Caban v. HSBC Mortg. Servs.

373 F. Supp. 3d 709
CourtDistrict Court, N.D. Texas
DecidedApril 27, 2016
DocketCivil Action No. 3:15-CV-02101-N
StatusPublished
Cited by2 cases

This text of 373 F. Supp. 3d 709 (Caban v. HSBC Mortg. Servs.) is published on Counsel Stack Legal Research, covering District Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Caban v. HSBC Mortg. Servs., 373 F. Supp. 3d 709 (N.D. Tex. 2016).

Opinion

David C. Godbey, United States District Judge

This Order addresses Defendant HSBC Mortgage Services, a Division of HSBC Bank USA, N.A.'s ("HSBC Mortgage") motion to dismiss [16]. The Court grants the motion in part and denies it in part.

I. THE ORIGIN OF THE MOTION

This case arises from HSBC Mortgage's attempts to collect a debt (the "Debt") from Plaintiff George Carlos Caban after Caban filed for bankruptcy. According to Caban's First Amended Complaint, the Debt was secured by a lien on Caban's former home (the "Property"). Pl.'s First Am. Compl. ¶ 12. Caban listed the Debt in his bankruptcy petition as "surrender" and later vacated the Property. Id. ¶ 13. The bankruptcy court entered an order staying the recovery of any pre-petition claims against Caban during the pendency of his petition (the "Automatic Stay").Id. ¶ 16. Then, the bankruptcy court entered an order discharging Caban from any liability for creditors' pre-petition claims (the "Discharge Order"). Id. ¶ 17. The Discharge Order enjoined creditors from attempting to collect on prepetition claims against Caban, specifically providing that "a creditor is not permitted to contact a debtor by mail, phone, or otherwise ... or take any other action to collect a discharged debt from the debtor." Id. Caban alleges that HSBC Mortgage received notice of both the Automatic Stay and the Discharge Order. Id. ¶¶ 16, 18. After the bankruptcy court entered the Discharge Order, HSBC Mortgage foreclosed on the Property. Id. ¶ 22.

Caban asserts that HSBC Mortgage engaged in illegal debt collection activities both during the pendency of his bankruptcy petition and after the bankruptcy court entered the Discharge Order. Caban alleges that HSBC Mortgage made multiple collection calls to his cell phone during the pendency of his petition. Id. ¶ 24. Caban also alleges that HSBC Mortgage sent him billing statements and letters demanding payment of the Debt after the bankruptcy court entered the Discharge Order. Id. ¶ 25. Caban alleges that HSBC Mortgage accessed and reviewed his consumer credit report with Equifax at least twelve times after the bankruptcy court entered the Discharge Order. Id. ¶ 26. Caban maintains that, in order to access his Equifax report, HSBC Mortgage represented that it had a permissible purpose, such as to insure or monitor its account with Caban or to complete a credit application from Caban. Caban alleges that these representations were false. Id. ¶ 28. Caban says that HSBC Mortgage's collection activities caused him monetary loss, mental anguish, and emotional distress, including "a substantial amount of anxiety, distress, insomnia, fear, nervousness, frustration, anger and stress which has reached a level that has physically harmed him, evidence for *712which will be presented to the jury." Id. ¶ 64.

In his First Amended Complaint, Caban brings claims against HSBC Mortgage for violation of the Fair Credit Reporting Act ("FCRA"), violation of the Texas Debt Collection Act ("TDCA"), invasion of privacy under Texas common law, and contempt for violation of the Automatic Stay and Discharge Order. HSBC Mortgage now moves to dismiss Caban's First Amended Complaint. Caban opposes the motion and, in the alternative, seeks leave to amend.

II. RULE 12(b)(6) STANDARD

When considering a Rule 12(b)(6) motion to dismiss, a court must determine whether the plaintiff has asserted a legally sufficient claim for relief. Blackburn v. City of Marshall , 42 F.3d 925, 931 (5th Cir. 1995). A viable complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To meet this "facial plausibility" standard, a plaintiff must "plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A court generally accepts well-pleaded facts as true and construes the complaint in the light most favorable to the plaintiff. Gines v. D.R. Horton, Inc. , 699 F.3d 812, 816 (5th Cir. 2012). But a court does not accept as true "conclusory allegations, unwarranted factual inferences, or legal conclusions." Ferrer v. Chevron Corp. , 484 F.3d 776, 780 (5th Cir. 2007). A plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (internal citations omitted).

In ruling on a Rule 12(b)(6) motion, a court generally limits its review to the face of the pleadings, accepting as true all well-pleaded facts and viewing them in the light most favorable to the plaintiff. See Spivey v. Robertson , 197 F.3d 772, 774 (5th Cir. 1999). However, a court may also consider documents outside of the pleadings if they fall within certain limited categories. First, "[a] court is permitted ... to rely on 'documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.' " Dorsey v. Portfolio Equities, Inc. ,

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Bluebook (online)
373 F. Supp. 3d 709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caban-v-hsbc-mortg-servs-txnd-2016.