Assumed Names and Assumed Identities Invents Assumed Standing to Stop Foreclosures

DEFENDANT’S MOTION TO DISMISS

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant PHH Mortgage Corporation (“PHH” or “Defendant”) moves to dismiss the Original Petition filed on April 30, 2024 (“Complaint”) by Plaintiff Teaira Nichole Jourdain dba LJS Investments (“Plaintiff”) for failure to state a plausible claim for relief.

I.          INTRODUCTION

1.                  This is the at least the third action involving the same property and the same facts in this Court.

On February 21, 2022, Tracey Woodson (“Mrs. Woodson”) and Superior filed a prior lawsuit (the “2022 Prior Lawsuit”) entitled Superior Consulting Group and Tracey Woodson v. PHH Mortgage Corporation, Guild Mortgage Company fdba Cornerstone Mortgage Company, and Mortgage Electronic Registration Systems, Inc. Case No. 4-22-cv-896, asserting claims for statutory fraud; common law fraud; breach of contract and quiet title.1

Mrs. Woodson and Superior nonsuited MERS and Guild Mortgage Company from the Prior Lawsuit on March 11, 2022. On May 2, 2023, the Court issued a Memorandum and Order determining that PHH’s motion for summary judgment was granted;2 and on May 8, 2023, the Court entered a final summary judgment order.3

2.                  On August 28, 2023, Superior Consulting Group (“Superior”) and Karlton Woodson (“Mr. Woodson”) filed a lawsuit Case No. 23-cv-04407 against PHH and Mortgage Electronic Registration Systems, Inc. (“MERS”) amongst others, asserting the same allegations that formed the basis for the claims asserted in the 2022 Prior Lawsuit (“2023 Lawsuit”).4

On April 24, 2024, MERS and PHH filed a motion to dismiss the complaint filed in the 2023 Lawsuit, which remains pending.

3.                  In the present lawsuit, Plaintiff states that it obtained its ownership interest by virtue of a general warranty deed from Superior,5 but it is essentially a repackage of the same baseless claims that were adjudicated in the 2022 Prior Lawsuit, pending in the 2023 Lawsuit, and fare no better this third time around.

First, Plaintiff’s claims are barred by res judicata.

Approximately one year ago, this Court rendered a final judgment on the merits in PHH’s favor on the same claims alleged in this lawsuit.

Second, Plaintiff’s claims are defeated by a number of independent grounds that warrant a dismissal of all claims with prejudice.

II.                FACTUAL AND PROCEDURAL BACKGROUND

4.                  On or about December 16, 2009, Mrs. Woodson obtained a mortgage loan (the “Loan”) in the original principal sum of $112,542.00 from Cornerstone Mortgage Company, which is evidenced by a promissory note (the “Note”) secured by a deed of trust (the “Deed of

1 Attached as Exhibit A is Plaintiffs’ first amended complaint filed in the 2022 Prior Lawsuit. The Court should take judicial notice of the Petition filed in the 2011 Lawsuit because it is a matter of public record. See Funk, 631 F.3d at 783.

2 Attached as Exhibit B is the May 2, 2023 Memorandum and Opinion issued in the Prior Lawsuit.

3 Attached as Exhibit C is a copy of the May 8, 2023 Final Summary Judgment issued in the Prior Lawsuit.

4 Compare Exhibit D with Ex. A.

5 Compl. ¶ 23.

Trust,” attached as Exhibit E),6 encumbering the real property commonly known as 16107 Sheldon Ridge Way, Houston, TX 77044 (the “Property”).

