The opinion
Southern District of Texas
ENTERED
April 30, 2024
IN THE UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHN ROBERT HUNTER JR., §
§
Plaintiff, §
§ Civil Action No. H-24-491
§
JP MORGAN CHASE BANK N.A., §
and FREDDIE MAC, §
§
Defendants. §
ORDER
Pending before the Court is the Defendants’ Motion to Dismiss Plaintiff's
First Amended Complaint Under Rule 12(b)(6) and Brief in Support (Document No.
8) and Plaintiffs Amended Briefin Response for Defendants’ Motion for Dismissal,
and Court Order, Including Conditional Acceptance and Notice for Challenging
Authority (Document No. 13).! Having considered the motions, submissions, and
1 Plaintiff's response was 150 pages with exhibits and touch addressed numerous
legal theories and arguments. The response also had a section labeled “Motion for
Summary Judgment on Damages” and stated that inter alia the undisputed facts entitle him
to $10,500,000.00 from the Defendants. The Court construes all pro se filings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Accordingly, the Court construes Hunter’s
response in part as a motion for summary judgment. Plaintiff's Amended Brief Response
for Defendants’ Motion for Dismissal, and Court Order, Including Conditional Acceptance
and Notice for Challenging Authority, Document No. 13 at 1-15.
applicable law, the Court determines the motion to dismiss should be granted and
the plaintiff's construed motion for summary judgment should be denied.
I. BACKGROUND
This case arises out of a home mortgage. On February 9, 2024, Plaintiff John
Robert Hunter Jr. (“Hunter”), proceeding pro se, filed a complaint in this Court.
Hunter seems to allege that he was misled about his mortgage and that his mortgage
is not legal (or at least has been managed inappropriately). On February 12, 2024,
Hunter amended his complaint asserting claims against Defendant JPMorgan Chase
Bank N.A. (“Chase”) and Defendant Federal Home Loan Mortgage Corporation
(“Freddie Mac”) (collectively, the “Defendants”) for: (1) breach of contract; (2)
breach of fiduciary duty; (3) Real Estate Settlement Procedures Act (RESPA)
violations; (4) Truth in Lending Act (TILA) violations; and (5) unlawful debt
collection practices. Hunter contends that his mortgage is owned by Freddie Mac
and serviced by Chase. Hunter contends that the Defendants breached the “mortgage
agreement as highlighted by the irregularities and legal concerns detailed in the
Mortgage Audit Report Deluxe Extended II.”? On April 2, 2024, the Defendants
moved to dismiss Hunter’s amended complaint.
Plaintiff alleges the report revealed discrepancies that include (1) a failure to verify
“the existence of the actual loan and security instrument;” (2) misrepresenting “the role
and authority of the Mortgage Electronic Registration System (““MERS”) in the assignment
and transfer of the mortgage;” (3) “issues related for the securitization of the mortgage and
break in the chain of title;” and (4) “[i]rregularities and procedural violations in the
>
IJ. STANDARD OF REVIEW.
I. Rule 12(b) (6)
Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). Under Rule 8(a)(2), a pleading must
contain “a short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). Although “the pleading standard Rule 8 announces
does not require ‘detailed factual allegations,’ .. . it demands more than... ‘labels
and conclusions.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[A] formulaic recitation of the
elements of a cause of action will not do.” Jd. (quoting Twombly, 550 U.S. at 555).
In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, “[t]he
‘court accepts all well-pleaded facts as true, viewing them in the light most favorable
to the plaintiff.’ ” Jn re Katrina Canal Breeches Litig., 495 F.3d 191, 205 (Sth Cir.
2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464,
467 (Sth Cir. 2004)). To survive the motion, a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.” Twombly, 550.U.S. at 570.
