Bonilla v. Wells Fargo Bank, N.A. et al, No. 4:2015cv03412 - Document 64 (S.D. Tex. 2016)
Court Description: MEMORANDUM OPINION AND ORDER granting 52 MOTION to Dismiss and Memorandum of Law In Support Signed by Judge Sim Lake) Parties notified. aboyd, 4)
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Bonilla v. Wells Fargo Bank, N.A. et al Doc. 64 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ANGEL BONILLA, Plaintiff, v. WELLS FARGO BANK, N.A.; DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR FIRST FRANKLIN MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006FF11; DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR THE HSBC BANK MORTGAGE PASSTHROUGH CERTIFICATES, SERIES HASCO 2006-HE1; HSBC BANK USA, N.A.; HSI ASSET SECURITIZATION CORPORATION; and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. aka "MERS", Defendants. § § § § § § § § § § § § § § § § § § § § § § September 29, 2016 David J. Bradley, Clerk CIVILACTION NO. H-15-3412 MEMORANDUM OPINION AND ORDER Plaintiff Angel Bonilla sued defendants Wells Fargo, N .A. ("Wells Fargo"); Deutsche Bank National Trust Company as Trustee for First Franklin Mortgage Loan Trust 2006-FF11, Mortgage Pass -Through Certificates, Series 20 06- FF11 ("Deutsche Bank") ; HSBC Bank USA, N .A.; HSI Asset Securitization Corporation; Electronic Registration Systems, Inc. ( "MERS") ; Mortgage and various Doe defendants 1 in the 234th Judicial District Court of Harris County, 1 The Doe defendants were not included in Plaintiff's Second Amended Complaint and are no longer parties to this action. See Docket Entry No. 46. Dockets.Justia.com Texas. 2 Defendants Wells Fargo, Deutsche Bank, (collectively "Defendants") removed to this court. 3 and MERS Pending before the court is Defendants' Motion to Dismiss and Memorandum of Law in Support ("Motion to Dismiss") (Docket Entry No. 52) . For the reasons stated below, the Motion to Dismiss will be granted, and this action will be dismissed with prejudice. I. Factual Allegations and Procedural Background In June of 2006 Plaintiff obtained a mortgage loan from First Franklin Financial Plaintiff's Corporation principal residence ("First Franklin") ("the Property") . 4 secured by Plaintiff executed a Deed of Trust in favor of First Franklin naming MERS, as the nominee for First Franklin and its successors and assigns, as its beneficiary. 5 From 2007 to 2014 Plaintiff's Note and Deed of Trust underwent a series of assignments, which Plaintiff alleges 2 See Plaintiff's Original Petition and Application for Ex-Parte Temporary Restraining Order and Temporary Injunction, Exhibit C to Notice of Removal, Docket Entry No. 1-3. 3 See Notice of Removal, Docket Entry No. 1. 4 Plaintiff's Second Amended Complaint, Docket Entry No. 46, p. 8 ~ 16. Plaintiff mistakenly titled this document "Plaintiff's First Amended Complaint," but Plaintiff's first amended complaint is found at Docket Entry No. 33. For clarity and accuracy, Docket Entry No. 46 will be referred to as Plaintiff's Second Amended Complaint. Page citations for all docket entry numbers are to the pagination imprinted by the federal court's electronic filing system at the top and right of the documents. 5 Id. at 8 ~ 17. -2- were fraudulent. 6 Plaintiff defaulted on his mortgage, Property was ultimately sold to Deutsche Bank at a and the foreclosure auction on October 7, 2014. 7 After the foreclosure sale, someone identifying herself as "Doris Morgan" and claiming to be an agent of Wells Fargo contacted Plaintiff and his family. 8 On Friday, January 22, 2016, Ms. Morgan accompanied a Harris County Deputy Constable to the Property in an attempt to evict the occupants. 9 After a phone call to Plaintiff's attorney, the eviction was rescheduled for the following Monday, by which time Plaintiff had filed for bankruptcy protection. 10 Finally, on February 25, 2016, while Plaintiff still occupied the Property, two unidentified assailants vandalized Plaintiff's vehicles while they were parked in his driveway. 