Holding Renaissance Property, LLC v. Nationstar Mortgage, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

HOLDING RENAISSANCE PROPERTY, LLC CIVIL ACTION

VERSUS NO. 23-1594

NATIONSTAR MORTGAGE, LLC SECTION: D (4)

ORDER AND REASONS

Before the Court is Defendant Nationstar Mortgage LLC d/b/a Mr. Cooper’s

Motion to Dismiss Plaintiff’s Complaint.1 Local Rule 7.5 of the Eastern District of

Louisiana requires that memoranda in opposition to a motion be filed eight days prior

to the noticed submission date. The instant Motion had a submission date of July 11,

2023.2 As of the date of this Order, no memorandum in opposition has been

submitted. Thus, the Motion is unopposed.

After careful consideration of the Motion and the applicable law, the Motion

is GRANTED in part and DENIED in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 15, 2023, Holding Renaissance Property, LLC (“HRP”) filed a

Complaint in this Court, regarding an attempted foreclosure on property HRP

acquired from Cheryl Smith Charles.3 HRP alleges that on or about November 24,

2009, Ms. Charles executed a mortgage agreement (the “Mortgage”) consisting of a

security instrument and promissory note (the “Note”) in favor of Bank of America

1 R. Doc. 10.

2 Id.

3 R. Doc. 2.

regarding property located at 2706-08 Robert Street in New Orleans, Louisiana.4

HRP alleges that Ms. Charles transferred the property to HRP on or about September

29, 2020 by Act of Sale and Assumption, wherein HRP assumed the mortgage

indebtedness on the property, in addition to all right, title, and interest in the

property.5 HRP asserts that on November 18, 2018, Mortgage Electronic Systems, as

nominee for Bank of America, assigned the Mortgage and the Note to Nationstar

Mortgage, LLC d/b/a Mr. Cooper (“Nationstar”), through which Nationstar became

the lender and servicer and assumed the contractual rights and obligations of the

Mortgage and the Note previously held by Bank of America.6 HRP further asserts

that, “At all times material herein, Nationstar alleged default and that default began

on July 1, 2018.”7 HRP alleges that Nationstar filed a Petition to Enforce Security

4 Id. at ¶¶ 3-4.

5 Id. at ¶ 5. Nationstar alleges in its Motion that Ms. Charles, through her counsel, Gregory Swafford,

filed a Motion for Preliminary Injunction and Permanent Injunction to Arrest Seizure and Sheriff Sale

in the state court action on or about September 30, 2020. R. Doc. 10-1 at p. 2, n.1. Nationstar further

alleges that Ms. Charles subsequently executed an Agreement to Purchase or Sell Real Estate on

October 29, 2020, selling the property at issue to Mr. Swafford through his limited liability company,

Holding Renaissance Property, LLC. R. Doc. 10-1 at p. 2. Nationstar points out that Ms. Charles

executed the Agreement on October 29, 2020, but that HRP recorded the Agreement on October 8,

2020 in the Orleans Parish mortgage and conveyance records. Id. (citing R. Doc. 10-2 at p. 1).

Nationstar also alleges that Ms. Charles executed a Power of Attorney on September 29, 2020,

authorizing Mr. Swafford to sell the property at issue, which was recorded in Orleans Parish on

October 8, 2020. R. Doc. 10-1 at p. 3 (citing R. Doc. 10-2 at pp. 4-5). Nationstar alleges that Ms.

Charles and Mr. Swafford executed an Act of Sale and Assumption on September 29, 2020, which was

recorded in Orleans Parish on November 22, 2021. R. Doc. 10-1 at p. 3 (citing R. Doc. 10-2 at pp. 8-

10). Nationstar asserts in its Motion that Ms. Charles and HRP never notified Nationstar of the sale

or the agreement to assume the Mortgage and, as such, “the actions were a prohibit [sic] transfer of

title without Nationstar [sic] knowledge or consent.” R. Doc. 10-1 at p. 3. Nationstar further asserts

in its Motion that on August 16, 2022, Ms. Charles moved to dismiss her Motion for Preliminary

Injunction and Permanent Injunction to Arrest Seizure and Sheriff Sale in the state court action. R.

Doc. 10-1 at p. 3 (citing R. Doc. 10-2 at p. 12). Nationstar asserts that a sheriff’s sale was scheduled

for June 1, 2023, but that it was cancelled due to HRP filing the instant action. R. Doc. 10-1 at p. 3.

6 R. Doc. 2 at ¶¶ 6-7. The Court notes that the “Corporate Assignment of Mortgage” attached to the

Complaint shows that Mortgage Electronic Registration Systems, Inc., as nominee for Bank of

America, assigned Ms. Charles’ Mortgage and Note to Nationstar. R. Doc. 2-3 at pp. 21-23.

7 R. Doc. 2 at ¶ 8.

Interest by Executory Process in Louisiana state court on December 27, 2018,

asserting a claim against HRP in the amount of $249,281.68, the principal amount

remaining on the Note and Mortgage, plus interest, attorney’s fees and costs.8

While not a model of clarity, HRP seems to allege that Nationstar violated the

National Housing Act (the “NHA”) and regulations issued by the United States

Department of Housing and Urban Development (“HUD”) by failing to provide HRP

with pre-foreclosure screening, loss mitigation, notice of default, and notice of

acceleration before seeking to foreclose on the property, and by failing to provide HRP

with notice of the transfer, assignment, and loan servicing to Nationstar.9 HRP

seems to assert a breach of contract claim on the basis that these actions were taken

in contravention of Paragraph 6(B) of the Note, and because the NHA and its

corresponding HUD regulations are “explicitly incorporated in the Security

Instrument and Note.”10 HRP also alleges that Nationstar violated HUD regulations

and the NHA by failing to provide Ms. Charles, the previous owner, pre-foreclosure

counseling from July 1, 2018 through October 1, 2018, and by failing to send her a

delinquency notice, failing to contact or make reasonable attempts to contact Ms.

