1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

ZACHARY-WAYNE WHITE,

 Plaintiff,

v.

FIFTH THIRD BANK, NATIONAL 

ASSOCIATION, et al.,

 Defendants.

§

§

§

§

§

§

§

§

§

§

 Civil Action No. 4:23-cv-847-SDJ-KPJ

MEMORANDUM OPINION AND ORDER

Pending before the Court are the following motions:

• Plaintiff Zachary-Wayne White’s (“Plaintiff”) Request for Leave to File Amended Claim 

(the “First Motion for Leave to Amend”) (Dkt. 22); and 

• Plaintiff’s Motion Seeking Leave to File Fourth Amended Complaint (the “Second Motion 

for Leave to Amend”) (Dkt. 29), to which Defendants Fifth Third Bank, National 

Association (“Fifth Third”), Fannie Mae as Trustee for Securitized Trust FNMA 2020-009 

Trust (“Fannie Mae”), AVT Title Services LLC (“AVT Title Services”), and Mackie Wolf 

Zientz & Mann P.C.’s (“Mackie Wolf”) (collectively, the “Original Defendants”) filed a 

response (Dkt. 33), and Plaintiff filed a reply (Dkt. 35).

For the reasons that follow, the Second Motion for Leave to Amend (Dkt. 29) is GRANTED IN 

PART and DENIED IN PART, and the First Motion for Leave to Amend (Dkt. 22) is DENIED 

AS MOOT.

I. BACKGROUND

On September 5, 2023, Plaintiff, proceeding pro se, initiated this lawsuit by filing a petition 

(the “Petition”) (Dkt. 1-2) in the 481st District Court, Denton County, Texas, against the Original 

Defendants. See Dkts. 1 at 1; 1-2 at 3. In the Petition (Dkt. 1-2), Plaintiff alleges that he is the 

“rightful owner” of real property located at 201 North Garza Road, Shady Shores, Texas 76208 

(the “Property”). Dkt. 1-2 at 5. On December 23, 2019, Plaintiff and his wife, Alaina Michelle 

Case 4:23-cv-00847-SDJ-KPJ Document 37 Filed 08/23/24 Page 1 of 17 PageID #: 962
2

White (“Ms. White”), acquired the Property with a loan of $408,500 from Great Western Financial 

Services, Inc. (“Great Western”). See Dkt. 29-4 at 1. That loan was secured by a promissory note 

(the “Note”) and a deed of trust (the “Deed of Trust”) (collectively, the “Loan Agreement”). See 

Dkts. 29-4; 29-5. Great Western purportedly transferred the Note and Deed of Trust to Fannie 

Mae, who appointed Fifth Third to serve as the servicer of the Loan Agreement. See Dkt. 1-2 at 4–

5.

Plaintiff admits that he defaulted on his payment obligations under the Loan Agreement at 

some point thereafter. See id. at 23 (“We conditionally accept your claim that we have past due 

payments upon proof of claim that you are entitled to receive the payments.”); see also Dkt. 29-1 

at 10 (“By Tendering Payment, Plaintiff has admitted to there being a debt owed to Fifth Third 

Bank.”). As a result of this default, Fifth Third demanded payment. See Dkt. 1-2 at 19 (“You have 

demanded payment for the aforementioned loan . . . .”). Before tendering any such payment,

Plaintiff sent a letter to Fifth Third insisting that he be permitted to “visually inspect” the 

“ORIGINAL, wet-ink signature Tangible Promissory Note at a mutually-convenient time and 

location” to ensure the Note’s “authenticity and verify handwriting in the event that it has been 

altered, forged, reproduced, or ‘copy-pasted.’” Id. at 20 (emphasis in original). Without this 

inspection, Plaintiff asserted that Fifth Third would be in violation of the Real Estate Settlement 

Procedures Act (“RESPA”), the Truth in Lending Act (“TILA”), and the Fair Debt Collection 

Practices Act (“FDCPA”). Id. at 6.

