Pestova v. US Bank Trust Company

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SVETLANA A. PESTOVA,
Plaintiff,
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v. 	CIVIL ACTION NO. 4:25-cv-551
US BANK TRUST COMPANY,
Defendant.
MEMORANDUM AND RECOMMENDATION
Pending before the Court1 is U.S. Bank Trust Company as Trustee for
Velocity Commercial Loan Trust 2024-2 (“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. 	The 	Court 	FURTHER 	RECOMMENDS 	Defendant’s
previously filed Motion to Dismiss (ECF No. 6) be DENIED AS MOOT.
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. 5).
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 October 28,
2022. (ECF No. 1 at 12). The property allegedly suffered damage from a storm
in May 2024. (Id.). As a result, Plaintiff states the property had to be vacated
for repairs. 	(Id.). 	In June 2024, Plaintiff states an insurance claim was filed
and a check from the insurance company was sent to the mortgage servicer.
(Id.). By July 2024, Plaintiff states the mortgage servicer requested the check
be endorsed back to the mortgage servicer, which Plaintiff alleges was done a
few days later. 	(Id.). 	Plaintiff states the account was ultimately transferred
to Defendant. (Id.).
Plaintiff then alleges she never received notices of the transfers, and that
miscommunications have existed for several months. (Id.). Plaintiff also states
she has not received notices of acceleration or notices of foreclosure at her
mailing address. 	(Id.). 	Finally, Plaintiff states she requested a pay off
statement and reinstatement figures, but that those documents have not been
released. (Id.).
On February 3, 2025, Plaintiff sued Defendant for unjust enrichment
and injunctive relief in the 281st District Court of Harris County, Texas, in
Case No. 2025-07253, to prevent a foreclosure sale of her property. (See id. at
1, 13). On February 10, 2025, Defendant removed the case to this Court. (Id.)
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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.” F ED.
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)
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
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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
scripts to save a complaint.” Santerre v. Agip Petroleum 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,
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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 FED. R. C IV .
P. 8(e) (“Pleadings must be construed so as to do justice”).
III. 	Discussion
Plaintiff’s Original Petition alleges only an unjust enrichment claim.
(ECF No. 1 at 13). Defendant moves to dismiss Plaintiff’s Original Petition for
failure to state a claim upon which 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.”).
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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
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).
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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. Breach of Contract
Plaintiff’s Original Complaint does not allege a breach of contract claim.
However, Defendant addresses a breach of contract claim in the event the
Court interprets Plaintiff’s allegation that proper notices of default were not
received as a breach of contract claim for Defendant failing to send notices of
default. (ECF No. 7 at 3). Construing Plaintiff’s pleading liberally, the Court
will also analyze whether Plaintiff plausibly pleaded a breach of contract claim.
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).
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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. (See ECF No. 1 at 12).
As to the second prong, Plaintiff does not plead whether she tendered
performance with respect to her loan payments. (See id. at 12–13).
As to the third prong, Plaintiff alleges Defendant failed to provide payoff
and reinstatement figures. 	(ECF No. 1 at 12). 	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 does not 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, to the extent Plaintiff intended to assert a breach of contract
claim, the Court recommends Defendant’s motion to dismiss should be granted
as to that claim.
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c. 	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. 	Further, 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 that 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,
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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 	Court 	FURTHER
RECOMMENDS Defendant’s previously filed Motion to Dismiss (ECF No. 6)
be DENIED AS MOOT.
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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