Mendoza et al v. Wells Fargo Bank, N.A., as Trustee for Structured Asset Securities Corporation Mortgage Pass-Through Certificates, Series 2005-NC2, No. 4:2014cv00554 - Document 14 (S.D. Tex. 2014)
Court Description: MEMORANDUM OPINION AND ORDER granting in part and denying in part 5 MOTION to Dismiss. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION LYDIA MENDOZA and JOSE L. MENDOZA, Plaintiffs, v. WELLS FARGO BANK, N.A., as TRUSTEE FOR STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-NC2, Defendant. § § § § § § § § § § § § § § CIVIL ACTION NO. H-14-0554 MEMORANDUM OPINION AND ORDER Plaintiffs Lydia Mendoza and Jose L. Mendoza "Plaintiffs") (collectively, brought this action against defendant Wells Fargo Bank, N.A., as Trustee for Structured Asset Securities Corporation Mortgage Pass-Through Certificates, Series 2005-NC2 ("Wells Fargo") in the 129th Judicial District Court of Harris County, Texas, where it was filed under Cause No. 2014-04776. action to this court. Wells Fargo removed the Pending before the court Motion to Dismiss ("Motion to Dismiss") is Defendant's (Docket Entry No.5). For the reasons explained below, Wells Fargo's Motion to Dismiss will be granted in part and denied in part. I. Background On February 9, 2005, Plaintiffs executed a Texas Home Equity Security Instrument granting New Century Mortgage Corporation a lien on their Harris County homestead in order to secure a home equi ty loan. 1 Wells Fargo "has asserted that it is the current holder of the Note."2 On May 28, 2008, "after Plaintiffs began to suffer financial hardships," Wells Fargo accelerated the loan. 3 On June 12, 2008, wells Fargo filed an Application for Home Equity Foreclosure in the 113th Judicial District Court of Harris County, Texas, which was granted on September 8, 2008. 4 On August 27, 2010, Wells Fargo filed a second Application for Home Equity Foreclosure in the 234th lOriginal Petition and Request for Disclosures ("Original Petition"), Exhibit A-3 to Defendant's Notice of Removal ("Notice of Removal"), Docket Entry No. 1-2, p. 11 ~~ 11-12; Texas Home Equity Note ("Note"), Exhibit 1 to Original Petition, Exhibit A-3 to Not ice of Removal, Docket Entry No. 1- 2, p. 21; Texas Home Equity Security Instrument ("Security Instrument"), Exhibit 2 to Original Petition, Exhibit A-3 to Notice of Removal, Docket Entry No. 1-2, p. 25. Page citations are to the pagination imprinted by the federal court's electronic filing system at the top and right of the document. 20r iginal Petition, Exhibit A-3 to Notice of Removal, Docket Entry No. 1-2, p. 11 ~ 13. 3Id. ~ 14; see also Letters from Barrett Daffin Frappier Turner & Engel, L. L. P. to Jose L. Mendoza and Lydia S. Mendoza (May 28, 2008) ("May 28, 2008, Notices of Acceleration"), Exhibit 3 to Original Petition, Exhibit A-3 to Notice of Removal, Docket Entry No. 1-2, pp. 42-43; Motion to Dismiss, Docket Entry No.5, p. 1. 4Motion to Dismiss, Docket Entry No.5, p. 1; Verified Tex. Rule Civ. P. 736 Application for Home Equity Foreclosure Order ("2008 Foreclosure Application"), Exhibit A to Motion to Dismiss, Docket Entry No.5-I; Plaintiffs' Response to Defendant's Motion to Dismiss ("Response"), Docket Entry No.9, p. 3 , 7. -2- Judicial District Court of Harris CountYI Texas on April 29 1 On September 30 2011. 5 2013 1 1 I which was granted Wells Fargo filed a third Application for Home Equity Foreclosure in the 334th Judicial District Court of Harris County On February 3 1 2014 1 Texas. 6 I Plaintiffs brought this action in the 129th Judicial District Court of Harris CountYI Texas, where it was filed under Cause No. 2014-04776. 7 the 127th Judicial District February 5, 2014. 8 Dismiss on March 13, Court of Harris County, On March 6, action to this court. 9 The action was transferred to 2014 I Wells Texas I on Fargo removed the Wells Fargo filed the pending Motion to 2014. 