IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

§

CELESTE ELIZABETH HOWEY, §

PLAINTIFF, §

§

V. § CIVIL ACTION NO. 4:22-CV-747-P

 §

CENDERA FUNDING CORP., et al., §

DEFENDANTS. §

§

FINDINGS, CONCLUSIONS, AND RECOMMENDATION ON DEFENDANT

TRUIST BANK’S MOTION TO DISMISS 

Pending before the Court is Defendant Truist Bank (“Defendant” or “Truist”)’s Motion to

Dismiss Plaintiff’s First Amended Complaint Pursuant to Federal Rule of Civil Procedure

12(b)(6) (“Def.’s Mot.”), filed October 7, 2022 [doc. 27]. Having carefully considered the

motion, the parties’ briefings, and all relevant applicable law, the Court RECOMMENDS that

Truist’s motion be GRANTED and that all claims against it be DISMISSED.

I.PROCEDURAL AND FACTUAL BACKGROUND1

This case involves a dispute arising out of two real property mortgages—an original

mortgage and the current mortgage—on Plaintiff’s Burleson, Texas real property2and a pending

foreclosure on said property by Truist. (Plaintiff’s Amended Complaint (“Pl.’s Am. Compl.”) at

5-6.) Plaintiff Celeste Elizabeth Howey (“Howey”) filed her pro se complaint on August 25,

2022, naming Cendera Funding Corporation (“Cendera”)3and Truist as Defendants. 

1

 The factual background is taken from Howey’s First Amended Complaint [doc. 26]. For the

purposes of this order, the Court presumes that all of Howey’s well-pleaded factual allegations are true. 

2

 The real property is 206 Sherry Lane Burleson, Texas 76028, hereinafter referred to as “Sherry Lane.”

3

On December 6, 2022, the Court recommended dismissal of claims against Cendera, a real estate company that

offers property buying, mortgages, and financing services, pursuant to Federal Rule of Civil Procedure 4(m). United

States District Judge Mark Pittman accepted the recommendation and all claims against Cendera were dismissed on

December 20, 2022 [doc. 43]. Accordingly, the Court will not address Howey’s claims against Cendera. 

1

Case 4:22-cv-00747-P Document 44 Filed 03/23/23 Page 1 of 8 PageID 325
Subsequently, Howey filed her Amended Complaint [doc. 26], the live pleading before the

Court, on October 6, 2022. In her pleading, Howey apparently claims the current mortgage is a

refinance of the original mortgage and that the original mortgage’s Deed of Trust (“DOT”) was

not released. (Id. at 4.) From this, Howey somehow claims that she is now a creditor and

Cendera an obligor on the original loan, and that Truist is prevented from enforcing the original

mortgage’s DOT and foreclosing on her property. (Id. at 6.)

Plaintiff pleads the following facts in support of her claims: In August 2008, Howey and

her husband signed a DOT for Sherry Lane (“2008 DOT”) with WR Starkey Mortgage, L.L.P.

(“Starkey”) as the lender. (Pl.’s Am. Compl. Ex. 1 at 4.) The 2008 DOT was duly recorded in

Johnson County, Texas. (Id. at 35.) In April, 2012, Howey and her husband signed and

executed a new DOT (“2012 DOT”) with Mortgage Electronic Registration Systems, Inc.

(“MERS”) as beneficiary and nominee for Cendera. (Def.’s Mot. Ex. C. at 28.) Shortly

thereafter, the 2012 DOT was duly recorded in Johnson County, Texas. (Id.) In April 2022,

MERS, on behalf of Cendera, conveyed, assigned and transferred the 2012 DOT to Truist. (Id.) 

This, too, was duly recorded in Johnson County. (Id. at 29.) 

The recorded 2012 DOT, included as an exhibit Howey’s Amended Complaint, provides

as follows: 

20. Sale of Note; Change of Loan Servicer; Notice of Grievance. The Note

or a partial interest in the Note (together with this Security Instrument) can be

sold one or more times without prior notice to Borrower A sale might result in a

change in the entity (known as the “Loan Servicer”) that collects Periodic

Payments due under the Note and this Security Instrument and performs other

mortgage loan servicing obligations under the Note, this Security Instrument, and

Applicable Law.