11 In addition to the facts set forth above, Plaintiff raises a number of concerns regarding the validity of the assignments . 12 Plaintiff cites generally to certain questionable practices on the 6 Id. at 16 ~~ 51, 55; p. 17 ~ 57; p. 18 ~ 63. 7 Id. at 9 ~ 21. 8 Id. at 13 ~~ 35-36. 9 Id. at 14-15 ~~ 38-39. lOid. at 15 ~ 43. 11 Id. at 10 ~~ 25-27. 12Id. at 16-28 ~~ 51-116. -3- part of Defendants assignments. 13 and Finally, of one Plaintiff of the signatories alleges, on to information and belief, that the signatures on the assignments are forgeries. In his Second Amended Complaint, causes of action against Defendants. 15 the 14 Plaintiff raises thirteen Defendants move to dismiss all counts for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b) (6) opposes Defendants' requests leave to Motion to Dismiss and, amend Plaintiff in the alternative, complaint . 17 his 16 Each claim will be analyzed under the standard of review set forth below. II. Standard of Review Under the Federal Rules of Civil Procedure a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8 (a) (2). A plaintiff's pleading must provide the grounds of his entitlement to relief, and "a formulaic recitation of the elements of a cause of action will not do. II Bell Atlantic Corp. v. Twombly, 13 Id. 14 Id. at 18-19 ~~ 67-75. 15 Id. at 29-41 ~~ 117-214. 16 127 See Motion to Dismiss, Docket Entry No. 52, pp. 18-19. 17 See Plaintiff's Response in Opposition to Defendants' Motion to Dismiss Plaintiff's First [sic] Amended Complaint ("Plaintiff's Response"), Docket Entry No. 56. -4- S. Ct. 1955, 1965 (2007). "' [N]aked assertion[s]' devoid of 'further factual enhancement'" or " [t] hreadbare recitals of the elements of a cause of action, statements," do not suffice. 1937, 1949 (2009). supported by See Ashcroft v. mere conclusory Iqbal, 129 S. Ct. "[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." F.2d 278, 284 Fernandez-Montes v. Allied Pilots Ass'n, 987 (5th Cir. 1993). Instead, "[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." A Rule 12(b) (6) pleadings and is Iqbal, 129 S. Ct. at 1949. motion tests the formal sufficiency of the "appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied sub nom. Cloud v. United States, 122 S. Ct. 2665 (2002). To defeat a motion to dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." 127 S. Ct. at 1974. Twombly, The court does not "strain to find inferences favorable to the plaintiffs" or "accept conclusory allegations, unwarranted deductions, or legal conclusions." Southland Securities Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004) (internal quotation marks and citations omitted). "[C]ourts are required to dismiss, pursuant to [Rule 12(b) (6)], claims based -5- on invalid legal theories, even though they may be otherwise wellpleaded." Flynn v. State Farm Fire and Casualty Insurance Co. (Texas) , 605 F. Supp. 2d 811, 820 (W. D. Tex. 2009) (citing Neitzke v. Williams, 109 s. Ct. 1827, 1832 (1989)). III. A. Analysis Counts One and Two: Alleged Violations Practice and Remedies Code § 12.002 of Texas Civil Plaintiff alleges that defendants MERS and Wells Fargo filed fraudulent liens or claims against real property in violation of § As a 12.002 of the Texas Civil Practice and Remedies Code. threshold matter, contest the Defendants assignments. 18 challenge Plaintiff's Plaintiff is a standing non-party to to the assignment and asserts his claim based upon his alleged interest in the Property. 19 The Fifth Circuit has recognized that [t]hough "the law is settled" in Texas that an obligor cannot defend against an assignee's efforts to enforce the obligation on a ground that merely renders the assignment voidable at the election of the assignor, Texas courts follow the majority rule that the obligor may defend "on any ground which renders the assignment void." Reinagel v. Deutsche Bank Nat. Trust Co., 735 F.3d 220, Cir. 2013). 