IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20019

Summary Calendar

ROGER LAW,

Plaintiff-Appellant

v.

OCWEN LOAN SERVICING, L.L.C.,

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:13-CV-2172

Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Roger Law appeals the dismissal of his claims arising out of a foreclosure 

on his property. He also argues that he should have been allowed to amend 

his complaint in lieu of its dismissal. We AFFIRM the dismissal, thereby 

denying Law’s request for a remand and leave to amend.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 16, 2014

Lyle W. Cayce

Clerk

 

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FACTS AND PROCEDURAL BACKGROUND

In September 2005, Roger Law purchased property located in Missouri 

City, Texas for $284,800. He financed the purchase through a promissory note

made payable to AAMES Funding Corporation. As security for the note, Law 

executed a purchase money deed of trust encumbering the property. The deed 

of trust provided that, should Law fail to make payments on the note when 

due, the servicer could enforce the deed of trust by selling the property in 

accordance with the law and the provisions set out in the deed of trust.

After Ocwen Loan Servicing, L.L.C. became the servicer of Law’s note in 

2010, Law contacted Ocwen to request a loan modification because he was 

having difficulty making his monthly payments. In January 2011, Ocwen sent 

Law a modification agreement that Ocwen had not signed. Acceptance was 

conditioned upon Law’s faxing a signed copy of the agreement to Ocwen and 

making a down payment by February 3, 2011. Law signed the agreement on 

February 7, and faxed it to Ocwen on February 9. He made the down payment 

on February 8.

In April 2012, Law brought suit against Ocwen after it initiated 

foreclosure proceedings. Law asserted causes of action for violations of the 

Texas Property Code, breach of contract, violations of the Real Estate 

Settlement Procedures Act (“RESPA”), and negligence.1 He obtained a 

temporary restraining order against Ocwen in May 2012. In August 2013, 

Ocwen moved to dismiss the claims under Rule 12(b)(6). The district court 

granted the motion in December 2013. Law timely appealed to this court, 

arguing that his pleadings were sufficient to survive dismissal and, in the 

alternative, that he should be granted leave to amend his complaint.

1 Law also claimed violations of the Texas Debt Collection Practices Act and requested 

injunctive relief. He does not contest the dismissal of these claims on appeal.

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DISCUSSION

We review a dismissal under Rule 12(b)(6) de novo, “accepting all wellpleaded facts as true and viewing those facts in the light most favorable to the 

plaintiff.” Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007). A pleading must 

contain “a short and plain statement of the claim showing that the pleader is 

entitled to relief.” FED. R. CIV. P. 8(a)(2). This does not require “‘detailed 

factual allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A pleading will 

be judged insufficient if it offers “a formulaic recitation of the elements of a 

cause of action” or “a naked assertion” without “further factual enhancement.” 

Twombly, 550 U.S. at 555, 557.2

I. Texas Property Code § 51.002

Law argues that Ocwen violated the Texas Property Code’s notice 

provisions regarding foreclosure. Those provisions require a mortgagee to: (1) 

notify the mortgagor of a default and afford him 20 days to cure and (2) notify 

the mortgagor at least 21 days before a foreclosure sale. TEX. PROP. CODE §

51.002(b)(3), (d).

Law asserts that foreclosure was “premature” because he “raised issues 

regarding the executed modification agreement and escalations in his escrow 

account . . . .” The Property Code’s notice requirements, however, make no 

mention of a mortgagee’s duty to forestall foreclosure so long as the mortgagor 

2 On appeal, Law asserts various legal theories and factual allegations in support of 

his claims that were not expressed in his complaint. We decline to consider them. Review of 

a Rule 12(b)(6) dismissal is, by its very nature, limited to the allegations and theories set 

forth in the complaint that the district court had before it when granting the motion to 

dismiss. Moreover, this approach accords with our general practice of not considering issues 

raised for the first time on appeal. See Celanese Corp. v. Martin K. Eby Const. Co., 620 F.3d 

529, 531 (5th Cir. 2010).

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seeks a modification. We also see no basis for reading such requirements into 

the Property Code. 

The Property Code provides debtors an opportunity to cure a default 

after receiving notice. Law does not allege that Ocwen failed to provide proper 

notices, that his loan was not in default, or that he attempted to cure his 

default. Consequently, Law has not alleged facts demonstrating that he is 

entitled to relief under the Texas Property Code.

II. Breach of Contract

Law asserts numerous grounds for breach of contract. These include 

Ocwen’s alleged failure to honor the loan modification proposal and its alleged

failure to comply with United States Department of Housing and Urban 

Development (“HUD”) and Home Affordable Modification Program (“HAMP”)

regulations. We examine each of these claims.

a. Loan Modification Agreement

To prove breach, a party must first demonstrate the existence of a valid 

contract. Mullins v. TestAmerica, Inc., 564 F.3d 386, 418 (5th Cir. 2009) (citing 

Aguiar v. Segal, 167 S.W.3d 443, 450 (Tex. App.—Houston [14th Dist.] 2005, 

pet. denied)). It follows that, to prove breach of a modified contract, a party 

must first demonstrate the existence of a valid modification. In his complaint, 

Law maintains that Ocwen breached the February 2011 loan modification 

agreement. For two reasons, we conclude that the loan modification agreement 

was ineffective. Ocwen therefore could not have breached the agreement.

