 964202 (5th Cir. Mar. 30, 2022) (“The law is well-settled that arguments in a brief are no substitute for properly plead allegations: it is axiomatic that a complaint cannot be amended by briefs in opposition to a motion to dismiss.”); In re Enron Corp. Sec., Derivative & ERISA Litig., 761 F. Supp. 2d 504, 566 (S.D. Tex. 2011) (accord).2 Moreover, the Fifth Circuit has expressly rejected this argument— attorney’s fees and litigation expenses cannot, as a matter of law, satisfy the actual damages requirement of a RESPA claim. Whittier, 594 F. App’x at 837 (citing Steele v. Quantum Servicing Corp., No. 3:12-CV-2897-L, 2013 WL 3196544 (N.D. Tex. June 25, 2013) (Lindsay, J.) and agreeing that litigation fees and expenses are permitted in addition to—but do not themselves constitute—actual damages under RESPA). Thus, the District Judge should dismiss Plaintiff’s RESPA and Regulation X claim against MSR and PHH. 2 See also Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794, 806 (5th Cir. 2012) (noting that, because a Rule 12(b)(6) motion tasks the Court with “assess[ing] the legal sufficiency of the complaint,” the Court does not consider allegations that appear for the first time in plaintiffs’ briefing). Case 3:25-cv-01242-E-BT Document 34 Filed 02/17/26 Page 6 of 11 PageID <pageID>
7 II. The Court should decline to exercise jurisdiction over Plaintiff’s pendent state- law claims. As mentioned, Defendants MSR and PHH originally removed based on diversity and federal question jurisdiction. See Not. Removal (ECF No. 1). Upon review of the Notice of Removal, the Court noted that MSR and PHH had failed to invoke the Court’s diversity jurisdiction because the pleadings failed to sufficiently allege MSR’s citizenship. See Notice Deficiency (ECF No. 6). In their Amended Notice of Removal, the removing defendants abandoned diversity as a basis for jurisdiction and instead anchored removal solely on the Court’s federal question jurisdiction over Plaintiff’s RESPA and Regulation X claim. See Am. Not. Removal (ECF No. 8); Civil Cover Sheet (ECF No. 8-1). Plaintiff’s Amended Complaint, too, does not plead a basis for this Court to exercise diversity jurisdiction, as it does not allege the Parties’ citizenship. See Am. Compl. ¶¶ 2–8 (ECF No. 11); See, e.g., Kerney v. Fort Griffin Fandangle Ass'n, Inc., 624 F.2d 717, 719 (5th Cir. 1980). Thus, the Court has jurisdiction over this case based only on federal question jurisdiction arising from the RESPA and Regulation X claim against MSR and PHH. Plaintiff’s remaining claims arise under state law and therefore the Court has only supplemental jurisdiction over those claims. See generally Am. Compl. (Aside from RESPA, Plaintiff asserts claims for breach of contract, common law fraud, promissory estoppel, and violations of the Texas Debt Collections Act). Where—as recommended here—a court dismisses all federal claims, “the court must exercise its discretion whether to exercise supplemental jurisdiction” over the Case 3:25-cv-01242-E-BT Document 34 Filed 02/17/26 Page 7 of 11 PageID <pageID>
8 remaining state-law claims pursuant to 28 U.S.C. § 1367(c). Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5th Cir. 1999). Under 28 U.S.C. § 1367(c), the Court may decline to exercise supplemental jurisdiction if: (1) the claim raises a novel or complex issue of state law; (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction; (3) the district court has dismissed all claims over which it has original jurisdiction; or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367. According to the Fifth Circuit, “[t]he general rule is that a court should decline to exercise jurisdiction over remaining state-law claims when all the federal claims are eliminated before trial[.]” See, e.g., Brookshire Bros. Holding v. Dayco Prods., Inc., 554 F.3d 595, 602 (5th Cir. 2009) (citing Batiste v. Island Recs. Inc., 179 F.3d 217, 227 (5th Cir. 1999). Thus, where federal claims are dismissed before trial, the relevant factors typically weigh heavily in favor of dismissing the state-law claims. See Holland v. GEXA Corp., 161 F. App'x 364, 366 (5th Cir. 2005). The Court’s decision to exercise supplemental jurisdiction is guided “by both the statutory provisions of 28 U.S.C. § 1367(c) and the balance of the relevant factors of judicial economy, convenience fairness, and comity.” Batiste, 179 F.3d at 227 (citations omitted) (citations omitted). Here, the District Judge should exercise her discretion and decline to exercise supplemental jurisdiction over the remaining state-law claims. Case 3:25-cv-01242-E-BT Document 34 Filed 02/17/26 Page 8 of 11 PageID <pageID>
