Brooks v. Onity Mortgage Corporation

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Case 4:26-cv-03911 Document7 Filed 07/01/26in TXSD Page 1of8

United States District Court

Southem District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT July 01, 2026
FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

CANDANCE BROOKS,
Plaintiff,
CIVIL ACTION NO. H-26-3911

Vv.

PHH MORTGAGE CORPORATION

AAMAAMMAMMA A

Defendant.

MEMORANDUM OPINION AND ORDER

Candance Brooks (“Plaintiff”) filed this action against PHH
Mortgage Corporation (“Defendant”) in the 157th Judicial District
Court of Hered 3 County, Texas, alleging a breach of contract claim
and a claim under § 51.002 of the Texas Property Code.+ Pending
before the court is Defendant’s Motion to Dismiss (“Defendant’s
MTD”) (Docket Entry No. 5).. For the reasons stated below,
Defendant’s MTD will be granted, and this action will be dismissed

with prejudice.

iPlaintiff’s Original Petition and Emergency Application for
Temporary Restraining Order (“Original Petition”), Exhibit 4 to
‘Defendant’s Notice of Removal, Docket Entry No. 1-4, pp. 4, 7-10
(i 20-36. All page numbers reference the pagination imprinted at
the top of the page by the court’s Electronic Case Filing system.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO.

Case 4:26-cv-03911 Document7 Filed 07/01/26 in TXSD Page 2 of 8

I. Background

On June 24, 2004, Plaintiff executed a Note and Deed of Trust
for the purchase of her home located at 8011 Glen Forest Ct.,
Houston, Texas 77061.* Defendant alleges chat Plaintiff defaulted
on the loan.?

On March 26, 2026, Defendant filed a Notice -of Foreclosure
Sale in the Official Public Records of Harris County, Texas,
stating that the property was scheduled for a foreclosure sale on
May 5, 2026.4 Plaintiff alleges that Defendant posted her property
for foreclosure without sending her Default Notice, Notice of
Foreclosure, or Notice of Intent to Accelerate.°®

On May 4, 2026, Plaintiff filed this action against Defendant
in the 157th Judicial District Court of Harris County, Texas,
alleging a breach of contract claim and a claim under § 51.002 of
the Texas Property Code, and seeking declaratory and injunctive
relief.® That same day the 157th Judicial District Court of Harris

County, Texas, granted Plaintiff’s application for a temporary

Id. at 5 4 8; Defendant’s MTD, Docket Entry No. 5, p. l.
3Defendant’s MTD, Docket Entry No. 5, p. 2.
‘Id.

Original Petition, Exhibit 4 to Defendant’s Notice of
Removal, Docket Entry No. 1-4, p. 6 @ 11.

®Id. at 4, 7-10 4%@ 20-36.

Case 4:26-cv-03911 Document7 Filed 07/01/26in TXSD Page 3of8

retraining order and prohibited the May 5, 2026, foreclosure sale.’
On May 15, 2026, Defendants removed the action to this court based
on diversity jurisdiction.®

On June 5, 2026, Defendant filed a motion to dismiss, arguing
that Plaintiff has failed to state a claim upon which relief can be

granted.® Plaintiff has not filed a response.

II. Analysis
A Rule 12 (b) (6) motion tests the formal sufficiency of the
pleadings and is “appropriate when a defendant attacks the
complaint because it fails to state a legally cognizable claim.”
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). “To
survive a motion to Aisnisa, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.'” Ashcroft v. Iqbal, 129 S. Ct. 1937,

1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 127 S. Ct.
1955, 1974 (2007)).
Pursuant to Local Rules 7.3 and 7.4, the Defendant’s motion to

dismiss is treated as unopposed because Plaintiff has not responded

‘Order Granting Plaintiff’s Emergency Application for
Temporary Restraining Order, Exhibit 4 to Defendant’s Notice of
Removal, Docket Entry No. 1-4, pp. 16-17.

®’Defendant’s Removal Notice, Docket Entry No. 1, pp. 1-2.