5.                  Mr. Woodson is a co-signatory to the Deed of Trust, but is not an obligor under the Note.7

6.                  Plaintiff, a sole proprietorship, purports to now be the owner of the Property.8

7.                  PHH is in possession of the Note, which is indorsed in blank and is the assignee of record for the Deed of Trust by virtue of the Assignment of Deed of Trust on or around January 17, 2013 (attached as Exhibit F).9

8.                  On March 3, 2017, Mrs. Woodson filed a voluntary petition (the “2017 Bankruptcy”) for relief under chapter 13 of Title 11 of the United States Code, 11 U.S.C. § 101, et seq. (the “Bankruptcy Code”).10

Mrs. Woodson filed a chapter 13 plan in the 2017 Bankruptcy in which she proposed to cure the default on the Loan and maintain her ongoing monthly payments under the Loan.11

The 2017 Bankruptcy was subsequently dismissed on February 13, 2018.12

9.                  On March 2, 2018, eighteen days after the 2017 Bankruptcy was dismissed, Mrs. Woodson filed a second voluntary petition (the “2018 Bankruptcy”) for relief under chapter 13 of the Bankruptcy Code.13

As she did in the 2017 Bankruptcy, Mrs. Woodson filed a chapter 13 plan in the 2018 Bankruptcy in which she proposed to cure the default on the Loan and maintain

6 The Court may take judicial notice of the Deed of Trust because it was recorded on December 23, 2009 in the Official Public Records of Harris County, Texas under Instrument No. 20090577480. See Funk v. Stryker, 631 F.3d 777, 783 (5th Cir. 2011).

7 The Court may take judicial notice of the Assignment because it was recorded on January 23, 2013 in the Official Public Records of Harris County, Texas under Instrument No. 20130032332. See Funk, 631 F.3d at 783.

8 See Compl. ¶ 6.

9 See Ex. B.

10 Id.

11 Id.

12 Id.

13 Id.

her ongoing monthly payments under the Loan.14

The 2018 Bankruptcy was converted to a chapter 7 on March 12, 2019, and Mrs. Woodson received a chapter 7 discharge on June 11, 2019.15

10.              To further delay the foreclosure of the Property, Plaintiff filed the current lawsuit, asserting the same allegations that formed the basis for the claims asserted in the 2022 Prior Lawsuit and 2023 Lawsuit.16

II.        ARGUMENT AND AUTHORITIES

A.                 Applicable Legal Standard

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.”17

“Factual allegations must … raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”18

While the allegations need not be overly detailed, a plaintiff’s pleadings must still provide the grounds of his entitlement to relief, which “requires more than labels and conclusions,” and “a formulaic recitation of the elements of a cause of action will not do.”19

“[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.”20

14 Id.

15 See id.

16 Compare Doc. 1 with Ex. A.

17 In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007), cert. denied, 552 U.S. 1182 (2008)).

18 Twombly, 550 U.S. at 555 (internal citations omitted).

19 Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“‘naked assertions’ devoid of ‘further factual enhancement,'” along with “legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are not entitled to the presumption of truth).

20 Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995).

Demonstrating the facial plausibility of a claim requires a plaintiff to establish “more than a sheer possibility that a defendant has acted unlawfully.”21

It is not enough that a plaintiff allege the mere possibility of misconduct; it is incumbent to “show that the [plaintiff] is entitled to relief.”22

The court may dismiss a complaint under Rule 12(b)(6) if either the complaint fails to assert a cognizable legal theory or the facts asserted are insufficient to support relief under a cognizable legal theory.23

B.               Plaintiff’s Claims Are Barred by Res Judicata.

“[W]hile res judicata is generally an affirmative defense to be pleaded in a defendant’s answer[,] there are times when it may be raised on a Rule 12(b)(6) motion,” such as “when ‘the facts are admitted or not controverted or are conclusively established.'”24 For instance, “[w]hen all relevant facts are shown by the court’s own records, of which the court takes notice, the defense [of res judicata] may be upheld on a Rule 12(b)(6) motion without requiring an answer.”25

Res judicata insures the finality of judgments, conserves judicial resources, and protects litigants from multiple lawsuits.26 It “bars the litigation of claims that either have been litigated or should have been raised in an earlier suit.”27 The res judicata doctrine has four elements: “(1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits;

21 Iqbal, 556 U.S. 662, 678.

22 FED. R. CIV. P. 8(a)(2); see also Iqbal, 556 U.S. 662, 679.

23 See Stewart Glass & Mirror, Inc. v. U.S.A. Glass, Inc., 940 F. Supp. 1026, 1030 (E.D. Tex. 1996).

24 Meyers v. Textron, Inc., 540 F. App’x 408, 410 (5th Cir. 2013) (per curiam)(quoting Clifton v. Warnaco, Inc., 53 F.3d 1280, 1995 WL 295863, at *6 n.13 (5th Cir. 1995) (per curiam; citation omitted).