225 (5th Plaintiff alleges that the assignments are forgeries and thus void ab initio. 20 But Plaintiff provides only conclusory 18 19 Plaintiff's Response, Docket Entry No. 56, pp. 11-12. 20 p. 18 Motion to Dismiss, Docket Entry No. 52, p. 21. Plaintiff's Second Amended Complaint, Docket Entry No. 46, 67. ~ -6- facts to support this contention. 21 the assignments facsimile, were Even if, as Plaintiff alleges, "robosigned" or otherwise that does not make them forgeries. produced See Reinagel, by 735 F.3d at 227 ("[T]here is no requirement that the affiant affix his signature in wet ink.") . The other irregularities implied by Plaintiff would not render the assignments void or grant Plaintiff standing. See id. at 228 (noting that defects in an acknowledgment might prevent foreclosure against a third party but would not affect an assignee's rights against the obligor). Absent non- conclusory facts that would allow the court to reasonably infer that the person who affixed the signatures to the assignments did so without the purported signatory's authority, Plaintiff's challenge to the assignment as void ab initio has no merit. Even if Plaintiff had standing to challenge the assignments, he fails to allege facts sufficient to support a claim under the relevant section of the Texas Civil Practice and Remedies Code. To state a claim under Section 12.002, a plaintiff must plead facts showing that the defendant (1) made/ presented, or used a document with knowledge that it was a fraudulent lien or claim against real or personal property or an interest in real or personal property, (2) intended that the document be given legal effect, and (3) intended to cause the plaintiff physical injury, financial injury, or mental anguish. Ferguson v. Bank of New York Mellon Corp., 802 F.3d 777, 783 (5th Cir. 2015) fraudulent, 21 (citations omitted). Even if the assignments were Plaintiff has failed to plead facts Id. at 18-19 ~~ 67-75. -7- that, if true, would constitute a violation of§ 12.002. of whether the "fraudulent lien" assignments, assertions, (1) 22 Plaintiff has Setting aside the issue language encompasses fraudulent pleaded no facts, beyond naked to show that defendants MERS or Wells Fargo either knew the assignment was fraudulent or Plaintiff physical injury, (2) intended to cause financial injury, or mental anguish. 23 As a result of this insufficiency, Plaintiff's first two claims will be dismissed. B. Counts Three and Four: on Amount of Recovery Exceptions to the Statutory Limitation Plaintiff acknowledges that his third and fourth "counts" do not constitute independent claims. 24 Instead, Plaintiff asks the court to allow for recovery in excess of the statutory limitation on exemplary damages set forth in § 41.008(b) of the Texas Civil At issue is whether MERS' or Wells Practice and Remedies Code. Fargo's alleged conduct would trigger the exceptions provided in §§ 41. 0 0 8 (c) ( 8) or (c) ( 12) . But since Plaintiff's underlying claims will be dismissed, the court need not decide this issue. 22 The Fifth Circuit recently avoided weighing in on the split of authority on this issue, and this court will follow its lead. See Ferguson, 802 F.3d at 783 n.11 ("Some courts have held that Section 12.002 requires the plaintiff to plead facts showing the defendant used an instrument purporting to create a fraudulent lien. But courts are not uniform in their application of Section 12.002, and some do not require creation of a lien.") (citations omitted) (emphasis in original) . 23 Plaintiff's Second Amended Complaint, Docket Entry No. 46, pp. 29-32 ~~ 117-133. 