Grant Pollet v. Aurora Loan Services
455 F. App'x 413
5th Cir.2011Background
- Pollett appeals denial of a TRO and a restraining-order/preliminary-injunction and seeks dismissal of Aurora's foreclosure, plus dismissal of Belvidere for lack of timely service and denial of reconsideration.
- Pollett abandoned numerous other district-court claims by not briefing them on appeal.
- This court lacks jurisdiction over the TRO denial and the RO appeal is moot because Aurora foreclosed on Pollett's home.
- The court reviews the wrongful-foreclosure and fraud claims de novo, accepting well-pled facts as true and requiring plausible grounds for relief.
- The district court dismissed the wrongful-foreclosure claim for failing to plead all elements and the fraud claim for lack of specificity.
- Belvidere was dismissed for lack of timely service; the court affirms dismissal on alternate grounds and notes no viable DTPA claim against Belvidere.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction and mootness of TRO/RO appeals | Pollett contends the district court erred in denying relief and that the TRO/RO appeal should proceed. | Aurora argues the TRO denial is reviewable only for jurisdiction, and the RO appeal is moot after foreclosure. | Appeal dismissed for lack of jurisdiction; RO appeal moot. |
| Right to allege wrongful foreclosure and fraud against Aurora | Pollett claims Aurora fraudulently induced default and wrongful foreclosure. | Aurora maintains Pollett failed to plead all elements of wrongful foreclosure and failed to plead fraud with specificity. | Dismissal affirmed; wrongful-foreclosure claim inadequately pled; fraud claim not sufficiently specific. |
| Belvidere dismissal and DTPA claim viability; reconsideration | Pollett asserts Belvidere was improperly dismissed and that DTPA grounds were stated; challenges reconsideration ruling. | Belvidere dismissal was proper; no viable DTPA claim; reconsideration lacked error in law or fact. | Belvidere dismissal affirmed on alternate grounds; DTPA claim not stated; reconsideration affirmed. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading plausibility standard)
- Sauceda v. GMAC Mortg. Corp., 268 S.W.3d 135 (Tex. App. 2008) (elements of wrongful foreclosure under Texas law)
- Flaherty & Crumrine Preferred Income Fund, Inc. v. TXU Corp., 565 F.3d 200 (5th Cir. 2009) (Rule 9(b) specificity requirements)
- Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444 (5th Cir. 1996) (consideration of abuse of discretion and procedural timelines)