Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION
BRIAN BLAKENEY, § §
Plaintiff, § §
v. § CIVIL ACTION NO. H-12-0845 § WELLS FARGO BANK, N.A.; U.S. § BANK, N.A., as Trustee; and § BRICE, VANDER LINDEN & WERNICK, §
P.C., § §
Defendants. § MEMORANDUM OPINION AND ORDER
Plaintiff Brian Blakeney brought this action against defendants Wells Fargo Bank, N.A. ("Wells Fargo"), U.S. Bank, N.A.
("U.S. Bank"), and Brice, Vander Linden & Wernick, P.C. ("Brice")
(collectively, "Defendants") in the 164th Judicial District Court
of Harris County, Texas, where it was filed under Cause No. 2012-
13214. Wells Fargo and U.S. Bank timely removed to this court.
Pending before the court are Brice's Motion to Dismiss, Motion for
Judgment or in the Alternative, Motion for a More Definite
Statement ("Brice's Motion to Dismiss") (Docket Entry No. 10) and
Defendants Wells Fargo and U.S. Bank's Rule 12(b) (6) Motion to
Dismiss and Brief in Support ("Banks' Motion to Dismiss") (Docket
Entry No. 14) Also pending before the court is Blakeney' s
Response in Opposition to Defendants Wells Fargo and U.S. Bank' s
Motion to Dismiss and in the Alternative Plaintiff's Motion for
Leave to File Amended Complaint ("Response to Banksr Motion to
Dismiss and Motion to Amend") (Docket Entry No. 15). For the
reasons explained below the Defendantsr motions to dismiss will be
granted and Blakeneyrs motion for leave to file an amended
complaint will be denied.
I. Backqround
A. Factual Allegations
In August of 2006 Blakeney financed the purchase of a home with a mortgage that was eventually sold to U.S. Bank and serviced
by Wells Fargo.' Blakeney alleges that Wells Fargo participated in
the federal governmentr s Making Home Affordable Program ("MHA") and
the Home Affordable Mortgage Program ("HAMP"), administered in
accordance with the guidelines set out in the Handbook for
Servicers of Non-GSE Mortgages (the "Handbook") After encounter-
ing financial difficulties Blakeney defaulted on his obligations in
September of 2 0 1 1 . ~ Blakeney alleges that Wells Fargo sent him a
notice of default on December 1, 2011, informing him of several
'plaintiff's Original Petition, Application for Temporary Restraining Order, and Application for Temporary Injunction
("Petition"), Ex. B2 to Defendants' Notice of Removal Under 28
U.S.C. 1441 ("Notice of Removal"), Docket Entry No. 1-4,
'Id. ¶ ¶ 13-14. HAMP is a loan-modification program established by the federal government pursuant to the authority
provided in the Emergency Economic Stabilization Act of 2008. 12
U.S.C. §§ 5201, et ses.
3~etition, Ex. B2 to Notice of Removal, Docket Entry No. 1-4, ¶ ¶ 10-11.
default-curing options, including those described in HAMP and the
Home Affordable Foreclosure Alternatives ( "HAFA") program.
Blakeney further alleges that he submitted an application for
modification under HAMP on November 29, 2011, and that Wells Fargo
denied the application on January 3, 2012.5
Blakeney alleges that on January 10, 2012, he received a letter from Brice stating that the only cure for the default was to
pay the total amount in arrears.6 Blakeney alleges that he then
sought consideration for a HAFA short sale or deed-in-lieu of
foreclosure, but that Wells Fargo refused to consider him for those
default-curing option^.^
B. Causes of Action
On March 5, 2012, Blakeney filed suit in state court, bringing claims for breach of contract and violations of the Texas Debt
Collection Act ("TDCA"), TEX. FIN. CODE §§ 392.001, et ses. , and
alleging the defenses of waiver and quasi-estoppel to acceleration
4 ~ d . - 11, 15. HAFA is a sub-program of HAMP that offers the
options of a short sale or a deed-in-lieu of foreclosure to
homeowners who can no longer afford their mortgage payments.
