Gomez v. Wells Fargo Bank, N.A.
7:17-cv-00118
S.D. Tex.May 1, 2017Background
- In 2006 Plaintiffs Saragoza and Anita Gomez obtained a mortgage secured by 3000 Princeton Ave., McAllen, TX; Fidelity made the loan.
- MERS, as nominee, assigned the Note and Deed of Trust to Wells Fargo in 2009; Wells Fargo holds the Note and Deed and is pursuing foreclosure.
- Plaintiffs fell behind on payments after more than ten years of timely payments, requested a loan modification, and allege Wells Fargo failed to respond; Wells Fargo and Plaintiffs executed a 2016 loan modification attached to defendants’ motion.
- Plaintiffs sued for breach of contract, wrongful foreclosure, violations of the Texas Property Code, lack of standing to foreclose, and alleged violations of HARP and the National Mortgage Settlement; they sought a temporary restraining order to halt foreclosure.
- Defendants moved to dismiss under Rule 12(b)(6); the motion was unopposed. The court considered documents referenced in the complaint (Deed of Trust, loan modification, assignment).
- The court found Plaintiffs’ pleadings conclusory or lacking required factual specificity, dismissed all claims with prejudice, and denied injunctive relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of contract | Defendants breached the Note/Deed by attempting foreclosure without proper notice or performance on bank’s part | Wells Fargo holds the Note/Deed; plaintiffs failed to identify specific contractual provision breached and admitted missed payments | Dismissed — plaintiff failed to plead specific breached term, performance, or damages plausibly |
| Wrongful foreclosure | Foreclosure was wrongful because plaintiffs were not given realistic opportunity to cure/default cure procedures | No foreclosure sale has occurred; plaintiff gave no facts showing defect or grossly inadequate sale price | Dismissed — essential elements (sale and grossly inadequate price) not alleged |
| Texas Property Code violations | Defendants did not follow statutory foreclosure requirements and refused to negotiate a modification | Plaintiffs fail to identify specific Code provisions or factual violations; Wells Fargo executed a loan modification | Dismissed — pleadings lack statutory specificity and supporting facts |
| Standing to foreclose | Defendants are not the correct successor-in-interest and thus lack foreclosure standing | Deed grants MERS foreclosure rights; assignment to Wells Fargo confers standing to nonjudicially foreclose | Denied — MERS and Wells Fargo have standing; Fidelity dismissed for lack of service |
| HARP and National Mortgage Settlement (NMS) | Wells Fargo failed to assist under HARP and engaged in dual-tracking contrary to NMS | Plaintiffs allege no facts showing HARP/NMS violations; plaintiffs are not parties to NMS and no private right of action is shown | Dismissed — no private right of action asserted or plausible facts of violation |
| Temporary restraining order | Plaintiffs sought to enjoin foreclosure and eviction actions | Plaintiffs cannot show substantial likelihood of success on the merits or irreparable harm given dismissal of claims | Denied — injunctive-relief prerequisites unmet |
Key Cases Cited
- Gines v. D.R. Horton, Inc., 699 F.3d 812 (5th Cir. 2012) (permitting consideration of documents attached to a motion to dismiss when central to claims)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state a plausible claim for relief)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (conclusory allegations are not entitled to an assumption of truth)
- Reece v. U.S. Bank Nat’l Ass’n, 762 F.3d 422 (5th Cir. 2014) (assignment of deed of trust confers standing to nonjudicially foreclose)
- Foster v. Deutsche Bank Nat’l Trust Co., 848 F.3d 403 (5th Cir. 2017) (elements of wrongful-foreclosure claim under Texas law)