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Case Number: 7:22-cv-00181
Judge: David Counts
Court: United States District Court for the Western District of Texas (Midland County)
Defendant's Attorney: Adam C. Ragan
Description: Midland, Texas consumer credit lawyer represent Plaintiff who sued defendant on a wrongful foreclosure theory.
On July 29, 2022, Plaintiff Reynaldo Recio, Jr. (“Recio”) filed his Original Complaint against Shellpoint in the 244th District Court of Ector County, Texas in the case styled Reynaldo Recio, Jr. v. Newrez LLC, d/b/a Shellpoint Mortgage Servicing and assigned case number C-22-07-0850-cv. (Doc. 1 at 1). On August 23, 2022, Shellpoint removed the case to federal court on the basis of diversity jurisdiction under 28 U.S.C. §§ 1331, 1332, and 1441. Id.
In his Complaint, Recio asserts causes of action for: (1) negligence/negligent misrepresentation; (2) violation of the Texas Property Code § 51.002; (3) breach of contract; and he also seeks injunctive relief and attorneys' fees. (Doc. 1-1 at 4-11). Recio alleges he entered into a written contract with Shellpoint in September 2005 “for the purchase of a house and lot located at 3744 Dover Drive, Odessa, TX 79762.” (Doc. 1-1 at 4). The original purchase price was $538,365.00. Id. Though not directly addressed in Recio's Complaint, it appears that at some point during the life of the loan Recio began to have difficulties making payments and attempted to obtain a loan modification. (See id. at 5) (“Defendant avoided and evaded Plaintiff inquiries about an appeal of their modification application. Subsequently, without offering more than one loan workout alternative or replying to Plaintiff inquiries regarding an appeal to denial of a HAMP modification, the Defendant, forwarded a notice posting foreclosure sale of Plaintiff's property for August 2, 2022.”).
On October 14, 2022, Shellpoint filed the instant Motion to Dismiss seeking dismissal of Recio's Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. As noted above, Recio failed to respond to Shellpoint's Motion to Dismiss. Pursuant to Local Rule CV-7(d)(2), “[i]f there is no response filed within the time period prescribed by this rule, the court may grant the motion as unopposed.” Local Rule CV-7(d)(2) sets the response time for a non-discovery or case management motion at 14 days. Nonetheless, the Court will address the merits of the Motion as “dismissing a case other than on its merits is disfavored.” Chavez v. Freedom Mortgage Corp., 1:20-cv-522-LY, 2021 WL 327703, at *2 (W.D. Tex. Feb. 1, 2021). Consequently, this matter is ready for disposition.
Outcome: 04/14/2023 14 ORDER ADOPTING REPORT AND RECOMMENDATIONS for 13 Report and Recommendations. Signed by Judge David Counts. (jb3) (Entered: 04/14/2023)
04/14/2023 15 FINAL JUDGMENT. Signed by Judge David Counts. (jb3) (Entered: 04/14/2023)