U a s c o v. CitiMortqaqe, Inc. 2012 WL 3648414, at *2, n.3 (S.D.
Tex. Aug. 23, 2012) (citing Burr v. JPMorgan Chase Bank, N.A., 2012
WL 1059043, at *3 n.4 (S.D. Tex. Mar. 28, 2012)).
5~etition, Ex. B2 to Notice of Removal, Docket Entry NO. 1-4,
o f t h e d e b t a n d s a l e o f t h e home.' B l a k e n e y a l s o s o u g h t a
t e m p o r a r y r e s t r a i n i n g o r d e r t o e n j o i n a n y f o r e c l o s u r e s a l e o r
e v i c t i o n .
1. B r e a c h o f C o n t r a c t B l a k e n e y f s b r e a c h o f c o n t r a c t c l a i m a l l e g e s t h a t u p o n d e f a u l t t h e d e e d o f t r u s t r e q u i r e d Wells F a r g o t o p r o v i d e (1) a n o t i c e o f
d e f a u l t l i s t i n g t h e s p e c i f i c a c t i o n s t o b e t a k e n t o c u r e t h e
d e f a u l t a n d ( 2 ) a t l e a s t t h i r t y d a y s t o c o m p l e t e t h o s e s p e c i f i c
a c t i o n s . 1 ° B l a k e n e y a l l e g e s t h a t w h i l e Wells F a r g o d i d p r o v i d e a
l i s t o f d e f a u l t - c u r i n g o p t i o n s , i n c l u d i n g t h o s e u n d e r HAMP a n d
HAFA, Wells F a r g o b r e a c h e d t h e d e e d o f t r u s t b y n o t a l l o w i n g
B l a k e n e y t o p u r s u e a r a n g e o f d e f a u l t - c u r i n g o p t i o n s u n d e r HAMP a n d
HAFA. l1
2 . TDCA
I n s u p p o r t o f t h e TDCA c l a i m B l a k e n e y a l l e g e s t h a t W e l l s F a r g o a n d B r i c e a r e " d e b t c o l l e c t o r s " w i t h i n t h e m e a n i n g o f TEX. FIN. CODE 3 9 2 . 0 0 1 B l a k e n e y a l l e g e s t h a t Wells F a r g o a n d B r i c e v i o l a t e d t e m p o r a r y r e s t r a i n i n g o r d e r was e n t e r e d i n s t a t e c o u r t on
'A March 5 , 2 0 1 2 , e n j o i n i n g a n y f o r e c l o s u r e s a l e o r e v i c t i o n .
P l a i n t i f f ' s T e m p o r a r y R e s t r a i n i n g O r d e r a n d O r d e r S e t t i n g a H e a r i n g
T e m p o r a r y I n j u n c t i o n , Ex. B5 t o N o t i c e o f Removal, D o c k e t E n t r y
N O . 1 - 7 .
l 0 ~ e t i t i o n , E x . B2 t o N o t i c e o f Removal, D o c k e t E n t r y No. 1 - 4 , 2 4 .
