White et al v. Wells Fargo Home Mortgage Inc

Brief/Memorandum in Support

N.D. Tex.March 20, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION SHANE WHITE AND SHENNA NELSON Plaintiffs, v. WELLS FARGO HOME MORTGAGE, INC., a division of WELLS FARGO BANK, N.A. d/b/a AMERICA'S SERVICING COMPANY, Defendant. § § § §§ § §§ § §§§ CIVIL ACTION NO. 3:16-cv-00828-B BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS Respectfully submitted, /s/ Vincent J. Hess Robert T. Mowrey State Bar No. 14607500 rmowrey@lockelord.com Vincent J. Hess State Bar No. 09549417 vhess@lockelord.com Arthur E. Anthony State Bar No. 24001661 aanthony@lockelord.corn LOCKE LORD LLP 2200 Ross Avenue, Suite 2800 Dallas, Texas 75201-6776 Telephone: (214) 740-8000 Facsimile: (214) 740-8800 ATTORNEYS FOR DEFENDANT BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS DAL:0105492/00217:2542584v1 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 1 of 23 PageID 233 TABLE OF CONTENTS I. INTRODUCTION 1 II. FACTUAL BACKGROUND 1 III. ARGUMENT AND AUTHORITIES 2 A. LEGAL STANDARD 2 B. PLAINTIFFS DID NOT ASSUME THE LOAN, AND THEREFORE ALL THEIR CLAIMS FAIL AS A MATTER OF LAW 3 C. THE CLAIM FOR MONEY HAD AND RECEIVED FAILS AS A MATTER OF LAW (COUNT SEVEN) 4 D. THE CLAIM FOR PROMISSORY ESTOPPEL FAILS AS A MATTER OF LAW (COUNT EIGHT) 5 1. Plaintiffs fail to allege required elements 5 2. Plaintiffs' claim is barred by the statute offrauds 6 E. THE CLAIM FOR FRAUD FAILS AS A MATTER OF LAW (COUNT ONE) 8 F. PLAINTIFFS' NEGLIGENT MISREPRESENTATION CLAIM FAILS AS A MATTER OF LAW (COUNT Two) 9 1. The alleged misrepresentation did not concern guidance for a business 10 2. Plaintiffs fail to allege reliance 10 G. PLAINTIFFS' DTPA CLAIM FAILS AS A MATTER OF LAW (COUNT THREE) 11 H. PLAINTIFFS' SECTION 51.002 CLAIM FAILS AS A MATTER OF LAW (COUNT FOUR) 13 I. PLAINTIFFS' NEGLIGENT SERVICING CLAIM FAILS AS A MATTER OF LAW (COUNT FIVE) 14 J. PLAINTIFFS' UNJUST ENRICHMENT CLAIM FAILS AS A MATTER OF LAW (COUNT SIx) 14 K. PLAINTIFFS' CLAIMS FOR DAMAGES AND ATTORNEY'S FEES SHOULD BE DISMISSED 15 L. DISMISSAL WITH PREJUDICE IS APPROPRIATE 15 IV. CONCLUSION 15 BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PAGE i DAL:0105492/00217:2542584v1 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 2 of 23 PageID 234 TABLE OF AUTHORITIES Federal Cases Page(s) Ashcroft v. Iqbal, 556 U.S. 662 (2009) 2, 3 Ashton v. BAC Home Loan Servicing, L.P., No. 4:13-cv-810, 2013 WL 3807756 (S.D. Tex. Jul. 19, 2013) 14 Ayres v. Parker, No. SA-12-CV-621, 2013 WL 3929711 (W.D. Tex. July 29, 2013) 10 Bailey v. BAC Home Loans Servicing, LP, No. 4:11CV590, 2012 WL 5497632 (E.D. Tex. Nov. 13, 2012) 7 Baker v. Countrywide Home Loans, Inc., No. 3:08-CV-0916-B, 2009 WL 1810336 (N.D. Tex. June 24, 2009) 11, 12 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) Biggers v. BAC Home Loans Servicing, LP, 2, 4, 9 767 F. Supp. 2d 725 (N.D. Tex. 2011) 13 Blackburn v. City of Marshall, 42 F.3d 925 (5th Cir. 1995) 2 Briggs v. Mississippi, 331 F.3d 499 (5th Cir. 2003) 15 Brown v. Wells Fargo Bank, NA., No. H-13-3228, 2015 WL 926573 (S.D. Tex. Mar. 4, 2015) 4, 5, 12 Choe v. Bank of Am., NA., No. 3:13-CV-0120, 2013 WL 3196571 (N.D. Tex. June 25, 2013) 7 Clardy Mfg. Co. v. Marine Midland Business Loans, Inc., 88 F.3d 347 (5th Cir. 1996) 5, 10 Collier v. Wells Fargo Home Mortgage, No. 7:04-CV-86, 2006 WL 1464170 (N.D. Tex. May 26, 2006) 14 Deuley v. Chase Home Fin. LLC, No. H-05-04253, 2006 WL 1155230 (S.D. Tex. Apr. 26, 2006) 7 Escuadra v. Geovera Specialty Ins. Co., No. 1:09-CV-974, 2010 WL 3633009 (E.D. Tex. Sept. 9, 2010) 2 BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PAGE it DAL:0105492/00217:2542584v1 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 3 of 23 PageID 235 Fath v. BAC Home Loans, No. 3:12-cv-1755, 2013 WL 3203092 (N.D. Tex. Jun. 25, 2013) 7 Flaherty & Crumrine Preferred Income Fund, Inc. v. TXU Corp., 565 F.3d 200 (5th Cir. 2009) 8 Fowler v. U.S. Bank, Nat'l Assoc., 2 F. Supp. 3d 965, 974 (S.D. Tex. 2014) 11, 12, 19, 20 Garcia v. Universal Mortgage Corp., No. 3:12-CV-2460-L, 2013 WL 1858195 (N.D. Tex. May 3, 2013) 9 Gonzalez Equities, Ltd. v. Select Portfolio Servicing, Inc., Civil Action No. SA-14-CV-1087-XR, 2015 WL 3407357 (W.D. Tex. May 26, 2015) 3 Grant-Brooks v. WMC Mortgage Corp., No. 3:02-CV-2455-AH, 2003 WL 23119157 (N.D. Tex. Dec. 9, 2003) 12 Hugh Symons Group, plc v. Motorola, Inc., 292 F.3d 466, 469 (5th Cir. 2002) 6 Hutchinson v. Bank of Am., NA., No. H-12-3422, 2013 WL 5657822, at *5 (S.D. Tex. Oct. 16, 2013) 12 In re Katrina Canal Breaches Litig., 495 F.3d 191 (5th Cir. 2007) 2 Kew v. Bank of Am., NA., No. H-11-2824, 2012 WL 5832354 (S.D. Tex. Nov. 16, 2012) 6, 7 Khan v. Wells Fargo Bank, NA., No. H:12-1116, 2013 WL 5323098 (S.D. Tex. Sept. 20, 2013) 11, 12 Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521 (5th Cir. 1994) 15 Marketic v. U.S. Bank Nat'l Ass 'n, 436 F. Supp. 2d 842 (N.D. Tex. 2006) 12 Martin's Herend Imports, Inc. v. Diamond & Gem Trading U.S. Am. Co., 195 F.3d 765 (5th Cir. 1999) 15 Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249 (5th Cir. 2013) 7, 13 McAllister v. BAC Home Loans Servicing, LP, No. 4:10-CV-504, 2011 WL 2200672 (E.D. Tex. Apr. 28, 2011) 11 BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PAGE iii DAL:0105492/00217:2542584v1 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 4 of 