IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

DEBRA L. INNOCENTI,

 Plaintiff,

vs.

CENLAR FSB,

 Defendant.

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NO. 5:20-CV-248-DAE

ORDER GRANTING MOTION TO DISMISS

The matter before the Court is Defendant Cenlar FSB’s (“Cenlar”) 

Motion to Dismiss. (Dkt. # 4.) Pursuant to Local Rule CV-7(h), the Court finds 

this matter suitable for disposition without a hearing. After careful consideration 

of the memorandum in support of the motion, the Court, for the reasons that 

follow, GRANTS Cenlar’s Motion to Dismiss.

BACKGROUND

In connection with the purchase of property located at 238 Pinewood 

Lane, San Antonio, Texas 78216 (“the Property”), Plaintiff Debra L. Innocenti

(“Plaintiff”) executed a Note secured by a Deed of Trust on the Property. (Dkt. 

# 1-1 at 3.) Cenlar is the current mortgagee and servicer on the Deed of Trust. 

(Id.) Plaintiff admits to defaulting on the Note, and concedes the Property was 

noticed for foreclosure sale on February 4, 2020. (Id.) 

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On February 3, 2020, the day prior to the scheduled foreclosure sale, 

Plaintiff filed the instant suit in the 285th Judicial District Court of Bexar County, 

Texas, seeking to prevent foreclosure of the Property. (Dkt. # 1-1.) Plaintiff’s

petition alleges a claim for breach of contract and seeks injunctive relief. (Id.) On 

February 28, 2020, Cenlar removed the action to this Court on the basis of 

diversity jurisdiction. (Dkt. # 1.) On March 4, 2020, Cenlar filed a motion to 

dismiss Plaintiff’s claims. (Dkt. # 4.) Although represented by counsel, Plaintiff 

did not file a response and the time to do so has now passed.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a

complaint for “failure to state a claim upon which relief can be granted.” In 

analyzing a motion to dismiss for failure to state a claim, the court “accept[s] ‘all 

well pleaded facts as true, viewing them in the light most favorable to the 

plaintiff.’” United States ex rel. Vavra v. Kellogg Brown & Root, Inc., 727 F.3d 

343, 346 (5th Cir. 2013) (quoting In re Katrina Canal Breaches Litig., 495 F.3d 

191, 205 (5th Cir. 2007)). 

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead 

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility 

when the plaintiff pleads factual content that allows the court to draw the 

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reasonable inference that the defendant is liable for the misconduct alleged.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

DISCUSSION

Plaintiff’s petition alleges that Cenlar breached its contractual 

obligations under the Deed of Trust by sending a Notice of Substitute Trustee’s 

Sale and later sending a monthly mortgage statement. (Dkt. # 1-1 at 3–4.) 

According to Plaintiff, because Cenlar sent her the subsequent statement 

demanding less than the accelerated unpaid principal balance, Cenlar abandoned 

the Notice of Sale. (Id.) Plaintiff also contends that Cenlar is required to provide 

her with at least 30 days to cure any default. (Id.) Given these events, Plaintiff 

contends that Cenlar is now in breach of contract. (Id.)

Cenlar moves to dismiss Plaintiff’s claims on the basis that the 

petition fails to state any claim upon which relief can be granted. (Dkt. # 4.) 

Cenlar argues that Plaintiff herself has admitted she is in default on the Note. (Id.) 

Cenlar also contends that Plaintiff alleges no damages, but she continues to reside 

in the Property without making payments on the loan agreement. (Id.)

A. Breach of Contract 

In Texas, a plaintiff must establish the following essential elements of 

a breach of contract claim: “(1) the existence of a valid contract; (2) performance 

or tendered performance by the plaintiff; (3) breach of the contract by defendant; 

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and (4) damages sustained by the plaintiff as a result of the breach.” Smith Int’l, 

Inc. v. Egle Grp., LLC, 490 F.3d 380, 387 (5th Cir. 2007) (quotation omitted). To 

sustain a breach of contract claim, a plaintiff must typically “identify the specific 

provision in the contract that was breached” and cannot rely on general allegations. 