10 Plaintiffs filed their Response on April 3, 2014,11 and Wells Fargo filed a reply on April 18 1 2014.12 5Motion to Dismiss, Docket Entry No.5, p. 2; Verified Tex. Rule Civ. P. 736 Application for Home Equity Foreclosure Order ("2010 Foreclosure Application ll ) Exhibit B to Motion to Dismiss Docket Entry No. 5-2; Response, Docket Entry No.9, p. 3 ~ 9. I l 60 r iginal Petition l Exhibit A-3 to Notice of Removal, Docket Entry No. 1-21 p. 3 ~ 15; Motion to Dismiss, Docket Entry No.5, p. 2; Tex. Rule Civ. P. 736 Application for Home Equity Foreclosure Order ("2013 Foreclosure Application ll ), Exhibit C to Motion to Dismiss Docket Entry No. 5-3; Response, Docket Entry No. 9 p. 3 l 1 ~ 11. 70 r iginal Petition, Exhibit A-3 to Notice of Removal, Docket Entry No. 1-2, p. 9. 8Transfer Order, Entry No. 1-2, p. 46. 9Notice of Removal Exhibit A-4 I to Notice of Removal, Docket Docket Entry No.1. lOMotion to Dismiss, Docket Entry No.5. llResponse, Docket Entry No.9. 12Defendant's Reply in Support ("Replyll), Docket Entry No. 10. -3- of Its Motion to Dismiss II. A motion to Applicable Law dismiss Procedure 12 (b) (6) pursuant to Federal Rule of Civil 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 Ramming claim." United States, 281 F.3d 158, 161 (5th Cir. 2001). v. 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 Scheuer v. (1974)). Rhodes, 94 S. Ct. 1683, 1686 (2002) (quoting To avoid dismissal a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 127 S. Ct. 1955, 1974 (2007). Bell Atlantic Corp. v. Plausibility requires "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference defendant is liable for the misconduct alleged." complaint pleads facts that are -4- merely Id. consistent that the "Where a with a defendant's liability, possibility and stops plausibility of (quoting Twombly, omitted). it 127 S. Ct. short of the entitlement at 1966) to line between relief." Id. (internal quotation marks "Further, a complaint that shows relief to be barred by an affirmative defense, such as the statute of limitations, may be dismissed for failure to state a cause of action." Kaiser Aluminum & Chern. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). When considering a motion to dismiss courts are generally "limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss central to the claim and referenced by the complaint." that are Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) 496, (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 498-99 (5th Cir. 2000)). When a party presents "matters outside the pleadings" with a Rule 12(b) (6) motion to dismiss, the court has "complete discretion" to either accept or exclude the evidence for purposes of the motion to dismiss. Isguith ex reI. Isguith v. Middle South Utilities, Inc., 847 F.2d 186, 194 n.3 (5th Cir. 1988). Plaintiffs Instrument, Original have attached and May 28, Petition. 2008, copies of the Note, Security Notices of Acceleration to their "A written document that is attached to a complaint as an exhibit is considered part of the complaint and may -5- be considered in a 12 (b) (6) dismissal proceeding. Ferrer v. II Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007). Wells Fargo has attached copies of the 2008, 2010, and 2013 Wells Fargo Foreclosure Applications to its Motion to Dismiss. argues that these documents are matters of public record of which the court may take judicial notice.13 Plaintiffs argue, however, that while the court may take judicial notice of the fact that the Foreclosure Applications were filed, are applications not 'public "the assertions made in the records' fit for judicial notice, and are just self serving statements by Wells Fargo. 1114 Under Federal Rule of Evidence 201 "[t] he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Ev i d . 2 0 1 (b) . 1I Fed. R. Here, Wells Fargo asks the court to take judicial notice of the contents of the Foreclosure Applications in order to establish facts that would allow the court to draw the inference that Wells Fargo abandoned its 2008 acceleration of the Plaintiffs' home equity loan. 15 Specifically, Wells Fargo seeks to establish 13Motion to Dismiss, Docket Entry No.5, pp. 5-7. 14Response, Docket Entry No.9, p. 8 ~ 21. 15See Motion to Dismiss, Docket Entry No.5, pp. 5-7; Reply, Docket Entry No. 10, p. 6. -6- that Plaintiffs made, and Wells Fargo accepted, payments against the outstanding balance of the loan after the 2008 acceleration. 