Charles, failing to conduct, or make a reasonable effort to arrange, a face-to-face

meeting prior to foreclosing, failing to conduct a loss mitigation evaluation prior to

foreclosing, and failing to provide a default notice, all as required by 24 C.F.R. §

203.602, et seq. and 24 C.F.R. § 650.11

8 Id. at ¶ 28. See, R. Doc. 2-3 at p. 1, ¶¶ 2-3.

9 R. Doc. 2 at ¶¶ 9-16.

10 Id. at ¶¶ 15 & 42. See, Id. at ¶¶ 9, 10, 12, & 16.

11 Id. at ¶¶ 17-18.

HRP further asserts that Nationstar failed to provide Ms. Charles with notice

of its intent to foreclose and accelerate at any time between July 1, 2018 and

December 27, 2018, as required by the NHA and its accompanying HUD

regulations.12 HRP asserts that Ms. Charles was entitled to loss mitigation

alternatives to maintain ownership of the home and that she would have exercised

the ability to do so if Nationstar had contacted HRP to discuss alternatives prior to

accelerating and initiating foreclosure on December 27, 2018, or if Nationstar had

advised Ms. Charles of the transfer of ownership and servicing of the Note.13 HRP

then alleges that Ms. Charles suffered mental stress, embarrassment, anxiety, and

loss of use resulting from initiation of the foreclosure proceeding, “of which transfer

of all rights, title and interest to the property was acquired by Petitioner.”14 HRP

also asserts that it believes Bank of America certified to Nationstar upon assignment

that it had explored non-foreclosure outcomes or pre-foreclosure counseling with

HRP, to no avail, and that Nationstar relayed this information to its counsel prior to

filing the foreclosure suit.15 HRP claims that Nationstar failed to allege or submit

evidence in its foreclosure suit that all conditions precedent were met, as promulgated

by the HUD Secretary and required by Paragraph 6(B) of the Note, prior to

acceleration and initiation of foreclosure proceedings.16 HRP also alleges that

Nationstar failed to comply with Paragraph 6(B) because there was not enough time

12 Id. at ¶ 19.

13 Id. at ¶ 23.

14 Id. at ¶ 25.

15 Id. at ¶¶ 20 & 21.

16 Id. at ¶ 22.

to provide a notice of default and acceleration with a 30-day cure period where the

Mortgage and the Note were assigned to Nationstar on November 18, 2018 and the

foreclosure proceeding was filed on December 27, 2018.17

HRP further alleges that Nationstar was not entitled to proceed by executory

process in enforcing the Note and the Mortgage because Nationstar failed to comply

with the “strict requirements of authentic evidence” required by La. Code Civ. P. art.

2635.18 HRP alleges that Nationstar failed to mail by first class mail a notice of

default before accelerating the Note, that neither HRP nor Ms. Charles received

written notice of default and acceleration from Nationstar, as required by the Note,

and that Nationstar failed to attach the notice of default and notice of acceleration to

its Petition to Enforce Security Interest by Executory Process (the “Petition for

Executory Process.”19 While Nationstar alleged in its Petition for Executory Process

that it provided notice of default as required by the Mortgage and the Note, HRP

asserts that Nationstar failed to attach authentic evidence of its proof of notice of

default, which prohibits the use of executory process and the resultant seizure.20

HRP asserts a claim for wrongful seizure based upon a lack of authentic evidence to

justify issuance of the writ of seizure and sale, as required by La. Code Civ. P. 2635.21

HRP seeks declaratory relief in the form of a determination of the rights, obligations,

and interest of the parties with respect to the property, a determination of the validity

17 Id. at ¶ 24.

18 Id. at ¶¶ 27 & 28.

19 Id. at ¶¶ 27, 29, 30, & 31.

20 Id. at ¶¶ 32 & 34.

21 Id. at ¶ 34.

of the issuance of the writ of seizure and sale, a determination of the validity of

acceleration and foreclosure based upon payment default, a determination regarding

whether Nationstar complied with the NHA and its accompanying HUD regulations,

as explicitly incorporated in the Mortgage and the Note, prior to acceleration and

foreclosure, and a determination of whether Nationstar should be ordered to proceed

by ordinary process.22 HRP seeks damages as well as attorney’s fees and costs.23

On June 6, 2023, Nationstar filed the instant Motion to Dismiss, asserting that

the Complaint “is nothing more than an improper shotgun pleading which lists out

each of Plaintiff’s purported claims without providing any factual allegations in

support.”24 Nationstar contends that even if HRP had provided additional facts, its

claims against Nationstar all fail as a matter of law.25 Nationstar argues that HRP’s

claims that are based upon alleged violations of HUD and the NHA must be dismissed

with prejudice because neither HUD nor the NHA provide a private right of action.26

Nationstar also asserts that HRP lacks standing to bring “a RESPA claim,”27 that

HRP does not have a cause of action under Louisiana’s Credit Agreement statutes,

22 Id. at ¶¶ 38-45.

23 Id. at ¶ 46. The Court notes that HRP also sought a temporary restraining order and preliminary

injunctive relief to enjoin a Sheriff’s sale of the property that was scheduled for June 1, 2023. Id. at

¶¶ 35-37. On May 16, 2023, after the Complaint was filed, HRP filed a Motion for Temporary

Restraining Order and Preliminary Injunctive Relief, seeking to arrest execution of the writ of seizure

and sale of the property that was scheduled for June 1, 2023. R. Doc. 7. After receiving several

electronic communications from HRP’s counsel confirming that the sale had been cancelled and that

HRP was no longer requesting injunctive relief, the Court issued an Order and Reasons on May 31,

2023 denying the Motion as moot. R. Doc. 9. As such, HRP’s request for injunctive relief in its

Complaint is now moot.

24 R. Doc. 10-1 at p. 1.

25 Id.

26 Id. at pp. 1 & 6-7.

27 Id. at pp. 7-8.

La. R.S. 6:1122, et seq.,28 and that Nationstar has the right to enforce the Note and

the Mortgage through Louisiana’s executory process.29 Alternatively, if the Court

does not dismiss all of HRP’s claims, Nationstar asks the Court to order HRP to file

a more definite statement under Fed. R. Civ. P. 12(e).30

As of the date of this Order and Reasons, HRP has not filed a response to

Nationstar’s Motion. Thus, the Motion is unopposed.

II. LEGAL STANDARD

A. Rule 12(b)(6) Standard

Under Federal Rule of Civil Procedure 12(b)(6), a defendant can seek dismissal

of a complaint, or any part of it, for failure to state a claim upon which relief may be

granted.31 To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’”32 “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.”33 “The plausibility standard is not akin to a

probability requirement, but it asks for more than a sheer possibility that a defendant

has acted unlawfully.”34 In ruling on a motion to dismiss, the Court accepts all well-

pleaded facts as true and views those facts in the light most favorable to the

28 Id. at pp. 8-10.

29 Id. at pp. 10-17.

30 Id. at pp. 17-18.

31 Fed. R. Civ. P. 12(b)(6).

32 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 173 L.Ed.2d 868 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

33 Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Ashcroft, 556 U.S. at 678, 129 S.Ct. at

1949) (quotation marks omitted).