9 First, the case is still in a nascent state, and the general rule is that a court should decline to exercise supplemental jurisdiction over remaining state-law claims when all the federal claims are eliminated before trial. Second, the balance of factors weighs against exercising supplemental jurisdiction. Although Plaintiff’s claims do not raise novel or complex issues of state law, the undersigned has recommended the District Judge dismiss the federal claims, and therefore the state-law claims now “substantially predominate.” Comity, too, weighs against exercising supplemental jurisdiction because state courts “often have superior familiarity with their jurisdictions’ laws.” See Williams v. Does, No. 3:24-CV-02026-E (BT), 2024 WL 4375797, at *3 (N.D. Tex. Sept. 16, 2024) (Rutherford, J.), rec. adopted, 2024 WL 4376282 (N.D. Tex. Oct. 2, 2024) (Brown, J.). Finally, judicial economy is best served by declining jurisdiction because, as stated, this case is in its early stages, discovery is still ongoing, and the deadline for summary judgment motions has not passed. See Pretrial Sched. Order (ECF No. 15). If the District Judge agrees that Plaintiff’s federal claims should be dismissed, she should decline to exercise supplemental jurisdiction over any state-law claims. And when a court declines to exercise supplemental jurisdiction, it should dismiss the pendent state-law claims without prejudice. See Scranton Constr. Co. v. Litton Indus. Leasing Corp., 494 F.2d 778 (5th Cir. 1974), cert. denied, 419 U.S. 1105 (1975). III. Plaintiff is not entitled to leave to amend. Plaintiff, who is represented by counsel, has already amended his complaint and did not request leave to amend, even after Defendants pointed out many pleading deficiencies in the Amended Complaint. Additionally, granting leave to amend would Case 3:25-cv-01242-E-BT Document 34 Filed 02/17/26 Page 9 of 11 PageID <pageID>
10 be futile, as Plaintiff has asserted that the basis for his damages under RESPA are his attorney’s fees and litigation costs, which are, “as a matter of law,” not actual damages capable of supporting a RESPA claim. Whittier, 594 F. App’x at 837; see also Rio Grande Royalty Co. v. Energy Transfer Partners, L.P., 620 F.3d 465, 468 (5th Cir. 2010) (“The trial court acts within its discretion in denying leave to amend where the proposed amendment would be futile because it could not survive a motion to dismiss.”). RECOMMENDATION For the reasons stated, District Judge should GRANT in part Defendants MSR Asset Vehicle LLC and PHH Mortgage Services’s Motion to Dismiss (ECF No. 16) and DISMISS with prejudice Plaintiff’s claim under RESPA and Regulation X. The District Judge should decline to exercise supplemental jurisdiction over any pendent state-law claims against Defendants MSR, PHH, and PNC, and DISMISS those claims without prejudice. SO RECOMMENDED. February 17, 2026. ______________________________ REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE Case 3:25-cv-01242-E-BT Document 34 Filed 02/17/26 Page 10 of 11 PageID <pageID>
11 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 specific finding or recommendation to which objection is made, state the basis for the objection, and specify 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 Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). Case 3:25-cv-01242-E-BT Document 34 Filed 02/17/26 Page 11 of 11 PageID <pageID>
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