Booth v. US Bank Trust NA

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RICHARD BOOTH, §

Plaintiff, §

§

v. § No. 3:23-CV-02148-K-BN

§

U.S. BANK, N.A., §

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order No. 3-354, this case is

referred to the undersigned United States magistrate judge for pretrial management,

which includes making findings and a recommended disposition when appropriate.

(See Dkt. No. 25.) Before the Court is a motion for summary judgment filed on June

17, 2024, by Defendant U.S. Bank, N.A. (“USB”). (Dkt. No. 19.) The motion is

accompanied by a supporting brief (Dkt. No. 20 (“Dft. Br.”)) and appendix (Dkt.

No. 21 (“App.”)). For the reasons stated below, the motion (Dkt. No. 19) should be

GRANTED.

BACKGROUND

On July 28, 2023, Plaintiff Richard Booth filed a lawsuit against USB in the

191st District Court of Dallas County, seeking to prevent foreclosure on the property

located at 486 Fenwick Drive, Sunnyvale, Texas 75182 (“Property”). (See Dkt. No.

1-4 (the “Complaint”) (“Compl.”)).) Booth asserted claims for violation of Texas

Property Code § 51.002, negligent misrepresentation, and breach of contract, and

requested a temporary restraining order (“TRO”) to prevent the sale of the Property,

which was scheduled for foreclosure sale on August 1, 2023. (See id.) On July 31,

2023, the state court entered an ex parte TRO, and the foreclosure sale scheduled for

August 1, 2023 did not occur. (See Dkt. No. 1-5.) USB filed an answer in the state

court on September 25, 2023 (Dkt. No. 1-8) and removed the lawsuit to this Court

the following day. (See Dkt. No. 1.)

On or about August 18, 2008, Plaintiff and his wife obtained a loan in the

original principal amount of $342,159.00, to purchase the Property. (See Dft. Br. at

4; see also Dkt. No. 21-2, App. 006-009 (“Note”) and Dkt. No. 21-3, App. 010-026

(“Deed of Trust”) (collectively “Loan”); Dkt. No. 21-2, App. 001-005 (Declaration

of Janet Gioello (“Gioello Decl.”) at ¶ 5).) USB is the current assignee of the Loan.

(See Dft. Br. at 5; see also Compl. at 2; Gioello Decl. at ¶ 6.) Booth is in default of the

Loan, as the Loan remains due for the June 1, 2010 payment, and no payments have

been made since that time. (See Dft. Br. at 5; Gioello Decl. at ¶ 8.)

In his efforts to prevent or delay foreclosure on the Property, Booth has filed

eight bankruptcy cases, each of which was dismissed without issuance of a discharge

order (see Dft. Br. at 6, n. 8 (citing App. 074-163)), and one of which was dismissed

with prejudice for serial filing (see Dft. Br. at 6, n. 9 (citing App. 152-156)). Booth

has also filed three lawsuits prior to the instant lawsuit, all seeking to prevent

foreclosure. (See Dft. Br. at 6-8 (citing App. 165-206).)

Plaintiff and his wife filed the first lawsuit, Richard Booth and Shelly Booth v.

Caliber Home Loans, Inc., Case No. DC-18-05551, in the 298th District Court, Dallas

County, Texas (the “First Lawsuit”), on April 27, 2018, seeking to prevent a

foreclosure sale scheduled for May 1, 2018. (See App. 165-167.) Plaintiffs nonsuited

all claims without prejudice, and on December 31, 2018, the state court entered an

Order of Non-Suit. (See App. 179-184). Plaintiff filed the second lawsuit, Richard

Booth v. U.S. Bank, N.A., Cause No. DC-20-01707, in the 44th District Court, Dallas

County, Texas (the “Second Lawsuit”), on January 30, 2020, seeking to prevent a

foreclosure sale scheduled February 4, 2020. (See App. 186-200.) Plaintiff again

nonsuited all claims, but this time with prejudice, and the state court entered an

order to that effect on May 28, 2020. (See App. 201-203, 204-206.) Plaintiff filed his

third lawsuit, Richard Booth v. Fay Servicing LLC and U.S. Bank Trust, N.A. as Trustee for

LSF9 Master Participation Trust, Cause No. CC-22-01644-E, in the County Court at

Law No. 5, Dallas County, Texas (the “Third Lawsuit”), on April 4, 2022, seeking

to prevent a foreclosure sale scheduled for April 5, 2022. (See App. 209-225.)

Plaintiff again nonsuited his claims without prejudice, and the state court signed an

order dismissing the Third Lawsuit without prejudice on June 1, 2023. (See App.

228-229, 232.)

Turning to the present lawsuit, Magistrate Judge David Horan, to whom this

case was originally referred, issued an Initial Scheduling Order (Dkt. No. 10) on

October 13, 2023, setting forth (among other things) the following deadlines:

amended pleadings due by December 1, 2023; discovery completed by May 1, 2024;

and dispositive motions due by June 17, 2024. (See id.) On December 4, 2023, Judge

Horan granted USB’s unopposed motion to extend the deadline to amend pleadings

to December 15, 2023, after which USB filed an amended answer. (See Dkt. Nos.