23 PageID 236 Morlock, L.L.C. v. Bank of America, NA., Civil Action No. H-14-1678, 2015 WL 136654 (S.D. Tex. January 9, 2015) 3 Nicobar, Inc. v. JPMorgan Chase Bank, NA., Civil Action No. 4:15-cv-1151 (S.D. Tex. July 28, 2015) 3 Plotkin v. IP Axcess, Inc., 407 F.3d 690 (5th Cir. 2005) 8 Porter v. Countrywide Home Loans, No. CV-07075, 2008 WL 2944670 (S.D. Tex. July 24, 2008) 12 Steele v. Green Tree Servicing, LLC, No. 3:09-CV-0603-D, 2010 WL 3565415 (N.D. Tex. Sept. 7, 2010) 9, 10 Stewart Glass & Mirror, Inc. v. U.S.A. Glass, Inc., 940 F. Supp. 1026 (E.D. Tex. 1996) 3 Tuchman v. DSC Commc 'ns Corp., 14 F.3d 1061 (5th Cir. 1994) 8 United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899 (5th Cir. 1997) 8 Warren v. Bank of Am., NA., No. 3:13-CV-1135-M, 2013 WL 8177096 (N.D. Tex. Nov. 15, 2013) 13 Water Dynamics, Ltd. v. HSBC Bank USA Nat. Ass 'n, No. 4:11-CV-614-A, 2012 WL 34252 (N.D. Tex. Jan. 6, 2012) 7 Whittier v. Ocwen Loan Servicing, LLC, No. H-12-3095, 2013 WL 5425294 (S.D. Tex. Sept. 25, 2013) 12 Federal Rules FED. R. Civ. P. 8(a)(2) 3 Fed. R. Civ. P. 9 8 FED. R. Cw. P. 15(a) 15 FED. R. Civ. P. 9(b) 8 FED. R. Civ. P. 12(b)(6) 2, 3, 15 Fed. R. Evid. 201 7 BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PAGE iv DAL:0105492/00217:2542584v1 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 5 of 23 PageID 237 State Cases 402 Lone Star Property, LLC v. Bank of America, NA., No. 03-13-00322-CV, 2014 WL 4058715 (Tex. App. - Austin August 12, 2014, no pet.) 3 BMG Direct Marketing, Inc. v. Peake, 178 S.W.3d 763 (Tex. 2005) 4 Ellen v. F.H. Partners, LLC, No. 03-09-00310-CV, 2010 WL 4909973 (Tex. App.-Austin Dec. 1, 2010, no pet.) 7 English v. Fischer, 660 S.W.2d 521 (Tex. 1983) 5 Flo Trend Systems, Inc. v. Allwaste, Inc., 948 S.W.2d 4 (Tex. App.-Houston [14 Dist.], 1997) 9, 10 Gillum v. Republic Health Corp., 778 S.W.2d 558 (Tex. App.-Houston [14th Dist.] 1999, pet. denied) 6 Gilmartin v. KVTV-Channel 13, 985 S.W.2d 553 (Tex. App.-San Antonio 1998, no pet.) 6 Green Int'l, Inc. v. Solis, 951 S.W.2d 384 (Tex. 1997) 15 In re First Merit Bank, NA., 52 S.W.3d 749 (Tex. 2001) 8 Krudop v. Bridge City State Bank, No. 09-05-111 CV, 2006 WL 3627078 (Tex. App.-Beaumont Dec. 14, 2006, pet. denied) 7, 8 San Felipe Rd. Ltd. P 'ship v. Trafalgar Holdings I, Ltd., 218 S.W.3d 137 (Tex. App.-Houston [14th Dist.] 2007, pet. denied) 6, 7, 8 State Statutes TEX. Bus. & COM. CODE § 26.02(a)(2) 7 TEX. Bus. & COM. CODE § 26.02(b) 7 Texas Deceptive Trade Practices and Consumer Protection Act 2, 11, 12, 13 Texas Property Code section 51.002 13, 14 BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PAGE V DAL:0105492/00217:2542584v1 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 6 of 23 PageID 238 Other Authorities RESTATEMENT (SECOND) OF TORTS § 552 cmt. a 10 BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PAGE vi DAL:0105492/00217:2542584v1 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 7 of 23 PageID 239 Defendant, Wells Fargo Bank, N.A. ("Defendant"), files this Brief in Support of its Motion to Dismiss Plaintiffs Shane White and Shenna Nelson's ("Plaintiffs") First Amended Complaint (Doc. 25) (the "Complaint"), and respectfully shows the Court as follows: I. INTRODUCTION The Court should dismiss Plaintiffs' claims with prejudice pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiffs fail to state a claim upon which relief can be granted as a matter of law. II. FACTUAL BACKGROUND Plaintiffs filed this lawsuit complaining about their alleged rights in regard to the real property located at 200 Cynsica Street, Waxahachie, Texas 75165 (the "Property"). The Property was sold in a foreclosure sale on August 5, 2014. Plaintiffs allege, in short, that Jeremy and Jennifer Street, the original borrowers on the mortgage loan for the Property (the "Original Borrowers"), conveyed the Property to Plaintiff Nelson through an Assumption Warranty Deed with Vendor's Lien (the "Assumption Warranty Deed"). See Complaint at ¶ 3.4. Plaintiffs further allege that Plaintiff White paid monies to Defendant to make up arrearages on the mortgage and also to make monthly payment on the mortgage. Id. at IN 3.4, 3.6, 3.8, 3.9, 3.10, 3.11. Plaintiffs additionally allege that they made more than $9,000 worth of improvements to the Property. Id. at ¶ 3.11. Plaintiffs also allege that Defendant made promises that the mortgage loan would be reinstated in the names of Plaintiffs. Id. at ¶ 3.12. Plaintiffs further allege that they were living at another location and did not receive default notices for the Property. Id. at II 3.5, 3.13, 3.14. It is undisputed that Plaintiffs are not the borrowers on the mortgage account for the Property. See generally Complaint. Plaintiffs do not allege that the Assumption Warranty Deed was filed in the public record. Id. Plaintiffs also do not allege that they assumed the mortgage BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PAGE 1 DAL:0105492/00217:2542584v1 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 8 of 23 PageID 240 loan. Id. Plaintiffs assert causes of action for fraud, negligent misrepresentation, violation of the Texas Deceptive Trade Practices Act, failure to comply with the Texas Property Code, negligent servicing, unjust enrichment, money had and received, and promissory estoppel. III. ARGUMENT AND AUTHORITIES A. LEGAL STANDARD To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "Factual allegations must . . . raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555 (internal citations omitted). While the allegations need not be overly detailed, a plaintiff's pleadings must still provide the grounds of his entitlement to relief, which "requires more than labels and conclusions," and "a formulaic recitation of the elements of a cause of action will not do." Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (" 'naked assertion[s]' devoid of `further factual enhancement,' along with "legal conclusions" and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are not entitled to the presumption of truth) (quoting Twombly, 550 U.S. at 555); Escuadra v. Geovera Specialty Ins. Co., No. 1:09-CV-974, 2010 WL 3633009, at *6 (E.D. Tex. Sept. 9, 2010) (noting that dismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief). "[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995) (quoting Fernandez-Montes v. Allied Pilots Ass 'n, 987 F.2d 278, 284 (5th Cir. 1993)). BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PAGE 2 DAL:0105492/00217:2542584v1 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 9 of 23 PageID 241 Moreover, demonstrating the facial plausibility of a claim requires a plaintiff to establish "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678. It is not enough that a plaintiff allege the mere possibility of misconduct; it is incumbent to "show that the [plaintiff] is entitled to relief." FED. R. Civ. P. 8(a)(2); see also Iqbal, 556 U.S. at 677- 78. The court may dismiss a complaint under Rule 12(b)(6) if either the complaint fails to assert a cognizable legal theory or the facts asserted are insufficient to support relief under a cognizable legal theory. See Stewart Glass & Mirror, Inc. v. U.S.A. Glass, Inc., 940 F. Supp. 1026, 1030 (E.D. Tex. 1996). B. PLAINTIFFS DID NOT ASSUME THE LOAN, AND THEREFORE ALL THEIR CLAIMS FAIL AS A MATTER OF LAW Plaintiffs are not the borrowers on the mortgage loan for the Property. Therefore, they are not entitled to documents or information concerning the Original Borrowers' mortgage loan account. See Nicobar, Inc. v. JPMorgan Chase Bank, NA., Civil Action No. 4:15-cv-1151, at *3 (S.D. Tex. July 28, 2015) (plaintiff, a stranger to the deed of trust, is not entitled to a payoff quote); Morlock, L.L.C. v. Bank of America, NA., Civil Action No. H-14-1678, 2015 WL 136654, at *5 (S.D. Tex. January 9, 2015) (bank was not obligated to provide information about the lien and the amount due thereunder to a non-borrower under the mortgage). See also 402 Lone Star Property, LLC v. Bank of America, NA., No. 03-13-00322-CV, 2014 WL 4058715, at *3 (Tex. App. - Austin August 12, 2014, no pet.) (rejecting argument that purchaser of property at a junior lien foreclosure sale was entitled to information to protect its property interest, such as a payoff amount to avoid foreclosure, because purchaser was not a borrower under, or party to, the deed of trust evidencing a senior lien.) Plaintiffs have not alleged and cannot provide any evidence that they are entitled to receive any information relating to the Deed of Trust. See Gonzalez Equities, Ltd. v. Select Portfolio Servicing, Inc., Civil Action No. SA-14-CV-1087-XR, 2015 WL 3407357, at *4 (W.D. Tex. May 26, 2015); BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PAGE 3 DAL:0105492/00217:2542584v1 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 10 of 23 PageID 242 In short, Plaintiffs are strangers to the mortgage loan transaction. They have no right to information about the Original Borrowers' mortgage loan account. They also have no right to a return of monies they paid on that mortgage loan account. C. THE CLAIM FOR MONEY HAD AND RECEIVED FAILS AS A MATTER OF LAW (COUNT SEVEN) "To establish a cause of action for money had and received a plaintiff must show that a defendant holds money which in equity and good conscience belongs to him." Brown v. Wells Fargo Bank, NA., No. H-13-3228, 2015 WL 926573, at *5 (S.D. Tex. Mar. 4, 2015). " `[M]oney voluntarily paid on a claim of right, with full knowledge of all the facts, in the absence of fraud, deception, duress, or compulsion, cannot be recovered back merely because the party at the time of payment was ignorant of or mistook the law as to his liability.' " BMG Direct Marketing, Inc. v. Peake, 178 S.W.3d 763, 768 (Tex. 2005) (quoting Pennell v. United Ins. Co., 243 S.W.2d 572, 576 (Tex. 1951)). The voluntary payment rule bars claims for restitution. Id. Plaintiffs' claim for money had and received is a claim for restitution, but such claim is futile. Plaintiffs allege that they paid - voluntarily - on the mortgage loan account that was in the name of the Original Borrowers. Likewise, Plaintiffs allege that they spent funds on improvements to the Property. However, Plaintiffs do not claim to have assumed the loan. Indeed, Plaintiffs do not even claim to have filed the Assumption Warranty Deed that they claim was executed in favor of Plaintiff Nelson. Consequently, the voluntary payment doctrine bars such a claim.' The claim for money had and received additionally fails, because Plaintiffs do not allege sufficient facts to support such claim. Plaintiffs are conclusory in their statements and do not state enough factual allegations "to raise a right to relief above a speculative