Debt Collector

Rogue Lawyer Clay Vilt Still Representing Unsuspecting Homeowners in Harris County Court.

We’re curious to learn how distressed homeowner William Carlson came to be introduced to Robert C. Vilt of Vilt and Associates.

Carlson v. JPMorgan Chase Bank, N.A.

(4:22-cv-02263)

District Court, S.D. Texas

JUL 8, 2022 | REPUBLISHED BY LIT: JUL 9, 2022

So after the letter to the court by Hytken requesting a pre-motion conference on July 26,  LIT updated our article with Hytken’s Letter and tweeted it out of social media early that morn’ (3.48am to be precise, see tweet below).

That same day, on July 28, the court issues an order for pre-motion conference for 24 hrs later, July 29 and Vilt scrambles to dismiss the case with prejudice on the same day as the order, July 28.

The court grants the dismissal with prejudice, you guessed it, on July 28.

Nothing to see, or infer here, folks…(wink).

U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:22-cv-02263

Carlson v. JPMorgan Chase Bank, N.A.
Assigned to: Judge George C Hanks, Jr

Case in other court:  234th Judicial District Court, 22-38986
234th Judicial District Court, 22-38986

Cause: 28:1332 Diversity-Petition for Removal

Date Filed: 07/08/2022
Date Terminated: 07/28/2022
Jury Demand: None
Nature of Suit: 290 Real Property: Other
Jurisdiction: Diversity

 

Date Filed # Docket Text
07/28/2022 10 NOTICE of Setting re: 8 REQUEST for pre-motion conference. Parties notified. Pre-Motion Conference set for 7/29/2022 at 02:00 PM by video before Magistrate Judge Andrew M Edison, filed. (rcastro, 4) (Entered: 07/28/2022)
07/28/2022 11 STIPULATION of Dismissal with Prejudice by William E. Carlson, filed. (Attachments: # 1 Proposed Order Granting Dismissal with Prejudice)(Vilt, Robert) (Entered: 07/28/2022)
07/28/2022 12 ORDER OF DISMISSAL granting 11 Stipulation of Dismissal with prejudice. Case terminated on 7/28/2022. (Signed by Judge George C Hanks, Jr) Parties notified.(bthomas, 4) (Entered: 07/28/2022)

 


 

PACER Service Center
Transaction Receipt
07/30/2022 22:44:57

July 26, 2022

Via Email: Byron_Thomas@txs.uscourts.gov
Byron Thomas, Case Manager for Judge George C. Hanks, Jr.
United States District Court 515 Rusk St., Room 5300
Houston, TX 77002

Re: Request for pre-motion conference; Civil Action No. 4:22-cv-02263; William Carlson v. JPMorgan Chase Bank, N.A.; in the United States District Court for the Southern District of Texas, Houston Division

Dear Mr. Thomas:

I represent JPMorgan Chase Bank, N.A. (“JPMC”) and am writing pursuant to the Court’s procedure 6.B. JPMC requests a pre-motion conference in connection with its desire to file a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).

This suit arises from a residential mortgage loan that was modified in 2018. The Loan went back into default in 2019. In early 2020, JPMC reviewed the borrowers for loss mitigation options and determined them to be ineligible for a modification. It sent them a decision letter dated April 14, 2020. JPMC, however, was able to offer COVID-19 forbearance through August 31, 2021.

Plaintiff William Carlson (“Plaintiff”), one of the borrowers to the loan, initiated this suit against JPMC to stop a foreclosure sale scheduled for July 5, 2022. He contends that JPMC failed to provide him face-to-face counseling, notice of default, opportunity to cure, and notice of acceleration.

He further alleges that JPMC promised him a loan modification during a COVID-19 forbearance plan and that JPMC never modified the loan and instead attempted to proceed with foreclosure.

Plaintiff alleges JPMC breached its contract with Plaintiff (Doc. 1-4 at 6) yet fails to plead facts to support consequential damages.