16, 17, 18.) After USB filed the present motion for summary judgment (Dkt. No.

21), Judge Horan issued a Supplemental Scheduling Order, specifically outlining

deadlines relevant to the motion (Dkt. No. 23). Booth was ordered to file a written

response to the motion by July 17, 2024. (See id. at 1.) Booth—who is represented

by counsel—has failed to respond to USB’s motion in any way. And he has not

sought an extension of time to file a response. Therefore, the Court may consider the

motion ripe and ready for determination.

LEGAL STANDARDS

Summary judgment is proper when “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A factual “issue is material if its resolution could affect the outcome of

the action.” Weeks Marine, Inc. v. Fireman’s Fund Ins. Co., 340 F.3d 233, 235 (5th Cir.

2003). “A factual dispute is ‘genuine,’ if the evidence is such that a reasonable [trier

of fact] could return a verdict for the nonmoving party.” Crowe v. Henry, 115 F.3d

294, 296 (5th Cir. 1997).

A party seeking summary judgment bears the initial burden of showing the

absence of a genuine issue for trial. Duffy v. Leading Edge Prods., Inc., 44 F.3d 308,

312 (5th Cir. 1995) (citation omitted). The movant’s burden can be satisfied by

demonstrating that there is an absence of evidence to support the nonmoving party’s

case, which the nonmovant bears the burden of proving at trial. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). Once the movant meets its initial burden, the

nonmovant must show that summary judgment is not proper. Duckett v. City of Cedar

Park, 950 F.2d 272, 276 (5th Cir. 1992) (citation omitted). The parties may satisfy

their respective burdens “by tendering depositions, affidavits, and other competent

evidence.” Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992) (citing Fed. R.

Civ. P. 56(e); Int’l Shortstop, Inc. v. Rally’s, 939 F.2d 1257, 1263 (5th Cir. 1991)).

The party opposing the summary-judgment motion must identify specific

evidence in the record and state the precise manner in which that evidence supports

the party’s claim. Esquivel v. McCarthy, No. 3:15-CV-1326-L, 2016 WL 6093327, at

*2 (N.D. Tex. Oct. 18, 2016) (citing Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458

(5th Cir. 1988)). “Rule 56 does not impose a duty on the court to ‘sift through the

record in search of evidence’ to support the nonmovant's opposition to the motion

for summary judgment.” Id. (citing Ragas, 136 F.3d at 458; Skotak v. Tenneco Resins,

Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992)). All evidence must be viewed in the

light most favorable to the party opposing the summary-judgment motion. Rosado v.

Deters, 5 F.3d 119, 123 (5th Cir. 1993) (citing Reid v. State Farm Mut. Auto. Ins. Co.,

784 F.2d 577, 578 (5th Cir. 1986)).

When a nonmoving party does not file any response to a motion for summary

judgment, the “failure to respond does not permit the court to enter a ‘default’

summary judgment.” Boyd v. Fam. Dollar Stores of Texas, LLC, No. 3:22-CV-1368-D,

2023 WL 4141052, at *1 (N.D. Tex. June 22, 2023). But the Court is permitted to

accept the moving party’s evidence as undisputed. See Tutton v. Garland Indep. Sch.

Dist., 733 F. Supp. 1113, 1117 (N.D. Tex. 1990). “A summary judgment nonmovant

who does not respond to the motion is relegated to her unsworn pleadings, which do

not constitute summary judgment evidence.” Bookman v. Shubzda, 945 F. Supp. 999,

1002 (N.D. Tex. 1996) (citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165

(5th Cir. 1991)).

Booth’s failure to effectively respond means that he has not designated specific

facts showing that there is a genuine issue for trial on any of his claims. Here, the

pleadings are not verified, and because Booth has presented no summary judgment

evidence, the Court is allowed to accept USB’s facts as undisputed. See Estate of

Newton ex rel. Newton v. Grandstaff, No. 3:10-CV-809-L, 2012 WL 3013929, at *2

(N.D. Tex. July 20, 2012). And “a court may grant an unopposed summary

judgment motion if the undisputed facts show that the movant is entitled to judgment

as a matter of law.” Bryan v. Cano, No. 22-50035, 2022 WL 16756388, at *4 (5th Cir.

Nov. 8, 2022) (cleaned up); accord Bustos v. Martini Club Inc., 599 F.3d 458, 468-69

(5th Cir. 2010) (although “a district court may not grant a motion for summary

judgment merely because it is unopposed,” “[t]he defendants submitted competent

summary judgment evidence showing that there were no genuine issues of fact for

trial,” and the plaintiff “did not respond to the motion for summary judgment in the

district court and therefore failed to carry his burden of showing that material factual

issues existed” and so “cannot now assert that the district court's reliance on

defendants' uncontested evidence was improper” (cleaned up)); Williams v. Sake

Hibachi Sushi & Bar, Inc., No. 3:18-CV-517-D, 2020 WL 3317096, at *6 (N.D. Tex.

June 18, 2020).