level." Twombly, I Plaintiffs allege fraud, but as noted hereinbelow, such claim is unavailing. BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS DAL:0105492/00217:2542584v1 PAGE 4 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 11 of 23 PageID 243 550 U.S. at 555; see also Brown, 2015 WL 926573, at *5 (dismissing money had and received claim with prejudice based on deficient allegations). Plaintiffs allege no facts that would show Defendant obtained a benefit from Plaintiffs by fraud, duress, or the taking of an undue advantage. Plaintiffs also fail to allege facts that Defendant was not entitled to collect the mortgage payments that form the basis of the money had and received claim, and Plaintiffs fail to allege facts that Defendant is not entitled to the benefit of the improvements to the Property that Plaintiffs allege they made. Nor do Plaintiffs allege any facts demonstrating that anyone other than Defendant is entitled to such mortgage payments or to the improvements to the Property. In sum, the claim for money had and received fails as a matter of law. D. THE CLAIM FOR PROMISSORY ESTOPPEL FAILS AS A MATTER OF LAW (COUNT EIGHT) Plaintiffs allege, in support of their claim for promissory estoppel, purported representations by Defendant upon which they claim to have relied to their detriment. Plaintiffs claim, in short, that unidentified persons at Defendant represented that it would reinstate the mortgage loan in Plaintiffs' names. See Complaint at ¶ 4.40. However, Plaintiffs fail to allege that they entered into any written agreement with Defendant, much less that Defendant violated the terms of any such written agreement. To the extent that Plaintiffs are alleging Defendant made oral promises, such claims fail as a matter of law. 1. Plaintiffs fail to allege required elements "The prerequisites of promissory estoppel are: (1) a promise, (2) foreseeability of reliance thereon by the promisor, and (3) substantial reliance by the promise to his detriment." English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983). Texas courts also require a finding of "reasonable or justified reliance" on the conduct or statement of the person sought to be estopped. Clardy Mfg. Co. v. Marine Midland Business Loans, Inc., 88 F.3d 347, 360 (5th Cir. 1996). BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PAGE 5 DAL:0105492/00217:2542584v1 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 12 of 23 PageID 244 Plaintiffs cannot assert a cognizable promissory estoppel claim, because they do not allege a promise sufficiently definite to be enforced. See Gilmartin v. KVTV-Channel 13, 985 S.W.2d 553, 558 (Tex. App. San Antonio 1998, no pet.); Gillum v. Republic Health Corp., 778 S.W.2d 558, 570 (Tex. App.-Houston [14th Dist.] 1999, pet. denied). At most, Plaintiffs allege that persons at Defendant promised to reinstate the mortgage loan in their names if certain payments were made. Other details about the alleged promise are vague and unclear, and indeed the persons at Defendant who allegedly made such promises are not identified. Further, Plaintiffs wholly fail to allege any facts to show reasonable or justified reliance as required to establish a promissory estoppel claim. Plaintiffs claim that they made payments on the mortgage loan, and such payments occurred over a period of more than two years. See Complaint at ¶¶ 3.6, 3.8-3.11. In short, Plaintiffs rely on alleged oral promises by persons at Defendant as a basis for payments they claim to have made over a period of more than two years. Plaintiffs have failed to show any basis for reasonable or justified reliance. In light of the foregoing, the claim by Plaintiffs for promissory estoppel fails as a matter of law. 2. Plaintiffs' claim is barred by the statute offrauds If Plaintiffs contend that there was an oral contract for Defendant to reinstate the mortgage loan under their names, such claim is barred by the statute of frauds, because that type of agreement must be in writing to be enforceable under Texas law. A plaintiff who "seeks to enforce an alleged oral contract[ ] has the burden of proving that the statute of frauds is satisfied." Hugh Symons Group, plc v. Motorola, Inc., 292 F.3d 466, 469 (5th Cir. 2002). The statute of frauds requires all loan agreements involving amounts exceeding $50,000 to be in writing and signed by the party to be bound. BACM 2001-1 San Felipe Rd. Ltd. P 'ship v. Trafalgar Holdings I, Ltd., 218 S.W.3d 137, 144 (Tex. App.-Houston [14th Dist.] 2007, pet. denied) (citing TEX. Bus. & COM. CODE § 26.02); Kew v. Bank of Am., NA., No. H-11-2824, BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PAGE 6 DAL:0105492/00217:2542584v1 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 13 of 23 PageID 245 2012 WL 5832354, at *4 (S.D. Tex. Nov. 16, 2012) (citing TEX. Bus. & COM. CODE § 26.02(b) and stating that "[a] loan agreement in which the amount involved . . . exceeds $50,000 in value is not enforceable unless the agreement is in writing and signed by the party to be bound or by that party's authorized representative."). "Loan agreement" means "any promise, agreement, or undertaking 'pursuant to which a financial institution loans or delays repayment of or agrees to loan or delay repayment of money . . . or to otherwise extend credit or make a financial accommodation.'" Kew, 2012 WL 5832354, at *4 (citing TEX. Bus. & COM. CODE § 26.02(a)(2)); see also Deuley v. Chase Home Fin. LLC, No. H-05-04253, 2006 WL 1155230, at *3 (S.D. Tex. Apr. 26, 2006).2 Under Texas law, oral promises regarding the modification of a loan are subject to the statute of frauds and must be in writing to be enforceable where, as is the case here, the loan is for more than $50,000. See, e.g., Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 256 (5th Cir. 2013) (statute of frauds precluded claims based on an alleged oral promise that property would not be foreclosed if plaintiff submitted a loan modification application).3 2 "Any agreement to forego or delay[ ] foreclosure . . . would fall under the provisions of section 26.02(b), and be included under the definition of 'loan agreement' in section 26.02(a)(2)." Krudop v. Bridge City State Bank, No. 09- 05-111 CV, 2006 WL 3627078, at *4 (Tex. App.-Beaumont Dec. 14, 2006, pet. denied). 3 See also, e.g., Choe v. Bank of Am., NA., No. 3:13-CV-0120, 2013 WL 3196571, at *4 (N.D. Tex. June 25, 2013) (statute of frauds barred contract claim based on alleged oral promise not to foreclose); Fath v. BAC Home Loans, No. 3:12-cv-1755, 2013 WL 3203092, at *6 (N.D. Tex. Jun. 25, 2013) ("[A]ny oral statements that Plaintiff claims modified, terminated, or otherwise altered the Deed of Trust, the Note, or any other agreement between the parties are barred by the statute of frauds."); BACM 2001-1 San Felipe Rd. Ltd. P 'ship, 218 S.W.3d at 144 (citing TEX. BUS. & COM. CODE § 26.02); Ellen v. F.H. Partners, LLC, No. 03-09-00310-CV, 2010 WL 4909973, at *5 (Tex. App.-Austin Dec. 1, 2010, no pet.) (promise not to foreclose on property was unenforceable because the promise was "an oral modification of a loan agreement that was subject to the statute of frauds"); Bailey v. BAC Home Loans Servicing, LP, No. 4:11CV590, 2012 WL 5497632, at *2 (E.D. Tex. Nov. 13, 2012); Water Dynamics, Ltd. v. HSBC Bank USA Nat. Ass 'n, No. 4:11-CV-614-A, 2012 WL 34252, at *6 (N.D. Tex. Jan. 6, 2012) ("As to the alleged oral loan modification, even if the allegations were true, at best they concern an unenforceable agreement barred by the statute of frauds."). See also Ex. A hereto (Deed of Trust, reflecting an original principal amount in excess of $50,000) (App. 02). Pursuant to Fed. R. Evid. 201, Defendant respectfully requests that the Court take judicial notice of the Deed of Trust executed by the Original Borrowers, which was filed in the Official Records of Ellis County, Texas. In addition, Plaintiffs claim to have made almost $48,000 in payments on the mortgage loan. E.g., Complaint at ¶ 4.5. BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PAGE 7 DAL:0105492/00217:2542584v1 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 14 of 23 PageID 246 In this case, any alleged oral representations about delaying foreclosure cannot support any of Plaintiffs' claims in this lawsuit, because any such oral promises constitute a loan agreement subject to the statute of frauds that must be in writing to be enforceable. See Krudop, 2006 WL 3627078, at *4; BACM 2001-1 San Felipe Rd. Ltd. P 'ship, 218 S.W.3d at 144. Because Plaintiffs fail to allege a signed document exists memorializing any alleged oral agreements regarding a modification of the subject mortgage, the statute of frauds bars a claim based on Plaintiffs' allegations of oral representations. E. THE CLAIM FOR FRAUD FAILS AS A MATTER OF LAW (COUNT ONE) Plaintiffs' fraud claim fails under Fed. R. Civ. P. 9. Plaintiffs' fraud claim is conclusory and unsubstantiated, and fails to meet the federal pleading standard. To state a fraud claim, Plaintiffs must plead that: (1) a material misrepresentation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury. See In re First Merit Bank, NA., 52 S.W.3d 749, 758 (Tex. 2001). Fraud claims are subject to the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). Tuchman v. DSC Commc 'ns Corp., 14 F.3d 1061, 1068 (5th Cir. 1994). To satisfy Rule 9(b), Plaintiffs must allege with specificity "the statements (or omissions) considered to be fraudulent, the speaker, when and why the statements were made, and an explanation of why they are fraudulent." Plotkin v. IP Axcess, Inc., 407 F.3d 690, 696 (5th Cir. 2005). "Rule 9(b) requires that a plaintiff set forth the 'who, what, when, where, and how' of the alleged fraud[.]" United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 903 (5th Cir. 1997); see also Flaherty & Crumrine Preferred Income Fund, Inc. v. TXU Corp., 565 F.3d 200, 206-07 (5th Cir. BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PAGE 8 DAL:0105492/00217:2542584v1 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 15 of 23 PageID 247 2009). In this case, Plaintiffs do not offer any explanation concerning why the statements were fraudulent, other than speculation and conjecture. See Garcia v. Universal Mortgage Corp., No. 3:12-CV-2460-L, 2013 WL 1858195, at *9 (N.D. Tex. May 3, 2013). Instead, Plaintiffs' pleading merely contains conjecture and "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555 (internal citations omitted). Further, Plaintiffs do not allege that they assumed the subject mortgage loan, nor do they allege that the purported Assumption Warranty Deed was filed in the public record. Consequently, any injury suffered by Plaintiffs was not proximately caused by Wells Fargo. F. PLAINTIFFS' NEGLIGENT MISREPRESENTATION CLAIM FAILS AS A MATTER OF LAW (COUNT Two) Plaintiffs' claim of negligent misrepresentation fails because, among other reasons, Plaintiffs fail to allege that the false information provided was for the guidance of Plaintiffs in their business. See, e.g., Steele v. Green Tree Servicing, LLC, No. 3:09-CV-0603-D, 2010 WL 3565415, at *7-8 (N.D. Tex. Sept. 7, 2010) (disposing of a negligent misrepresentation claim sua sponte because, among other reasons, there was no evidence that "the information supplied was for the guidance of others in their business"); Flo Trend Systems, Inc. v. Allwaste, Inc., 948 S.W.2d 4, 8 (Tex. App.