25 Id.; see also Brooks v. Wells Fargo Bank, N.A., No. 3:19-cv-00094-M-BN, ECF # 10 (N.D. Tex. May 10, 2019) (recommending that Rule 12(b)(6) motion to dismiss based on res judicata be granted and pro se plaintiff’s claim be dismissed with prejudice).

26 Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 (5th Cir. 2004).

and

(4) the same claim or cause of action was involved in both actions.”28

The final element extends beyond claims that were actually raised in a prior action and bars all claims that “could have been advanced in support of the cause of action on the occasion of its former adjudication.”29

In this case, all four elements for the application of res judicata are easily satisfied and this case should be dismissed with prejudice.

1.                  The First Three Elements of Res Judicata Are Easily Established.

Plaintiff and PHH are the same parties (or in privity) to the instant lawsuit and the 2022 Prior Lawsuit.30 Plaintiff is in privity with Superior, a plaintiff in the 2022 Prior Lawsuit.31

The 2022 Prior Lawsuit concluded with a final judgment on the merits by a court of competent jurisdiction.32

2.                  The 2022 Prior Lawsuit and the Current Lawsuit are Based on the Same Nucleus of Operative Facts.

“Res judicata prevents the relitigation of claims that have already been finally adjudicated or that should have been litigated in the prior lawsuit.”33

Under the Fifth Circuit’s “transactional test,” a “prior judgment’s preclusive effect extends to all rights of the plaintiff with respect to all or any part of the transaction, or series of connected transactions, out of which the original action arose.”34

“The critical issue is whether the two actions are based on the same nucleus of operative facts.”35

To determine whether the same claims or causes of action are brought, the

28 Comer v. Murphy Oil USA, Inc., 718 F.3d 460, 466 (5th Cir. 2013).

29 In re Howe, 913 F.2d 1138, 1144 (5th Cir. 1990).

30 Compare Ex. A with Doc. 1.

31 Id.

32 Ex. C.

33 Smith v. Waste Mgmt., Inc., 407 F.3d 381, 386 (5th Cir. 2005).

34 Singh, 428 F.3d at 571.

35 Id.

transactional test is applied, in which “all claims arising from a common nucleus of operative facts and could have been brought in the first lawsuit, are barred by res judicata.”36

Here, Plaintiff’s claims in the instant lawsuit arise from the same common nucleus of operative facts as those alleged in the 2022 Prior Lawsuit.

The majority of the allegations are the same as those alleged in the 2022 Prior Lawsuit, the causes of actions are materially the same, and the relief requested is practically identical.37

C.               Even if Not Precluded by Res Judicata, Plaintiff Lacks Capacity to Assert Any Claims against PHH.

Under Texas law, a sole proprietorship has no legal existence apart from its owners.38

Thus, a sole proprietorship lacks the capacity to sue independent from its sole proprietor.39

It necessarily follows from these principles that Plaintiff, as a sole proprietorship, lacks the capacity to maintain any claims against PHH.