°Defendants’ MTD, Docket Entry No. 5, p. l.

—-3-

Case 4:26-cv-03911 Document7 Filed 07/01/26in TXSD Page 4 of 8

to Defendant’s motion within 21 days.*° Failure to oppose the
motion is not in itself grounds for granting the motion, however.
Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux,
Inc., 702 F.3d 794, 806 (5th Cir. 2012). The court must assess the
legal sufficiency of the complaint to determine whether dismissal
is warranted. Id.

A. Plaintiff’s Breach of Contract Claim Fails.

Plaintiff alleges that Defendant breached their contract by
failing to provide her with notice of default.'4 Defendant argues
that Plaintiff has failed to state a claim because she failed to
identify the specific provision in the Deed of Trust that requires
Defendant to provide notice.’

“To prevail on a breach of contract claim under Texas law, a
plaintiff must demonstrate ‘(1) the existence of a valid contract;
(2) 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.’” Cruz v. JPMorgan Chase Bank, N.A., Civil Action

No. 7:18-CV-1, 2018 WL 689610, at *3 (S.D. Tex. Feb. 1, 2018)

See Local Rules of the United States District Court for the
Southern District of Texas, Rule 7.3 (“Opposed motions will be
submitted to the judge 21 days from filing without notice from the
. clerk and without appearance by counsel.”) and Rule 7.4 (‘Failure
to respond to a motion will be taken as a representation of no
opposition.”).

NOriginal Petition, Exhibit 4 to Defendant’s Notice of
Removal, Docket Entry No. 1-4, pp. 7-9 II 20-29.

Defendant’s MTD, Docket Entry No. 5, p. 4.

-4-—-

Case 4:26-cv-03911 Document7 Filed 07/01/26in TXSD Page5of8

(quoting Sport Supply Group, Inc. v. Columbia Cas. Co., 335 F.3d

453, 465 (5th Cir. 2003)). The Fifth Circuit has explained that “a
claim for a breach of a note and deed of trust must identify the
specific contractual provision in the contract that was breached.”
Williams v. Well Fargo Bank, N.A., 560 F.App’x 233, 238 (5th Cir.
2014).

Although Plaintiff alleges that “the Deed of Trust states that
[she] must be given notice of default,” Plaintiff fails to
identify the specific contractual provision in the contract that
was breached. Plaintiff acknowledges her failure to perform under
the loan by missing payment deadlines and does not specify what
damages she suffered and how those damages were caused by a breach
of contract.’4 Accordingly, Plaintiff has failed to state a breach
of contract claim.

B. Plaintiff£’s Claim Under § 51.002 of the Texas Property Code
Fails.

Plaintiff alleges that Defendant failed to provide her notice
of default and notice of acceleration, in violation of § 51.002 of

5

the Texas Property Code.!* Defendant argues that Plaintiff’s claim

fails because § 51.002 does not create a private right of action.’®

Original Petition, Exhibit 4 to Defendant’s Notice of
Removal, Docket Entry No. 1-4, p. 8 @ 23.

MTd. at 5 4 10.

Original Petition, Exhibit 4 to Defendant’s Notice of
Removal, Docket Entry No. 1-4, pp. 9-10 {{] 30-36.

*Defendant’s MTD, Docket Entry No. 5, pp. 5-6.

-5-

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“Texas Property Code § 51.002 requires a lender to provide
notice of default and intent to accelerate, specify the action
required to cure the default, and give the debtor an opportunity to
cure the default within a minimum of twenty (20) days.” Carey v.
Fargo, No. 15-cv-1666, 2016 WL 4246997, at *3 (S.D. Tex. Aug. 11,
2016). “However, texas Property Code § 51.002 does not provide a

private right of action.” Jelks v. Lakeview Loan Servicing LLC,

CIVIL ACTION NO. 4:25-cv-3123, 2025 WL 4076507, at *2 (S.D. Tex.
Dec. 16, 2025). To the extent Plaintiff asserts a claim under §
51.002, her claim fails as a matter of law.