“Conversely, ‘when the allegations in a complaint, however true, could not raise a
claim of entitlement to relief, this basic deficiency should . . . be exposed at the point
foreclosure process, asserting the legality and standing of Respondents to collect on the
alleged debt.” See Plaintiff's Amended Complaint, Document No. 3 at 3.
of minimum expenditure of time and money by the parties and the court.’ ” Cuvillier
v. Taylor, 503 F.3d 397, 401 (Sth Cir. 2007) (quoting Twombly, 550 U.S. at 558).
2. Rule 56
Summary judgment proper when “there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The Court must view the evidence in a light most favorable to the
nonmovant. Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (Sth Cir. 1997).
Initially, the movant bears the burden of presenting the basis for the motion and the
elements of the causes of action upon which the nonmovant will be unable to
establish a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The burden then shifts to the nonmovant to come forward with specific
facts showing there is a genuine dispute for trial. See Fed. R. Civ. P. 56(c);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). “A
dispute about a material fact is ‘genuine’ if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Bodenheimer v. PPG Indus.,
Inc., 5 F.3d 955, 956 (Sth Cir. 1993) (citation omitted).
But the nonmoving party’s bare allegations, standing alone, are insufficient to
create a material dispute of fact and defeat a motion for summary. If a reasonable
jury could not return a verdict for the nonmoving party, then summary judgment is
appropriate. Liberty Lobby, Inc., 477 U.S. at 248. The nonmovant’s burden cannot
be satisfied by “conclusory allegations, unsubstantiated assertions, or ‘only a
scintilla of evidence.’ ” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343
(Sth Cir. 2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (Sth Cir.
1994)). Uncorroborated self-serving testimony cannot prevent summary judgment,
‘especially if the overwhelming documentary evidence supports the opposite
scenario. Vais Arms, Inc. v. Vais, 383 F.3d 287, 294 (Sth Cir. 2004). Furthermore, it
is not the function of the Court to search the record on the nonmovant’s behalf for
evidence which may raise a fact issue. Topalian v. Ehrman, 954 F.2d 1125, 1137
n.30 (5th Cir. 1992). Therefore, “[a]lthough we consider the evidence and all
reasonable inferences to be drawn therefrom in the light most favorable to the
nonmovant, the nonmoving party may not rest on the mere allegations or denials of
its pleadings but must respond by setting forth specific facts indicating a genuine
issue for trial.” Goodson v. City of Corpus Christi, 202 F.3d 730, 735 (sth Cir. 2000).
I]. LAW & ANALYSIS
The Defendants contend Hunter fails to state a claim for any of his causes of
action for which relief may be sought. Hunters’ response does not clearly address
the issues raised in the Defendants’ motion to dismiss. However, Hunter contends
that there are undisputed facts that the “transaction was misrepresented as a
mortgage” and that he is entitled to damages as a matter of law.*
Hunter’s Motion for Summary Judgment
Hunter’s response to the Defendants’ motion to dismiss appears to have a
motion for summary judgment, at least regarding damages. Hunter’s response is
mainly conclusory and presents no evidence to suggest he is entitled to any reliefas_ -
a matter of law. The Defendants contend Hunter fails to present any summary
judgment evidence and merely states conclusory accusations.’ Accordingly, having
considered the motions, submissions, and applicable law, the Court determines
Hunter’s motion for summary judgment is denied. The Court now turns to the
Defendants’ motion to dismiss.
B. The Defendants’ Motion. Dismiss
The Defendants contend: (1) Hunter fails to identify any conduct that would
result in a valid breach of contract claim; (2) Hunter’s claim of breach of fiduciary
duty fails because the lender and borrower relationship does not create a fiduciary
3 Plaintiff's Amended Brief in Response for Defendants’ Motion for Dismissal, and |
Court Order, Including Conditional Acceptance and Notice for Challeging Authority, .
Document No. 13 at 1-15.