In response to this demand, Plaintiff alleges that Fifth Third submitted “copies” of some 

unspecified documents, which he claims are insufficient to indicate that the Loan Agreement was 

ever assigned to Fannie Mae. See id. at 6, 22–24, 34–35. Furthermore, based on Fifth Third’s 

failure to adequately comply with Plaintiff’s request, Plaintiff purportedly “rescinded” the Note

Case 4:23-cv-00847-SDJ-KPJ Document 37 Filed 08/23/24 Page 2 of 17 PageID #: 963
3

pursuant to TILA and its accompanying regulations. See id. at 6, 34–36. Thereafter, Plaintiff 

alleges that he tendered payment “for the entire payoff amount of $506,357.64 in the form of a 

Silver Surety Bond.” Id. at 6; see id. at 59 (silver surety bond); see also id. at 67 (payoff amount 

totaling $506,357.64).1 From this point forward, Plaintiff considered the issue closed, and the debt 

“discharged.” Id. at 79. According to Plaintiff, if Fifth Third continued its collection efforts, he 

would charge them a “harassment fee of $10,000 per occurrence.” Id. Based on the foregoing 

allegations, Plaintiff asserted the following “claims” against the Original Defendants: 

(1) temporary restraining order; (2) temporary injunction; (3) permanent injunction; (4) suit to 

quiet title; and (4) declaratory relief. Id. at 7–8. In addition, Plaintiff sought monetary damages 

exceeding $100,000.00 but no more than $2,000,000.00. Id. at 9.

On September 22, 2023, the Original Defendants removed this action to federal court on 

the basis of diversity and federal question jurisdiction. See Dkt. 1 at 2. According to the Original 

Defendants, there is complete diversity between the “properly named” parties. Id. Specifically, the 

Original Defendants assert that Plaintiff is a citizen of Texas, while Fifth Third and Fannie Mae 

are citizens of Ohio and the District of Columbia, respectively. Id. at 2–3. The Original Defendants 

further assert that AVT Title Services and Mackie Wolf are “improperly joined” and, thus, the 

Court should disregard their citizenship for the purposes of diversity jurisdiction. See id. at 3–6.2

The Original Defendants also assert that the amount in controversy is satisfied because the fair 

market value of the Property is $577,743.00—far exceeding the statutory minimum for diversity 

jurisdiction. Id. at 8. Finally, the Original Defendants assert that because Plaintiff alleges that they 

1 The Court notes that this payoff method was clearly insufficient to meet Plaintiff’s obligations under the Note. See 

Dkt. 29-4 at 1 (“I will make all payments under this Note in the form of cash, check[,] or money order.”).

2 The Original Defendants do not allege the citizenship of either AVT Title Services or Mackie Wolf. See id.

Case 4:23-cv-00847-SDJ-KPJ Document 37 Filed 08/23/24 Page 3 of 17 PageID #: 964
4

violated RESPA, TILA, and FDCPA, the Court has federal question jurisdiction “over this action,” 

and supplemental jurisdiction over Plaintiff’s state law claims. Id. at 9.

On September 29, 2023, Fifth Third and Fannie Mae filed a motion to dismiss (the “First 

Motion to Dismiss”) (Dkt. 4). See Dkt. 4. That same day, AVT Title Services and Mackie Wolf 

filed a motion to dismiss (the “Second Motion to Dismiss”) (Dkt. 5). See Dkt. 5. On October 3, 

2023, Plaintiff filed a motion to remand (the “Motion to Remand”) (Dkt. 6), wherein he attaches 

an amended petition (the “Amended Petition”) (Dkt. 6-1), filed in state court post-removal,3 which 

purportedly substantiates his allegations against AVT Title Services and Mackie Wolf. See Dkt. 6 

at 2. Thus, Plaintiff contends that all parties are properly joined in this action. See id. The Amended 

Petition (Dkt. 6-1) also adds a new, non-diverse party—Great Western, the original mortgagee. Id.

at 3; see Dkt. 6-1 at 2. For this reason, Plaintiff contends that, even if the citizenship of AVT Title 

Services and Mackie Wolf was ignored for the purposes of diversity of citizenship, “there is still 

not perfect diversity” between the parties. See Dkt. 6 at 3.