(Pl.’s Am. Compl. Ex. 1 at 14-15 (emphasis in original).) The 2012 DOT released the

previously recorded 2008 DOT. The Release of Lien associated with the 2012 DOT states that

the DOT “dated 08/15/2008, hereby satisfied, releases and discharges the lien recorded in the

2

Case 4:22-cv-00747-P Document 44 Filed 03/23/23 Page 2 of 8 PageID 326
Real Property Records of JOHNSON County, Texas on 08/22/2008.” (Pl.’s Am. Compl. Ex. 4 at

33; Def.’s Mot. Ex. B at 25.)

Included as an exhibit to Truist’s motion is a copy of the filed and recorded Assignment

of Deed of Trust for the 2012 DOT, which reads as follows: 

For good and valuable consideration, the sufficiency of which is hereby

acknowledged, [MERS], AS BENEFICIARY, AS NOMINEE FOR CENDERA

FUNCING, INC., A TEXAS CORPORATION, ITS SUCCESSORS AND

ASSIGNS . . . . by these presents does convey, assign, transfer and set over to:

TRUIST BANK [], the following described Deed of Trust, with all interest, all

liens, and any rights due or to become due thereon. Said Deed of Trust for

$404219.00 is recorded in the State of TEXAS, County of Johnson Official

Records, dated 03/21/2012 and recorded on 03/27/2012. 

(Def.’s Resp. Ex. C at 28 (emphasis omitted).)

Truist filed its motion to dismiss [doc. 27] on October 7, 2022; Howey filed her response

[doc. 34] and Truist replied [doc. 37]. Truist presents four arguments for dismissal: (1) Howey

fails to allege facts to support any federal constitutional claims; (2) Howey fails to allege facts to

support her claim that Truist, a mortgage lender, is a fiduciary and somehow breached a

fiduciary duty to Plaintiff ; (3) Howey fails to plead facts to support her claim that there is a 

basis to release the original loan’s DOT, (4) Howey fails to allege facts to support a claim for

wrongful debt collection or a negligence claim, and (5) Howey fails to plead facts to support a

claim for unjust enrichment. (Def.’s Mot. at 2-4.)

II.MOTION TO DISMISS STANDARD

The standard for a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6)

authorizes courts to dismiss complaints when they fail “to state a claim upon which relief can be

granted.” FED. R. CIV. P. 12(b)(6). Under this Rule 12(b)(6) standard, pleadings must show

specific, well-pleaded facts, and not mere conclusory allegations to avoid dismissal. Guidry v.

Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). Indeed, the plaintiff must plead “enough

3

Case 4:22-cv-00747-P Document 44 Filed 03/23/23 Page 3 of 8 PageID 327
facts to state a claim to relief that is plausible on its face,” and the “[f]actual 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).” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555, 570 (2007). The Court need not credit bare conclusory allegations or “a

formulaic recitation of the elements of a cause of action.” Id. at 555.

In considering a motion to dismiss for failure to state a claim, a court may consider: (1)

the pleadings and any attachments to the pleadings; (2) documents incorporated into the

complaint by reference; and (3) documents that a defendant attaches to its motion to dismiss if

those documents are referred to in the plaintiff's complaint and are central to the plaintiff's claim,

such as insurance policies and underlying complaints. FRCP 12(b)(6); see also Gilchrist Constr.

Co., LLC. V. Travelers Indem. Co., 358 F.Supp.2d 583 (W.D. La. Jan. 11, 2019) (Court

considers insurance documents not included in plaintiff’s complaint but central to plaintiff’s

insurance claims), citing Little v. USAA Cas. Ins. Co., No. 09-30948, 2010 WL 4909869, at *2

(5th Cir. 2010).