4 Hunter’s response contains 135 pages of unauthenticated and unsworn documents
that Hunter contends proves that there is no dispute of material facts. See Reply in Support
of Defendants’ Motion to Dismiss Plaintiff's First Amended Complaint Under Rule
12(6)(6), Document No. 15 at 8-9.
duty; (3) Hunter pleads no facts to establish a RESPA or TILA claim against the
Defendants; and (4) Hunter’s unreasonable debt collection claim fails because he
alleges no actions reflecting any course of harassment. Hunter’s response is mostly
conclusory and does not directly address the arguments raised by the Defendants.
Instead, Hunter continues to assert conclusory claims that his mortgage is some how
asecurity and not a proper mortgage.
1. Breach of Contract
The Defendants contend Hunter has failed to state a claim for breach of
contract. Hunter contends the Defendants breached the “mortgage agreement as
highlighted by the irregularities and legal concerns .”°
“Under Texas law, a plaintiff alleging a breach of contract must show ‘(1) the
existence of a valid contract; (2) performance or tendered performance by the
plaintiff; (3) breach of the contract by the defendant; and (4) damages to the plaintiff
resulting from that breach.” Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763,
767 (Sth Cir. 2016) (quoting Wright v. Christian & Smith, 950 $.W.2d 411, 412
(Tex. App.—Houston [1st Dist.] 1997, no writ)). Generally, a plaintiff needs to be
able to specify the provision of a contract that was breached. See Chapa v. Chase
Home Finance LLC, C-10-359, 2010 WL 5186785, at *5-6 (S.D. Tex. Dec. 15,
> Plaintiff's Amended Complaint, Document No. 3 at 2.
2010) (Jack, J.); see also Williams v. Wells Fargo Bank, N.A., 560 Fed. App’x 233,
238 (5th Cir. 2014) (“[A] claim for breach of a note and deed of trust must identify
the specific provision in the contract that was breached.”).
Here, Hunter broadly asserts vague conduct by the Defendants that seems to
be aimed at how the Defendants issued and serviced his mortgage. Hunter asserts
inter alia (without facts) that the Defendants “securitized” his mortgage, that there
was a “break in the chain of title,” and that the Defendants failed to verify the loan.°
Hunter fails to point to a specific provision in a contract with either Defendant that
these alleged mortgage service discrepancies would een The Court construes all
pro se filings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Even
construing Hunter’s complaint liberally, he fails to assert facts to sustain a claim that
either Defendant breached a contract.
Additionally, Hunter pleads no facts to show any alleged breach damaged
him. While claiming over $10,000,000.00, Hunter: does not allege that either
Defendant has begun foreclosure procedures. Further, Hunter provides no facts nor
evidence that any adverse action has been taken against him. Accordingly, the Court
finds Hunter has failed to state a claim for breach of contract against the Defendants.
6 Plaintiff's Amended Complaint, Document No. 3 at 3.
□ 2 .
Therefore, the Defendants’ motion to dismiss regarding breach of contract is
granted. The Court now turns to Hunter’s claim for breach of fiduciary duty.
2. Breach of Fiduciary Duty
The Defendants contend Hunter’s breach of fiduciary duty fails because he
does not assert the necessary facts to establish a fiduciary duty between the parties.
Hunter’s response continues in a conclusory fashion to assert that a fiduciary duty
exists and vague behavior by the Defendants breached the alleged duty.’
The elements of a breach of fiduciary duty claim are: (1) that a fiduciary
relationship exists between the plaintiff and defendant; (2) the defendant breached □
its fiduciary duty to the plaintiff; and (3) the breach injured the plaintiff or benefited
the defendant. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 200-01
(Tex. 2002). Whether a fiduciary duty exists is a question of law. Meyer v. Cathey,
167 S.W.3d 327, 330 (Tex. 2005). Texas courts have held that the relationship
between a lender and borrower does not create a fiduciary relationship. Williams v.
Countrywide Home Loans, Inc., 504 F. Supp. 2d 176, 192 (S.D. Tex. July 18, 2007)
(Rosenthal, J.) aff'd, 269 F. App’x 523 (Sth Cir. 2008). (“Texas courts have held that
the relationship between a borrower and lender is not a fiduciary one.”)