16 Plaintiffs dispute the circumstances under which any payments were made and argue that "the three separate home equity foreclosure applications actually supports continued acceleration."17 The court concludes that the averments in the Foreclosure Applications and the factual content of the documents attached to them fail to clear Rule 201's "'indisputability' hurdle." Taylor v. Charter Med. Corp., 162 F.3d 827, 830 & n.18 1998) See (5th Cir. that we have difficulty conceiving of an ("We note adjudicative fact found in a court record that is not subject of reasonable dispute and, judicial notice."). therefore, Accordingly, of which a court could take the court will take judicial notice of the fact that the Foreclosure Applications were filed but will not consider the verity of their contents for purposes of the pending Motion to Dismiss. Enterprises-Mississippi. See Gray ex reI. Rudd v. Inc., 390 F. 3d 400, 408 Beverly (5th Cir. 2004) ("Although we cannot take judicial notice of findings of fact of other courts, the fact that a judicial action was taken indisputable and is therefore amenable to judicial notice.") i is cf. Callan v. Deutsche Bank Trust Co. Americas, No. 4:13-CV-247, 2014 WL 1314831, at n.2 (S.D. Tex. Mar. 27, 2014) (taking judicial 16See Motion to Dismiss, Docket Entry No.5, pp. 5-7. 17Response, Docket Entry No.9, p. 1 -7- ~ 1, p. 5 ~~ 15-16. . three foreclosure applications H notice "of the contents of when the plaintiff "ask [ed] the [c]ourt to take judicial notice of the contents of the applications only for the fact that they were filed, not for the truth of the statements therein H III. ) ¢ Analysis In their Original Petition Plaintiffs allege violations of Article XVI, § 50(a) (6) of the Texas Constitution regarding their home equity loan. 18 Plaintiffs also allege that Wells Fargo is barred from foreclosing on their property by the four-year statute of limitations found in Remedies Code. 19 § 16.035(b) of the Texas Civil Practice and In addition to seeking declaratory and injunctive relief,20 Plaintiffs allege claims for breach of contract 21 and quiet title. 22 Wells Fargo has moved to dismiss all of Plaintiffs' claims. A. Violations of the Texas Constitution Plaintiffs allege five violations of Article XVI, § 50 (a) (6) of the Texas Constitution regarding their home equity loan. allege (1) that they never received the notice required by § They 50(g), 180riginal Petition, Exhibit A-3 to Notice of Removal, Docket Entry No. 1-2, pp. 11-13 ~~ 16-17. 19rd. at 13-14 ~~ 18-21. 2°Id. at 15-17, 21Id. at 14 ~~ 22Id. at 14-15 ~~ ~~ 29-36, 19 a-d. 22-24. ~~ 25-28, 19 ~ a. -8- - - - - - - - - - _ . _ - - _.._ _ _.---...,."",===-..... in violation of 50 (a) (6) (M) (i) § i (2) that they did not receive a copy of the final loan documents, in violation of (3) § that there was no appraisal 50 (h) (1) for purposes of § prepared 50 (a) (6) (Q) (ix) in (5) required by that 50 (g), they did not homestead § § in violation of execute a property's fair 50 (a) (6) (Q) (ix) .23 compliance § a with 50 (a) (6) (M) (i) i value, seek i 50 (a) (6) (Q) (viii) § written acknowledgment market Plaintiffs 50(a) (6) (Q) (v) (4) that they did not i receive notice of their right to rescind under as § in and of the violation of declaration that the mortgage lien is void. 24 Wells Fargo argues that Plaintiffs' claims based on alleged violations of the Texas Constitution are barred by the four-year statute of limitations provided in 16.051 of the Texas Civil § Practice and Remedies Code. 25 Constitutional infirmities under § 50 (a) (6) are subject to the four-year statute of limitations found in Civil Practice and Remedies Code. § 16.051 of the Texas Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 674 (5th Cir.), cert. denied, 134 S. Ct. 196 (2013). The statute of limitations begins to run when the lien is created on the date of closing on the loan. Id. at 675-76. Plaintiffs argue that the discovery rule operates to toll the limitations period until "February 3, 2014, when [their] 23Id. at 11-13 ~ 24Id. at 15-17 ~~ counsel 16. 29-35. 