§ 392.301(a) of the Texas Finance Code, which prohibits a debt
collector from threatening to take an action prohibited by law:
31. As a participating servicer in the HAMP program, [Wells Fargo] violated Subsection (a) (8) when it threatened to take action to foreclose on the property without properly considering Mr. Blakeney under the HAFA or another alternative action to cure. Moreover, [Brice] violated the Act when it too threatened to move forward with the foreclosure and removal of Mr. Blakeney from his home knowing t h a t i t l e g a l l y could n o t do so until [Wells Fargo] had certified that all non-foreclosure options had been exhausted per the requirements under the Handbook. 32. Specifically, as a participant in the MHA program, a servicer is p r o h i b i t e d under Section 3.4.3 of Chapter I1 of the MHA Handbook from conducting a foreclosure sale until the servicer has issued a written certification to foreclosure counsel or the trustee, attesting that a l l l o s s m i t i g a t i o n o p t i o n s have been considered and exhausted for a potential HAMP-eligible borrower. This certification must be provided no sooner than 7 business days prior to the scheduled foreclosure sale date or any extension thereof. Neither [Wells Fargo] nor [Brice] have demonstrated that Wells Fargo issued a written certification to [Brice] or the trustee attesting that all loss mitigation options had been considered and exhausted. As noted previously, [Wells Fargo] refused to consider Mr. Blakeney for a short sale prior to moving forward with the foreclosure, so they could not possibly have exhausted all foreclosure alternative options. In the absence of this written certification to [Brice], neither [Wells Fargo] nor [Brice] should have threatened foreclosure or moved forward with foreclosure action. Consequently, both [Wells Fargo] and [Brice] were in violation of the Texas Debt Collection Act.''
Blakeney also alleges that Wells Fargo and Brice violated the TDCAf s prohibitions on misrepresenting the character, extent, or
amount of a consumer debt, _see TEX. FIN. CODE 392.304 (a) (8), and
using false representations or deceptive means to collect a
consumer debt, see TEX. FIN. CODE 392.304(a) (19), by including
"charges on reinstatement quotes for 'attorneys fees' and 'trustees
feesf that could not have been incurred because the foreclosure had
not taken place yet. "I3 In further support of this cause of action
Blakeney alleges that Brice "deceptively stated in its
correspondence that the only way to cure the default was to pay the
arrears in full, which was completely untrue."14
3. Defenses to Acceleration and Sale Blakeney alleges that the deed of trust "provides that the borrowers may bring an action in court to assert any defense to
acceleration and sale. " I 5 In alleging the defenses of waiver and
quasi-estoppel, Blakeney "plead[s] as though he were a defendant to
[Wells Fargof s] charge that a default and therefore, a breach of
contract of [Blakeney] existed."16 Blakeney alleges that Wells
Fargo "waived its right to proceed with foreclosure until it
properly considered [Blakeney] for each of the available
foreclosure prevention and alternative options" when it "offered to
consider [Blakeneyfs] eligibility for a loan modification."17 As
to quasi-estoppel, Blakeney alleges that Wells Fargo chose to
participate in the foreclosure mitigation and avoidance programs,
but "then decided to ignore the Handbook when it failed to consider
Mr. Blakeney['s] requests for the available foreclosure relief
options. "I8 Blakeney further alleges that "it would be unconscion-
able to permit [Wells Fargo] to maintain this position to the
disadvantage of [Blakeney] . " I g
C. Procedural History
On March 20, 2012, Wells Fargo and U.S. Bank removed the action to this court pursuant to 28 U.S.C. § 1441, asserting
diversity jurisdiction under 28 U.S.C. 1332." Blakeney filed a
motion to remand on April 18, 2012.'l The court denied the motion
to remand on June 22, 2012.22
On June 20, 2012, Brice filed its pending motion to dismissz3 and Blakeney responded on July 6, 2012 .24 Wells Fargo and U. S. Bank
181d. - ¶ ¶ 37-38.
1 9 1 d . ¶ 39.
''~otice of Removal, Docket Entry No. 1, "plaintiff Brian Blakeneyrs Motion to Remand Cause of Action Based on Lack of Subject Matter Jurisdiction, Docket Entry No. 4.
22~earing Minutes and Order, June 22, 2012, Docket Entry No. 11. 2 3 ~ r i c e f s Motion to Dismiss, Docket Entry No. 10.