34 Iqbal, 556 U.S. at 679, 129 S.Ct. at 1949 (quotation omitted).

plaintiff.35 The Court, however, is not bound to accept as true conclusory allegations,

unwarranted factual inferences, or legal conclusions.36

The Fifth Circuit has recognized that motions to dismiss under Rule 12(b) are

generally viewed with disfavor.37 In deciding a Rule 12(b)(6) motion to dismiss, a

court is generally prohibited from considering information outside the pleadings, but

may consider documents outside of the complaint when they are: (1) attached to the

motion; (2) referenced in the complaint; and (3) central to the plaintiff’s claims.38 The

Court can also take judicial notice of matters that are of public record, including

pleadings that have been filed in a federal or state court.39

III. ANALYSIS

A. HRP has alleged sufficient facts to state a claim for alleged

violations of the NHA and HUD regulations.

In seeking dismissal of HRP’s claims for alleged violations of the NHA and

HUD regulations, Nationstar asserts that neither the NHA nor any HUD regulation

provides for a private right of action.40 As HRP correctly points out, it is well

established that the NHA and HUD regulations concern only the relationship

between the mortgagee and the government, and give the mortgagor no claim to a

duty owed nor a remedy for failure to follow such regulations.41 “Because the aim of

35 Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d 507, 513 (5th Cir. 2018).

36 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005).

37 Turner v. Cain, 647 Fed.Appx. 357, 361 (5th Cir. 2016) (quoting Leal v. McHugh, 731 F.3d 405, 410

(5th Cir. 2013)) (internal quotation marks omitted

38 Maloney Gaming Mgmt., LLC v. St. Tammany Parish, 456 Fed.Appx. 336, 340-41 (5th Cir. 2011).

39 In re American Intern. Refinery, 402 B.R. 728, 749 (W.D. La. 2008) (citing Cisco Systems, Inc. v.

Alcatel USA, Inc., 301 F. Supp. 2d 599, 602 n.3 (E.D. Tex. 2004)).

40 R. Doc. 10-1 at pp. 6-7 (citing authority).

41 Baker v. Countrywide Home Loans, Inc., Civ. A. No. 3:08-CV-0916-B, 2009 WL 1810336, at *3 (N.D.

Tex. June 24, 2009) (Boyle, J.) (quoting Leggette v. Washington Mut. Bank, FA, Civ. A. No. 3:03-CV-

the FHA and the HUD regulations is to govern the relationship between mortgagees

and the government, courts have recognized that violations of such provisions fail to

give rise to a private cause of action.”42 The Court therefore agrees that Nationstar’s

alleged failure to comply with the NHA and HUD regulations alone does not give rise

to a viable cause of action.43

While the Court agrees that HRP cannot sustain a cause of action for breach

of contract or wrongful foreclosure on the basis that Nationstar failed to comply with

the NHA and its accompanying HUD regulations, that does not end the inquiry. HRP

also alleges a claim for breach of contract based upon Nationstar’s failure to comply

with “the NHA and its accompanying HUD regulations as explicitly incorporated in

the Security Instrument and Note.”44 The Fifth Circuit has held that, “Federal

statutes and regulations can form the basis of a breach-of-contract claim if the parties

2909-D, 2005 WL 267699, at *3 (N.D. Tex. Oct. 19, 2005) (Fitzwater, J.) (quoting Roberts v. Cameron-

Brown Co., 556 F.2d 356, 360 (5th Cir. 1977))). See, Moses v. Banco Mortgage Co., 778 F.2d 267, 271-

72 (5th Cir. 1985) (“We hold that neither the Federal Housing Act nor the HUD regulation was

intended directly to benefit . . . owners of low income housing”); Mitchell v. Chase Home Finance LLC,

Civ. A. No. 3:06-CV-2099-K, 2008 WL 623395, at *3 (N.D. Tex. March 4, 2008) (Kinkeade, J.) (“As other

courts have observed, the regulations promulgated under the national Housing Act govern relations

between the mortgagee and the government, and give the mortgagor no claim for duty owed or for the

mortgagee’s failure to follow said regulations”) (citing authority); Fantroy v. Countrywide Home Loans,

Inc., Civ. A. No. 3:06-CV-1889-K, 2007 WL 2254941, at *2 (N.D. Tex. July 24, 2007) (Kinkeade, J.)

(same).

42 Baker, Civ. A. No. 3:08-CV-0916-B, 2009 WL 1810336 at *3 (citing Moses, 778 F.2d at 272, n.2;

Roberts, 556 F.2d at 360-61; Fantroy, Civ. A. No. 3:06-CV-1889-K, 2007 WL 2254941 at *2; Leggette,

Civ. A. No. 3:03-CV-2909-D, 2005 WL 2679699 at *3).

43 Baker, Civ. A. No. 3:08-CV-0916-B, 2009 WL 1810336 at *3 (citing Mitchell, Civ. A. No. 3:06-CV-

2099-K, 2008 WL 623395 at *3 (“To the extent that Plaintiffs base their claim of wrongful acceleration

on these regulations, it must be dismissed”)). See, Richards v. Wells Fargo Bank, N.A., Civ. A. No.

18:CV-00084-DC, 2019 WL 13194132, at *3, n.1 (W.D. Tex. Feb. 4, 2019) (Counts, J.) (“The Court

agrees that Defendant’s failure to comply with HUD regulations alone does not give rise to a viable

cause of action.”) (citation omitted).

44 R. Doc. 2 at ¶¶ 15, 19, & 21.

expressly incorporate them into their contract.”45 Here, both the Note and the

Mortgage expressly provide that the lender’s ability to seek acceleration and

foreclosure is limited by the regulations promulgated by the HUD Secretary. For

instance, the Note provides the following:

If Borrower defaults by failing to pay in full any monthly payment, then

Lender may, except as limited by regulations of the Secretary in the case

of payment defaults, require immediate payment in full of the principal

balance remaining due and all accrued interest. . . . In many

circumstances regulations issued by the Secretary will limit Lender’s

rights to require immediate payment in full in the case of payment

defaults. This Note does not authorize acceleration when not permitted

by HUD regulations. As used in this Note, “Secretary” means the

Secretary of Housing and Urban Development or his or her designee.46

The Note further defines “Borrower” as “each person signing at the end of this Note,

and the person’s successors and assign,” and defines “Lender” as “Bank of America,

N.A. and its successors and assigns.”47 The Mortgage document similarly provides

the following:

9. Grounds for Acceleration of Debt.

(a) Default. Lender may, except as limited by regulations issued

by the Secretary, in the case of payment defaults, require

immediate payment in full of all sums secured by this Security

Instrument if: . . . .