ANALYSIS

USB seeks summary judgment based on res judicata; Booth’s assertion of non-

existent claims under the Texas Property Code; his failure to properly plead his

claims for breach of contract and negligent misrepresentation; and his deemed

admissions. (See Dft. Br. at 1, 11-22.) USB also seeks summary judgment on

Booth’s request for declaratory and injunctive relief. (See id. at 22-23.) USB further

argues that Booth’s request for request for attorney’s fees should be denied. (See id. at

23.) Finally, USB argues that Booth should be barred from filing additional lawsuits

relating to the Property or any scheduled foreclosure sale of the Property. (See id. at

24.) As noted previously, Booth has not responded to USB’s motion for summary

judgment in any way—despite being represented by counsel and having been

directed to do so (see Dkt. No. 23).

I. Booth’s deemed admissions are fatal to his claims.

On March 29, 2024, USB served on Booth’s counsel “Defendant’s Discovery

Requests . . . via email and first-class mail[.]” (See Dft. Br. at 8; see also Dkt. No. 21-

7, App. 038-040 (Declaration of Vincent J. Hess (“Hess Decl.”)) at ¶¶ 3-4; Dkt. No.

21-8, App. 042 (transmittal letter); Dkt. No. 21-10, App. 046-060 (Defendant’s

Discovery Requests); Dkt. No. 21- 11, App. 062 (receipt for email service).) Booth

failed to respond to Defendant’s Discovery Requests, including the Requests for

Admission (“RFA”) contained therein. (See Hess Decl. at ¶ 7.) Consequently,

argues USB, the matters set forth in the RFA are deemed admitted by operation of

the law under Rule 36(a)(3) and conclusively established under Rule 36(b). (See Dft.

Br. at 9 (citing Fed. R. Civ. P. 36(a)(3) (“A matter is admitted unless, within 30 days

after being served, the party to whom the request is directed serves on the requesting

party a written answer or objection addressed to the matter and signed by the party

or its attorney.”); Fed. R. Civ. P. 36(b) (“A matter admitted under this rule is

conclusively established[.]”).)

Pursuant to Rule 56(c)(1)(A) of the Federal Rules of Civil Procedure,

“admissions are proper summary judgment evidence that can be used to show that

there is an absence of a genuine issue of material fact.” See Dingler v. Equifax Info.

Servs., L.L.C., No. 3:12-CV-455-M-BF, 2014 WL 1317511, at *3 (N.D. Tex. Feb. 28,

2014), report and rec. adopted, No. 3:12-CV-455-M-BF, 2014 WL 1325574 (N.D. Tex.

Mar. 31, 2014) (citing Fed. R. Civ. P. 56(c)(1)(A)); Estate of Newton v. Grandstaff, No.

3:10-CV-809-L, 2013 WL 230252, at *3 (N.D. Tex. Jan. 18, 2013). “[D]eemed

admissions under Rule 36 can disprove allegations in a plaintiff’s complaint.”

Dingler, 2014 WL 1317511, at *3 (citing Franklin v. BAC Home Loans Servicing, L.P.,

No. 3:10-CV-1174-M, 2012 WL 2679496, at *5 (N.D. Tex. June 6, 2012));

Cushingberry v. Airtran Airways, Inc., No. 3:04-CV-2301-M, 2005 WL 1875429, at *1-2

(N.D. Tex. Aug. 9, 2005). “The movant can satisfy its initial summary judgment

burden by offering deemed admissions that rebut the plaintiff’s claims.” Dingler,

2014 WL 1317511, at *3 (citing Franklin, 2012 WL 2679496, at *5). “A plaintiff

cannot present the court with evidence that contradicts his deemed admissions to

create a genuine issue of material fact at the summary judgment stage.” Dingler,

2014 WL 1317511, at *3 (citing In re Carney, 258 F.3d 415, 420 (5th Cir. 2001)).

Booth has admitted, among other things, that the instant lawsuit should be

dismissed with prejudice; that he has no evidence of damages; and that he is not

entitled to any damages or compensation. (See RFA Nos. 27, 28, App. 060; RFA

Nos. 4, 5, 9, 25, 26, App. 057-060.)

These admissions, standing alone, are fatal to Booth’s claims for breach of

contract and negligent representation, and provide a sufficient ground for granting

USB’s motion for summary judgment. See e.g., McCully v. Stephenville Indep. Sch.

Dist., No. 4:13-CV-702-A, 2014 WL 4060255, at *3 (N.D. Tex. Aug. 14, 2014).

While recognizing the “potential harshness” of granting summary judgment on the

basis of default admissions, the Fifth Circuit has emphasized that compliance with

the rules of procedure is “necessary to ensure the orderly disposition of cases.” In re

Carney, 258 F.3d at 421 (quoting United States v. Kasuboski, 834 F.2d 1345, 1350 (7th

Cir. 1987)); see also Dukes v. South Carolina Ins. Co., 770 F.2d 545, 548-49 (5th Cir.

1985); Le v. Cheesecake Factory Rests., No. 06-20006, 2007 WL 715260, at *4 (5th Cir.

2007). For this reason alone, Booth’s claims for breach of contract and negligent

representation should be dismissed with prejudice. Upon review of the relevant

pleadings and evidence presented, the Court finds that Booth’s claims also fail for

additional reasons.

