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
The Court1 previously issued a Memorandum and Recommendation on
US Bank Trust Company as Trustee for Velocity Commercial Loan Trust 2021-
3’s (“Defendant”) Motion to Dismiss (ECF No. 7), recommending that 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 the Memorandum and Recommendation. (ECF No. 12
at 1–2). 	Plaintiff timely filed her Motion for Leave to Amend. 	(ECF No. 13).
However, having reviewed the motion, arguments, and relevant law, the Court
RECOMMENDS Plaintiff’s Motion for Leave to Amend (id.) be DENIED,
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
February 17, 2026
Nathan Ochsner, Clerk
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Defendant’s Motion to Dismiss (ECF No. 7) be GRANTED, and Plaintiff’s
claims be DISMISSED WITH PREJUDICE.
In 	the 	previous 	Memorandum 	and 	Recommendation, 	the 	Court
identified 	numerous 	issues 	with 	Plaintiff’s 	Original 	Petition. 	Plaintiff’s
Original Petition alleges claims for (1) unjust enrichment; (2) gross negligence;
and (3) breach of contract. 	(ECF No. 1 at 14). 	However, Plaintiff’s unjust
enrichment claim appears to be precluded. (ECF No. 12 at 6). As to Plaintiff’s
gross negligence claim, 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. (Id. at 7). As to
Plaintiff’s breach of contract claim, Plaintiff fails to (1) identify the provisions
in the Deed of Trust that were allegedly breached by Defendant and (2) plead
that she suffered actual damages as a result of Defendant’s actions. (Id. at 9).
While Plaintiff timely filed her motion for leave to amend her complaint,
she 	fails 	to 	address 	any 	of 	the 	deficiencies 	identified 	in 	the 	Court’s
Memorandum and Recommendation. (See ECF No. 13). Plaintiff also failed to
provide a proposed amended complaint. 	Instead, Plaintiff requests that the
Court hold a hearing before the case is dismissed so that her allegations could
be considered. (Id. at 9).
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Under Federal Rule of Civil Procedure 15(a), “[d]enial of leave to amend
may be warranted for undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies, undue prejudice to the
opposing party, or futility of a proposed amendment.” 	U.S. ex rel. Steury v.
Cardinal Health, Inc., 625 F.3d 262, 270 (5th Cir. 2010). Because Plaintiff fails
to 	cure 	the 	deficiencies previously 	identified 	by 	the 	Court, 	the 	Court
recommends Plaintiff’s Motion for Leave to Amend (ECF No. 13) be denied as
futile. 	See Post v. Comal Cnty., Texas, No. 18-cv-01203, 2021 WL 1620815, at
*1 (W.D. Tex. Jan. 6, 2021) (denying leave to amend where “Plaintiff has failed
to cure deficiencies by amendments previously allowed”); Vaughn v. Harris
Cnty. Hosp. Dist., No. 4:17-cv-2749, 2021 WL 8129671, at *2 (S.D. Tex. Dec. 16,
2021), 	report 	and 	recommendation 	adopted, 	No. 	4:17-cv-02749, 	2022 	WL
1165146 (S.D. Tex. Apr. 20, 2022), aff’d sub nom. United States ex rel. Vaughn
v. Harris Cnty. Hosp. Dist., No. 22-20659, 2023 WL 8649876 (5th Cir. Dec. 14,
2023) (“The Court further recommended Relator be denied leave to amend his
complaint because he did not explain how he would cure its deficiencies or
provide a proposed amended complaint.”).
Based on the foregoing, the Court RECOMMENDS Plaintiff’s Motion
for Leave to Amend (ECF No. 13) be DENIED, Defendant’s Motion to Dismiss
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(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 February 17, 2026.
______________________________
Richard W. Bennett
United States Magistrate Judge
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