(b) Sale Without Credit Approval. Lender shall, if permitted by

applicable law . . . and with the prior approval of the Secretary,

require immediate payment in full of all sums secured by this

Security Instrument if: . . . .

(d)Regulations of HUD Secretary. In many circumstances

regulations issued by the Secretary will limit Lender’s rights, in

the case of payment defaults, to require immediate payment in

45 Hernandez v. Home Sav. Ass’n of Dallas County, 606 F.2d 596, 600-01 (5th Cir. 1979) (finding that

HUD regulations incorporated into mortgage documents become part of the contract); Smith v.

JPMorgan Chase Bank, N.A., 519 Fed.Appx. 861, 864 (5th Cir. 2013) (citing Franklin v. BAC Home

Loans Servicing, L.P., Civ. A. No. 3:10-CV-1174-M, 2011 WL 248445, at *2 n.14 (N.D. Tex. Jan. 26,

2011) (collecting cases)).

46 R. Doc. 2-3 at pp. 12-13.

47 Id. at p. 12.

full and foreclose if not paid. This Security Instrument does not

authorize acceleration or foreclosure if not permitted by

regulations of the Secretary.48

Other courts in this Circuit have held that this language suffices to show that the

parties explicitly incorporated the HUD regulations into their agreement.49

Additionally, when HUD regulations are incorporated into the mortgage

instruments, as in this case, “a breach of contract claim is cognizable.”50 The Court

finds that because the parties incorporated HUD regulations into the Note and the

Mortgage, HRP has stated a plausible breach of contract claim, and Nationstar’s

Motion is denied as to that claim.

B. HRP has alleged sufficient facts to show that it has standing to sue

Nationstar under RESPA.

Nationstar’s next argument in favor of dismissal is less clear to the Court.

Nationstar cites a provision of the Mortgage that requires the borrower to occupy the

property as her principal residence and a provision that allows Nationstar to seek

acceleration if all or part of the property is sold or transferred and the property is not

occupied by the purchaser as his or her principal residence.51 Nationstar asserts that,

“In addition to the Borrower and Plaintiff failing to notify Nationstar of their transfer

of the Subject Property and assumption of the mortgage, Plaintiff is not considered a

borrower of the mortgage.”52 Nationstar then asserts that, “RESPA requires a

48 Id. at p. 17, ¶ 9.

49 Richards, Civ. A. No. MO:18-CV-00084-DC, 2019 WL 13194132 at *3 & n.1; Baker, Civ. A. No. 3:08-

CV-0916-B, 2009 WL 1810336 at *3, n.2 & 5 (quoting Hernandez, 606 F.2d at 600-01) (internal

quotation marks omitted).

50 Richards, Civ. A. No. MO:18-CV-00084-DC, 2019 WL 13194132 at *3 (collecting cases).

51 R. Doc. 10-1 at pp. 7-8 (quoting R. Doc. 2-3 at pp. 16 & 17).

52 R. Doc. 10-1 at pp. 7-8 (quoting R. Doc. 2-3 at pp. 16 & 17).

servicer, upon receiving a complete loss mitigation application, to notify the borrower

that the borrower is not eligible for a loss mitigation option before proceeding to

foreclosure.”53 Nationstar concludes that, “Plaintiff is not a borrower on the Loan and

does not qualify as a successor in interest under any of Regulation X’s definitions.

Therefore, it lacks standing to bring a RESPA claim.”54

Although not explained by Nationstar, Section 1024 of the Code of Federal

Regulations implements the Real Estate Settlement Procedures Act of 1974

(“RESPA”), and 12 C.F.R. § 1024.41 “describes the procedures that mortgage servicers

must follow when processing loss mitigation applications.”55 Regulation X, contained

in 12 C.F.R. § 1024(f)(2)(i), “requires a servicer, upon receiving a complete loss

mitigation application, to notify the borrower that the borrower is not eligible for a

loss mitigation option before proceeding to foreclosure.”56 At the outset, the Court

points out that the Complaint does not reference RESPA, Regulation X, or 12 C.F.R.

§ 1024(f)(2)(i).57 While HRP repeatedly alleges that Nationstar failed to provide HRP

and/or Ms. Charles, the former owner, “loss mitigation” prior to seeking foreclosure,58

and further alleges that, “[Mrs.] Charles was entitled to loss mitigation alternatives

to maintain ownership of the home and would have exercised the ability to do so if

Nationstar had contacted Petitioner to discuss alternatives prior to accelerating and

53 R. Doc. 10-1 at p. 8 (quoting Guerrero v. Bank of Am. N.A., Civ. A. No. H-17-239, 2017 WL 2876504,

at *4 (S.D. Tex. July 6, 2017) (Miller, J.)) (internal quotation marks omitted).

54 R. Doc. 10-1 at p. 8.

55 Germain v. US Bank Nat’l Ass’n as Tr. For Morgan Stanley Mortg. Loan Tr. 2006-7, 920 F.3d 269,

273 (5th Cir. 2019) (citing 12 C.F.R. § 1024.41); Guerrero, Civ. A. No. H-17-239, 2017 WL 2876504 at

*4.

56 Guerrero, Civ. A. No. H-17-239, 2017 WL 2876504 at *4 (citing 12 C.F.R. § 1024.41(f)(2)(i)).

57 See, generally, R. Doc. 2.

58 R. Doc. 2 at ¶¶ 9-13 & 15-16.

initiating foreclosure on December 27, 2018,”59 HRP does not allege that either it or

Ms. Charles submitted a complete loss mitigation application, as required by

Regulation X. Thus, it is unclear to the Court whether HRP has alleged a RESPA

violation in its Complaint.

That, however, is not the issue before the Court at this juncture; nor is the

issue of the timing of the sale of the property to HRP.60 Instead, Nationstar argues

that HRP “lacks standing to bring a RESPA claim.”61 Regarding whether HRP has

standing to assert a RESPA claim, HRP has alleged that Ms. Charles transferred the

property to it on September 29, 2020, through which HRP “did assume the mortgage

indebtedness on the property, in addition to all right, title and interest in the subject

property.”62 HRP also attached to its Complaint a copy of the Act of Sale and

Assumption executed by Ms. Charles and HRP, which specifies that, “said Purchaser

declared that it does by these presents stipulate, agree and bind itself and its heirs

and assigns to assume all the obligations, agreements and covenants embodied in the

aforesaid Act of Sale and Mortgage and Note to the full acquittance and discharge of

Vendor . . . .”63 Nationstar does not address these allegations in its Motion, nor does

Nationstar acknowledge the Mortgage instrument’s definition of “Borrower” as

59 Id. at ¶ 23.

60 See, R. Docs. 2-3 and 2-4. The Exhibits attached to the Complaint reflect that Nationstar’s Petition

to Enforce Security Interest by Executory Process was filed in state court on December 27, 2018. R.