24 Plaintiff's Response, Docket Entry No. 56, p. 14. -8- C. Count Five: Request for Declaratory Judgment Plaintiff seeks equitable relief in the form of a declaratory judgment setting aside the foreclosure sale "[p]ursuant to Chapter 37 of the Texas Civil Practice and Remedies Code (and if necessary, the Federal Declaratory Judgment Act) . " 25 Because Plaintiff's underlying claims will be dismissed, the court cannot grant the relief sought. Chapter 37 of the Texas Civil Practice and Remedies Code, titled the "Texas Declaratory Judgments Act," is a procedural, and not a substantive, provision and actions in federal court. F. App'x 349, 352 therefore Vera v. (5th Cir. 2014). does not apply Bank of America, N.A., to 569 A request for declaratory judgment under state law is thus considered as a claim under the federal Declaratory Judgment Act. See 2 8 U.S. C. § 2 2 01. "Both Texas and federal law require the existence of a justiciable case or controversy in order to grant declaratory relief." Acquisitions Trust v. (5th Cir. 2011) CitiMortgage, Inc., 421 F. App'x 398, (citing Bonham State Bank v. Beadle, 465, 467 (Tex. 1995)) Val-Com 400 907 S.W.2d "A declaratory judgment action requires the parties to litigate some underlying claim or cause of action." Conrad v. SIB Mortgage Corp., No. 4:14-CV-915-A, 2015 WL 1026159, at *7 (N.D. Tex. March 6, 2015). When, as is the case here, a plaintiff•s claims will be dismissed, his request for declaratory 25 p. 34 Plaintiff's Second Amended Complaint, Docket Entry No. 46, 149. ~ -9- relief has no merit. Wheeler v. Action No. 2016 H-14-0874, WL U.S. Bank Nat'l Ass'n, 554846, at *8 n.53 (S.D. Civil Tex. Feb . 1 0 , 2 o16 ) . D. Count Six: Quiet Title Action Plaintiff also seeks "quiet title" to the Property. A suit to remove cloud or to quiet title accords an equitable remedy. v. Rodriguez, 563 S.W.2d 627, 1977, writ ref'd n.r.e.). 629 Katz (Tex. Civ. App.-Corpus Christi It exists "to enable the holder of the feeblest equity to remove from his way to legal title any unlawful hindrance having the appearance of better right." Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366, 388 (Tex. App.-Houston [1st Dist.] 2012, pet. denied); Hahn v. Love, 321 S.W.3d 517, 531 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). The plaintiff has the burden of supplying the proof necessary to establish his superior equity and right to relief-- that is, that he has a right of ownership and that the adverse claim is a cloud on the title that equity will remove. S. W. 3d at 531. Essex Crane, 371 S.W.3d at 387-88; Hahn, 321 The plaintiff must show ( 1) an interest in a specific property, (2) title to the property is affected by a claim by the defendant, and (3) the claim, although facially valid, is invalid or unenforceable. Vernon v. Perrien, 390 S.W.3d 47, 61-62 (Tex. App.-El Paso 2012, no pet.) Defendants contend that (citation omitted). Plaintiff superior equity because he lacks title. -10- cannot establish his Plaintiff acknowledges that he defaulted on his mortgage obligation and that Defendants subsequently foreclosed upon the Property. 26 the Property, was invalid. To assert a right to Plaintiff must therefore show that the foreclosure His only basis assignments were invalid. for that assertion is that the For reasons discussed above, Plaintiff's claims of invalidity have no merit. As a result, Plaintiff cannot show that he is the holder of even the feeblest equity, much less meet his burden of supplying the proof necessary to establish his superior equity and right to relief. Therefore, Plaintiff has no basis for a suit to quiet title. E. Tort Claims and the Vandalism Incident Plaintiff's tort claims (Counts 7-12) all appear to be based upon the acts of vandalism that took place on or about February 25, 2016. 27 For reasons discussed below, Plaintiff's tort claims will be dismissed. Plaintiff describes the incident as follows: 25. On or about February 25, 2016, at least two unidentified assailants vandalized the Plaintiff's Home, Property, and personal property. 27. Specifically, at least two unidentified assailants smashed and destroyed several windows of the Plaintiff's vehicles parked in the driveway of Plaintiff's Home on or about February 25, 2016. 