24~laintif f' s Response in Opposition to Defendant Bricer s Motion to Dismiss, Motion for Judgment and Motion for a More
Definite Statement in the Alternative ("Response to Brice's Motion
to Dismiss"), Docket Entry No. 13.
filed their pending motion to dismiss on July 12, 2012.25 Blakeney
filed a response as well as a motion for leave to file an amended
complaint on August 2, 2012.26 Wells Fargo and U.S. Bank replied
on August 3, 2012.27
11. Motion to Amend In response to Wells Fargo and U.S. Bankr s motion to dismiss, Blakeney filed a brief in opposition and a motion for leave to
amend the complaint.28 A party may amend its pleading once as a
matter of course within twenty-one days of serving it or twenty-one
days after service of a motion under Rule 12(b), whichever is
earlier. Fed. R. Civ. P. 15 (a) . In all other cases a party may
only amend its pleadings with the written consent of the opposing
party or with the courtf s leave. Fed. R. Civ. P. 15 (a) (2) The
court should freely give leave to amend when justice so requires.
Id. Because Blakeney has neither shown how an amended complaint
would be successful nor attached a proposed amended complaint, the
court concludes that Blakeneyr s motion for leave to amend should be
25~anks' Motion to Dismiss, Docket Entry No. 14.
26~esponse to Banksf Motion to Dismiss and Motion to Amend, Docket Entry No.
27~efendantsr Reply to Plaintiffr s Response in Opposition to Defendants Wells Fargo and U. S. Bankr s Motion to Dismiss and in the
Alternative Plaintiff's Motion for Leave to File Amended Complaint
("Banksr Reply"), Docket Entry No. 16.
28~esponse to Banksr Motion to Dismiss and Motion to Amend, Docket Entry No. 15.
denied. The court will therefore analyze the motions to dismiss
with respect to Blakeney's original state court petition.
Motions to Dismiss A. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) (6) for failure to state a claim for which relief
may be granted tests the formal sufficiency of the pleadings and is
"appropriate when a defendant attacks the complaint because it
fails to state a legally cognizable claim." Ramminq v.
United States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied sub
nom Cloud v. United States, 122 S. Ct. 2665 (2002) The court must
accept the factual allegations of the complaint as true, view them
in a light most favorable to the plaintiff, and draw all reasonable
inferences in the plaintiff's favor. Id.
When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.
Swierkiewicz v. Sorema N.A., 122 S. Ct. 992, 997 (2002) (quoting
Scheuer v. Rhodes, 94 S. Ct. 1683, 1686 (1974)). To avoid
dismissal a plaintiff must allege "enough facts to state a claim to
relief that is plausible on its face." Bell Atlantic Corp. v.
Twomblv, 127 S. Ct. 1955, 1974 (2007). "A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Ashcroft v. Isbal, 129 S. Ct.
1937, 1949 (2009). "Where a complaint pleads facts that are
'merely consistent with' a defendant's liability, it 'stops short
of the line between possibility and plausibility of entitlement to
relief. ' " Id. (quoting Twomblv, 127 S. Ct. at 1966) When
considering a motion to dismiss, district courts are "limited to
the complaint, any documents attached to the complaint, and any
documents attached to the motion to dismiss that are central to the
claim and referenced by the complaint." Lone Star Fund V ( U . S . ) ,
L.P. v. Barclavs Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010)
(citing Collins v. Morsan Stanlev Dean Witter, 224 F.3d 496, 498-99
(5th Cir. 2000) ) .
B. Breach of C o n t r a c t
Blakeney alleges that Wells Fargo breached the deed of trust by not allowing him to pursue the range of default-curing options
under HAMP and HAFA." Wells Fargo and U.S. Bank argue that these
claims should be dismissed under Rule 12(b) (6) because Wells Fargo
was under no legal obligation to review Blakeney for financial
assistance under HAMP, HAFA, or any other program prior to
accelerating the loan and pursuing f o r e c l o ~ u r e . ~ ~
29~etition, Ex. B2 to Notice of Removal, Docket Entry No. 1-4, ¶ 27.