Doc. 2-3 at pp. 1-4. The state court judge signed an Order granting the Petition and ordering the

seizure and sale of the property on January 17, 2019. Id. at p. 25. The Act of Sale between Ms. Charles

and HRP for that same property was executed on September 29, 2020. R. Doc. 2-4. That same Act of

Sale was filed with the Clerk of Court on November 22, 2021. Id. at pp. 4-5.

61 R. Doc. 10-1 at p. 8.

62 R. Doc. 2 at ¶ 2.

63 R. Doc. 2-4 at p. 3.

including the person signing the Note “and the person’s successors and assigns.”64

Viewing HRP’s well-pleaded facts as true and viewing those facts in the light most

favorable to HRP, as the Court is bound to do,65 the Court finds that HRP has alleged

sufficient facts as to this claim.

C. HRP’s claims are not barred by the Louisiana Credit Agreement

Statute, La. R.S. 6:1121, et seq.

Nationstar seems to assert that all of HRP’s claims are based upon the

mortgage obligation between Ms. Charles and Nationstar, and are therefore barred

under the Louisiana Credit Agreement Statute, La. R.S. 6:1121, et seq., because there

is no written agreement between HRP and Nationstar regarding the Mortgage.66

Nationstar claims that any transfer or assumption of the mortgage obligation was

without Nationstar’s express written consent, as required under the terms of the

Mortgage.67 Nationstar further asserts that banks generally do not owe duties to

non-customers, and points out that HRP does not allege that it was Nationstar’s

customer.68

The Louisiana Credit Agreement Statute “operates as a ‘statute of frauds’ for

the credit industry,” and “[i]ts purpose is ‘to prevent potential borrowers from

bringing claims against lenders based on oral agreements.’”69 A “credit agreement”

is defined as “an agreement to lend or forbear repayment of money or goods or to

64 R. Doc. 2-3 at p. 12.

65 Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d 507, 513 (5th Cir. 2018).

66 R. Doc. 10-1 at pp. 8-10.

67 Id. at pp. 9-10.

68 Id. at p. 10.

69 Bass v. Chase Home Finance, LLC, Civ. A. No. 09-3339, 2010 WL 3922709, at *3 (E.D. La. Oct. 1,

2010) (Vance, J.) (quoting EPCO Carbon Dioxide Products, Inc. v. JP Morgan Chase Bank, NA, 467

F.3d 466, 469 (5th Cir. 2006)).

otherwise extend credit, or make any other financial accommodation.”70 The statute

provides that, “A debtor shall not maintain an action on a credit agreement unless

the agreement is in writing, expresses consideration, sets forth the relevant terms

and conditions, and is signed by the creditor and the debtor.”71 Courts have

recognized that the Louisiana Credit Agreement Statute embodies a “legislative

reaction to the surge of lender liability litigation in the late 1980s and [was] enacted

primarily to limit the most frequent lender liability claims, which include assertions

of a breach of oral commitments to lend, to refinance or to forbear from enforcing

contractual remedies by instituting a so-called statute of frauds and requiring such

agreements to be in writing to be enforceable.”72

None of those purposes or concerns are implicated in this case. As previously

mentioned, HRP has alleged that it purchased the subject property from Ms. Charles

on or about September 29, 2020, and that it assumed the mortgage indebtedness on

the property, in addition to all right, title, and interest in the property, pursuant to

an Act of Sale and Assumption.73 The Act of Sale and Assumption submitted with

the Complaint, dated September 29, 2020 and signed by Ms. Charles and Mr.

Swafford on behalf of HRP, specifies that HRP agreed to assume the obligations of

the Mortgage granted by Ms. Charles in favor of Bank of America that was later

70 La. R.S. 6:1121(1).

71 La. R.S. 6:1122.

72 Conerly Corp. v. Regions Bank, Civ. A. No. 08-813, 2008 WL 4975080, at *2 (E.D. La. Nov. 20, 2008)

(Vance, J.) (quoting King v. Parish Nat’l Bank, 2004-0337 (La. 10/19/04), 885 So.2d 540, 546) (internal

quotation marks omitted).

73 R. Doc. 2 at ¶ 5.

assigned to Nationstar.74 Unlike the cases cited by Nationstar,75 this case does not

involve a plaintiff seeking to enforce an oral agreement. Instead, HRP seeks to

enforce the terms of a written mortgage document, executed by Ms. Charles and Bank

of America, the obligations of which Ms. Charles purportedly later transferred to

HRP. As explained by another Section of this Court, “The Fifth Circuit recently

cautioned against extending the Louisiana Credit Agreement Statute to situations

outside the primary purpose of the statute, which is to limit lender liability suits

based on oral agreements.”76 Because HRP is not seeking to enforce an oral

agreement in this case, the Court finds that HRP has asserted plausible claims for

relief that are not barred by the Louisiana Credit Agreement Statute.

Further, Nationstar has failed to direct the Court to the provision of the

Mortgage that purportedly requires Nationstar’s express written consent for Ms.

Charles to transfer the mortgage obligation.77 After reviewing the Mortgage, the

Court has found only one provision stating that the lender may accelerate the debt

when all or part of the property is sold or transferred and either the property is not

occupied by the purchaser as his or her principal residence or the purchaser’s credit

has not been approved “in accordance with the requirements of the Secretary [of

HUD].”78 Whether Ms. Charles complied with this provision is not before the Court

in this Motion. The Mortgage also provides that, “The covenants and agreements of

74 R. Doc. 2-4.

75 See, R. Doc. 10-1 at pp. 8-9.

76 Conerly Corp. v. Regions Bank, Civ. A. No. 08-813, 2008 WL 4975080, at *3 (E.D. La. Nov. 20, 2008)

(citing Keenan v. Donaldson, 529 F.3d 569, 577 (5th Cir. 2008)).