7 Plaintiff’s Amended Brief in Response for Defendants’ Motion for Dismissal, and
Court Order, Including Conditional Acceptance and Notice for Challenging Authority,
Document No. 13 at 2-5.
Here, it is clear that the relationship between the parties is that of a borrower
and lender. As such, the court precedent is clear that the borrower/lender relationship
forms no fiduciary duty. Choe v. Bank of Am., N.A., 3:13-CV-0120-D, 2013 WL
3196571, at *6 (N.D. Tex. June 25, 2013) (Fitzwater, J.) (“Under Texas law, there
is no special relationship between a mortgagee and a mortgagor that gives rise to a
duty of care.”) Hunter provides no evidence that there is a specific reason to infer a
fiduciary relationship in this instance. Further, even if there was a fiduciary duty,
Hunter fails to plead any facts to sufficiently show a breach occurred or any damage
was incurred. Hunter’s merely conclusory allegations that the Defendants failed “to
not harm the beneficiary” and other broad assertions of misconduct do not arise to
facts that adequately plead a plausible claim. Accordingly, the Court finds that
Hunter fails to sufficiently plead a claim for breach of fiduciary duty against either
Defendant. Therefore, the Defendants’ motion to dismiss Hunter’s claims. □□□ breach
of fiduciary duty should be granted. The Court now turns to Hunter’s claims of
violation of RESPA.
3. RESPA Claims
_ The Defendants contend Hunter has failed to adequately plead facts to
demonstrate a claim for RESPA violations. Hunter broadly contends that “[d]espite
repeated requests for clarification and resolution of these issues, Respondents has
10
[sic] failed for complying[.]’’Plaintiff further alleges a “[flailure to make clear for
Claimant who the actual servicer and [o]wner is . . .””
RESPA obligates a covered loan servicer to respond to a borrower’s qualified
written ae (“QWR”). 12 U.S.C. § 2605(e). A QWR is a written request “for
information relating to the servicing of [a] loan” and must include a statement of
why the borrower believes, to the extent applicable, that the account is in error or
provide sufficient detail regarding other information the borrower seeks. §
2605(e)(1).
Here, it is clear that Chase was the loan servicer, and Freddie Mac owned the
mortgage.!° Accordingly, Freddie Mac is not a servicer of the loan to which REPSA
would apply. As to Chase, Hunter alleges no facts that would demonstrate he sent
Chase any correspondence within RESPA’s definition for a QWR. Hunter provides
no facts of what correspondence he sent to Chase, what information he requested, or
any other details to sustain a RESPA claim. Further, Hunter fails to identify any
specific servicing error he raised with Chase. Nothing in the record demonstrates
Chase had a history of non-compliance or what, if any, damages Hunter incurred.
Obazee v. The Bank of New York Mellon, 3:15-CV-1082-D, 2015 WL 4602971, at
8 Plaintiff's Amended Complaint, Document No. 3 at 2-4.
Plaintiff's Amended Complaint, Document No. 3 at 2-4.
10 Letter from Chase, Document No. 4-2 at 1. .
11
-*4 (N.D. Tex. July 31, 2015) (Fitzwater, J.) (dismissing under Rule 12(b)(6) a
RESPA claim because the plaintiff failed to allege facts showing he sustained actual
damages or the servicer engaged in a pattern or practice of noncompliance).
Accordingly, Hunter fails to adequately state a claim related to alleged RESPA
violations. Therefore, the Defendants’ motion to dismiss as it relates to Hunter’s
RESPA claim should be granted. The Court now turns to Hunter’s TILA claims.
4. TILA Claims
The Defendants contend that Hunter fails to state a claim for which relief may
be sought regarding a TILA violation. Further, the Defendants contend Hunter’s
TILA claim is time-barred.