30~anks' Motion to Dismiss, Docket Entry No. 14, -10-
To prevail on a breach of contract claim the plaintiff must allege that a valid contract exists; (2) plaintiff fully
performed his obligations; (3) defendant breached the contract; and
(4) plaintiff was damaged as a result of the breach. Hovorka v.
Community Health Svs., Inc., 262 S.W.3d 503, 508-09 (Tex. App. --
El Paso 2008, no pet.). At a minimum Blakeney is unable to
establish that Wells Fargo breached the deed of trust.
The relevant provision of the deed of trust provides: 22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument . . . The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice will result in acceleration of the sums secured by this Security Instrument and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the power of sale and any other remedies permitted by Applicable Law. . . . [31] The deed of trust does not require Wells Fargo to allow Blakeney to
pursue default curing options under HAMP or HAFA. Therefore, the
alleged breach could not have occurred because no contractual
3 1 ~ e e d of Trust, Ex. 2 to Banks' Motion to Dismiss, Docket Entry No. 14-3, ¶ 22 (referred to in Petition, Ex. B2 to Notice of
Removal, Docket Entry No. 1-4, 24).
obligation to offer default-curing options under HAMP or HAFA
existed.
Nor can Blakeney prevail on a breach of contract claim based on an alleged violation of HAMP or HAFA. Blakeney is not a third-
party beneficiary to the HAMP and HAFA agreements between Wells
Fargo and the federal government and therefore may not assert a
breach of contract claim based on those agreements. Cade v.
BAC Home Loans Servicinq, LP, 2011 WL 2470733, at *4 (S.D. Tex.
June 20, 2011) ("Asserting rights as a third party amounts to
asserting a private right of enforcement on a contract; absent
clear contractual intent to confer third-party beneficiary rights,
the [homeowner plaintiffs] do not have standing to bring an action
for breach of contract under HAMP or Texas law."). Furthermore, as
Blakeney r e c o g n i ~ e s , ~ ~ there is no private cause of action for
violations of the HAMP or HAFA guidelines. Cade v. BAC Home
Loans Servicinq, LP, 2011 WL 2470733, at *2 (S.D. Tex. June 20,
2011) ("[Nlo private right of action to enforce lender compliance
exists under HAMP."); Akintunii v. Chase Home Fin. L.L.C., 2011
WL 2470709, at *4 (S.D. Tex. June 20, 2011) ("There is no private
cause of action under HAMP.").
Blakeney argues, however, that his petition states a claim for which relief may be granted because Wells Fargo failed "to follow
32~esponse to Banksr Motion to Dismiss and Motion to Amend, Docket Entry No. 15,
the 'applicable laws' of the State of Texas regarding providing
notice of default" in the manner required by the deed of
Blakeney argues that under TEX. PROP. CODE 51.002 (d) Wells Fargo
was required to provide Blakeney at least twenty days to cure the
default.34 This argument is unavailing. First, Blakeney does not
assert in the petition any allegations as to breach of contract
that are based upon the Texas Property Code. Second, the deed of
trust actually requires Wells Fargo to provide at least thirty days
to cure the default. Blakeney does not allege that Wells Fargo
moved forward with acceleration and foreclosure in less than thirty
days. The court therefore concludes that, when viewing the
allegations in the light most favorable to Blakeney, Blakeney has
failed to allege "enough facts to state a claim to relief that is
plausible on its face." See Twomblv, 127 S. Ct. at 1974. This
claim will therefore be dismissed.