77 Id. at pp. 9-10.

78 R. Doc. 2-3 at p. 17, ¶ 9(b). See, Id. at p. 15, ¶ 2 (defining “Secretary” as the Secretary of Housing

and Urban Development).

this Security Instrument shall bind and benefit the successors and assigns of Lender

and Borrower, subject to the provisions of paragraph 9(b).” The Mortgage Note

further states, “Any person who takes over these obligations, including the

obligations of a guarantor, surety or endorser of this Notes, is also obligated to keep

all of the promises made in this Note.”79 The Court maintains that Nationstar has

failed to show that HRP’s claims are barred by the Louisiana Credit Agreement

Statute.

D. HRP has failed to state a claim for Nationstar’s alleged violation of

Louisiana’s executory process.

Nationstar also seeks dismissal of HRP’s claim for wrongful seizure, which is

based upon HRP’s assertion that Nationstar failed to submit authentic evidence with

its Petition for Executory Process to authorize the use of executory process, as

required by La. Code Civ. P. art. 2635.80 Nationstar asserts that Louisiana courts

have “clearly and consistently” held that only the note and mortgage need be attached

to the petition for executory process.81 Nationstar further asserts that under La. R.S.

9:5555, the amount, terms, and maturity of the note may be proven by affidavit or

verified petition.82 Nationstar claims that it established the existence, amount,

terms, and maturity of the Note and breach of the Mortgage through verification of

its Petition for Executory Process.83 Nationstar also asserts that a Louisiana

79 R. Doc. 2-3 at p. 13.

80 R. Doc. 10-1 at pp. 11- 17; See, R. Doc. 2 at ¶¶ 27-34.

81 R. Doc. 10-1 at pp. 11-12 (citing Cameron Brown South, Inc. v. East Glen Oaks, Inc., 341 So.2d 450,

457-59 (La. App. 1 Cir. 1976); Tri-South Mortgage Investors v. New Communities, Inc., 353 So.2d 292,

294-95 (La. App. 1 Cir. 1977)).

82 R. Doc. 10-1 at pp. 12-13.

83 Id. at p. 13 (citing Asset One, Louisiana, Inc. v. Vulcan Minerals & Energy, 66 Fed.Appx. 524 (5th

Cir. 2003)).

appellate court recently held that affidavits are sufficient proof of the default, as

required by La. R.S. 9:5555.84

Nationstar further asserts that any notice of default or acceleration is only

necessary to the extent provided in the Mortgage, and that Louisiana law allows for

evidence of written notification of default to be proved by verified petition in an

executory proceeding.85 Nationstar contends that its verified Petition for Executory

Process alleges that notice of default and right to cure was sent to the borrower (Ms.

Charles), and further alleges that the notice of default specified the breach, the action

required to cure the breach, the timeline of not less than 30 days to cure the default,

that failure to cure would result in acceleration, and that there is a right to

reinstate.86 Nationstar claims that this allegation complies with the notice of default

requirements under Sections 9 and 18 of the Mortgage, and that the notice of

acceleration or default, submitted with the Motion, shows that Nationstar’s

allegations in its verified Petition for Executory Process are accurate.87 Nationstar

argues that HRP has failed to meet its burden of establishing that Nationstar’s

Petition for Executory Process was defective for failing to follow the procedure

required for an executory proceeding.88 Nationstar maintains that its allegations

regarding notice of acceleration and default comply with the requirements of La. Code

Civ. P. art. 2637 and that HRP’s claims should be dismissed with prejudice.

84 R. Doc. 10-1 at pp. 13-14 (citing Mortgage Elec. Registration Sys., Inc. v. Daigle, 08-1203 (La. App. 5

Cir. 3/24/09), 10 So.3d 288, 293).

85 R. Doc. 10-1 at p. 15 (citing La. Code Civ. P. art. 2637(A)).

86 R. Doc. 10-1 at p. 15 (citing R. Doc. 2-3 at pp. 2-3, ¶ 5).

87 R. Doc. 10-1 at p. 15 (citing R. Doc. 10-2 at pp. 15-17).

88 R. Doc. 10-1 at pp. 15-16 (citing Tri-South Mortgage Investors v. New Communities, Inc., 353 So.2d

292, 295 (La. App. 1 Cir. 1977)).

Under Louisiana law, “Executory proceedings are those which are used to

effect the seizure and sale of property, without previous citation and judgment, to

enforce a mortgage or privilege thereon evidenced by an authentic act importing a

confession of judgment, and in other cases allowed by law.”89 Article 2635 specifies

that:

In order for a plaintiff to prove his right to use executory process to

enforce the mortgage . . . it is necessary only for the plaintiff to submit

with his petition authentic evidence of:

(1) The note, bond, or other instrument evidencing the obligation

secured by the mortgage, security agreement, or privilege.

(2) The authentic act of mortgage or privilege on immovable

property importing a confession of judgment.

(3) The act of mortgage or privilege on movable property . . . .90

Louisiana courts have held that, “Where a creditor seeks to enforce a mortgage on

immovable property, it is only necessary to submit certain authentic evidence to prove

the right to use executory process: (1) the instrument evidencing the obligation

secured by the mortgage, and (2) the authentic act of mortgage or privilege on

immovable property importing the confession of judgment.”91 Additionally, La. R.S.

9:555 provides, in pertinent part, that, “For purposes of executory process, the

existence, amount, terms, and maturity of the note or other written obligation not

evidenced by an instrument paraphed for identification with the act of mortgage or

privilege may be proved by affidavit or verified petition,” and that, “The affidavit shall

89 La. Code Civ. P. art. 2631.

90 La. Code Civ. P. art. 2635.

91 Gulf Coast Bank and Trust Co. v. Warren, 2012-1570 (La. App. 4 Cir. 9/18/13), 125 So.3d 1211, 1216-

17 (citing La. Code Civ. P. art. 2635(A); Buckner v. Carmack, 272 So.2d 326, 330 (La. 1973); Whitney

Nat’l Bank v. Blueridge, Inc., 606 So.2d 902, 904 (La. App. 4 Cir. 1992)); Wells Fargo Bank, N.A. v.

Settoon, 2012-1980 (La. App. 1 Cir. 6/7/13), 120 So.3d 757, 759 (citing La. Code Civ. P. arts. 2634 &

2635A).

be deemed to provide authentic evidence of the existence, amount, terms, and

maturity of the obligation for executory purposes.”92

Although Nationstar did not submit a copy of its Petition for Executory Process

with its Motion, HRP attached a copy of the Petition and the exhibits thereto to its

Complaint.93 The exhibits to the Petition for Executory Process purportedly include

the “[o]riginal promissory note dated November 24, 2009 for $292,027.00, payable to

BANK OF AMERICA,” a “[c]ertified copy of act of mortgage and/or privilege

importing a confession of judgment,” and the “[a]ssignment from Mortgage Electronic

Registration Systems, Inc. as nominee for Bank of America, N.A.”94 The Petition for

Executory Process alleges that Ms. Charles owes Nationstar a principal of

“$249,281.68 with interest thereon at 5.37500% per annum from July 01, 2018, until

paid,” and that Ms. Charles “defaulted on the note and mortgage by failing to pay,

when due, the monthly installments required by the note and mortgage.”95 The

Petition for Executory Process includes a verification made “in accordance with La.