On October 12, 2023, Plaintiff filed a response to the First Motion to Dismiss (Dkt. 4) and

the Second Motion to Dismiss (Dkt. 5). See Dkt. 9. That same day, Plaintiff filed an amended 

petition (the “Second Amended Petition”) (Dkt. 10) as a matter of course. See Dkt. 10; see also 

FED. R. CIV. P. 15(a)(1)(B). In the Second Amended Petition (Dkt. 10), Plaintiff added Great 

Western and Mortgage Electronic Registration System (“MERS”) (collectively, the “New 

Defendants”),4and asserts several claims against them, as well as the Original Defendants

3 The Court notes that, upon removal, the state court is immediately divested of jurisdiction. See 28 U.S.C. § 1446(d). 

Thus, any post-removal amendment filed in state court is a “legal nullity.” Tharpe v. Affinion Benefits Grp., LLC, 

No. 18-22, 2018 WL 3352940, at *4 (S.D. Tex. May. 22, 2018) (citing Mauer v. Wal-Mart Stores, Inc., No. 16-cv2085, 2016 WL 5815892, at *7 (N.D. Tex. Oct. 5, 2016)), R. & R. adopted, 2018 WL 3348885 (S.D. Tex. July 9, 

2018).

4 Plaintiff incorrectly and inconsistently refers to MERS in his filings. Dkt. 10 at 1, 3 (“Mortgage Electronic 

Registration System”; “Mortgage Electronic Registration Services, Inc.”; “Mortgage Electronic Registration Systems, 

Inc.”).

Case 4:23-cv-00847-SDJ-KPJ Document 37 Filed 08/23/24 Page 4 of 17 PageID #: 965
5

(collectively, “Defendants”). See Dkt. 10. Specifically, Plaintiff asserts the following claims 

against all Defendants: (1) wrongful foreclosure; (2) statutory fraud; and (3) slander of title. See 

id. at 8–10, 13–16. In addition, Plaintiff asserts a conflict-of-interest claim against AVT Title 

Services and Mackie Wolf, a conversion claim against Fifth Third, and a “suit for accounting”

claim against Fifth Third, Fannie Mae, Great Western, and MERS. See id. at 10–13, 16–17.

On October 17, 2023, the Original Defendants filed a response to the Motion to Remand 

(Dkt. 6). See Dkt. 13. On October 26, 2023, the Original Defendants filed a motion to strike (the 

“Motion to Strike”) (Dkt. 17). See Dkt. 17. According to the Original Defendants, where “an 

amendment would deprive a federal court of subject matter jurisdiction,” the party may not file 

that amendment as a matter of course and, instead, must first obtain leave of court. See id. at 3–4. 

That same day, Plaintiff filed a reply in support of the Motion to Remand (Dkt. 6), wherein he 

indicated that he made “a procedural misstep” by not first “requesting leave” to file the Second 

Amended Petition (Dkt. 10). Dkt. 18 at 3. In addition, Plaintiff represents that he “would like to 

withdraw his motion to remand.” Id. at 6. Also on October 26, 2023, AVT Title Services and 

Mackie Wolf filed another motion to dismiss (the “Third Motion to Dismiss”) (Dkt. 20). See 

Dkt. 20.

On November 9, 2023, Plaintiff filed the First Motion for Leave to Amend (Dkt. 22), 

wherein Plaintiff represents that he would like a “quick resolution” to this case and, thus, requests 

leave to file an amended pleading which removes “parties and causes of action.” Dkt. 22 at 1–2. 

Indeed, Plaintiff attached his proposed amended pleading (the “Third Amended Petition”) 

(Dkt. 22-1), which omitted the New Defendants and asserts the following claims against the 

Original Defendants: (1) wrongful foreclosure; (2) statutory fraud; and (3) slander of title. See 

Dkt. 22-1 at 7–10, 14–18. In addition, Plaintiff asserts a claim of “assisting and participating in 

Case 4:23-cv-00847-SDJ-KPJ Document 37 Filed 08/23/24 Page 5 of 17 PageID #: 966
6

wrongful foreclosure” against AVT Title Services and Mackie Wolf, and a claim of conversion 

against Fifth Third. See id. at 10–14.

On May 20, 2024, prior to the Court ruling on the First Motion for Leave to Amend

(Dkt. 22), Plaintiff filed the Second Motion for Leave to Amend (Dkt. 29), wherein he requests 

leave to file another amended pleading. See Dkt. 29. Plaintiff attached the proposed pleading (the 

“Fourth Amended Petition”) (Dkt. 29-1), which asserts a breach of contract claim or, in the 

alternative, claims of negligence and gross negligence against Fifth Third and Fannie Mae. 

Dkt. 29-1 at 9–21. Plaintiff further asserts a legal malpractice claim against AVT Title Services

and Mackie Wolf, a conversion claim against Fifth Third, and a slander of title claim against the 

Original Defendants. See id. at 21–28. On June 3, 2024, the Original Defendants filed a response 

to the Second Motion for Leave to Amend (Dkt. 29). See Dkt. 33. On June 12, 2024, Plaintiff filed 

a reply. See Dkt. 35.

II. LEGAL STANDARDS

A. Leave to Amend

Under Rule 15 of the Federal Rules of Civil Procedure, a “party may amend its pleading 

once as a matter of course.” FED. R. CIV. P. 15(a)(1). However, “if the pleading is one to which a 

responsive pleading is required,” the amendment must be made no later than “21 days after service 

of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), 

whichever is earlier.” FED. R. CIV. P. 15(a)(1)(B). “When this time period expires or the party 

already has amended the pleading, this provision no longer applies and an amendment falls under 

Rule 15(a)(2), which requires leave of court or the written consent of the opposing party.” 

6 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1480 

(3d ed. 2023). But “[t]he court should freely give leave when justice so requires.” FED. R. CIV.

Case 4:23-cv-00847-SDJ-KPJ Document 37 Filed 08/23/24 Page 6 of 17 PageID #: 967
7

P. 15(a)(2). As such, leave to amend may only be denied for good cause, “such as undue delay, 

bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by 

amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of 

the amendment, [or] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962).

B. Futility of Amendment

“An amendment is futile if it would fail to survive a Rule 12(b)(6) motion.” Marucci 

Sports, L.L.C. v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014) (citing Briggs 

v. Mississippi, 331 F.3d 499, 508 (5th Cir. 2003)). Rule 12(b)(6) of the Federal Rules of Civil 

Procedure allows a defendant to move for dismissal of an action if the plaintiff fails to state a claim 

upon which relief can be granted. See FED. R. CIV. P. 12(b)(6). “In evaluating motions to dismiss 

filed under Rule 12(b)(6), the court ‘must accept all well-pleaded facts as true, and . . . view them 

in the light most favorable to the plaintiff.’” Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 

920 F.3d 890, 899 (5th Cir. 2019) (quoting Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 

(5th. Cir. 1986)). “Further, ‘[a]ll questions of fact and any ambiguities in the controlling 

substantive law must be resolved in the plaintiff’s favor.’” Id. (quoting Lewis v. Fresne, 252 F.3d 

352, 357 (5th Cir. 2001)). However, courts are “not bound to accept as true ‘a legal conclusion 

couched as a factual allegation.’” In re Ondova Ltd., 914 F.3d 990, 993 (5th Cir. 2019) (quoting 

Papasan v. Allain, 478 U.S. 265, 286 (1986)).

“The well-pleaded facts must permit the court ‘to infer more than the mere possibility of 

misconduct.’” Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009)). That is, the complaint “must allege enough facts to move the claim ‘across the 

line from conceivable to plausible.’” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011), as 

revised (Dec. 16, 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 

Case 4:23-cv-00847-SDJ-KPJ Document 37 Filed 08/23/24 Page 7 of 17 PageID #: 968
8

“Determining whether the plausibility standard has been met is a ‘context-specific task that 

requires the reviewing court to draw on its judicial experience and common sense.’” Id. (quoting 

Iqbal, 556 U.S. at 663–64).