To defeat a Rule 12(b)(6) motion to dismiss, a 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 reasonable inference that the defendant is liable for the misconduct alleged.” 

Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing Twombly, 550 U.S. at 556). The Court is not

bound to accept legal conclusions as true. Iqbal, 556 U.S. at 678–79. Only a complaint that

states a plausible claim for relief survives a motion to dismiss.4

4

 Because Howey is a pro se litigant, the Court has a duty to liberally construe the pleadings and motions in

her favor. Thus, her papers are held to a less stringent standard than formal pleadings drafted by attorneys. See

Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (per curiam).

4

Case 4:22-cv-00747-P Document 44 Filed 03/23/23 Page 4 of 8 PageID 328
III.ANALYSIS

Amidst several unclear allegations and arguments, Howey essentially argues that Truist

is unable to enforce its interest in, and ability to foreclose on, Sherry Lane for a number of

reasons. She alleges federal constitutional issues, breach of fiduciary duty, unenforceability of

the Sherry Lane DOTs, wrongful debt collection/negligence and unjust enrichment theories.

Specifically, Howey claims that she “tender[ed] in good faith the correct amount as shown in in

Cendera’s old Deed of Trust dated March 21, 2012, for liquidating by Accord and Full

Satisfaction and settlement of the debt, requiring the release of Cendera’s old Securities

Agreement,” therefore “settl[ing] the debt Truist claims [] against the original terms and

conditions offered by Cendera’s old Deed of Trust dated March 21, 2012.” (Pl.’s Am. Compl. at

12.) In its motion to dismiss, Truist takes issue with each of the foregoing claims/theories

posited by Howey and points out how Howey’s pleadings fail to state a claim for relief under

each argument. Specifically, Truist directs the court to specific allegations in Howey’s pleadings

and/or the elements of each of her claims which are lacking and warrant dismissal. The Court

will consider each of these arguments.

First, Truist is correct in asserting that Plaintiff has failed to allege facts sufficient to state

any basis for a federal constitutional claim or breach of fiduciary duty on the part of Truist.

Taking Plaintiff’s allegations as true as to Truist’s status as a bank, there is no allegation that it is

a “state entity” or otherwise a “state actor” for there to be any basis for a due process

constitutional violation that could be actionable in this matter. Further, Plaintiff has failed to

credibly allege that Truist, as a bank, owed any type of fiduciary duty to Plaintiff such that a

cause of action for breach of such fiduciary duty could be maintained. Accordingly, Plaintiff has

failed to allege facts sufficient to state a claim for any federal constitutional claim or breach of

fiduciary duty claim.

5

Case 4:22-cv-00747-P Document 44 Filed 03/23/23 Page 5 of 8 PageID 329
Next, Plaintiff has alleged that DOTs should have been released and that Truist has no

legal basis to enforce its interest in her property or foreclose thereon. However, Howey offers

no legal or factual allegations that would support such a claim. Chapter 51 of the Texas Property

Code provides the Texas law governing enforcement of a deed of trust which creates a lien

against real property. See Tex. Prop. Code Ann. §§ 51.0001-.015 (West 2007 & West Supp.

2011). Under Texas law, if a DOT expressly provides for the power of sale then a party to that

deed of trust has such authority. See Slaughter v. Qualls, 162 S.W.2d 671, 675 (Tex. 1942);

Athey v. Mortg. Elec. Reg. Sys, Inc., 314 S.W.3d 161, 166 (Tex. App.—Eastland 2010, pet.

denied). A “mortgagee” may enforce a security instrument through a nonjudicial foreclosure

sale, either directly or through a mortgage servicer. See Tex. Prop. Code Ann. § 51.0025 (West

Supp. 2011) (mortgage servicer may administer foreclosure of property under Texas Property

Code section 51.002 on behalf of mortgagee); see also Tex. Prop. Code Ann. § 51.0001(3) (West

Supp. 2011) (recognizing that a “mortgagee may be the mortgage servicer”). A mortgage

servicer may foreclose if it is (1) authorized to do so by agreement with the mortgagee, and (2)

discloses its relationship to the mortgagee in the notices required by the Texas Property Code. 