Article III of the Constitution limits the jurisdiction of federal courts to cases and controversies.40

“One element of the case-or-controversy requirement is that [plaintiffs], based on their complaint, must establish that they have standing to sue.”41

This requirement, like other jurisdictional requirements, is not subject to waiver and demands strict compliance.42

To meet the standing requirement, Plaintiff must show:

(1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;

(2) the

36 Id.; Petro-Hunt, 365 F.3d at 395-96.

37 Compare Ex. A, with Doc. 1.

38 See Brantley v. Kuntz, 98 F.Supp.3d 884, 887 (W.D. Tex. 2015).

39 See Horie v. Law Offices of Art Dula, 560 S.W.3d 425, 434 (Tex. App.—Houston [14th Dist.] 2018) (“[T]he assumed name of a sole proprietorship is not a separate legal entity or even a different capacity of the individual sole proprietor.”).

40 United States Parole Comm’n v. Geraghty, 445 U.S. 388, 395 (1980).

41 Raines v. Byrd, 521 U.S. 811, 818 (1997).

42 Id. at 819; Lewis v. Casey, 518 U.S. 343, 349 n.1 (1996).

injury is fairly traceable to the challenged action of PHH;

and

(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.43

Here, Plaintiff lacks standing to assert claims against PHH relating to Loan because it is not a party to the Loan.44

This Court has already found that Superior is not a signatory to or borrower under Loan, and Plaintiff is subject to the same fate.45

Plaintiff does not allege that it is a party to the Note or obligated thereunder; and therefore, lacks standing to assert any claims against PHH relating to Loan.

Thus, the claims asserted by Plaintiff in this lawsuit relating to Loan fail as a matter of law and should be dismissed with prejudice.

D.                 Even if Not Precluded, Plaintiff Lacks Standing to Challenge the Assignment.

Plaintiff asserts that “the chain of title is broken from the original lender, due to an invalid and void assignment of mortgage and that Defendants lack any standing to foreclose.”46

Plaintiff lacks standing to challenge the Assignment because as held by the Fifth Circuit in Reinagel v. Deutsche Bank National Trust Co., 735 F.3d 220, 228 (5th Cir. 2013), “under Texas law, facially valid assignments cannot be challenged for want of authority except by the defrauded assignor.”

Thus, under Reinagel, Plaintiff lacks standing to challenge the Assignment and PHH’s standing to foreclose, as Plaintiff is not a party to the Assignment.47

Furthermore, PHH has standing to foreclose because in Texas, a mortgagee or mortgage servicer is permitted to foreclose under the power of sale conferred by a deed of trust, and the public record establishes that PHH is the assignee of the Deed of Trust with the right to foreclose.48

For these

43 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000); Consol. Cos., Inc. v. Union Pac. R.R. Co., 499 F.3d 382, 385 (5th Cir. 2007).

44 Ex. E

45 Ex. B.

46 Compl. ¶ 19.

47 Ex. B.

48 See Ex. B; See also Epstein v. U.S. Bank Nat. Ass’n, 540 F. App’x 354, 356 (5th Cir. 2013); Martins, 722 F.3d at 255.

reasons, the Court should find that Plaintiff lacks standing to challenge the Assignment and dismiss, with prejudice, each of Plaintiff’s Title Related claims based on these challenges.

E.                 Even if Not Precluded, Plaintiff’s Claims are Barred by the Statute of Limitations.

Plaintiff’s claim for violation of Section 12.002 and its claim for quiet title are subject to a four-year statute of limitations.49

Plaintiff’s claim for violation of the Texas Debt Collection Act is subject to a two-year statute of limitation.50

Because each of these claims fundamentally stem from Plaintiff’s challenge to the Assignment which was recorded on January 23, 2013; thus, its claims which are predicated on the Assignment expired at the latest on January 23, 2017.

Because Plaintiff did not file its claims against PHH until April 30, 2024, the four-year or two- year statutes of limitations applicable to Plaintiff’s claims defeat these claims as a matter of law.

F.                 Even if Not Precluded, The Court Should Deny Plaintiff’s Request for Quiet Title.

“A suit to quiet title is an equitable action in which the plaintiff seeks to remove from his title a cloud created by an allegedly invalid claim.”51

The plaintiff in a quiet title action must show:

“(1) an interest in a specific property;

(2) title to the property is affected by a claim by the defendant;

and

(3) the claim, although facially valid, is invalid or unenforceable.”52

“A plaintiff has the burden of supplying the proof necessary to establish superior equity and right to relief.”53

“[T]he plaintiff must recover on the strength of his own title, not the weakness of his adversary’s title.”54

Plaintiff’s claim for quiet title fails as a matter of law because Plaintiff took title to the

49 See TEX. CIV. PRAC. & REM. CODE § 16.051 AS TO SEC. 12.002 CLAIM; Poag v. Flories, 317 S.W.3d 820, 825 (Tex. App.—Fort Worth, 2010) as to quiet title claim.

50 Clark v. Deutsche Bank National Trust Co., 719 F.Appx. 341, 343 (5th Cir. 2018, per curiam).

51 Svoboda v. Bank of Am., N.A., 964 F. Supp. 2d 659, 672 (W.D. Tex. 2013).

52 Id. at 763 (citation omitted).

53 Ocwen Loan Serv., LLC v. Gonzalez Fin. Holdings, Inc., 77 F. Supp. 3d 584, 588 (S.D. Tex. 2015).

54 Jaimes v. Fed. Nat. Mortg. Ass’n, 930 F. Supp. 2d 692, 698 (W.D. Tex. 2013) (citation omitted).

Property subject to the Deed of Trust, and Plaintiff does not and cannot plead any facts that would invalidate the Deed of Trust.55

Plaintiff’s quiet title claim is premised on its contention that PHH did not receive a valid assignment of the Deed of Trust.56

It specifically alleges that the Assignment was wrongful and that defendant is not “a real party in interest with standing to foreclose under Texas statutes, common law, and the Deed of Trust.”57

There is no merit to either of these contentions. As previously discussed, PHH qualifies as a “mortgagee” under Texas law by virtue of its status as the holder of the Note and last assignee of record of the Deed of Trust.

While Plaintiff attempts to challenge the validity of the Assignment, it has not alleged any facts to establish that the Assignment is void, as is necessary to have standing to challenge the Assignment.

The validity of the Assignment is otherwise irrelevant in light of PHH’s status as the holder of the Note – i.e., PHH qualifies as a “mortgagee” regardless of whether the Assignment is valid.

For all these reasons, the Court should dismiss Plaintiff’s quiet title claim.

G.                Plaintiff’s Claim for Violation of the Tex. Civ. Prac. & Rem. Code § 12.002 Fails.

Plaintiff’s claim for violation of the Tex. Civ. Prac. & Rem. Code rests entirely on its fundamental challenge to the Assignment.58

Even if not barred by res judicata, Plaintiff lacks standing to challenge the Assignment because as held by the Fifth Circuit in Reinagel v. Deutsche Bank National Trust Co., 735 F.3d 220, 228 (5th Cir. 2013), “under Texas law, facially valid assignments cannot be challenged for want of authority except by the defrauded assignor.”

Here, the Assignment is facially valid and properly notarized, and Plaintiff is not a party to the Assignment.59

Thus, under Reinagel, Plaintiff lacks standing to challenge the Assignment.

55 See Compl.

56 See Compl., ¶¶ 31-34.

57 See id.

58 Compl. ¶ 37-39.

59 See Ex. F.

In addition, Plaintiff fails to state a plausible fraudulent lien claim under Section 12.002 because the Assignment is not a lien under Texas law.

However, federal courts in Texas have held that a transfer or assignment of mortgage “does not purport to create a lien or claim; it merely purports to transfer an existing deed of trust from one entity to another” and therefore cannot be a fraudulent lien for purposes of Section 12.002.60

The Court should dismiss Plaintiff’s claim for violation of Tex. Civ. Rem. & Prac. Code 12.002 on this basis alone.

Even if the Assignment was a lien under the statute, Plaintiff’s fraudulent lien claim is insufficiently plead.