He contends that JPMC violated Chapter 51 of the Texas Property Code (Doc. 1-4 at 7) though no foreclosure occurred, and Texas does not recognize attempted wrongful foreclosure as a cause of action.

He contends that JPMC committed fraud in the inducement or fraud by nondisclosure (Doc. 1-4 at 8) despite the statute of frauds (among other defenses) barring him from enforcing an alleged oral promise to modify the Loan.

Moreover, Plaintiff asserts a claim for intentional infliction of emotional distress (Doc. 1-4 at 9) though the Complaint contains no allegations of outrageous conduct.

As discussed below, each of those claims fails on its face.

An action for breach of contract requires an allegation that “the plaintiff was damaged as a result of the breach.”

Brooks v. Excellence Mortgage, Ltd., 486 S.W.3d 29, 36 (Tex. App.–San Antonio 2015, pet. denied).

Plaintiff has not made a plausible allegation that he was damaged as a result of Defendant’s alleged breach of contract.

Plaintiff does not allege that he has lost his home.

Plaintiff seeks to recover attorney’s fees, but “attorney’s fees for the prosecution or defense of a claim are not damages under Texas law.”

Richardson v. Wells Fargo Bank, N.A., 740 F.3d 1035, 1038 (5th Cir. 2014).

Plaintiff seeks “mental anguish damages[,]”28 but mental anguish damages are not recoverable for a breach of contract.

Latham v. Castillo, 972 S.W.2d 66, 71 (Tex. 1998).

Plaintiff contends that he is “entitled to recover her actual damages from Defendant[,]” but without some indication as to what those damages are, this contention is just a threadbare recital of the “damages” element of a breach of contract claim – a “mere conclusory statement[ ]” that will not suffice.

Iqbal, 129 S. Ct. at 1949.

Plaintiff’s claim for violations of Chapter 51 of the Texas Property Code fails because no foreclosure sale occurred.

See Foster v. Deutsche Bank Nat’l Tr. Co., 848 F.3d 403, 407 (5th Cir. 2017)

(“[B]ecause foreclosure of the property did not occur, we need not revisit the district court’s conclusions as to whether Foster has a viable notice-of-foreclosure cause of action under Section 51.002 of the Texas Property Code.”).

The Texas Property Code violation claim should be dismissed on this basis alone.

Plaintiff’s fraud claim does not meet the heightened pleading requirements of Fed. R. Civ. P. 9.

Rather than specify the who, what, when, where, and why of the alleged fraud, it baldly alleges bad acts, unspecified omissions, and a confidential relationship without factual foundation.

To the extent Plaintiff intends for the purported fraud claim to rest on the alleged promise to modify the mortgage, the statute of frauds bars the claim.

Such an oral agreement would alter the terms of the parties’ written loan agreement (which exceeds $50,000 in value). “To satisfy the statute of frauds in Texas, a writing… ‘must be complete within itself in every material detail and contain all of the essential elements of the agreement.’ ”

See Scott v. Bank of Am., N.A., 597 Fed. Appx. 223, 225 (5th Cir. 2014).

Plaintiff has not alleged anything about a written loan-modification agreement incorporating the new terms that satisfy the statute of frauds.

Further, Plaintiff does not allege that such a document had been prepared or that JPMC promised to sign it.

Because Plaintiff does not satisfy the heightened pleading requirements of Rule 9 and it appears he seeks to obtain the benefit of an alleged oral agreement that plainly offends the statute of frauds, his fraud claim fails as a matter of law.

The Complaint does not state a claim for intentional infliction of emotional distress.

Under Texas, Plaintiff must plead and prove that: (1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct was “extreme and outrageous”; (3) the defendant caused the plaintiff to suffer emotional distress; and (4) that emotional distress was severe.

Kroger Tex. L.P. v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006).

Whether a defendant’s conduct is “extreme and outrageous” is a question of law.