See Tex. Prop. Code Ann. §§ 51.002, .0025 (West Supp. 2011). Further, a “mortgagee” is

defined to include an individual who meets the following, “if the security interest has been

assigned of record, the last person to whom the security interest has been assigned of record.” 

See Tex. Prop. Code Ann. § 51.0001(4)(C) (West Supp. 2011).

Plaintiff fails to allege any facts that would credibly present a claim that the lien interest

held by Truist is invalid under Texas law and that Truist did not have a right to exercise its

foreclosure rights under Texas law. In fact, the DOTs and Release of Lien documents before the

Court refute any such allegation in that because MERS had the power to foreclose and sell the

property, and had the power to assign these rights to Truist, MERS's assignment to Truist was

6

Case 4:22-cv-00747-P Document 44 Filed 03/23/23 Page 6 of 8 PageID 330
sufficient to give Truist, “the last person”—here an entity—to whom the 2012 DOT has been

assigned of record, the authority to foreclose Sherry Lane. (Def.’s Mot. Ex. B. at 29.) Thus, by

the explicit terms of the 2012 DOT and the Assignment of the Deed of Trust and under Texas

law, Plaintiff cannot credibly assert any facts that would state a cause of action for an invalid

lien or wrongful foreclosure. 

Finally, Howey’s claims for wrongful debt collection, negligence, and unjust enrichment

similarly fail. As stated above and for those same reasons, Plaintiff can set forth no set of facts

which would support a claim that Truist’s actions in foreclosing Sherry Lane were wrongful or

negligently conducted. Further, while unjust enrichment is not an independent cause of action in

its own right, see Richardson Hosp. Auth., v. Nnamdi Duru, 387 S.W.3d 109, 114

(Tex.App.—Dallas 2012, no pet.), Howey has failed to state facts sufficient to state a claim of

unjust enrichment—that is, there are no facts sufficient to support a claim that Truist failed to

“make restitution of benefits either wrongfully or passively received under circumstances which

give rise to an implied or quasi-contractual obligation to repay” Plaintiff under the live pleadings

in this case. (Id.)

IV.RECOMMENDATION

For the reasons set above, the Court RECOMMENDS that Truist’s Motion to Dismiss

[doc. 27] be GRANTED.

NOTICE OF RIGHT TO OBJECT TO PROPOSED

FINDINGS, CONCLUSIONS AND RECOMMENDATION

AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file

specific written objections in the United States District Court to the United States Magistrate

Judge’s proposed findings, conclusions and recommendation within fourteen (14) days after the

party has been served with a copy of this document. The United States District Judge need only

7

Case 4:22-cv-00747-P Document 44 Filed 03/23/23 Page 7 of 8 PageID 331
make a de novo determination of those portions of the United States Magistrate Judge’s

proposed findings, conclusions and recommendation to which specific objection is timely made. 

See 28 U.S.C. § 636(b)(1). Failure to file, by the date stated above, a specific written objection

to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain

error or manifest injustice, from attacking on appeal any such proposed factual findings and legal

conclusions accepted by the United States District Judge. See Douglass v. United Servs. Auto

Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. §

636(b)(1) (extending time to file objections to 14 days). 

ORDER

Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until APRIL

6, 2023, to serve and file written objections to the United States Magistrate Judge’s proposed

findings, conclusions and recommendation. It is further ORDERED that if objections are filed

and the opposing party chooses to file a response, the response shall be filed within seven (7)

days of the filing date of the objections.

It is further ORDERED that the above-styled and numbered action, previously referred

to the United States Magistrate Judge for findings, conclusion and recommendation, be and

hereby is returned to the docket of the United States District Judge.

SIGNED March 23, 2023.

__________________________

JEFFREY L. CURETON

UNITED STATES MAGISTRATE JUDGE

8

Case 4:22-cv-00747-P Document 44 Filed 03/23/23 Page 8 of 8 PageID 332