II. Booth’s claims are barred by res judicata.

“Claim preclusion, or pure res judicata, is the venerable legal canon that

[e]nsures the finality of judgments and thereby conserves judicial resources and

protects litigants from multiple lawsuits.” United States v. Shanbaum, 10 F.3d 305,

310 (5th Cir. 1994) (citation and internal quotations omitted). “Under res judicata, a

final judgment on the merits of an action precludes the parties or their privies from

relitigating issues that were or could have been raised in that action.” Oreck Direct,

LLC v. Dyson, Inc., 560 F.3d 398, 401 (5th Cir. 2009) (citation and quotations

omitted). For res judicata to apply, four conditions must be satisfied: (1) the parties

to both actions are identical, or in privity; (2) a court of competent jurisdiction

rendered the judgment in the first action; (3) the first action concluded with a final

judgment on the merits; and (4) both suits involved the same claim or cause of

action. Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 (5th Cir. 2004)

(citation omitted).

All four conditions are satisfied here. First, as noted above, Booth has already

engaged in the three prior lawsuits concerning the Property. (See App. 165-157, 186-

200, 201-203, 204-206.) Although the First and Third Lawsuits were nonsuited by

Booth and dismissed without prejudice, the Second Lawsuit establishes the first three

elements of res judicata. (See App. 186-200, 201-203, 205-206.) The parties to the

present lawsuit are the same as the parties to the Second Lawsuit, satisfying the first

element. (Compare App. 189 with Compl. at 2-4.) The Second Lawsuit concluded

with a final judgment on the merits by a court of competent jurisdiction, satisfying

the second and third elements. (See App. 202, 205.)

Regarding the fourth condition, the Fifth Circuit uses the transactional test to

determine whether two suits involve the same claim or cause of action. See United

States v. Davenport, 484 F.3d 321, 326 (5th Cir. 2007). This test requires the district

court to consider whether the two cases are based on “the same nucleus of operative

facts.” Id. (citation and quotations omitted). “The nucleus of operative facts, rather

than the type of relief requested, substantive theories advanced, or types of rights

asserted, defines the claim.” Id. (citation omitted). If both cases are based on the

same nucleus of operative facts, “the prior judgment’s preclusive effect extends to all

rights the original plaintiff had with respect to all or any part of the transaction, or

series of connected transactions, out of which the original action arose.” (Id.

(citation and internal quotations omitted).)

Here, Booth’s claims in the present lawsuit arise from the same common

nucleus of operative facts as those raised in the Second Lawsuit. (See App. 190-194

(¶¶ 11–12, 15–16, 22–23, 25, 32; Compl. at 2-4.) Both lawsuits involve allegations

against USB premised on allegedly defective or improper pre-foreclosure notices, and

on purported misrepresentations during unspecified conversations relating to loss

mitigation options. (See id.) In both lawsuits, Booth cites the same HUD regulations

without explaining how they were allegedly violated or how they are pertinent to his

claims. (See id.) Also in both lawsuits, Booth contends that the allegations support

injunctive relief precluding a scheduled foreclosure sale, and he asserts similar causes

of action for negligent misrepresentation, violation of Texas Property Code § 51.002,

and breach of contract. (See id.) Because all the elements of res judicata are satisfied,

Booth’s claims in the instant lawsuit are barred by res judicata. See Oreck Direct, 560

F.3d at 404 (affirming dismissal of claims based on res judicata); see also Nguyen v.

Bank of Am., N.A., 539 F. App’x 325, 328 (5th Cir. 2013).

III. Booth’s claim for violation of the Texas Property Code fails.

Booth also alleges violation of “Texas Property Code 51.0002.” (See Compl.

at 3.) Specifically, Booth alleges that he “received a defective notice of default and

an improper notice of acceleration of the note as required by . . . the property code.”

(See id.) Because the Texas Property Code does not have a Section 51.0002, the

Court assumes that Booth intended to cite Texas Property Code § 51.002, which

concerns the sale of real property under a contract lien. See Tex. Prop. Code §

51.002, et seq.

Plaintiff’s claim fails as a matter of law because § 51.002 of the Texas Property

Code does not provide a private right of action. See Flores v. PennyMac Loan Servs.,

LLC, No. 3:18-CV-00924-GBT, 2019 WL 4720977, at *5 (N.D. Tex. Sept. 4, 2019)

(citing Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 569 (Tex. 2001)

(“Section 51.002 establishes the procedures for conducting a foreclosure sale.”)),

report and rec. adopted, 2019 WL 4691621 (N.D. Tex. Sept. 25, 2019). Various federal

courts in Texas likewise have held that § 51.002 does not otherwise provide for an

independent cause of action. See, e.g., Ashton v. BAC Home Loans Servicing, L.P., No.

4:13-CV-810, 2013 WL 3807756, at *4 (S.D. Tex. July 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.”); Solis v. U.S. Bank, N.A., No. CV H-16-00661, 2017 WL 4479957, at *2

(S.D. Tex. June 23, 2017) (“Section 51.002 of the Texas Property Code, however,

does not provide a private right of action.” (citations omitted)), aff’d, 726 F. App’x

221 (5th Cir. 2018); Anderson v. CitiMortgage, Inc., No. 4:13CV369, 2014 WL

2983366, at *5 (E.D. Tex. July 2, 2014) (citation omitted) (“Under Texas law, there

is no independent cause of action for breach of section 51.002.”).

Based on the summary judgment evidence, including Booth’s admissions,

there was no defect in the proceedings for the foreclosure sale scheduled for August

1, 2023. (See Dft. Br. at 15; RFA Nos. 14-16, 20-21, 24, App. 058-059.) And in any

event, the foreclosure sale did not occur. (See TRO; see also RFA Nos. 10, 19, App.

058-059; Gioello Decl. ¶ 9, App. 005.) As such, Booth cannot “state a viable claim

for wrongful foreclosure” because he “never lost possession of the Property.” See

Foster v. Deutsche Bank Nat’l Tr. Co., 848 F.3d 403, 407 (5th Cir. 2017) (citing James v.

Wells Fargo Bank, N.A., 533 Fed. Appx. 444, 446 (5th Cir. 2013) (unpublished)); see

also Motten v. Chase Home Fin., 831 F. Supp. 2d 988, 1007-08 (S.D. Tex. 2011)

(“[B]ecause recovery is premised upon one’s lack of possession of real property,

individuals never losing possession of the property cannot recover on a theory of

wrongful foreclosure. As such, courts in Texas do not recognize an action for

attempted wrongful foreclosure.”). Because the foreclosure of the Property has not

taken place, Booth may not assert a cause of action for wrongful foreclosure.

Accordingly, USB is entitled to summary judgment on Booth’s claim asserted under

the Texas Property Code.

IV. Booth’s claim for breach of contract fails.

Booth next asserts a claim for breach of contract. (See Compl. at 3.) USB

argues that summary judgment is warranted because: (1) no HUD regulations are

incorporated into the Deed of Trust; (2) Booth failed to identify the specific

provisions he alleges were breached; and he failed to show that he incurred any

damages from the alleged breach. (See Dft. Brf. at 16-17.)

To succeed on a breach of contract claim under Texas law, a plaintiff must

show “(1) the existence of a valid contract; (2) performance or tendered performance

by the plaintiff; (3) breach of contract by defendant; and (4) damages sustained by the

plaintiff as a result of the breach.” Sport Supply Grp., Inc. v. Columbia Casualty Co., 335

F.3d 453, 465 (5th Cir. 2003). Booth alleges that USB failed to follow the provisions

of “HUD regulations” “24 CFR 203.501, 24 CFR 203.604(b); and 24 CFR 605.”

(See Compl. at 3.)

First, Booth’s reliance on HUD regulations to support his claim for breach of

contract is unavailing. See Johnson v. World Alliance Finan. Corp., 830 F.3d 192, 196

(5th Cir. 2016) (“HUD regulations do not give the borrower a private cause of action

unless the regulations are expressly incorporated into the lender-borrower

agreement.”). Here, Booth merely cites the regulations but fails to describe the

alleged violation of each regulation. (See id.) Furthermore, Booth does not allege

that the HUD regulations cited in his Complaint are incorporated into the Deed of

Trust. (See Compl. at 3.) Indeed, the Deed of Trust (App. 011-026) does not even

mention the HUD regulations cited by Booth—or any other HUD regulations—

which is fatal to Booth’s claim. Margolis v. James B. Nutter & Co., 808 F. App’x 230,

233 (5th Cir. 2020) (affirming dismissal with prejudice where the regulations were

not expressly incorporated into the loan agreement); Johnson, 830 F.3d at 196

(affirming summary judgment on breach of contract claim where plaintiff borrower

failed to show the parties intended to incorporate into the loan agreement the specific

HUD term at issue).

Next, Booth’s failure to identify any specific contract or provision of a contract

that was allegedly breached is fatal to his claim. To plead a breach of contract claim,

a plaintiff must identify a specific provision of the contract that was allegedly

breached. See Williams v. Wells Fargo Bank, N.A., 560 F. App’x 233, 238 (5th Cir.

2014) (citing Watson v. Citimortgage, Inc., 814 F. Supp. 2d 726, 732 (E.D. Tex. 2011));

see also Kim v. Nationwide Mut. Ins. Co., 614 F. Supp. 3d 475, 492 (N.D. Tex. 2022)

(“It is well-settled within this circuit that the plaintiff must plead which provision of

the contract the defendant violated.”); Bayway Servs., Inc. v. Ameri-Build Constr., L.C.,

106 S.W.3d 156, 160 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (“A petition in

an action based on a contract must contain a short statement of the cause of action

sufficient to give fair notice of the claim involved, including . . . the substance of the

contract which supports the pleader's right to recover.” (internal citation omitted)).

Here, the Complaint only includes a conclusory allegation that USB breached

“loan documents” without any further detail. (See Compl. at 2.) Because Booth

failed to identify the provisions purportedly breached, a breach of contract claim has

not been stated, and, consequently, the claim should be dismissed. See Guajardo v. JP

Morgan Chase Bank, N.A., 605 F. App’x 240, 244 (5th Cir. 2015) (affirming dismissal

of breach of contract claim where plaintiff did not specify which provision in the

deed of trust was breached); Coleman v. Bank of Am., N.A., No. 3-11-CV-0430-G-BD,

2011 WL 2516169, at *1 (N.D. Tex. May 27, 2011) (citing Case Corp. Inc. v. Hi-Class

Bus. Sys. of Am., 184 S.W.3d 760, 769-70 (Tex. App.—Dallas 2005, pet. denied))

(same). Accordingly, summary judgment should be granted on Booth’s claim for

breach of contract.

Booth has also failed to adequately allege that USB’s purported breach caused

him to incur damages. Booth broadly asserts that he is “requesting actual damages,

attorney fees and costs of court,” (see Cmplt. at 3), but he fails to identify what those

damages are. Damage is an essential element of a breach-of-contract claim. See

Nucor Corp. v. Requenez, 578 F. Supp. 3d 873, 922-23 n.416 (S.D. Tex. 2022). Nor

does Booth show the required causal connection. Plaintiff must first plead that the

alleged injury was “the natural, probable, and foreseeable consequence of the

defendant’s conduct.” Mead v. Johnson Grp., 615 S.W.2d 685, 687 (Tex. 1981)

(citation omitted). “The absence of this causal connection between the alleged

breach and the alleged damages will preclude recovery.” Prudential Secs., Inc. v.

Haughland, 973 S.W.2d 394, 397 (Tex. App.—El Paso 1998, pet. denied) (citation

omitted). Thus, this is an additional reason that Booth has failed to sufficiently plead

a claim for breach of contract.

Finally, Booth admitted both a lack of damages and a lack of evidence of

damages. (See RFA Nos. 4, 25, 28, App. 057, 059-060.) Accordingly, Booth has not

pleaded any facts that would allow the Court to conclude that he suffered damages

as a result of USB’s alleged breach. Moreover, Booth failed to allege that he was

current on his payments (see generally Compl.), and, in fact, he admitted that he was

in default of the Loan (see RFA Nos. 1-3, 12, 17-18, 22, App. 057-059)—yet another

reason that Booth has failed to sufficiently plead his breach of contract claim.

Williams, 560 F. App’x at 238 (“[I]f, as here, plaintiffs fail to allege they were current

on their payments under the deed of trust, dismissal of their breach of contract claim

is proper.”) (citing Marsh v. JPMorgan Chase Bank, N.A., 888 F. Supp. 2d 805, 815

(W.D.Tex.2012)).

For all these reasons, summary judgment should be granted as to Booth’s

breach of contract claim.

V. Booth’s negligent misrepresentation claim fails.

Booth’s negligent misrepresentation claim fails for similar reasons. Booth

contends that USB “made misrepresentations in communicating to [Booth] the

options of loss mitigation.” (See Compl. at 2.) Booth’s Complaint contains

conclusory allegations with no factual allegations to support his negligent

misrepresentation claim. (See id.) As such, his pleading is fatally defective. See Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (A plaintiff must plead facts with

enough specificity “to raise a right to relief above the speculative level.”); see also

Beanal v. Freeport–McMoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999) (“[A] complaint,

which contains a bare bones allegation that a wrong occurred and which does not

plead any of the facts giving rise to the injury, does not provide adequate notice.”).

To state a claim for negligent misrepresentation, a plaintiff must allege that:

(1) the defendant made a representation in the course of its business, or in a

transaction in which it has a 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); see also Gen. Elec. Capital Corp. v. Posey, 415 F.3d

391, 395-96 (5th Cir. 2005).

Because the alleged misrepresentation by USB was not made for the guidance

of Booth in his business, his claim fails. See 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”); 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); see also Flo Trend,

948 S.W.2d at 8 (describing negligent misrepresentation as a “commercial tort”).

Moreover, Booth’s admissions are fatal to his claim. He has admitted that USB did

not make any misrepresentation to him and that any alleged misrepresentation did

not concern guidance for a business. (See RFA Nos. 6, 13, App. 057-058.) He has

also admitted that he has no evidence of any negligent misrepresentation. (See id.)

Consequently, Booth failed to state a viable claim for negligent misrepresentation.

In addition, under Texas law, the economic loss rule “generally precludes

recovery in tort for economic losses resulting from the failure of a party to perform

under a contract.” Johnson v. Wells Fargo Bank, NA, 999 F. Supp. 2d 919, 930 (N.D.

Tex. 2014) (quoting Lamar Homes, Inc. v. Mid–Continent Cas. Co., 242 S.W.3d 1, 12

(Tex.2007)). As the Texas Supreme Court explained: “The nature of the injury most

often determines which duty or duties are breached. When the injury is only the

economic loss to the subject of a contract itself, the action sounds in contract alone.”

Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 618 (Tex. 1986); see also Sw. Bell Tel. Co. v.

DeLanney, 809 S.W.2d 493, 494 (Tex. 1991) (“When the only loss or damage is to

the subject matter of the contract, the plaintiff's action is ordinarily on the

contract.”)).

A party can establish a tort claim related to a contractual setting when he

furnishes proof that a “duty allegedly breached is independent of the contractual

undertaking and the harm suffered is not merely the economic loss of a contractual

benefit.” Chapman Custom Homes, Inc. v. Dall. Plumbing Co., 445 S.W.3d 716, 718

(Tex. 2014). Because Booth does not allege any facts to support the existence of a

legal duty owed to him outside the contractual obligations under the Loan, his

negligent representation claim is “merely a repackaged breach of contract claim,”

which is barred by the economic loss rule. See Johnson, 999 F. Supp. 2d at 930-31; see

also Jim Walter Homes, 711 S.W.2d at 618 (Under Texas law, “‘the failure to perform

the terms of a contract is a breach of contract, not a tort.’”).

Accordingly, Booth’s negligent misrepresentation claim is fatally defective,

and summary judgment should be granted in favor of USB.

VI. Booth is not entitled to any declaratory relief, injunctive relief, or recovery of

attorney’s fees.

To the extent Booth seeks declaratory relief, such relief is remedial in nature

and dependent upon the assertion of viable causes of action—which Booth has not

asserted here. See Collin County, Tex. v. Homeowners Ass’n for Values Essential to

Neighborhoods, 915 F.2d 167, 170-71 (5th Cir. 1990). Because Booth has stated no

legal basis for—nor provided evidence of— any viable causes of action, summary

judgment should be granted in favor of USB. See Guajardo v. JPMorgan Chase Bank,

N.A., 605 F. App’x 240, 250 (5th Cir. 2015) (“Plaintiffs have failed to state any other

valid claim for relief. Because a declaratory judgment is ‘remedial in nature,’ where

all of plaintiff’s causes of action are dismissed, a related declaratory judgment claim

should also be dismissed.”).

To the extent Booth seeks injunctive relief, presumably to prohibit USB from

foreclosing or attempting to foreclose on the Property, Booth is similarly not entitled

to such relief. “A request for injunctive relief under Texas law is not in and of itself a

cause of action, but instead necessarily depends on an underlying cause of action.”

Beacham v. Bank of Am., N.A., No. 3:12-CV-00801-G-BF, 2012 WL 2358299, at *5

(N.D. Tex. May 25, 2012), report and rec. adopted, 2012 WL 2362619 (N.D. Tex. June

21, 2012). To assert a request for injunctive relief, a plaintiff is required to show,

among other things, “a substantial likelihood of success on the merits.” Anderson v.

CitiMortgage, No. 4:10-CV-398, 2011 WL 1113494, at *7 (E.D. Tex. Mar. 24, 2011).

Because Booth has not asserted any viable claims in this lawsuit, and he has no

evidence of any viable claims, he cannot show a substantial likelihood of success on

the merits. In addition, Booth admits he is not entitled to injunctive relief. (See RFA

No. 9, App. 058.) Therefore, Booth is not entitled to any injunctive relief, and

summary judgment should be granted.

Similarly, Booth’s request for attorney’s fees fails because Booth has not

pleaded any viable causes of action that would allow for recovery of attorney’s fees.

See Douglas v. Wells Fargo Bank, N.A., 992 F.3d 367, 377 (5th Cir. 2021) (affirming

district court’s judgment denying attorney’s fees where recovery of fees were

premised on an unviable claim); see also Billiter v. Cent. Mortg. Co., No. CIV.A.H-14-

663, 2015 WL 867443, at *7 (S.D. Tex. Feb. 17, 2015) (“Here, as Plaintiff has no

viable claims against Defendant, Plaintiff cannot . . . obtain attorney’s fees as a

prevailing party.”). In addition, Booth admits he is not entitled to attorney’s fees.

(See RFA Nos. 5, 26, App. 057, 060.) Accordingly, Booth is not entitled to recovery

of attorney’s fees, and summary judgment should be granted.

VII. Booth’s repeated filing of baseless lawsuits warrants a pre-suit injunction.

USB argues that Booth is “purposely abusing the judicial system to harm and

prejudice [USB] by repeatedly filing lawsuits and bankruptcy cases containing the

same baseless allegations in order to delay both paying on the Loan and the

inevitable foreclosure of the Property.” (See Dft. Brf. at 24.) USB further argues that

Booth’s filings “have been so numerous and meritless that a pre-filing injunction

against [him] is warranted to prevent him from further abusing legal process.” (See

id.) Therefore, USB requests the Court enjoin Booth from “filing any action against

[USB] or its servicer arising out of the Property and/or the scheduled foreclosure sale

of the Property” without first “seek[ing] leave of the court in which the new action is

sought to be filed and provid[ing] a copy of this Court’s injunction ruling to such

court.” (See id.) USB futher requests the scope of such injunction to include all

United States district courts and all United States bankruptcy courts, as well as state

court actions, given that Booth has filed all four lawsuits in state court. (See id.)