Brewerton v. Dalrymple, 997 S.W.2d 212, 216 (Tex. 1999). To be “extreme and outrageous,” the conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999) (quotation marks and citation omitted).

Repeatedly, “courts have rejected claims asserting intentional infliction of emotional distress where defendants simply exercised rights owed under mortgage loan documents.”

Amaechi-Akuechiama v. U.S. Bank, N.A., 3:19-CV-00234, 2020 WL 908138, at *8 (S.D. Tex. Jan. 31, 2020), report and recommendation adopted, 3:19-CV-00234, 2020 WL 906287 (S.D. Tex. Feb. 25, 2020); Garza v. Deutsche Bank Tr. Co. Ams., No. A-12-CV-741 LY, 2012 WL 13029409, at *6 (W.D. Tex. Oct. 24, 2012).

See also Auriti v. Wells Fargo Bank, N.A., No. 3:12-CV-334, 2013 WL 2417832, at *8 (S.D. Tex. June 3, 2013)

(“The actions of a financial institution attempting to enforce its contractual right to foreclose on a deed of trust under which the homeowner has defaulted, without more, do not meet the high bar of ‘outrageous’ behavior.”);

Baskett v. Pleasant, 1996 WL 135680, at *3 (Tex. App.— Dallas Mar. 27, 1996, writ denied)

(defendant did no more than insist on legal rights as noteholder and landlord by engaging in proceedings incident to default and subsequent foreclosure and conduct thus cannot as matter of law support claim for intentional infliction of emotional distress).

I personally conferred with Clay Vilt, counsel for Plaintiff on July 20, 2022 in an effort to resolve this dispute.

I discussed the above authority and also provided Mr. Vilt with copies of the 2018 Loan Modification, the 2020 loss mitigation decision letter, and additional documents, including the notice of default, notice of acceleration, and correspondence reminding Plaintiff that his COVID-19 forbearance plan would end in August 2021.

Nonetheless, Plaintiff refused to voluntarily dismiss any of his causes of action.

Accordingly, JPMC has no choice but to seek relief from the Court, including permission to file a motion to dismiss with respect to the claims in the Complaint.

Sincerely,

/s/ Rachel L. Hytken

Rachel L. Hytken

U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:22-cv-02263

Carlson v. JPMorgan Chase Bank, N.A.
Assigned to: Judge George C Hanks, Jr

Case in other court:  234th Judicial District Court, 22-38986
234th Judicial District Court, 22-38986

Cause: 28:1332 Diversity-Petition for Removal

Date Filed: 07/08/2022
Jury Demand: None
Nature of Suit: 290 Real Property: Other
Jurisdiction: Diversity

 

Date Filed # Docket Text
07/18/2022 4 ORDER on Initial Discovery Protocols for Residential Mortgage Cases.(Signed by Judge George C Hanks, Jr) Parties notified.(bthomas, 4) (Entered: 07/18/2022)
07/18/2022 5 STANDING PROTECTIVE ORDER. (Signed by Judge George C Hanks, Jr) Parties notified.(bthomas, 4) (Entered: 07/18/2022)
07/21/2022 6 CERTIFICATE OF INTERESTED PARTIES by William E. Carlson, filed.(Vilt, Robert) (Entered: 07/21/2022)
07/21/2022 7 DESIGNATION OF EXPERT WITNESS LIST by William E. Carlson, filed. (Attachments: # 1 Exhibit Resume of Robert C Vilt)(Vilt, Robert) (Entered: 07/21/2022)
07/26/2022 8 REQUEST for pre-motion conference, filed.(Hytken, Rachel) (Entered: 07/26/2022)
07/27/2022 9 NOTICE of Referral of Motion to Magistrate Judge Andrew Edison re: 8 REQUEST for pre-motion conference, filed. (bthomas, 4) (Entered: 07/27/2022)

 


 

PACER Service Center
Transaction Receipt
07/28/2022 03:17:07
6 Jul 21, 2022 Certificate of Interested Parties
7 Jul 21, 2022 Designation of Expert Witness List

ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons.