Defendant also argues that to the extent Plaintiff’s claim can
be interpreted as a wrongful foreclosure claim, her claim still
fails because Plaintiff has not plead that a foreclosure sale has
taken place.’’ “To state a claim for wrongful foreclosure under
Texas law, plaintiff must plead: ‘(1) a defect in the foreclosure
sale pressedi ngs, (2) a grossly inadequate selling price; (3) and
a causal connection between the defect and the grossly inadequate
selling price.’” Id. (quoting Charter National Bank-Houston v.
Stevens, 781 S.W.2d 368, 371 (Tex. App.-Houston [14th Dist.] 1990,
writ denied)). Because Plaintiff obtained a temporary restraining

18

order preventing foreclosure,’ any claim for wrongful foreclosure

fails as a matter of law.

"Id. at 6.

8Order Granting Plaintiff’s Emergency Application for
Temporary Restraining Order, Exhibit 4 to Defendant’s Notice of
Removal, Docket Entry No. 1-4, pp. 16-17.

-6-

Case 4:26-cv-03911 Document7 Filed 07/01/26in TXSD Page /7of8

Cc. Plaintiff’s Claims for Tay unetdvE and Declaratory Relief Fail.
Plaintiff seeks injunctive and declaratory relief.’® Defendant
argues that because Plaintiff has not asserted any viable cause of
action against it, Plaintiff is not entitled to such relief.?”°
Because Plaintiff does not have a viable cause of action, her
request for injunctive and declaratory relief cannot stand alone.

Scott v. JP Morgan Chase Bank, N.A., No. 4:13-cv-3211, 2014 WL

4167980, at *7 (S.D. Tex. Aug. 19, 2014) (“[T]he law is clear that
injunctive relief is an equitable remedy, not a cause of action,
and a claim for such relief should be dismissed when no substantive
legal claims are pled.”); Fermi Inc. Te Neugebauer, No. 5:26-CV-
100-H, 2026 WL 1333405, at *10 (N.D. Tex. May 13, 2026) (“Thus, a
party’s request for declaratory relief depends on its ability to
assert a viable substantive cause of action.”).
D. The Court will not grant leave to amend.

Under Rule 15(a) (2) of the Federal Rules of Civil Procedure,
“{t]he court should freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15{a) (2). “Leave to amend is not

automatic, but a district court needs a substantial reason to deny

a party’s request for leave to amend.” North Cypress Medical

Center Operating Co., Itd. v. Aetna Life Insurance Co., 898 F.3d

461, 477 (5th Cir. 2018). “[A] movant [seeking to cure a defective

Original Petition, Exhibit 4 to Defendant’s Notice of
Removal, Docket Entry No. 1-4, pp. 6-7 @@ 12-19.

**Defendant’s MTD, Docket Entry No. 5, pp. 6-7.

-7-

Case 4:26-cv-03911 Document7 Filed 07/01/26in TXSD Page 8of8

pleading] must give the court at least some notice of what his or
her amendments would be and how those amendments would cure the
initial complaint’s defects.” D.L. Markham DDS, MSD, Inc. 401(K
Plan v. Variable Analy Life Insurance Co., 88 F.4th 602, 613-14
(Sth Cir. 2023). |

Plaintiff has not responded to Defendant’s motion to dismiss
and has not requested leave to amend. Plaintiff has not provided
notice of any amendments she could make to cure the pleading
deficiencies explained in Defendant’s motion to dismiss. The court

c

will therefore not grant leave to amend, and the court’s dismissal

of the Petition will be with prejudice.

III. Conclusion and Order

For the reasons stated above, the court concludes that
Plaintiff has failed to state a claim upon which relief can be
granted. Defendant’s Motion to Dismiss (Docket Entry No. 5) is
therefore GRANTED, and this action will be dismissed with
prejudice.

SIGNED at Houston, Texas, on this lst day of July, 2026.

a SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE