No Leave Allowed when Not Requested and No Contract when You’re Late

REAVLEY, THOMAS M.

DENNIS, JAMES L.

SOUTHWICK, LESLIE H.

Leave to Amend (Motion to Dismiss)

As an alternative position, Law requests leave to amend his complaint and also contends that the district court should have construed the new factual allegations set forth in his response to Ocwen’s Rule 12(b)(6) motion as a request for leave to amend.

Under Rule 15(a), a court should “freely give leave [to amend a complaint] when justice so requires.” FED. R. CIV. P. 15(a)(2).

Nevertheless, a party must “expressly request” leave to amend.

United States ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 387 (5th Cir. 2003).

“A party who neglects to ask the district court for leave to amend cannot expect to receive such dispensation from the court of appeals.” Id.

Although this request need not be contained in a formal motion, “[a] bare request in an opposition to a motion to dismiss – without any indication of the particular grounds on which the amendment is sought – does not constitute a motion within the contemplation of Rule 15(a).” Id. (quotations and citation omitted).

In Willard, we held the following language in a plaintiff’s response to a Rule 12(b)(6) motion insufficient to constitute a request for leave to amend: “[T]he only relief possibly available to [the defendant] at this stage of the case is that [the plaintiff] replead.” Id. (quotations omitted).

We have also held, in an unpublished opinion, that a district court’s sua sponte discussion of whether to allow a defendant to amend his complaint did not constitute a request by the defendant for leave to amend. McClaine v. Boeing Co., 544 F. App’x 474, 478 (5th Cir. 2013).

Law’s response to Ocwen’s motion to dismiss, while containing new factual allegations, contained no language that might be construed as a request for leave to amend his complaint, let alone express language requesting leave and indicating the particular grounds on which the amendment was sought.

Moreover, the district judge did not discuss granting Law leave to amend at any point. In short, there is nothing in the record that would allow us to conclude that Law requested leave to amend his complaint prior to this appeal.

Law cites several of our cases for the proposition that a claim raised for the first time in response to a dispositive motion should be treated as a request for leave to amend. See Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 989 n.2 (5th Cir. 2008); Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir. 1972); Riley v. Sch. Bd. Union Parish, 379 F. App’x 335, 341 (5th Cir. 2010).

These cases, however, did not involve defendants who sought to raise new factual allegations in response to motions to dismiss, as did Willard and McClaine. See Willard, 336 F.3d at 387; McClaine, 544 F. App’x at 478.

Instead, they involved defendants who sought to raise new claims in response to motions for summary judgment. See Stover, 549 F.3d at 989 n.2; Sherman, 455 F.2d at 1242; Riley, 379 F. App’x at 341. Because we are faced with the former situation and not the latter, the cases cited by Law are inapposite.

Accordingly, we conclude that Law did not request leave to amend his complaint at the district court and is not entitled to such relief from this court.

Because we find that Law’s response to Ocwen’s Rule 12(b)(6) motion did not constitute a request for leave to amend his petition, we do not consider whether an amendment containing the additional factual allegations would be “futile” and thus within the district court’s discretion to deny. See Rio Grande Royalty Co. v. Energy Transfer Partners, L.P., 620 F.3d 465, 468 (5th Cir. 2010).

Real Estate Settlement Procedures Act (RESPA)

Law claims that Ocwen failed to provide him with notice that it had acquired his loan from AAMES Funding Corporation. Under RESPA, a “transferee servicer to whom the servicing of any federally related mortgage loan is assigned, sold, or transferred shall notify the borrower of any such assignment, sale, or transfer.” 12 U.S.C. § 2605(c)(1).

In order to recover for a violation, a borrower must show “actual damages to the borrower as a result of the [servicer’s] failure” to comply with RESPA. § 2605(f)(1).

Law’s complaint, in addition to alleging a failure by Ocwen to give notice, alleges that Law sustained harm because “this is his homestead and he will lose all of the money previously invested in the property . . . .”

Law does not, however, allege facts demonstrating that these damages were the result of Ocwen’s failure to provide him with the required notice.

He does not allege, for example, that as a result of Ocwen’s failure to provide notice, he mistakenly continued sending his payments to AAMES Funding Corporation rather than sending them to Ocwen, resulting in foreclosure by Ocwen.

Indeed, this did not occur.

Because Law alleged no facts upon which his injuries could be viewed as resulting from Ocwen’s failure to provide him with notice under RESPA, we conclude that the district court correctly dismissed his claim.

Texas Statute of Frauds

Second, the agreement did not satisfy the Texas Statute of Frauds, which requires that certain contracts be: (1) reduced to writing and (2) signed by the party to be bound by the agreement. TEX. BUS. & COM. CODE § 26.01(a).

It is undisputed that Ocwen did not sign the proposed modification agreement.

Thus, the only question is whether the modification agreement was subject to the Statute of Frauds.

In Texas, an agreement materially altering a contract must satisfy the Statute of Frauds when the underlying contract was subject to the Statute of Frauds. See Hondo Oil & Gas Co. v. Tex. Crude Operator, Inc., 970 F.2d 1433, 1438 (5th Cir. 1992); Garcia v. Karam, 276 S.W.2d 255, 257 (Tex. 1955).

In Texas, loan agreements for sums exceeding $50,000 must satisfy the Statute of Frauds. TEX. BUS. & COM. CODE § 26.02(b).

Thus, because the loan agreement between Law and Ocwen for $284,000 was required to satisfy the Statute of Frauds, so too was the proposed modification agreement.

Because the loan modification proposal failed to do so, it was not a valid contract upon which a claim of a breach can be based (missed deadlines).

Panel consisted of: REAVLEY, DENNIS, and SOUTHWICK

Law v Ocwen