Ware v. MidFirst Bank et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Larry 	Robert 	Ware, 	individually
and 	as 	executor 	of 	the 	Estate 	of
William Tyrone Johnson,
Plaintiff,
v.
MidFirst Bank, et al.,
Defendants.
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Civil Action No. 4:26-cv-01748
MEMORANDUM AND RECOMMENDATION
In this foreclosure suit that was removed to this Court, Defendant
MidFirst Bank and Defendants Israel Saucedo and Barrett Daffin Frappier
Turner & Engel, LLP (the “Attorney Defendants”) filed motions to dismiss
Plaintiff Larry Robert Ware’s claims under Fed. R. Civ. P. 12(b)(6). 	Dkt. 10
(MidFirst Bank’s motion); Dkt. 12 (Attorney Defendants’ motion). 	Because
Ware did not respond to either motion, the motions are deemed unopposed.
See 	S.D. Tex. L.R. 	7.4. 	After carefully considering the 	motions, Ware’s
pleading, and the applicable law, it is recommended that all claims against
Attorney Defendants be dismissed for lack of subject matter jurisdiction
because they were improperly joined, and that MidFirst Bank’s motion to
United States District Court
Southern District of Texas
ENTERED
June 04, 2026
Nathan Ochsner, Clerk
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dismiss (Dkt. 10) be granted. Attorney Defendants’ separate motion to dismiss
(Dkt. 12) all claims on the merits should be denied as moot.
Background
This is a foreclosure dispute concerning real property located at 4030
Glen Cove Drive, Houston, Texas 77021 (the “Property”). Dkt. 1-4 at 3. Ware
filed this suit in state court, individually and as executor of the estate of
William Tyrone Johnson. 	Id. at 2. 	The petition asserted that an impending
foreclosure sale scheduled for March 3, 2026 would be wrongful because “there
are probate issues affecting authority.” 	Id. at 4. 	Ware pleaded a “Wrongful
Foreclosure Attempt” claim and sought a declaration “regarding validity of
lien, default, and authority to foreclose.” 	Id. 	He also requested a temporary
restraining order and preliminary injunction to stop the foreclosure sale. Id.
On March 3, 2026, MidFirst Bank removed the action to this Court based
on diversity jurisdiction. 	Dkt. 1. 	Although the notice of removal implicitly
concedes that Attorney Defendants share the same state of citizenship (Texas)
as 	Ware, 	MidFirst 	Bank 	maintained 	that 	Attorney 	Defendants 	were
improperly 	joined 	such 	that 	their 	non-diverse 	citizenships 	should 	be
disregarded. 	See id. at 3-5. 	Invoking Fed. R. Civ. P. 12(b)(6), MidFirst Bank
then filed a motion to dismiss (Dkt. 10), as did Attorney Defendants (Dkt. 12).
Ware did not respond. Both motions are ripe for resolution.
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Legal Standard
Dismissal under Rule 12(b)(6) is warranted if a party fails “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 plaintiff 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) (citing Twombly, 550 U.S. at 556).
“Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” 	Iqbal, 556 U.S. at 678. 	Rather,
“[t]he complaint (1) on its face (2) must contain enough factual matter (taken
as true) (3) to raise a reasonable hope or expectation (4) that discovery will
reveal relevant evidence of each element of a claim.” 	See Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009) (analyzing Twombly, 550 U.S.
at 555-56). When resolving a Rule 12(b)(6) motion, the court “accept[s] all well-
pleaded facts as true and view[s] those facts in the light most favorable to the
plaintiffs.” 	Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quotation
omitted).
Pro se pleadings are liberally construed. 	Butler v. S. Porter, 999 F.3d
287, 292 (5th Cir. 2021) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)
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(per curiam)). 	But “regardless of whether the plaintiff is proceeding pro se or
is 	represented 	by 	counsel, 	conclusory 	allegations 	or 	legal 	conclusions
masquerading as factual conclusions will not suffice to prevent a motion to
dismiss.” 	Prescott v. UTMB Galveston Tex., 73 F.4th 315, 318 (5th Cir. 2023)
(quoting Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)); see
also Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016) (per
curiam) (“[P]ro se plaintiffs must still plead factual allegations that raise the
right to relief above the speculative level.”).