C . Texas Finance Code
Blakeney asserts claims against Wells Fargo and Brice for violations of sections 392.301 (a) (8) (threatening to take an action
prohibited by law) , 392.304 (a) (misrepresenting the character,
extent, or amount of a consumer debt) , and 392.304 (a) (19) (using
false representations or deceptive means to collect a consumer
d e b t ) o f t h e T e x a s F i n a n c e Code.35 The D e f e n d a n t s move t o d i s m i s s
t h e s e c l a i m s u n d e r R u l e 1 2 ( b ) ( 6 ) . 3 6 The c o u r t c o n c l u d e s t h a t
B l a k e n e y r s c l a i m s u n d e r t h e T e x a s F i n a n c e Code s h o u l d b e d i s m i s s e d . S e c t i o n 3 9 2 . 3 0 1 ( a ) ( 8 )
B l a k e n e y a l l e g e s t h a t t h e D e f e n d a n t s v i o l a t e d § 3 9 2 . 3 0 1 ( a ) ( 8 ) b y t h r e a t e n i n g t o t a k e a c t i o n t o f o r e c l o s e on t h e home w i t h o u t
p r o p e r l y c o n s i d e r i n g B l a k e n e y f o r HAMP o r HAFA o p t i o n s t o c u r e . 3 7
B l a k e n e y a r g u e s t h a t t h e d e e d o f t r u s t r e q u i r e d Wells F a r g o t o
c o n s i d e r B l a k e n e y u n d e r HAMP a n d HAFA o p t i o n s a n d t h a t t h e r e f o r e
a n y t h r e a t t o f o r e c l o s e w i t h o u t s u c h c o n s i d e r a t i o n was a t h r e a t t o
t a k e a n a c t i o n p r o h i b i t e d b y l a w . 3 8 The D e f e n d a n t s a r g u e t h a t
B l a k e n e y f a i l s t o s t a t e a c l a i m u n d e r 3 9 2 . 3 0 1 ( a ) ( 8 ) b e c a u s e
f o r e c l o s u r e i n t h i s c a s e was n o t a n a c t i o n p r o h i b i t e d b y l a w . 3 9 The
c o u r t a g r e e s .
The c o u r t h a s a l r e a d y c o n c l u d e d t h a t t h e deed o f t r u s t d i d n o t o b l i g a t e Wells F a r g o t o c o n s i d e r B l a k e n e y f o r HAMP o r HAFA o p t i o n s
3 5 ~ e t i t i o n , Ex. B2 t o N o t i c e o f Removal, D o c k e t E n t r y No. 1 - 4 , ¶ ¶ 29-33.
3 6 ~ r i c e ' s M o t i o n t o D i s m i s s , D o c k e t E n t r y No. 1 0 , ¶ 5; B a n k s r M o t i o n t o D i s m i s s , D o c k e t E n t r y No. 1 4 , ¶ 4 .
3 7 ~ e t i t i o n , Ex. B2 t o N o t i c e o f Removal, D o c k e t E n t r y No. 1 - 4 ,
¶ 3 1 .
3 8 ~ e s p o n s e t o B r i c e ' s M o t i o n t o D i s m i s s , D o c k e t E n t r y No. 1 3 , ¶ 8 ; R e s p o n s e t o B a n k ' s M o t i o n t o D i s m i s s a n d M o t i o n t o Amend,
D o c k e t E n t r y No. 1 5 , ¶ 1 5 .
3 9 ~ r i c e r s M o t i o n t o D i s m i s s , D o c k e t E n t r y No. 1 0 , ¶ 2 0 ; Banks' M o t i o n t o D i s m i s s , D o c k e t E n t r y No. 1 4 , 2 0 .
to cure. Failure to consider HAMP or HAFA options therefore would
not have rendered a foreclosure action illegal. Furthermore,
Blakeney does not argue that the guidelines concerning HAMP or HAFA
in the Handbook constitute governing law such that a violation of
the guidelines would be actionable under § 392.301 (a) (8).
Accordingly, the court concludes that Blakeney has not pleaded
facts to allow the court "to draw the reasonable inference" that
either Wells Fargo or Brice is liable under 392.301 (a) (8) See
Isbal, 129 S. Ct. at 1949.