-Houston [14th Dist.] 1997, no writ). Moreover, the negligent misrepresentation claim, like the fraud claim, is conclusory; by way of example, Plaintiffs fail to allege any non-conclusory facts demonstrating that Defendant did not exercise reasonable care or competence in making the unidentified representation or establishing that Plaintiffs suffered damages by justifiably relying on the representation. Therefore, the negligent misrepresentation claim fails as a matter of law. To state a claim for negligent misrepresentation, a plaintiff must show that: (1) the defendant made a representation in the course of its business, or in a transaction in which it has a BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PAGE 9 DAL:0105492/00217:2542584v1 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 16 of 23 PageID 248 pecuniary interest; (2) the defendant supplied "false information" for the guidance of others in their business; (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; and (4) the plaintiff suffered pecuniary loss by justifiably relying on the representation. Flo Trend Systems, Inc. v. Allwaste, Inc., 948 S.W.2d 4, 8 (Tex. App.-Houston [14th Dist.] 1997, no writ). 1. The alleged misrepresentation did not concern guidance for a business To state a claim for negligent misrepresentation claim, the false information provided must have been for the guidance of others in their business. See Ayres v. Parker, No. SA-12- CV-621, 2013 WL 3929711, at *14 (W.D. Tex. July 29, 2013) (rejecting negligent misrepresentation claim because plaintiffs failed to show representations were made for guidance in their business); Steele v. Green Tree Servicing, LLC, No. 3:09-CV-0603-D, 2010 WL 3565415, at *7-8 (N.D. Tex. Sept. 7, 2010) (disposing of a negligent misrepresentation claim sua sponte because, among other reasons, there was no evidence that "the information was supplied for guidance of others in their business"); RESTATEMENT (SECOND) OF TORTS § 552 cmt. a (referring to "commercial transactions"); Flo Trend Systems, Inc., 948 S.W.2d at 8 (describing negligent misrepresentation as a "commercial tort"). Here, the negligent misrepresentation claim fails because the alleged representation by Defendant does not constitute a representation made for the guidance of Plaintiffs in their business, which is a required element of a negligent misrepresentation claim. See Ayres, 2013 WL 3929711, at *14; Steele, 2010 WL 3565415, at *7-8; Flo Trend Systems, Inc., 948 S.W.2d at 8. Therefore, the negligent misrepresentation claim fails as a matter of law and should be dismissed. 2. Plaintiffs fail to allege reliance BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PAGE 10 DAL:0105492/00217:2542584v1 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 17 of 23 PageID 249 Plaintiffs' negligent misrepresentation claim also fails because Plaintiffs do not, and cannot, allege facts establishing that their reliance on any representations by Defendant was justified. Plaintiffs' conclusory allegations of reliance, without more, are insufficient to demonstrate how such reliance caused Plaintiffs to suffer pecuniary loss. McAllister v. BAC Home Loans Servicing, LP, No. 4:10-CV-504, 2011 WL 2200672, at *10 (E.D. Tex. Apr. 28, 2011) (granting motion to dismiss where plaintiffs failed to state any facts supporting justifiable reliance). In sum, the negligent misrepresentation claim fails. G. PLAINTIFFS' DTPA CLAIM FAILS AS A MATTER OF LAW (COUNT THREE) Plaintiffs' claim under the Texas Deceptive Trade Practices and Consumer Protection Act (the "DTPA") fails, because, among other reasons, borrowing money does not constitute the acquisition of a good or service under the DTPA giving rise to a claim under the DTPA. E.g., Baker v. Countrywide Home Loans, Inc., No. 3:08-CV-0916-B, 2009 WL 1810336, at *6 (N.D. Tex. June 24, 2009). Moreover, a lender's performance of services, such as the servicing of a mortgage, does not transform a borrower into a DTPA consumer. E.g., Khan v. Wells Fargo Bank, NA., No. H:12-1116, 2013 WL 5323098, at *4 (S.D. Tex. Sept. 20, 2013) ("[s]ervicing a mortgage is not a service under the DTPA."). Plaintiffs complain about Defendant's conduct as a lender and as a servicer. The DTPA claim fails as a matter of law. To recover under the DTPA, Plaintiffs must show that: (1) they are consumers of Defendant's goods or services; (2) Defendant can be sued under the DTPA; (3) Defendant committed a wrongful act proscribed by the DTPA; and (4) Defendant's allegedly wrongful act was the producing cause of their damages. See Fowler v. U.S. Bank, Nat'l Assoc., 2 F. Supp. 3d 965, 974 (S.D. Tex. 2014). To qualify as consumers, Plaintiffs must: (1) seek or acquire goods or services by purchase or lease; and (2) the goods or services purchased or leased must form the basis of the complaint. Id. BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PAGE 11 DAL:0105492/00217:2542584v1 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 18 of 23 PageID 250 "It is well recognized, however, that borrowing money does not constitute the acquisition of a good or service" under the DTPA. Baker v. Countrywide Home Loans, Inc., No. 3:08-CV- 0916-B, 2009 WL 1810336, at *6 (N.D. Tex. June 24, 2009).4 Even if a lender provides services that are incidental to the completed loan, the performance of such services, such as the servicing of a mortgage, does not transform the borrower into a consumer for purposes of the DTPA. See Khan v. Wells Fargo Bank, NA., No. H:12-1116, 2013 WL 5323098, at *4 (S.D. Tex. Sept. 20, 2013) ("[s]ervicing a mortgage is not a service under the DTPA."); Fowler, 2 F. Supp. 3d at 975; Porter v. Countrywide Home Loans, No. CV-07075, 2008 WL 2944670, at *3 (S.D. Tex. July 24, 2008). A court in the Southern District of Texas has dismissed with prejudice a DTPA claim based on allegations that the defendant there had violated the DTPA by claiming it had the right to receive payments on a note without proving that it was the assignee of the deed of trust and that it owned the note. Brown v. Wells Fargo Bank, NA., Civil Action No. H-13-3228, 2015 WL 926573, at *2 (S.D. Tex. March 4, 2015). The DTPA claim in that case was based not on the purchase of a home, but on subsequent mortgage servicing and foreclosure activities. Id. at *3. As a result, the court held that the plaintiff was not a consumer under the DTPA and dismissed the DTPA claim with prejudice. Id. at *2, 6. Here, as in Brown, the DTPA claim is based not on the purchase of the Property, but instead on subsequent alleged mortgage servicing and foreclosure activities. See Complaint, ¶¶ 4.10-4.19. Consequently, Plaintiffs are not consumers under the DTPA.5 4 See also Fowler, 2 F. Supp. 3d at 974 ("A mortgage loan is not within the DTPA when the loan, rather than the property sought to be purchased, is the basis of the plaintiff's complaint."); Whittier v. Ocwen Loan Servicing, LLC, No. H-12-3095, 2013 WL 5425294, at *7 (S.D. Tex. Sept. 25, 2013); Marketic v. U.S. Bank Nat'l Ass 'n, 436 F. Supp. 2d 842, 854-55 (N.D. Tex. 2006) ("[O]ne who obtains a . . . loan does not obtain a 'good' or a 'service' to qualify as a consumer under the DTPA."); Grant-Brooks v. WMC Mortgage Corp., No. 3:02-CV-2455-AH, 2003 WL 23119157, at *1, 8 (N.D. Tex. Dec. 9, 2003) (loan borrowers did not constitute "consumers" under the DTPA). See Brown, 2015 WL 926573, at *2-3; Fowler, 2 F. Supp. 3d at 975; Hutchinson v. Bank of Am., N.A., No. H-12- 3422, 2013 WL 5657822, at *5 (S.D. Tex. Oct. 16, 2013) (the "DTPA claim, however, is not premised on allegedly BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PAGE 12 DAL:0105492/00217:2542584v1 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 19 of 23 PageID 251 The DTPA claim also fails because Plaintiffs have not alleged and cannot allege any facts that show Defendant committed a wrongful act proscribed by the DTPA, or that the wrongful act was the producing cause of their alleged damages, both of which are required to establish a DTPA claim. See Fowler, 2 F. Supp. 3d at 974. This is because the DTPA claim is barred by Plaintiffs not being DTPA consumers. Plaintiffs have also failed to allege any non-conclusory facts to support their allegations that they suffered any damages as a result of a purported DTPA violation. See, e.g., Biggers v. BAC Home Loans Servicing, LP, 767 F. Supp. 2d 725, 733-34 (N.D. Tex. 2011) (dismissing DTPA claim where plaintiffs failed to plead facts that would indicate they suffered damages). Therefore, the DTPA claim fails. H. PLAINTIFFS' SECTION 51.002 CLAIM FAILS AS A MATTER OF LAW (COUNT FOUR) Plaintiffs' claim under section 51.002 of the Texas Property Code fails, because, among other reasons, Plaintiffs were not borrowers on the mortgage loan and therefore had no right to notice. See section III.B. supra. In any event, to the extent Plaintiffs complain that they did not receive notice of the sale, such allegation fails, because actual receipt of notice is not required under Texas law. E.g., Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 256 (5th Cir. 2013) (citing TEX. PROP. CODE § 51.002(e)); Warren v. Bank of Am., NA., No. 3:13-CV- 1135-M, 2013 WL 8177096, at *7 (N.D. Tex. Nov. 15, 2013). Plaintiffs are strangers to the subject mortgage loan and have no right to notice. Plaintiffs' allegations about notice are undoubtedly framed in a conclusory manner because Plaintiffs have no knowledge as to whether Defendant sent the notices and can provide no additional factual allegations sufficient to raise their allegations that Defendant failed to provide notices above the level of speculation, unwarranted deductions and legal conclusions. See R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005). "[C]onclusory allegations or legal deceptive acts 'related to financing the purchase of [her] house, but rather, [she] complains the Bank wrongfully foreclosed on [her] property.' . . . The DTPA does not apply to such a claim."). BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS DAL:0105492/00217:2542584v1 PAGE 