Analysis
Before addressing the merits of Defendants’ motions to dismiss, the
Court must first determine whether it has subject matter jurisdiction under 28
U.S.C. § 1332, given that Attorney Defendants appear to share the same state
of citizenship as Ware. 	Consistent with MidFirst Bank’s contentions in its
notice of removal and Attorney Defendants’ arguments for dismissal, this
Court should conclude that Attorney Defendants were improperly joined.
Ware’s claims against Attorney Defendants should be dismissed for lack of
jurisdiction.
On the merits, and as MidFirst Bank correctly argues, Texas law does
not recognize Ware’s attempted wrongful foreclosure claim, leaving no basis
for his requests for declaratory and injunctive relief. 	All claims against
MidFirst Bank should be dismissed with prejudice.
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I. 	Because 	Attorney 	Defendants 	were 	improperly 	joined, 	the
claims against them must be dismissed.
Asserting diversity jurisdiction, MidFirst Bank removed this suit from
state court, contending that Attorney Defendants were improperly joined and
that their non-diverse citizenships should be regarded for diversity purposes.
Dkt. 1 at 3-5. 	According to MidFirst Bank, Ware’s petition does not state a
claim against Attorney Defendants, and any such claim would be barred by
attorney immunity. Id. at 5. The Court agrees.
Under the improper joinder doctrine, “the presence of an improperly
joined, non-diverse defendant does not defeat federal removal jurisdiction
premised on diversity.” Borden v. Allstate Ins. Co., 589 F.3d 168, 171 (5th Cir.
2009). There are two ways to establish that a non-diverse defendant was
improperly joined: “(1) actual fraud in the pleading of jurisdictional factors, or
(2) inability of the plaintiff to establish a cause of action against the non-
diverse party in state court.” 	Smallwood v. Ill. Cent. R.R., 385 F.3d 568, 573
(5th Cir. 2004) (en banc) (internal quotation marks omitted). Only the second
theory 	is 	relevant 	here. 	Under 	that 	theory, 	the 	removing 	party 	must
“demonstrate[e] that there is no possibility of recovery by the plaintiff against
[the] in-state defendant ….” Id.; see also Gash v. Hartford Acc. Indem. Co.,
491 F.3d 278, 281 (5th Cir. 2007) (removing party bears burden of proof).
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According 	to 	MidFirst 	Bank—and 	echoed 	by 	Attorney 	Defendants’
separate motion, Dkt. 12 at 3-4—Ware’s claims against Attorney Defendants
raise the specter of attorney immunity. 	In Texas, attorney immunity is a
“comprehensive affirmative defense protecting attorneys from liability to non-
clients, stemming from the broad declaration … that attorneys are authorized
to practice their profession, to advise their clients and interpose any defense or
supposed defense, without making themselves liable for damages.” 	Cantey
Hanger LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015) (quotation omitted).
“Dismissal based on the attorney immunity defense is proper when the scope
of the attorney’s representation—and thus entitlement to the immunity—[i]s
apparent on the face of the complaint.” 	Burke v. Ocwen Loan Servicing, LLC,
855 F. App’x 180, 186 (5th Cir. 2021) (per curiam) (quotation omitted).
In 	his 	petition, 	Ware 	complains 	that 	“Defendants” 	collectively 	had
wrongfully attempted to foreclose on the Property. 	Dkt. 1-4 at 4. 	Regarding
the 	Attorney 	Defendants’ 	role, 	however, 	he 	merely 	identifies 	them 	as
“Substitute Trustees,” thereby reflecting that they were serving as MidFirst
Bank’s foreclosure counsel. 	Id. at 3. 	Moreover, the petition does not suggest
that Attorney Defendants took any actions outside of representing MidFirst
Bank that could conceivably subject Attorney Defendants to liability.
Because Attorney Defendants are immune from suit over the challenged
acts related to foreclosure, 	Ware has no possibility of recovery against them,
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rendering them improperly joined. 	See, e.g., Rojas v. Wells Fargo Bank, N.A.,
571 F. App’x 274, 278 (5th Cir. 2014) (per curiam); Jackson v. PHH Mortg.,
2023 WL 2541993, at *2 (S.D. Tex. Feb. 22, 2023) (concluding that foreclosure
counsel was improperly joined, including because of attorney immunity),
adopted by 2023 WL 2542616 (S.D. Tex. Mar. 16, 2023).