C.C.P. art. 2637 and La. R.S. 10:9-629,” stating that, “based upon the records

provided to affiant by the secured party, that are kept or obtained in the ordinary

course of business of the secured party, the allegations of fact contained herein are

true and correct to the best of his/her knowledge, information and belief.”96

92 La. R.S. 9:5555(A) & (C).

93 See, generally, R. Doc. 10. See, R. Doc. 2-3 at pp. 1-23.

94 R. Doc. 2-3 at pp. 1-23.

95 Id. at pp. 1-2, ¶¶ 3 & 5.

96 R. Doc. 2-3 at p. 5.

The Petition for Executory Process further alleges that Nationstar “mailed

notice of the default to obligor,” and that the notice specified the breach, the action

required to cure the breach, a date to cure the breach that was at least 30 days from

the date the notice was mailed, that a failure to cure the breach on or before that date

could result in acceleration of sums secured by the mortgage, that Ms. Charles had

the right to reinstate after acceleration and the right to assert non-existence of the

default or any other defense to acceleration and foreclosure, and that if the breach

was not cured on or before the date specified, Nationstar could declare all of the sums

secured by the mortgage immediately due and payable without further demand and

that the property could be seized and sold to satisfy the indebtedness due.97 It does

not appear that the notice of default was attached as an exhibit to the Petition for

Executory Process, as HRP argues that it was not attached (in violation of La. Code

Civ. P. art. 2635) and Nationstar asserts that it was not required to submit a copy of

the notice of default with the Petition. Nationstar, however, submitted with its

Motion a “Demand Letter”98 dated October 1, 2018, which appears to be the purported

notice of default sent by Nationstar to Ms. Charles.99

Although the notice of default that Nationstar purportedly sent to Ms. Charles

was not attached to HRP’s Complaint,100 the Court can consider it in ruling on

Nationstar’s Motion to Dismiss because it falls within an exception to the general rule

prohibiting the Court from considering documents outside of the Complaint.

97 Id. at ¶ 5.

98 R. Doc. 10-1 at p. 15 (“See a copy of the Demand Letter, attached as Exhibit ‘E.’”).

99 R. Doc. 10-2 at pp. 15-17.

100 See, generally, R. Doc. 1.

Specifically, Nationstar attached the notice of default to its Motion,101 the notice of

default, or lack thereof, is referenced in the Complaint,102 and the lack of a notice of

default is central to HRP’s claims that Nationstar violated the NHA and HUD

violations and failed to comply with the requirements for proceeding with foreclosure

by executory process. Accordingly, the Court may consider the notice of default

attached to Nationstar’s Motion without running afoul of the rules governing motions

to dismiss under Fed. R. Civ. P. 12(b)(6).103

The Court further finds that HRP has failed to state a claim for wrongful

seizure on the basis that Nationstar failed to submit authentic evidence with its

Petition for Executory Process, as required by La. Code Civ. P. art. 2635. Louisiana

courts have consistently held that a party need only attach the note and the mortgage

to a petition for executory process under Article 2635.104 It is evident from the

pleadings before the Court, all which were attached to HRP’s Complaint, that

Nationstar complied with the requirements of Article 2635 by submitting the original

promissory note executed by Ms. Charles and a certified copy of the mortgage

executed by Ms. Charles with its Petition for Executory Process.105 As such, HRP has

failed to state a claim for wrongful seizure based upon a lack of authentic evidence

supporting Nationstar’s use of the executory proceeding. To the extent HRP also

alleges that neither Ms. Charles nor HRP received written notice of default from

101 R. Doc. 10-2 at pp. 15-17.

102 R. Doc. 2 at ¶¶ 10-13, 15, 17, 24, 27, & 29-32.

103 See, Maloney Gaming Mgmt., LLC v. St. Tammany Parish, 456 Fed.Appx. 336, 340-41 (5th Cir.

2011).

104 See, supra, note 90.

105 R. Doc. 2-3 at pp. 12-21.

Nationstar prior to Nationstar accelerating the Note,106 the pleadings before the

Court contradict that assertion. As previously mentioned, Nationstar alleged in its

verified Petition for Executory Process that it sent Ms. Charles a notice of default

that advised her of the breach and the steps to take to cure the breach.107 Nationstar

also submitted a copy of the notice of default with its Motion, which was sent to Ms.

Charles via certified mail and contains all of the information as alleged in the Petition

for Executory Process.108 HRP did not file an opposition brief or otherwise dispute

the information contained in the pleadings. As such, and even viewing HRP’s well

pleaded facts in the light most favorable to HRP, the Court finds that HRP has failed

to state a claim for wrongful seizure based upon Nationstar’s alleged failure to send

a notice of deficiency prior to seeking acceleration.

E. Nationstar’s request for a more definite statement.

Alternatively, if the Court does not dismiss HRP’s Complaint in its entirety,

Nationstar asks the Court to order HRP to file a more definite statement of its claims

and allegations pursuant to Fed. R. Civ. P. 12(e).109 Nationstar asserts that the

Complaint contains few allegations against it and asserts claims regarding the

Mortgage executed by Ms. Charles, who is not a party to this litigation, “without

pointing out any factual allegations to support Plaintiff’s claims.”110 Nationstar

106 R. Doc. 2 at ¶¶ 27, 29, & 31.

107 R. Doc. 2-3 at p. 2, ¶ 5.

108 R. Doc. 10-2 at pp. 15-17.

109 R. Doc. 10-1 at pp. 17-18. The Court notes that Nationstar “requests that the Court order Plaintiff

to submit a more definite statement of its claims and allegations against Rushmore.” Id. at p. 17.

Elsewhere in the Motion, Nationstar similarly “requests that the Court order Plaintiff to file a more

[sic] definite statement so that Rushmore may adequately respond to the allegations asserted against

it.” Id. at p. 2. These appear to be typographical errors and an intended reference to Nationstar.