13 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 20 of 23 PageID 252 conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995) (internal quotations and citation omitted). Moreover, Plaintiffs' claims for violation of the Texas Property Code fail because the Texas Property Code does not provide Plaintiffs with a private right of action. See, e.g., Ashton v. BAC Home Loan Servicing, L.P., No. 4:13-cv-810, 2013 WL 3807756, at *2 (S.D. Tex. Jul. 19, 2013) ("This Court has not found any cases that interpret section 51.002 to establish an independent right of action for damages. The section also does not contain its own enforcement mechanism."). I. PLAINTIFFS' NEGLIGENT SERVICING CLAIM FAILS AS A MATTER OF LAW (COUNT FIVE) Plaintiffs' claim for negligent servicing fails, because, among other reasons, Plaintiffs were not borrowers on the mortgage loan at issue and have no basis to claim a duty owed to them by Defendant. In any event, no cause of action exists for "negligent servicing." E.g., Collier v. Wells Fargo Home Mortgage, No. 7:04-CV-86, 2006 WL 1464170, at *8 (N.D. Tex. May 26, 2006) (citing UMLIC VP LLC v. T&M Sales and Envtl. Sys., Inc., 176 S.W.3d 595, 612 (Tex. App.-Corpus Christi 2005, pet. denied)). J. PLAINTIFFS' UNJUST ENRICHMENT CLAIM FAILS AS A MATTER OF LAW (COUNT SIX) Plaintiffs' claim for unjust enrichment fails, because, among other reasons, the voluntary payment doctrine bars such a claim. See section III.C. supra. In addition, Plaintiffs do not allege any facts demonstrating that anyone other than Defendant was entitled to such mortgage payments or to the values of any improvements to the Property. Likewise, Plaintiffs do not allege any facts demonstrating that Defendant was not entitled to collect the mortgage payments or to receive the value of any Property improvements that form the basis of the unjust enrichment claim. BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS DAL:0105492/00217:2542584v1 PAGE 14 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 21 of 23 PageID 253 K. PLAINTIFFS' CLAIMS FOR DAMAGES AND ATTORNEY'S FEES SHOULD BE DISMISSED Plaintiffs request awards of monetary relief and attorney's fees. Complaint, §V. However, Plaintiffs have not asserted a cause of action that would support an award of damages or other monetary relief. Similarly, Plaintiffs' request for attorney's fees is barred, because Plaintiffs have not pleaded any viable causes of action that would allow for recovery of attorneys' fees. E.g., Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). L. DISMISSAL WITH PREJUDICE IS APPROPRIATE Although "a court should freely give [a party] leave" to amend pleadings "when justice so requires," FED. R. Civ. P. 15(a), a court should deny leave to amend when the amendment, if granted, will be futile. Martin's Herend Imports, Inc. v. Diamond & Gem Trading U.S. Am. Co., 195 F.3d 765, 771 (5th Cir. 1999); Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994). To determine futility, the Fifth Circuit considers whether an amendment could survive a motion to dismiss under FED. R. Civ. P. 12(b)(6); if an amendment would fail to state a claim upon which relief could be granted, the court may deny leave to amend. See Briggs v. Mississippi, 331 F.3d 499, 508 (5th Cir. 2003) (stating "because . . . the proposed amended complaint could not survive a Fed. R. Civ. P. 12(b)(6) motion" allowing plaintiff "to amend the complaint would be futile"). As demonstrated herein, Plaintiffs' claims fail as a matter of law. The Complaint represents Plaintiffs' attempt to amend their pleading, and as a result, allowing them to file a further pleading would be futile. Moreover, the deadline under the Scheduling Order for Plaintiffs to amend their pleadings has passed. See Doc. 16. The Court should dismiss this lawsuit with prejudice. IV. CONCLUSION Defendant respectfully requests that the Court grant the Motion to Dismiss and, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, dismiss Plaintiffs' suit as a matter of BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PAGE 15 DAL:0105492/00217:2542584v1 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 22 of 23 PageID 254 law, with prejudice. Defendant further prays that the Court grant all such other and further relief, in law or in equity, to which Defendant may be justly entitled. Respectfully submitted, /s/ Vincent J. Hess Robert T. Mowrey State Bar No. 14607500 rmowrey@lockelord.com Vincent J. Hess State Bar No. 09549417 vhess@lockelord.com Arthur E. Anthony State Bar No. 24001661 aanthony@lockelord.corn LOCKE LORD LLP 2200 Ross Avenue, Suite 2800 Dallas, Texas 75201-6776 Telephone: (214) 740-8000 Facsimile: (214) 740-8800 ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document was served upon the following counsel of record via the Court's CM/ECF system and/or certified mail, return receipt requested pursuant to the Federal Rules of Civil Procedure on this 20th day of March, 2017: Jeffrey H. Shore J. David Caldwell, Jr. BASINGER LEGGETT CLEMONS BOWLING SHORE CRANDALL, PLLC 5700 Granite Parkway, Ste. 950 Plano TX 75024 214-473-8686 (Phone) 214-473-8685 (Facsimile) mbrown@blcblaw.com /s/ Vincent J. Hess Counsel for Defendant BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PAGE 16 DAL:0105492/00217:2542584v1 Case 3:16-cv-00828-B Document 28 Filed 03/20/17 Page 23 of 23 PageID 255