First, to accept Ocwen’s loan modification proposal, Law was required to 

comply with all conditions placed upon the time and manner of acceptance. See 

Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995). Those conditions 

included Law’s signing and faxing the agreement to Ocwen and making a down 

payment by February 3, 2011. Law, however, did not sign the agreement until 

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February 7, and he did not fax the agreement to Ocwen until February 9. 

Furthermore, he did not send the required payment until February 8. Because 

Law failed to meet these conditions, we conclude that he never accepted 

Ocwen’s offer to modify the loan.

Second, the agreement did not satisfy the Texas Statute of Frauds, which 

requires that certain contracts be: (1) reduced to writing and (2) signed by the 

party to be bound by the agreement. TEX. BUS. & COM. CODE § 26.01(a). It is 

undisputed that Ocwen did not sign the proposed modification agreement. 

Thus, the only question is whether the modification agreement was subject to 

the Statute of Frauds. In Texas, an agreement materially altering a contract 

must satisfy the Statute of Frauds when the underlying contract was subject 

to the Statute of Frauds. See Hondo Oil & Gas Co. v. Tex. Crude Operator, 

Inc., 970 F.2d 1433, 1438 (5th Cir. 1992); Garcia v. Karam, 276 S.W.2d 255, 

257 (Tex. 1955). In Texas, loan agreements for sums exceeding $50,000 must 

satisfy the Statute of Frauds. TEX. BUS. & COM. CODE § 26.02(b). Thus, 

because the loan agreement between Law and Ocwen for $284,000 was 

required to satisfy the Statute of Frauds, so too was the proposed modification 

agreement. Because the loan modification proposal failed to do so, it was not 

a valid contract upon which a claim of a breach can be based.

b. HUD and HAMP Regulations

We have previously held that the HUD Handbook does not afford a 

private cause of action. Roberts v. Cameron-Brown Co., 556 F.2d 356, 360-61 

(5th Cir. 1977). This circuit has not precedentially resolved whether there is a 

private cause of action under the HAMP regulations. We have held in an 

unpublished opinion that there is not. Pennington v. HSBC Bank USA, N.A., 

493 F. App’x 548, 552 (5th Cir. 2012) (citing Miller v. Chase Home Fin., LLC, 

677 F.3d 1113, 1116 (11th Cir. 2012)). We need not answer that question here, 

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because Law has not presented any argument to suggest that there is a private 

right of action.

Thus, in order to bring suit for violations of HUD or HAMP regulations, 

Law must show that the regulations were incorporated into the deed of trust.

Law points to no language in the deed of trust that incorporates HAMP. With 

regard to the HUD regulations, Law’s complaint states that “the Note and 

Deed of Trust expressly provide that the acceleration and foreclosure on 

plaintiff[’s] loan are subject to limitation through regulations promulgated by 

the HUD Secretary.” The only possible source of this contention is the 

statement in the deed of trust that its provisions “shall not limit the 

applicability of federal law to this Deed of Trust.” This language does not

mention the HUD regulations, much less “expressly” incorporate them, as the 

complaint states. A deed of trust’s mere mention that federal law applies can 

hardly be construed as affording a private cause of action under statutes that 

do not provide one. As a result, Law could not assert claims for violations of 

the HUD and HAMP regulations.

III. Real Estate Settlement Procedures Act

Law claims that Ocwen failed to provide him with notice that it had 

acquired his loan from AAMES Funding Corporation. Under RESPA, a 

“transferee servicer to whom the servicing of any federally related mortgage 

loan is assigned, sold, or transferred shall notify the borrower of any such 

assignment, sale, or transfer.” 12 U.S.C. § 2605(c)(1). In order to recover for a 

violation, a borrower must show “actual damages to the borrower as a result of 

the [servicer’s] failure” to comply with RESPA. § 2605(f)(1).

Law’s complaint, in addition to alleging a failure by Ocwen to give notice,

alleges that Law sustained harm because “this is his homestead and he will 

lose all of the money previously invested in the property . . . .” Law does not, 

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however, allege facts demonstrating that these damages were the result of

Ocwen’s failure to provide him with the required notice. He does not allege, 

for example, that as a result of Ocwen’s failure to provide notice, he mistakenly 

continued sending his payments to AAMES Funding Corporation rather than 

sending them to Ocwen, resulting in foreclosure by Ocwen. Indeed, this did 

not occur. Because Law alleged no facts upon which his injuries could be 

viewed as resulting from Ocwen’s failure to provide him with notice under 

RESPA, we conclude that the district court correctly dismissed his claim.

IV. Negligence

Law contends that Ocwen negligently breached various duties that it 

owed to Law, including the duty to provide notice of a transfer, the duty to 

manage its loans properly, the duty to provide proper notices prior to 

foreclosure, and the duty to protect a mortgagor’s rights when he applies for a 

loan modification. For two reasons, we conclude that dismissal of Law’s 

negligence claims was appropriate.