Seeberger v. Bank of Am., N.A., No. EP-14-CV-366-KC, 2015 WL 9200878, 

at *17 (W.D. Tex. Dec. 16, 2015) (citing Watson v. CitiMortgage, Inc., 814 F. 

Supp. 2d 726, 730 (E.D. Tex. 2011)).

Here, Plaintiff admits to being in default under the loan agreement. 

Given this, Plaintiff lacks an essential element to her breach of contract claim. See

Metcalf v. Deutsche Bank Nat’l Tr. Co., 2012 WL 2399369, at *10 (N.D. Tex. 

June 26, 2012); Owens v. Bank of Am., N.A., 2012 WL 912721, at *4 (S.D. Tex. 

Mar. 16, 2012); Lewis v. Bank of Am., N.A., 3434 F.3d 540, 544–45 (5th Cir. 

2003). Texas law is clear that where, as here, a plaintiff is in default on a contract 

due to her own failure to perform, that plaintiff may not assert a claim for breach of 

a contract. E.g., Juarez v. Wells Fargo, No. 5:17-cv-00756-FB-RBF, 2018 WL 

835211 at *4 (W.D. Tex. Feb. 12, 2018), adopted by 2018 WL 1895549 (W.D. 

Tex. Mar. 5, 2018) (“Having failed to perform his obligations pursuant to the 

Promissory Note and Deed of Trust, it is difficult (perhaps even impossible) to see 

how Juarez could ever prevail on a breach of contract claim of the type he 

describes.” (citing Vera v. Bank of Am., N.A., 569 F. App’x. 349, 352 (5th Cir. 

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2014)); Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763, 767 (5th Cir. 2016) 

(affirming trial court’s dismissal of breach of contract claim because borrower was 

in default on the mortgage and “failed to allege any facts showing her own 

performance” under the loan contract). Plaintiff has not pled that she performed, 

or tendered performance, under the Loan.

Plaintiff has also failed to allege that any such breach caused her 

damages, nor that it is continuing to cause any injury. (See Dkt. # 1-1.) 

Regardless, since Plaintiff concedes she was behind on payments, she has not 

alleged sufficient facts that Cenlar was the cause of her damages. See, e.g., 

Seeberger v. Bank of Am., N.A., No. EP-14-CV-366-KC, 2015 WL 9200878, at 

*17 (W.D. Tex. Dec. 16, 2015) (W.D. Tex. 2015). Therefore, the Court finds that 

Plaintiff has failed to allege a claim for breach of contract.

B. Injunctive Relief

Plaintiff’s claim for injunctive relief also fails. To obtain injunctive

relief, a plaintiff must demonstrate, among other things, a likelihood of success on 

the merits of her claim. See Harris Cnty. v. CarMax Auto Superstores, Inc., 177 

F.3d 306, 312 (5th Cir. 1999). Because Plaintiff has not pled any viable cause of 

action, she has not demonstrated a likelihood of success on the merits, and her

claim for injunctive relief will also be dismissed. See, e.g., Suarez v. Ocwen Loan 

Servicing, LLC, No. 5:15-CV-664-DAE, 2015 WL 7076674, at *4 (W.D. Tex. 

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Nov. 12, 2015); Rodriguez v. Bank of Am., N.A., No. SA-12-CV-905-DAE, 2013 

WL 1773670, at *13 (W.D. Tex. Apr. 25, 2013).

CONCLUSION

For the foregoing reasons, the Court GRANTS Cenlar’s Motion to 

Dismiss (Dkt. # 4). Because allowing Plaintiff leave to amend her claims would be 

futile, the Court will DISMISS Plaintiff’s claims. The Clerk’s office is instructed 

to ENTER JUDGMENT and CLOSE the CASE.

IT IS SO ORDERED.

DATED: San Antonio, Texas, March __, 2020.

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