Initial Conference set for 10/26/2022 at 09:00 AM in Courtroom 600 in Houston before Magistrate Judge Andrew M Edison.

(Signed by Judge George C Hanks, Jr) Parties notified.

(AkeitaMichael, 4) (Entered: 07/11/2022)

U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:22-cv-02263

Create an Alert for This Case on RECAP

Carlson v. JPMorgan Chase Bank, N.A.
Assigned to: Judge George C Hanks, Jr

Case in other court:  234th Judicial District Court, 22-38986
234th Judicial District Court, 22-38986

Cause: 28:1332 Diversity-Petition for Removal

Date Filed: 07/08/2022
Jury Demand: None
Nature of Suit: 290 Real Property: Other
Jurisdiction: Diversity
Plaintiff
William E. Carlson represented by Robert Clayton Vilt
Vilt and Associates – TX, P.C.
5177 Richmond Ave
Ste 1142
Houston, TX 77056
713-840-7570
Fax: 713-877-1827
Email: clay@viltlaw.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
V.
Defendant
JPMorgan Chase Bank, N.A. represented by Rachel L Hytken
Quilling, Selander, Lownds, Winslett & Moser, P.C.
Bryan Tower
2001 Bryan St, Ste. 1800
Dallas, TX 75201
214-880-1829
Fax: 214-871-2111
Email: rhytken@qslwm.com
ATTORNEY TO BE NOTICEDWilliam Lance Lewis
Quilling Selander et al
2001 Bryan St
Suite 1800
Dallas, TX 75201
214-871-2100
Fax: 214-871-2111
Email: llewis@qslwm.com
ATTORNEY TO BE NOTICED

 

Date Filed # Docket Text
07/08/2022 1 NOTICE OF REMOVAL from 234th Judicial District Court, case number 2022-38986 (Filing fee $ 402 receipt number ATXSDC-28433528) filed by JPMorgan Chase Bank, N.A.. (Attachments: # 1 Exhibit A, # 2 Exhibit A-1, # 3 Exhibit A-2, # 4 Exhibit A-3, # 5 Exhibit A-4, # 6 Exhibit A-5, # 7 Exhibit A-6, # 8 Exhibit A-7, # 9 Exhibit A-8, # 10 Exhibit A-9, # 11 Exhibit B, # 12 Civil Cover Sheet)(Lewis, William) (Entered: 07/08/2022)
07/08/2022 2 CORPORATE DISCLOSURE STATEMENT by JPMorgan Chase Bank, N.A. identifying JPMorgan Chase & Co. as Corporate Parent, filed.(Hytken, Rachel) (Entered: 07/08/2022)
07/11/2022 3 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 10/26/2022 at 09:00 AM in Courtroom 600 in Houston before Magistrate Judge Andrew M Edison. (Signed by Judge George C Hanks, Jr) Parties notified.(AkeitaMichael, 4) (Entered: 07/11/2022)

 


 

PACER Service Center
Transaction Receipt
07/13/2022 09:57:19

202238986

CARLSON, WILLIAM E vs. JPMORGAN CHASE BANK N A

(Court 234, JUDGE LAUREN REEDER)

JUN 29, 2022 | REPUBLISHED BY LIT: JUN 30, 2022

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Rogue Lawyer Clay Vilt Still Representing Unsuspecting Homeowners in Harris County Court.
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Laws In Texas is a blog about the Financial Crisis and how the banks and government are colluding against the citizens and homeowners of the State of Texas and relying on a system of #FakeDocs and post-crisis legal precedents, specially created by the Court of Appeals for the Fifth Circuit to foreclose on homeowners around this great State. We are not lawyers. We do not offer legal advice. We are citizens of the State of Texas who have spent a decade in the court system in Texas and have been party to during this period to the good, the bad and the very ugly.

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