First, the duties Law mentions appear to arise from the statutes upon 

which he bases his other claims. More specifically, the duty to provide notice 

of a transfer derives from RESPA; the duty to manage loans properly derives

from HUD regulations; the duty to provide proper notices before foreclosing 

derives from the Texas Property Code; and the duty to protect a mortgagor’s 

rights when he applies for a loan modification derives from the HAMP 

regulations. Perhaps for this reason, Law begins his negligence claim by 

reiterating his contention that the deed of trust incorporated the HUD 

regulations, spends the bulk of his argument discussing perceived RESPA 

violations, and never mentions specific provisions in the deed of trust or 

common-law principles giving rise to the duties he claims Ocwen violated. 

Therefore, because Ocwen’s negligence claims are, in essence, reiterations of 

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his statutory claims, our grounds for affirming the district court as to the 

statutory claims apply equally here.

Second, even if we were to assume that the duties Law mentions arise 

from the deed of trust, his negligence claims are barred by the economic loss 

rule. Under this doctrine, “a claim sounds in contract when the only injury is 

economic loss to the subject of the contract itself.” 1/2 Price Checks Cashed v. 

United Auto. Ins. Co., 344 S.W.3d 378, 387 (Tex. 2011). In applying the rule, 

courts consider whether the defendant’s conduct “would give rise to liability 

independent of the fact that a contract exists between the parties.” Sw. Bell 

Tel. Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex. 1991). When no independent 

basis for liability exists, the rule applies. Id. In this case, Law’s complaint 

asserts no basis for the duties Ocwen owed to Law other than the deed of trust 

and various statutes, the latter of which we have already addressed. Because 

Law has not alleged non-economic damages resulting independently of the 

deed of trust, the economic loss doctrine bars Law’s negligence claims.

V. Leave to Amend

As an alternative position, Law requests leave to amend his complaint 

and also contends that the district court should have construed the new factual 

allegations set forth in his response to Ocwen’s Rule 12(b)(6) motion as a 

request for leave to amend. Under Rule 15(a), a court should “freely give leave 

[to amend a complaint] when justice so requires.” FED. R. CIV. P. 15(a)(2). 

Nevertheless, a party must “expressly request” leave to amend. United States 

ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 387 (5th Cir. 

2003). “A party who neglects to ask the district court for leave to amend cannot 

expect to receive such dispensation from the court of appeals.” Id. Although 

this request need not be contained in a formal motion, “[a] bare request in an 

opposition to a motion to dismiss – without any indication of the particular 

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grounds on which the amendment is sought – does not constitute a motion 

within the contemplation of Rule 15(a).” Id. (quotations and citation omitted).

In Willard, we held the following language in a plaintiff’s response to a 

Rule 12(b)(6) motion insufficient to constitute a request for leave to amend: 

“[T]he only relief possibly available to [the defendant] at this stage of the case 

is that [the plaintiff] replead.” Id. (quotations omitted). We have also held, in 

an unpublished opinion, that a district court’s sua sponte discussion of whether 

to allow a defendant to amend his complaint did not constitute a request by 

the defendant for leave to amend. McClaine v. Boeing Co., 544 F. App’x 474, 

478 (5th Cir. 2013). 

Law’s response to Ocwen’s motion to dismiss, while containing new 

factual allegations, contained no language that might be construed as a request 

for leave to amend his complaint, let alone express language requesting leave 

and indicating the particular grounds on which the amendment was sought. 

Moreover, the district judge did not discuss granting Law leave to amend at 

any point. In short, there is nothing in the record that would allow us to 

conclude that Law requested leave to amend his complaint prior to this appeal.

Law cites several of our cases for the proposition that a claim raised for 

the first time in response to a dispositive motion should be treated as a request 

for leave to amend. See Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 

989 n.2 (5th Cir. 2008); Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir. 

1972); Riley v. Sch. Bd. Union Parish, 379 F. App’x 335, 341 (5th Cir. 2010). 

These cases, however, did not involve defendants who sought to raise new 

factual allegations in response to motions to dismiss, as did Willard and 

McClaine. See Willard, 336 F.3d at 387; McClaine, 544 F. App’x at 478. 

Instead, they involved defendants who sought to raise new claims in response

to motions for summary judgment. See Stover, 549 F.3d at 989 n.2; Sherman, 

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455 F.2d at 1242; Riley, 379 F. App’x at 341. Because we are faced with the 

former situation and not the latter, the cases cited by Law are inapposite. 

Accordingly, we conclude that Law did not request leave to amend his

complaint at the district court and is not entitled to such relief from this court.3

AFFIRMED.

3 Because we find that Law’s response to Ocwen’s Rule 12(b)(6) motion did not 

constitute a request for leave to amend his petition, we do not consider whether an 

amendment containing the additional factual allegations would be “futile” and thus within 

the district court’s discretion to deny. See Rio Grande Royalty Co. v. Energy Transfer 

Partners, L.P., 620 F.3d 465, 468 (5th Cir. 2010).

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