25Motion to Dismiss, Docket Entry No.5, pp. 2, 4-5, 7. -9- did an in-depth review of all documents relating to the Property. "26 However, the Fifth Circuit has rejected this argument and held that "the legal injury rule applies to the creation of unconstitutional liens," and that the legal injury occurs at the creation of the Id. lien. No . at 13 - 2 0242, 675-76; Moran v. 2 0 14 WL 1193 51 0 , Ocwen Loan Servicing, L.L.C., * 1 ( 5 t h Ci r . Mar. 24 , 2 0 14) . at Plaintiffs' argument therefore has no merit. Plaintiffs also argue that they are "seeking to have 16.051 is inapplicable because § the lien on their real property be declared void" and "[s]uits for recovery of real property are not covered by the residual four-year statute of limitations. "27 Tex. Civ. Prac. & Rem. Code § See 16.051 ("Every action for which there is no express limitations period, except an action for the recovery of real property, must be brought not later than four years after the day the constitutes purposes of action "an action for the Whether recovery of 671, 674 ( 1942 ) ("The rule action for whether the See S . W. 2 d an property" challenged lien is void or merely voidable. § exception real upon 162 16.051's accrues.") depends QuaIl s , of cause Slaughter v. has long been established in this State that where a deed is absolutely void, a suit at law in trespass to try title may be maintained to recover the land without setting the deed aside, and the statutes of 260riginal Petition, Exhibit A-3 to Notice of Removal, Docket Entry No. 1-2, p. 18 ~ 40. 27Id. at 17 ~ 35. -10- .,-------------------------------- limitation governing actions for the recovery of land apply. the other hand, On where a deed is merely voidable and the equity powers of the court must first be invoked to cancel the deed before a suit can be maintained at law to recover the land, then the four-year statute controls." (citations omitted)); see also Carl v. Settegast, 237 S.W. approved); Garcia 238, v. 241-42 Garza, (Tex. 311 Comm'n App. S.W.3d 28, 1922, holding (Tex. 44 App.- San Antonio 2010, pet. denied) In Priester the Fifth Circuit explained that liens created in violation of § 674 675 § & n.4, 50(a) (6) are voidable rather than void. n.6. Because a lien created 708 F.3d at in violation of 50(a) (6) is voidable rather than void, the four-year statute of limitations applies. See id. at 673-76; see also Sigaran v. u.S. Bank Nat. Ass'n, No. 13-20367, 2014 WL 1688345, at *4 Apr. 30, 2014); Moran, 2014 WL 1193510, at *1. Here, Plaintiffs' home equity loan was closed on February 9, 2005.28 This suit was brought on February 3, 2014, almost nine years later. 29 constitutional claims are therefore (5th Cir. time-barred Plaintiffs' and will be dismissed. 28Id. at 11 ~ 12 j Note, Exhibit 1 to Original Petition, Exhibit A-3 to Notice of Removal, Docket Entry No. 1-2, p. 21; Security Instrument, Exhibit 2 to Original Petition, Exhibit A-3 to Notice of Removal, Docket Entry No. 1-2, p. 25. 290riginal Petition, Exhibit A-3 to Notice of Removal, Docket Entry No. 1-2, p. 9. -11- B. Breach of Contract Plaintiffs' breach of contract claim is based entirely on the Plaintiffs alleged constitutional violations discussed above. 30 allege that Security 50 (a) (6) § Instrument is and "specifically incorporated" that any violation of into the 50 (a) (6) § therefore also a breach of the Security Instrument. 31 is Wells Fargo argues that Plaintiffs' breach of contract claims based on alleged violations of 50 (a) (6) § are barred by limitations. 32 The court agrees with Wells Fargo. Under Texas § Law breach of contract claims 16.051's four-year statute of limitations. S.W.3d 586, 592 (Tex. 2002) are subj ect to Stine v. Stewart, 80 "It is well-settled law that a breach of contract claim accrues when the contract is breached." Id. Here, the alleged violations of § 50(a) (6) occurred when the loan was closed on 675-76 & n.6; February Moran, 9, 2005. 33 See 2014 WL 1193510, Priester, at *2-3. 708 This suit was brought on February 3, 2014, almost nine years later. 34 30See id. at 14 ~~ F. 3d at Plaintiffs' 22-24. 31Id. 32Motion to Dismiss, Docket Entry No.5, pp. 4-5. 330r iginal Petition, Exhibit A-3 to Notice of Removal, Docket Entry No. 1-2, p. 11 ~ 12; Note, Exhibit 1 to Original Petition, Exhibit A-3 to Notice of Removal, Docket Entry No. 1-2, p. 21; Security Instrument, Exhibit 2 to Original Petition, Exhibit A-3 to Notice of Removal, Docket Entry No. 1-2, p. 25. 