To properly allege a fraudulent lien claim pursuant to Section 12.002(a), a plaintiff must allege sufficient facts to demonstrate that

“(1) the defendant made, presented, or used a document with knowledge that it was a fraudulent court record or a fraudulent lien or claim against real property;

(2) the defendant intended that the document be given legal effect;

and

(3) the defendant intended to cause plaintiff physical injury, financial injury, or mental anguish.61

Because a claim under CPRC § 12.002 is a fraud-based claim, the claim must be pled with heightened particularity in accordance with Rule 9(b).

When asserting a fraud claim in federal court, a heightened pleading standard is imposed in which “a party must state with particularity the circumstances constituting fraud or mistake.”62

A plaintiff asserting a fraud claim must “specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statements were fraudulent.”63

In other words, a plaintiff must specify the “who, what, when, where, and how” of the alleged fraud.64

60 See Marsh v. JPMorgan Chase Bank, N.A., 888 F. Supp.2d 805, 813-14 (W.D.Tex. 2012)(dismissing fraudulent lien claim with prejudice).

61 Id.

62 Fed. R. Civ. P. 9(b).

63 Williams v. WMX Techs., Inc., 112 F.3d 175, 177 (5th Cir. 1997).

64 Id. at 179.

Here, Plaintiff’s conclusory allegations fail to demonstrate any plausible right to relief and do not meet the heightened pleading requirements of Rule 9(b).

For example, Plaintiff simply recite the statute and fail to allege any actual facts demonstrating that PHH presented or used a document that purported to create a lien or claim against the Property with knowledge that it was a fraudulent lien.65

Plaintiff also fails to allege sufficient “who, what, when, where, and how” facts to show that PHH intended to cause Plaintiff physical injury, financial injury, or mental anguish—nor can it.66

For all of these reasons, Plaintiff’s § 12.002 claim is not plausible and fails as a matter of law.

Thus, the Court should dismiss Plaintiff’s claim for violation of Tex. Civ. Rem. & Prac. Code 12.002 in its entirety, with prejudice.

H.                Even if Not Precluded, Plaintiff’s Claims for Violation of the Texas Debt Collection Act Fail as a Matter of Law.

In support of its TDCA claim against PHH, Plaintiff rely entirely on the theory that PHH is proceeding with foreclosure despite giving proper notice.67

Specifically, Plaintiff alleges that PHH violated the following sections of the Texas Finance Code, which prohibit a debt collector

from:

·       “threatening to take an action prohibited by law, specifically seeing to sell property at a foreclosure sale in violation of state law.” Tex. Fin. Code § 392.301(a)(8);

·       “misrepresenting the character, extent, or amount of a consumer debt, or misrepresenting the consumer debt’s status in a judicial or governmental proceeding.” Tex. Fin. Code § 392.304(a)(8);

·         “misrepresenting the status or nature of the services rendered by the debt collector.” Tex. Fin. Code § 392.304(a)(14);

65 See Compl.

66 See generally id.; see also Jolem, LLC v. Select Portfolio Servicing, Inc., No. H-14 3301, 2015 WL 3823642, at *9 (S.D. Tex. June 18, 2015) (dismissing fraudulent lien claim, in part, because plaintiff failed to “allege any facts tending to show intent on the part of Defendants such that its claim could rise above the level of plausibility”); Lassberg v. Barrett Daffin Frappier Turner & Engel, L.L.P., No. 4:13-CV-577, 2015 WL 123756, at *5 (E.D. Tex. Jan. 8, 2015) (dismissing fraudulent lien claim where plaintiff provided “no factual basis for recovery … with respect to the requisite intent required for such a violation”).

67 Compl. ¶ 46.

·       “using any other false representation or deceptive means to collect a debt or obtain information concerning a consumer.” Tex. Fin. Code § 392.304(a)(19).