2. Sections 392.304 (a) and 392.304 (a) (19) Blakeney alleges that Brice and Wells Fargo violated §§ 392.304(a) (8) and 392.304(a) (19) by including "charges on
reinstatement quotes for 'attorneys fees' and 'trustees fees' that
could not have been incurred because the foreclosure had not taken
place yet. " 4 0 Blakeney also alleges that Brice "deceptively stated
in its correspondence that the only way to cure the default was to
pay the arrears in full, which was completely untrue."41 Wells
Fargo and U.S. Bank argue that Blakeney's claims under
§§ 392 -304 (a) (8) and 392.304 (a) (19) should be dismissed because
Blakeney "fails to identify the specific reinstatement quote(s)
and/or the charges complained of (date, amount, etc.) and why they
40~etition, Ex. B2 to Notice of Removal, Docket Entry NO. 1-4,
were false. This vague and generalized allegation is insufficient
to avoid dismissal under Rule 12 (b) (6) . "42 Brice contends that
Blakeney does not allege that Brice made a misrepresentation or
employed a deceptive means.43
The court concludes that Blakeney's allegation regarding the attorney's fees and trustee's fees can be fairly read to mean that
at least some of the charges on the reinstatement notice could not
yet have been incurred. Blakeney does not allege that under the
deed of trust no attorney's fees and trustee's fees could be
lawfully incurred prior to foreclosure. In fact, the deed of trust
specifically states that the lender "shall be entitled to collect
all expenses incurred" in accelerating the debt, "including, but
not limited to, reasonable attorneys' fees."44 This allegation
therefore fails to state a claim for which relief may be granted.
The court also concludes that Blakeney's allegation regarding Brice's statement that "the only way to cure the default was to pay
the arrears in full" fails to state a claim under either 392.304 (a) or § 392.304 (a) (19) Because Wells Fargo was
entitled to accelerate the debt and was not required to consider
Blakeney for HAMP or HAFA options to cure, Blakeney has not alleged
facts that, if true, would establish that this statement was either
42~anks' Motion to Dismiss, Docket Entry No. 14, ¶ 27. 4 3 ~ r i ~ e ' s Motion to Dismiss, Docket Entry No. 10, ¶ 27. 4 4 ~ e e d of Trust, Ex. 2 to Banks' Motion to Dismiss, Docket Entry No. 14-3,
a misrepresentation of a debt or a deceptive means to collect a
debt as a matter of law. The court therefore concludes that
Blakeney's claims under §§ 392.304 (a) and 392.304 (a) (19) should
be dismissed.
D. Defenses to Acceleration and Sale
Blakeney alleges two defenses to acceleration and sale, waiver and quasi-estoppel, which Blakeney pleads "as though he were a
defendant to [Wells Fargo's] charge that a default . . existed. "45
None of the Defendants has brought a suit in court alleging a claim
for relief. Because Blakeney's waiver and quasi-estoppel allega-
tions are defenses to claims that the Defendants have not pled,
they are not properly before the court and will therefore be
dismissed.
IV. Conclusion and Order The court concludes that Blakeney has failed to state a claim for breach of contract, for violations of the Texas Finance Code,
or for relief under the doctrines of waiver or quasi-estoppel. The
court will therefore dismiss Blakeney's claims under Federal Rule
of Civil Procedure 12(b) (6). The court further concludes that
Blakeney should not be granted leave to amend the petition.
Accordingly, Brice's Motion to Dismiss, Motion for Judgment or in the Alternative, Motion For A More Definite Statement (Docket
45~etition, Ex. B2 to Notice of Removal, Docket Entry No. 1-4, Entry No. 10) is GRANTED; Defendants Wells Fargo Bank, N.A. and
U.S. Bank National Associationf s 12 (b) Motion to Dismiss (Docket
Entry No. 14) is GRANTED; and Plaintiff Brian Blakeneyf s Motion for
Leave to File Amended Complaint (Docket Entry No. 15) is DENIED.
SIGNED at Houston, Texas, on this 21st day of December, 2012. 1 SIM LAKE UNITED STATES DISTRICT JUDGE