28. At least two unidentified assailants trespassed onto Plaintiff's Property on or about February 25, 2016. 26 See Plaintiff's Second Amended Complaint, Docket Entry No. 46, p. 9 , 21 ("Plaintiff fell into financial difficulties and his Property was ultimately sold at a foreclosure auction. ."). 27 Id. at 10 , 25. -11- 35. After Wells Fargo foreclosed on Plaintiff's Home on October 7, 2014, and before the vandalism occurred, a woman named "Doris Morgan" contacted Plaintiff and his family members on numerous occasions. On at least one of those occasions, Doris Morgan gave Plaintiff her business card - on the back of which she referred to herself as a "Wells Fargo Agent." 36. 44. Bonilla police. reported the vandalism incident to the The security videos of the vandalism and photos of the Plaintiff's broken car windows have been provided and disclosed to Defendants. 28 46. Based upon the above information, independent investigation, and several photographs, Plaintiff has reached the following conclusions: 48. Plaintiff reasonably believes defendant Wells Fargo had actual knowledge the vandalism of Plaintiff's Home would occur, and intentionally refused to stop the vandalism or take any actions to prevent the vandalism from occurring. 49. Plaintiff reasonably believes defendant Wells Fargo conspired with Doris Morgan to plan the vandalism of Plaintiff's Home. 29 Defendants contend speculation. 30 that Plaintiff's The court agrees. claims rely on pure Plaintiff's assertions, although 28 Id. at 10, 29 Id. 30 Motion to Dismiss, Docket Entry No. 52, p. 31. 13, 15. at 11. -12- intriguing, are ultimately the sort of conclusory allegations and unwarranted deductions on which the court may not rely. Sec. Corp., personal 365 F. 3d at knowledge of a 361. Plaintiff relationship, between the vandals and Defendants. 31 much less not a allege any conspiracy, If Plaintiff's stated beliefs are the products of warranted deductions, show how. does Southland his pleadings fail to For the purposes of considering the plausibility of Plaintiff's tort claims, the court cannot attribute the actions of the unidentified assailants to Defendants. F. Count Seven: Trespass as to All Defendants Plaintiff's seventh claim is for trespass. February 25, 2016, Plaintiff cites and "other dates in February of 2016" as the dates of the alleged trespass. 32 But as Defendants point out, by that time the Property had already been sold at foreclosure. 33 In order to support a claim for trespass, a plaintiff must show that he "own[ed] or ha[d] a lawful right to possess [the] real property" at the time of the alleged trespass. Madison v. James B. Nutter & Co., Civil Action No. H-13-3020, 2014 WL 7338853, at *6 Dec. 22, 2014) (S.D. Tex. (citing Texas Woman's Univ. v. The Methodist Hosp., 221 S.W.3d 267, 286 (Tex. App.-Houston [1st Dist.] 2006, no pet.). 31 Plaintiff's Second Amended Complaint, Docket Entry No. 46, 48-49. ~~ p. 15 ~ 32 Id. at 37 33 Motion to Dismiss, Docket Entry No. 52, p. 31. 171. -13- Because, for reasons already discussed, Plaintiff cannot show that he owned or lawfully possessed the Property, his trespass claim will be dismissed. G. Count Eight: Conversion as to All Defendants Plaintiff also alleges that Defendants "wrongfully exercised dominion over Plaintiff's automobiles, files, and papers on various occasions in February of 2016." 34 Under Texas law, to establish a claim for conversion of personal property a plaintiff must prove: "(1) the plaintiff owned or had legal possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised dominion and control over the property to the exclusion of, or inconsistent with, the plaintiff's rights as an owner; property; and (4) (3) the plaintiff demanded return of the the defendant refused to return the property." Pilepro, LLC v. Chang, 152 F. Supp. 3d 659, 681 (citing Smith v. Maximum Racing, App.