110 Id. at p. 17.

claims that the Complaint is nothing more than a “bare bones allegation” that various

harms were committed against Ms. Charles, and further asserts that Nationstar

“cannot possibly mount a defense to the Complaint as it stands.”111 As such,

Nationstar asks that the Court order HRP to file an amended complaint to

“intelligibly articulate” HRP’s claims against Nationstar.112

Federal Rule of Civil Procedure 12(e) provides that a motion for a more definite

statement may be filed when “a pleading to which a responsive pleading is allowed

but which is so vague or ambiguous that the party cannot reasonably prepare a

response.”113 The moving party “must point out the defects complained of and the

details desired.”114 “When evaluating a motion for a more definite statement, the

Court must assess the complaint in light of the minimal pleading requirements of

Rule 8 of the Federal Rules of Civil Procedure . . . .”115 Rule 8 provides, in pertinent

part, “A pleading that states a claim for relief must contain . . . a short and plain

statement of the claim showing that the pleader is entitled to relief . . . .”116 “Specific

facts are not necessary; the statement need only give the defendant fair notice of what

the . . . claim is and the grounds upon which it rests.”117 Rule 12(e) motions are

generally disfavored because “in view of the great liberality of F.R.Civ.P. 8,

permitting notice pleading, it is clearly the policy of the Rules that Rule 12(e) should

111 Id. at p. 18.

112 Id.

113 Fed. R. Civ. P. 12(e).

114 Id.

115 Babcock v. Wilcox Co. v. McGriff, Seibels & Williams, Inc., 235 F.R.D. 632, 633 (E.D. La. 2006).

116 Fed. R. Civ. P. 8(a)(2).

117 In re JCC Environmental, Inc., 575 B.R. 692, 697 (E.D. La. 2017) (quoting Erickson v. Pardus, 551

U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)) (internal quotation marks omitted).

not be used to frustrate this policy by lightly requiring a plaintiff to amend his

complaint which under Rule 8 is sufficient to withstand a motion to dismiss.”118 “The

standard for evaluating a 12(e) motion is whether the complaint is ‘so excessively

vague and ambiguous as to be unintelligible and as to prejudice the defendant

seriously in attempting to answer it.’”119 As a result, “to determine whether a 12(e)

motion is appropriate, the Court considers whether the complaint is sufficient to

withstand a motion to dismiss according to the appropriate pleading standard.”120

A review of the Complaint filed by HRP confirms that the requirements of

Rule 8 have been met. The Complaint gives Nationstar adequate notice of HRP’s

claims for violations of the NHA and HUD regulations, as well as HRP’s claims

regarding Nationstar’s use of executory process under Louisiana law, and provides a

short and plain statement of the grounds upon which HRP would be entitled to relief.

Further, the Court has determined that HRP has alleged sufficient facts at this

juncture to withstand a motion to dismiss as to its claims for Nationstar’s alleged

violations of the NHA and HUD regulations. The Court finds that the Complaint

meets Rule 8’s notice pleading requirements and provides sufficient information to

allow Nationstar to respond to the allegations. Nationstar’s Motion demonstrates its

understanding of the claims asserted by HRP and its knowledge of facts underlying

those claims. Because Nationstar can respond to the Complaint in good faith and

118 Babcock, 235 F.R.D. at 633 (quoting Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 132 (5th Cir.

1959)) (internal quotation marks omitted). See, In re JCC Environmental, Inc., 575 B.R. at 697

(collecting cases).

119 Phillips v. ABB Combustion Engineering, Inc., Civ. A. No. 13-594, 2013 WL 3155224, at *2 (E.D.

La. June 19, 2013) (Feldman, J.) (quoting Babcock, 235 F.R.D. at 633).

120 Phillips, Civ. A. No. 13-594, 2013 WL 3155224 at *2.

without prejudice, the Court denies Nationstar’s request for a more definite

statement under Rule 12(e).

F. Leave to amend.

While HRP has not sought leave to amend, the Court will “freely give leave [to

amend] when justice so requires.”121 That said, leave to amend “is by no means

automatic.”122 In exercising its discretion, this Court may consider such factors as

“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 by virtue of allowance of the amendment, and futility of the

amendment.”123 “I[t] is within the district court’s discretion to deny a motion to amend

if it is futile.”124 “An amendment is futile if it would fail to survive a Rule 12(b)(6)

motion.”125

Applying those factors here, the Court finds that any amendment regarding

HRP’s claim for wrongful seizure would be futile for the reasons stated in this Order.

The pleadings and the law make clear that Nationstar complied with the legal

requirements in the filing of its Petition to Enforce Security by Executory Process.

Therefore, because the Court has determined that Nationstar complied with the

121 Fed. R. Civ. P. 15(a).

122 Halbert v. City of Sherman, Tex., 33 F.3d 526, 529 (5th Cir. 1994) (citation omitted).

123 Nolan v. M/V SANTE FE, 25 F.3d 1043 (5th Cir. 1994) (citing Gregory v. Mitchell, 635 F.2d 199,

203 (5th Cir. 1981)).

124 Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872-73 (5th Cir. 2000).

125 Marucci Sports, L.L.C. v. National Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014)

(citation omitted).

statutory requirements in its Petition for Executory Process, any attempt to amend

the Complaint would be futile.12¢

IV. CONCLUSION

IT IS HEREBY ORDERED that Defendant Nationstar Mortgage LLC d/b/a

Mr. Cooper’s Motion to Dismiss Plaintiffs Complaint!2’7 is GRANTED in part and

DENIED in part. The Motion is GRANTED to the extent that Nationstar seeks

dismissal of HRP’s claim for wrongful seizure based upon its assertion that

Nationstar was not entitled to proceed by executory process, and that claim is

DISMISSED WITH PREJUDICE. The Motion is otherwise DENIED.

New Orleans, Louisiana, September 15, 2023.

WENDY B. frie

United States District Judge

126 See, Rio Grande Royalty Co. v. Energy Transfer Partners, L.P., 620 F.3d 465, 468 (5th Cir. 2010)

(stating that a district court may properly deny leave to amend “where the proposed amendment would

be futile because it could not survive a motion to dismiss”); Terry Black's Barbecue LLC v. State Auto.

Mut. Ins. Co., 514 F. Supp. 3d 896, 910 (W.D. Tex. 2021) (quoting 4431, Inc. v. Cincinnati Ins. Co., 504

F. Supp. 3d 368, 385-86 (E.D. Pa. 2020) (denying leave to amend where “[t]he terms of the Policies are

not in dispute, and there is nothing else Plaintiffs could allege that would bring their claimed losses

within the Policies' coverage”)) (internal quotation marks omitted).

27 R, Doc. 10.