Plaintiff’s TDCA claims rely solely on the notion that PHH allegedly failed to comply with the Texas Property Code.68

Section 51.002 of the Texas Property Code requires that for a sale of real property under contract lien, that notice be given at least twenty-one days before the date of the sale by serving written notice of the sale by certified mail on each debtor who, according to the records of the mortgage servicer of the debt, is obligated to pay the debt.69

As a preliminary matter, Plaintiff is not entitled to notice under Section 51.002 because it is not the “debtor who…is obligated to pay the debt.”70

As the public records demonstrate, Plaintiff is not a borrower or debtor; thus, PHH is not required to provide Plaintiff with any of the pre- foreclosures notices required to be sent.71

Not only are Plaintiff’s allegations self-serving, but they are also contradictory and fail to demonstrate that PHH made a threat, misrepresentation or false statement.

Moreover, in Miller v. BAC Home Loans Servicing,72 the 5th Circuit confirmed that “statements about loan-modification applications and the postponement of foreclosure do not concern the ‘character, extent, or amount of’ the home loan, so they are not covered by the statute.”

In view of this clear precedent, Plaintiff’s claims for violation of §§ 392.304(a)(8) and 392.304(a)(19) fail as a matter of law, and the Court should dismiss them with prejudice. For these reasons, the Court should dismiss Plaintiff’s claims for violation of the TDCA against PHH.

68 Compl. ¶ 46.

69 Tex. Prop. Code § 51.002(b)(3).

70 Tex. Prop. Code § 51.002(b)(3) and (d).

71 Id.

72 Miller v. BAC Home Loans Servicing, 726 F.3d 717, 723 (5th Cir. 2013).

I.                   Plaintiff’s Requests for Declaratory and Injunctive Relief and Damages Should be Denied.

Plaintiff seeks extensive relief in the Prayer, including an award for actual, compensatory, and treble damages.73

Under Texas law, claims for damages are not independent causes of action but instead depend on viable substantive claims.74

Because Plaintiff’s underlying claims against PHH fail as a matter of law and are susceptible to dismissal, Plaintiff’s requests for damages and attorney’s fees should likewise be denied.

Similarly, a request for injunctive or declaratory relief are not a cause of action themselves but are dependent on an underlying cause of action.75

Indeed, Texas and federal law require the existence of a justiciable case or controversy in order to grant declaratory relief.76

Because Plaintiff has failed to assert any viable causes of action against PHH, Plaintiff is not entitled to any declaratory or injunctive relief and such requests should be denied.

IV.       CONCLUSION

For the reasons set forth herein, Plaintiff has failed to state any claim for relief against PHH upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6), and PHH respectfully requests that the Court dismiss Plaintiff’s claims with prejudice and for all relief at law or equity to which PHH has shown itself entitled.

73 Compl. at 13.

74 Wildy v. Wells Fargo Bank, NA, No. 3:12-CV-01831-BF, 2013 WL 246860, at *6 (N.D. Tex. Jan. 21, 2013)

(citing Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 290 (Tex. 1997).

75 See Cook v. Wells Fargo Bank, N.A., No. 3:10-CV-592-D, 2010 WL 2772445, at *4 (N.D. Tex. Jul. 12, 2010);

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).

Respectfully submitted,

By: /s/ Kathryn B. Davis

Kathryn B. Davis
State Bar No. 24050364
kdavis@mcglinchey.com
MCGLINCHEY STAFFORD, PLLC
1001 McKinney, Suite 1500
Houston, Texas 77002
Telephone: (713) 520-1900
Facsimile: (713) 520-1025

ATTORNEYS FOR DEFENDANT PHH MORTGAGE CORPORATION

CERTIFICATE OF SERVICE

I hereby certify that on June 10, 2024, a copy of the above and foregoing was filed electronically with the Clerk of Court. Notice of this filing has been forwarded to all parties via email and first class mail.

Teaira Nichole Jourdain dba LJS Investments
16107 Sheldon Ridge Way Houston, TX 77044
email: jourdainteiara@gmail.com

By:  /s/ Kathryn B. Davis
Kathryn B. Davis

76 Val-Com Acquisitions Tr. v. CitiMortgage, Inc., 421 F. App’x 398, 400 (5th Cir. 2011).