-Austin 2004, no pet.). (W.D. Tex. 2016) Inc., 136 S.W.3d 337, 341 (Tex. To the extent that Plaintiff's factual allegations support this claim at all, they are wholly speculative. Plaintiff alleges no facts that could reasonably support an inference that Defendants exercised dominion over his automobiles, files, or papers in denial of or inconsistent with his rights, nor does he allege that he demanded 34 return of his property from Plaintiff's Second Amended Complaint, Docket Entry No. 46, p. 38 ~ 180. -14- • Defendants and they refused. Therefore, Plaintiff's claim for conversion will be dismissed. H. Count Nine: Intentional Infliction of Emotional Distress as to All Defendants Plaintiff claims intentional infliction of emotional distress on the part of Defendants. To recover damages for intentional infliction of emotional distress, a plaintiff must establish that: " ( 1) the defendant acted intentionally or recklessly; ( 2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and ( 4) the resulting emotional distress was severe." Hoffmann-La Roche Inc. v. 2004) Zeltwanger, 144 S.W.3d 438, 445 (Tex. (citing Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998)). Under Texas law "intentional infliction of emotional distress is a 'gap-filler' tort never intended to supplant or duplicate existing statutory or common-law remedies. Even if other remedies do not explicitly preempt the tort, their availability leaves no gap to fill." Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005). Plaintiff offers nothing beyond a recitation of the elements to support this claim. 35 leave no discernible intentional Moreover, Plaintiff's other twelve claims gaps infliction of to fill. emotional dismissed. 35 Id. at 38 ~~ 184-90. -15- Accordingly, distress Plaintiff's claim will be I. Count Ten: Negligence as to All Defendants Plaintiff's next three claims allege negligence of various sorts. "It is fundamental that the existence of a cognizable duty is a prerequisite to all tort liability. Beard, 858 S.W.2d 918, Transp. Co. v. 919 Phillips, (Tex. 1993) 801 S. W. 2d 523, a question of law. 2006) . Graff v. (citing Greater Houston 525 (Tex. 1991)) . there is no duty, there cannot be negligence liability. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999). 11 legally 11 "If Thapar v. Whether a duty exists is Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. Plaintiff alleges various duties 36 but cites no legal basis for them- -and the court can find none. Defendants counter by citing authority for the proposition that no special relationship arises between a mortgagor and a mortgagee. 37 response. 38 Plaintiff offers no Finding no duty to be breached, the court will dismiss Plaintiff's negligence claim. J. Count Eleven: Negligence Per Se as to All Defendants Plaintiff's eleventh claim is for negligence per se. negligence per se applies, "If the elements of duty and breach are satisfied by proof that the defendant has violated a statute. Suzlon 36 Wind Energy Id. at 39 ~~ Corp. v. Shippers Stevedoring Co., 11 662 192-95. 37 Motion to Dismiss, Docket Entry No. 52 (citing Miller v. CitiMortgage, Inc., 970 F. Supp. 2d 568, 585 (N.D. Tex. 2013). 38 See Plaintiff's Response, Docket Entry No. 56 (failing to respond to Defendants' challenges to the negligence claims). -16- F. Supp. 2d 623, 652 (S.D. Tex. 2009) S . W. 2 d 6 0 2 , 6 0 7 ( Tex . 19 9 7 ) ) . (citing Smith v. Merritt, 940 As a threshold matter in such an action, the plaintiff must belong to the class that the statute was intended to protect and the plaintiff's injury must be of a type that the statute was designed to prevent. Corp., 662 F. Supp. 2d at 652 Suzlon Wind Energy (citing Perry v. S.N., 973 S.W.2d 301, 305 (Tex. 1998)). Plaintiff's claim is predicated on violations of the automatic stay initiated by Plaintiff's bankruptcy filing. 