340riginal Petition, Exhibit A-3 to Notice of Removal, Docket Entry No. 1-2, p. 9. -12- breach of contract claim is therefore time-barred and will be dismissed. Quiet Title C. To the extent that Plaintiffs' quiet-title claim is based on the alleged constitutional violations discussed above, such claim fails as a matter of law. "To the extent that a constitutional claim under Section 50(a) (6) void, renders a lien voidable rather than once the period of limitations has passed, longer voidable and is valid. H the lien is no Priester, 708 F.3d at 678. Because the statute of limitations has run on Plaintiffs' constitutional claims, any claim for quiet title based on the same allegations must fail. See Nunez v. 2014 WL 819463, at *2 CitiMortgage, Inc., (W.D. Tex. Mar. 3, 2014) No. A-14-CA-89-SS, i cf. Priester, 708 F.3d at 677-78 (upholding dismissal of a defamation claim based on the alleged invalidity of a lien in violation of § 50 (a) (6) because after the period of limitations had passed the lien was valid and therefore any statement to that effect was true). Therefore, to the extent based on the that Plaintiffs' alleged violations of D. § quiet-title claim is 50(a) (6), such claim will be dismissed. Limitations Plaintiffs argue that Wells Fargo is barred from foreclosing on their property by the four-year statute of limitations found in § 16.035(b) of the Texas Civil Practice and Remedies Code. 35 35Id. at 13-14 ~~ Under 18-21. -13- -~~-'--------------.----------------- § 16.035 (b) "a sale of real property under a power of sale in a mortgage or deed of trust that creates a real-property lien must be made not later than four years after the day the cause of action accrues. 562, § Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d II (Tex. 567 16.035(b)). 2001) (citing "When this Tex. Civ. & Rem. Prac. four-year period expires, Code the real- property lien and the power of sale to enforce the lien become void. Id. II (citing Tex. Civ. Prac. & Rem. Code § 16.035 (d) ) . "If a note or deed of trust secured by real property contains an optional acceleration clause . . . the action accrues only when the holder actually exercises its option to accelerate. 1I 566. "Effective acceleration requires two acts: intent to accelerate, and (2) notice of (1) Id. at notice of acceleration. II Id. However, "[e] ven when a noteholder has accelerated a note upon default, the holder can to accept payments continues abandon acceleration without available to it upon declared maturity.1I Plaintiffs allege that Wells equity loan on May 28, 2008. 36 exacting if the any holder remedies Id. at 566-67. Fargo accelerated their home Plaintiffs argue that Wells Fargo's "ability to foreclose under the [Security Instrument] expired when the four-year statute of limitations expired in 2012. 1137 36Id. at 11 ~ 14, 14 ~ 20; see also May 28, 2008, Notices of Acceleration, Exhibit 3 to Original Petition, Exhibit A-3 to Notice of Removal, Docket Entry No. 1-2, pp. 42-43; Motion to Dismiss, Docket Entry No.5, p. 1. 370riginal Petition, Exhibit A-3 to Notice of Removal, Docket Entry No. 1-2, p. 14 ~ 21; see also id. at 11 ~ 15; Response, Docket Entry No.9, p. 3 ~~ 10-11. -14- Wells Fargo argues that "it is a matter of public record that [it] abandoned the 2008 acceleration notice."38 Wells Fargo contends that the affidavits attached to the 2008, 2010, and 2013 Foreclosure Applications indicate that Plaintiffs made, and Wells Fargo accepted, payments against the outstanding balance of the loan after the 2008 acceleration. 39 above, the court has excluded the However, as explained in factual averments of § II these documents for purposes of the pending Motion to Dismiss. Wells Fargo argues that "even if these public records are disregarded to the extent they show payments were applied to the loan, they demonstrate that Wells Fargo did not rely on the 2008 acceleration notice and instead sent new notices of default, new notices of intent to accelerate, and new notices of acceleration."40 It is undisputed that after the loan was accelerated Wells Fargo "obtained an order allowing foreclosure in 2008. "41 Wells Fargo argues that "had [it] not abandoned the 2008 acceleration, it could have simply foreclosed under the 2008 order. "42 38Motion to Dismiss, Docket Entry No.5, p. 5. 