TILA protects consumers from inaccurate and unfair credit practices and
“assures a meaningful disclosure of credit terms so that the consumer will be able to
compare more readily the various credit terms available. to him and avoid the
uninformed use of credit.” James v. City Home Serv., Inc., 712 F.2d 193, 194 (Sth
Cir. 1983) (quoting 15 U.S.C. § 1601(a)); Moor v. Travelers Ins. Co., 784 F.2d 632,
633 (Sth Cir. 1986).
Hunter alleges the defendants violated TILA by failing to disclose the loan’s
12
terms or the defendants’ authority to enforce the loan."! Plaintitt also generally
alleges that “[d]jespite repeated requests for clarification and resolution of these
issues, Respondents has [sic] failed for complying....” Similarly, to all of
Hunter’s allegations, he fails to plead any specific facts to explain how the
Defendants violated TILA. Further, Under TILA, the applicable statute of
limitations is one or three years. 15 U.S.C. § 1640(e). Courts have held the statute
of limitation runs from the loan’s origination date. Bittinger v. Wells Fargo Bank
NA, 744 F. Supp. 2d 619, 628 (S.D. Tex. 2010) (citing 15 U.S.C. § 1640(e))
(Rosenthal, J.). Hunter’s loan was originated on November 13, 2020. Hunter did not
file the instant suit until February 9, 2024, over three years hom the origination of
the loan. Accordingly, the Court finds that Hunter's claims for TILA violations fail.
The Court now turns to Hunter’s claim for unreasonable debt collection.
5. Unreasonable Debt Collection Claim
The Defendants contend that Hunter fails to plead facts sufficient to sustain
his claim for unreasonable debt collection. Hunter’s response again does not directly
address the Defendants’ contentions.
Unreasonable debt collection is an intentional tort derived from common law.
Hidden Forest Homeowners Ass’n v. Hern, 04-10-00551-CV, 2011 WL 6089881, at
\l Plaintiff's Amended Complaint, Document No.3 at
13
*4 (Tex. App.—San Antonio Dec. 7, 2011, no pet.); see also EMC Mortg. Corp. v.
_ Jones, 252 $.W.3d 857, 868 (Tex. App.—Dallas 2008, no writ). To prevail on a
claim for unreasonable collection efforts, a plaintiff must establish that a defendant’s
actions amount “to a course of harassment that was willful, wanton, malicious, and
intended to inflict mental anguish and bodily harm.” EMC Mortg. Corp., 252 S.W.3d
at 868; Hidden Forest, 2011 WL 6089881, at *4.
Here, Hunter alleges loan service discrepancies with his mortgage. As
discussed above, Hunter’s contentions are, at times, vague and are not supported by
facts or specific examples. Even construing Hunter’s complaint and responses
liberally the Court carinot find any alleged action by the Defendants that would
support Hunter’s claim for unfair debt collection practices. Nothing in the file
suggests willful, wanton, malicious, and intended to inflict mental anguish and
bodily harm conduct, which is required to prove a claim. Accordingly, the Court
finds Hunter fails to state a claim for which relief may be sought as it relates to
unreasonable debt collection practices.
IV. CONCLUSION
Based on the foregoing, the Court hereby
ORDERS that Plaintiff's Amended Brief in Response for Defendants’
Motion for Dismissal, and Court Order, Including Conditional Acceptance and
14
Notice for Challenging Authority (Document No. 13) is DENIED. The Court
Further
ORDERS that Defendants’ Motion to Dismiss Plaintiff's First Amended
Complaint Under Rule 12(b)(6) and Brief in Support (Document No. 8) is
GRANTED. The Court Further
ORDERS that Plaintiff John Robert Hunter Jr.’s claims against Defendant
Federal Home Loan Mortgage Corporation (Freddie Mac) and Defendant JPMorgan
Chase Bank N.A. are DISMISSED.
SIGNED at Houston, Texas, on this Se day of April, 2024.
DAVID HITTNER
United States District Judge
15