39 Defendants contend that "Plaintiff fails to allege any non-conclusory facts that the agrees. Defendants' conduct caused him injury. " 40 The court Other than the alleged acts of vandalism, Plaintiff cites no action on the part of Defendants during the period of the stay. The court will therefore dismiss Plaintiff's negligence per se claim. K. Count Twelve: Gross Negligence as to All Defendants Plaintiff's twelfth cause of action is for gross negligence. To recover on a claim for gross negligence, Plaintiff must prove elements beyond those required for an ordinary negligence claim. See Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 2001) (listing the elements of gross negligence). 39 785 (Tex. Because Plaintiff's Second Amended Complaint, Docket Entry No. 46, p. 39 ~~ 198-201. 40 Motion to Dismiss, Docket Entry No. 52, p. 36. -17- II II Plaintiff's ordinary negligence claim will be dismissed for reasons discussed above, so will his gross negligence claim. L. Count Thirteen: Violations of the Texas Debt Collection Act and Deceptive Trade Practices Act as to All Defendants Finally, Plaintiff alleges violations of the Texas Debt Collection Act ( "TDCA") and the Texas Deceptive Trade Practices Act ("DTPA"). Plaintiff lists the following violations: 208. Defendants used a false representation or deceptive means to collect a debt or obtain information concerning a consumer. 209. Defendants used or threatened to use violence or other criminal means to cause harm to a person or property of a person. 210. Defendants threatened to take an action against Plaintiff that is prohibited by law. 211. Defendants misrepresented the character, extent, or amount of a consumer debt, or misrepresented the consumer debt's status in a judicial or governmental proceeding [ . ] 41 Plaintiff's claim largely recites statutory language. 42 absence of supporting factual allegations, In the the court is left to connect the dots between the alleged statutory violations and the facts alleged in the complaints. Setting aside once again the alleged vandalism, the court can find no reasonable inferences from the facts 41 alleged to any statutory violation on the part of Plaintiff's Second Amended Complaint, Docket Entry No. 46, p. 40. 42 See Texas Finance Code, §§ 392.304 (a) (19), 3 9 2 . 3 0 1 ( a) ( 8 ) , and 3 9 2 . 3 0 4 ( a) ( 8 ) . -18- 392.301 (a) (1), II Defendants. For that reason, Plaintiff's TDCA and DTPA claims will be dismissed. M. Plaintiff's Request to Amend Plaintiff has requested leave Complaint "if the allegations. " 43 Court 15 (a) (2). curable faults with any of the Rule 15 (a) provides that leave to amend should be "freely give [n] P. finds to amend his Second Amended when justice so requires." A court may deny leave to amend, Fed. however, R. Civ. in the event of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . [or] futility of amendment." • I Foman v. Davis, 83 S. Ct. 227, 230, (1962); accord Schiller v. Physicians Resource Group Inc., 342 F.3d 563, 566 (5th Cir. 2003); Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003). Plaintiff has pleaded no facts that would suggest an amendment would be helpful. already amended his complaint twice. Moreover, Plaintiff has Finally, Plaintiff did not include any proposed amendments with his request. Therefore, the court concludes that further amendment would be futile. IV. Conclusions and Order For the reasons discussed above, Plaintiff has failed to state any claims upon which relief can be granted in his Second Amended 43 Plaintiff's Response, Docket Entry No. 56, p. 28. -19- Complaint. Nor has the Plaintiff provided the court with any reason to believe amending his pleadings would cure the deficiency. Defendants' Motion to Dismiss (Docket Entry No. 52) is therefore GRANTED, and this action will be dismissed with prejudice. SIGNED at Houston, Texas, on this 29th day of September, 2016. UNITED -20- LAKE DISTRICT JUDGE
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