39See id. at 5-7. 4°Reply, Docket Entry No. 10, p. 6; see also Motion to Dismiss, Docket Entry No. 5, pp. 6-7. 41Reply, Docket Entry No. 10, p. 6; see also Response, Docket Entry No. 9, p. 3 ~ 7. 42Reply, Docket Entry No. 10, p. 6. -15- ----------_ ............_ ..... _----------- -------------------- Plaintiffs, however, contend that Wells Fargo in fact could have foreclosed under the 2008 order. 43 initial acceleration, [Wells Fargo] re-accelerate the note - - They argue that "after the had no duty to re-demand and Plaintiff [s] faced the risk of Fargo] foreclosing on [their] homestead at any time. ,,44 [Wells Plaintiffs further contend that "the three separate home equity foreclosure applications actually supports continued acceleration" and that "[n]o evidence of abandonment is contained in them at all.,,45 Although the court has taken judicial notice of the fact that the Foreclosure Applications were attached to those applications filed, support whether the an inference documents that Wells Fargo abandoned the previous acceleration depends upon the verity of their assertions, which the court will not consider for purposes of the pending motion to dismiss. In light of the parties' competing allegations, the court is not persuaded that the 2010 and 2013 Foreclosure Applications constitute conclusive evidence of abandonment, nor that they foreclose an inference that the 2008 acceleration was not abandoned. Cf. Miller v. Nationwide Life Ins. Co., No. 06-31178, 2008 WL 3086783, at *3 (5th Cir. Aug. 6, 2008) (noting that while a defendant's allegations in a motion to dismiss "may create a disputed factual issue 43Response, Docket Entry No.9, p. 4 as to ~ [the plaintiff's] 13. 44Id. 45Id. at 1-2 ~ 1. -16- ------------------'--_.,-'---,---------------,--,.,. " .. _------------- allegations, resolution of such a factual dispute is improper under a 12(b) (6) inquiry" and finding that the public records cited by the defendant "d [id] not conclusively refute [the plaintiff's] allegations"). Accepting the factual allegations in the complaint 46 as true and drawing all reasonable inferences in Plaintiffs' favor, the court therefore concludes that Plaintiffs have alleged enough facts to state a claim to relief that is plausible on its face. 47 See Twombly, Accordingly, 127 S. Ct. at 1974; Ramming, 281 F.3d at Wells Fargo's motion to dismiss Plaintiffs' based on the four-year statute of limitations found in § 161. claims 16.035(b) of the Texas Civil Practice and Remedies Code will be denied. IV. For the reasons Conclusions and Order explained in § III.A above, the court concludes that Plaintiffs have failed to state a plausible claim for relief against Wells Fargo for violations of Article XVI, § 50(a) (6) of the Texas Constitution. For the reasons explained in § III.B above, the court concludes that Plaintiffs have failed to state a plausible claim for relief against Wells Fargo for breach of contract. For the reasons explained in § III.C above, the court 46See Original Petition, Exhibit A-3 to Notice of Removal, Docket Entry No. 1-2, p 11 ~~ 11-15, p. 14 ~ 20; May 28, 2008, Notices of Acceleration, Exhibit 3 to Original Petition, Exhibit A-3 to Notice of Removal, Docket Entry No. 1-2, pp. 42-43. 47See Original Petition, Exhibit A-3 to Notice of Removal, Docket Entry No. 1-2, p. 11 ~~ 11-15, pp. 13-14 ~~ 18-21, pp. 14-15 ~~ 25-27, p. 19 ~~ a-c. -17- concludes that to the extent that Plaintiffs' quiet-title claim is based on violations of a plausible claim for 50(a) (6) Plaintiffs have failed to state § Accordingly, relief. these in above, claims are DISMISSED with prejudice. For the reasons explained § III.D the court concludes that Plaintiffs state a plausible claim for relief based on the four-year statute of limitations found in Texas Civil Practice and Remedies Code. Dismiss (Docket Entry No.5) § 16.035(b) of the Defendant's Motion to is therefore GRANTED IN PART and DENIED IN PART. SIGNED at Houston, Texas, on this 12th day of June, 2014. 7 SIM LAKE UNITED STATES DISTRICT JUDGE -18- , - '-'~-'-'-------------
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