As 	a 	result, 	Ware’s 	claims 	against 	Attorney 	Defendants 	should 	be
dismissed without prejudice for lack of jurisdiction. 	See Int’l Energy Ventures
Mgmt., LLC v. United Energy Grp., Ltd., 818 F.3d 193, 209-10 (5th Cir. 2016)
(“[T]he only ground for dismissing any improperly joined, nondiverse party is
lack of subject matter jurisdiction.”). 	Attorney Defendants’ motion to dismiss
those claims on the merits should be denied as moot.
II. 	Ware has not pleaded a plausible basis for relief on any claim
against MidFirst Bank.
Ware’s remaining claims against MidFirst Bank are also barred, but on
the merits rather than jurisdictional grounds. 	As his lead claim, Ware
challenged 	an 	impending 	foreclosure 	sale 	scheduled 	for 	March 	3, 	2026,
asserting a claim for “Wrongful Foreclosure Attempt[.]” Dkt. 1-4 at 4. But as
MidFirst Bank correctly observes, see Dkt. 10 at 4-5, “Texas law does not
recognize a cause of action for attempted wrongful foreclosure ….” See Owens
v. BAC Home Loans Servicing, L.P., 2012 WL 1494231, at *3 (S.D. Tex. Apr.
27, 2012); see also Foster v. Deutsche Bank Nat’l Tr. Co., 848 F.3d 403, 406-07
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(5th Cir. 2017) (per curium) (no wrongful foreclosure claim where foreclosure
has not occurred). 	Because Ware does not allege the foreclosure has already
occurred, his wrongful foreclosure claim is barred as a matter of law.
Dismissal of Ware’s wrongful foreclosure claim leaves no hook for his
further 	requests 	for 	declaratory 	and 	injunctive 	relief. 	“[W]here 	all 	the
substantive, underlying claims have been dismissed, a claim for declaratory
judgment cannot survive.” 	Bishop Global Fam. Tr. v. Mackie Wolf Zientz &
Mann P.C., 2026 WL 549913, at *6 (S.D. Tex. Feb. 26, 2026) (quoting Longino
v. Select Portfolio Servicing, Inc., 2019 WL 2369302, at *5 n.36 (S.D. Tex. June
5, 2019)). 	That same limitation also negates Ware’s request for injunctive
relief. 	See, e,g. Johnson v. Lakeview Loan Servicing, LLC, 2025 WL 2617715,
at *5 (S.D. Tex. Aug. 19, 2025) (dismissal of substantive claims required
dismissal of requests for both declaratory and injunctive relief), adopted by
2025 WL 2617250 (S.D. Tex. Sept. 10, 2025). This Court should grant MidFirst
Bank’s motion to dismiss all claims.
Recommendation
For the foregoing reasons, it is RECOMMENDED that Plaintiff Larry
Robert Ware’s claims against Defendants Israel Saucedo and Barrett Daffin
Frappier Turner & Engel, LLP be DISMISSED WITHOUT PREJUDICE for
want of subject-matter jurisdiction.
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It is further RECOMMENDED that Defendants Israel Saucedo’s and
Barrett Daffin Frappier Turner & Engel, LLP’s motion to dismiss (Dkt. 12) all
claims on the merits under Fed. R. Civ. P. 12(b)(6) be DENIED AS MOOT.
It is further RECOMMENDED that Defendant MidFirst Bank’s motion
to 	dismiss 	(Dkt. 	10) 	be 	GRANTED, 	and 	Ware’s 	claims 	against 	it 	be
DISMISSED WITH PREJUDICE.
It is further RECOMMENDED that this Court enter a final judgment
consistent with the foregoing dispositions of Ware’s claims, pursuant to Fed.
R. Civ. P. 58(a).
The parties have fourteen days from service of this Report and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed.
R. 	Civ. 	P. 	72(b). 	Failure 	to 	file 	timely 	objections 	will 	preclude
appellate review of factual findings and legal conclusions, except for
plain error. 	Ortiz v. City of San Antonio Fire Dep’t, 806 F.3d 822, 825
(5th Cir. 2015).
Signed on June 4, 2026, at Houston, Texas.
______________________________
Yvonne Y. Ho
United States Magistrate Judge
____________________________________
Yvvvooon	n	nn	ne Y. Ho
United States Magistrate Judge
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