The All Writs Act authorizes courts to “issue all writs necessary or appropriate

in aid of their respective jurisdictions and agreeable to the usages and principles of

law.” 28 U.S.C. § 1651(a). This Act permits federal courts “to enjoin litigants who

are abusing the court system by harassing their opponents.” See Harrelson v. United

States, 613 F.2d 114, 116 (5th Cir. 1980). “[I]t is widely accepted that federal courts

possess power under the All Writs Act to issue narrowly tailored orders enjoining

repeatedly vexatious litigants from filing future state court actions without

permission from the court.” Newby v. Enron Corp., 302 F.3d 295, 301 (5th Cir. 2002);

see also Baum v. Blue Moon Ventures, L.L.C., 513 F.3d 181, 187 (5th Cir. 2008);

Babineaux v. Wells Fargo Bank, N.A., as Trustee, Case No. 4:23-CV-01563, 2023 WL

9508094, at *14 (S.D. Tex. Nov. 29, 2023), adopted, 2024 WL 406776 (S.D. Tex.

February 2, 2024).

The propriety of such a pre-suit injunction depends on several factors:

(1) the party’s history of litigation, in particular whether he has filed

vexatious, harassing, or duplicative lawsuits;

(2) whether the party had a good faith basis for pursuing the litigation,

or simply intended to harass;

(3) the extent of the burden on the courts and other parties resulting

from the party's filings; and

(4) the adequacy of alternative sanctions.

Baum, 513 F.3d at 189 (quoting Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 818

(4th Cir. 2004)). In addition, a pre-suit injunction “should be tailored to protect the

courts and to preserve the litigant’s legitimate right to present nonfrivolous claims.”

Staten v. Harrison Cnty., No. 20-60329, 2021 WL 5766576, at *3 (5th Cir. Dec. 3,

2021).

Booth’s litigation history strongly supports a finding that he qualifies as a

vexatious litigant who has abused the judicial system. Booth has repeatedly and

improperly utilized judicial proceedings to thwart the lender’s attempt to foreclose

based on the borrower’s default of a lending agreement. Despite making no

payments on the promissory note since at least prior to June 1, 2010 (see Gioello

Decl. ¶ 8, App. 004-005), Booth has filed eight bankruptcy actions beginning in 2011

and four state court lawsuits beginning in 2018 (including the instant lawsuit), each

time to stop foreclosure. (See App. 074-163, 164-232.). As noted above, each of

Booth’s bankruptcy cases was dismissed without issuance of a discharge order (see

App. 074-163), and one was dismissed with prejudice for serial filing (see App. 152-

156.)

Of the three prior state court lawsuits, the First and Third Lawsuits were

nonsuited and dismissed without prejudice, and the Second Lawsuit was nonsuited

and dismissed with prejudice. (See App. 179-184, 201-203, 204-206, 228-229, 232.)

Furthermore, Booth has failed to comply with this Court’s scheduling orders, failed

to respond to USB’s discovery requests, and failed to respond in any way to the

motion for summary judgment currently before the Court. His complete failure to

prosecute the lawsuit he filed corroborates that Booth is a vexation and abusive

litigant. Thus, the first three Baum factors clearly support a pre-filing injunction.

Regarding the fourth factor, because Booth has demonstrated a pattern of delaying

foreclosure by obtaining ex parte temporary restraining orders in state court, an

injunction against state court filings is warranted in this case, and alternative

measures are likely inadequate. See Newby, 302 F.3d at 299–303.

Accordingly, the undersigned finds that Booth—and any person acting at his

behest—should be enjoined from filing future suits concerning the Note, the Deed of

Trust, or foreclosure of the Property, whether in federal or state court, and whether

against USB or any person or entity in privity with USB, without obtaining that

courts prior permission.

RECOMMENDATION

For the foregoing reasons, it is RECOMMENDED that USB’s motion for

summary judgment (Dkt. No. 19) be GRANTED, and Richard Booth’s claims

should be DISMISSED WITH PREJUDICE.

It is FURTHER RECOMMENDED that Richard Booth, as well as any

persons acting on his behalf or in concert with him, should be ENJOINED from

filing, in any state court in Texas or federal court in Texas or elsewhere, any further

lawsuits concerning the Note, the Deed of Trust, or foreclosure of the Property,

against USB, its mortgage servicer, their attorneys, or any party in privity with USB,

unless Richard Booth first obtains permission from the court where he wishes to file

the suit. When seeking that permission, Booth must provide a copy of this

Memorandum and Recommendation and any subsequent order adopting it.

SO RECOMMENDED on October 1, 2024.

bw

BRIAN McKAY

UNITED STATES MAGISTRATE JUDGE

25

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner

provided by law. Any party who objects to any part of this report and recommendation

must file specific written objections within 14 days after being served with a copy. See

28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). To be specific, an objection must identify

the finding or recommendation to which objection is made, state the basis for the

objection, and indicate the place in the magistrate judge’s report and recommendation

where the disputed determination is found. An objection that merely incorporates by

reference or refers to the briefing before the magistrate judge is not specific. Failure to

file specific written objections will bar the aggrieved party from appealing the factual

findings and legal conclusions of the magistrate judge that are accepted or adopted by

the district court, except upon grounds of plain error. See Douglass v. United Services

Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996), modified by statute on other grounds,

28 U.S.C. § 636(b)(1) (extending the time to file objections to 14 days).