At the motion to dismiss stage, “[t]he court’s review is limited to the complaint, any 

documents attached to the complaint, and any documents attached to the motion to dismiss that 

are central to the claim and referenced by the complaint.” Allen v. Vertafore, Inc., 28 F.4th 613, 

616 (5th Cir. 2022) (quoting Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 

387 (5th Cir. 2010)).

III. ANALYSIS

A. Second Motion for Leave to Amend

In the Second Motion for Leave to Amend (Dkt. 29), Plaintiff seeks leave to file another 

amended pleading asserting new causes of action. See Dkt. 29 at 2. Specifically, Plaintiff asserts a 

breach of contract claim or, in the alternative, a negligence claim, against Fifth Third and Fannie 

Mae. See Dkt. 29-1 at 9–21. Plaintiff further asserts a legal malpractice claim against AVT Title 

Services and Mackie Wolf, a conversion claim against Fifth Third, and a slander of title claim 

against the Original Defendants. See id. at 21–28. In their response, the Original Defendants argue 

that additional leave to amend should be denied because: (1) Plaintiff unduly delayed seeking leave 

to amend; (2) the Original Defendants will suffer undue prejudice if leave to amend is granted; 

and (3) the proposed amendment would be futile. See Dkt. 33. The Court addresses each in turn 

below.

1. Undue Delay

The Original Defendants argue that leave to amend should be denied because Plaintiff filed 

the Second Motion for Leave to Amend (Dkt. 29) more than eight months after initiating this 

Case 4:23-cv-00847-SDJ-KPJ Document 37 Filed 08/23/24 Page 8 of 17 PageID #: 969
9

lawsuit. See Dkt. 33 at 4. According to the Original Defendants, because Plaintiff offers no 

explanation for this delay, leave to amend should be denied. See id. at 4–5. In his reply, Plaintiff 

argues that the Original Defendants’ dispositive motions have identified infirmities in his 

allegations, and that, in response, he proactively sought leave to amend. Dkt. 35 at 4. In addition, 

Plaintiff points out that this case is still in its procedural infancy, as discovery has not yet begun. 

See id. The Court agrees with Plaintiff.

“Although Rule 15(a) does not impose a time limit for permissive amendment, at some 

point, time delay on the part of a plaintiff can be procedurally fatal.” Smith v. EMC Corp., 393 F.3d 

590, 595 (5th Cir. 2004) (cleaned up) (quoting Whitaker v. City of Houston, 963 F.3d 831, 836 

(5th Cir. 1992)). However, “delay alone is an insufficient basis for denial of leave to amend”; 

instead, any delay must be “undue,” meaning that it prejudices the nonmoving party or imposes 

“unwarranted burdens on the court.” Mayeaux v. La. Health Serv. & Indem. Co., 376 F.3d 420, 

427 (5th Cir. 2004) (collecting cases). “Delay is undue and prejudicial if it hinders the opposing 

party’s ability to respond to the proposed amendment or to prepare for trial.” Dueling v. Devon 

Energy Corp., 623 F. App’x 127, 130 (5th Cir. 2015). When leave to amend is sought prior to the 

issuance of a scheduling order, the amendment is presumptively timely. See, e.g., Kleppinger v. 

Tex. Dep’t of Transp., No. 10-124, 2011 WL 13135049, at *2 (S.D. Tex. June 24, 2011) (“When 

a party files a motion for leave to amend by the court-ordered deadline, there is a ‘presumption of 

timeliness.’ Notably, the deadline to amend pleadings has not been set in this case because a 

scheduling order has not been issued.” (internal citation omitted)); Norman v. Webster, No. 24-

240, 2024 WL 3457600, at *2 (E.D. La. July 17, 2024) (“Trial has not been scheduled and there 

is no Scheduling Order in place yet. There is no basis for finding ‘undue delay’ on [the] [p]laintiffs’ 

part.”).

Case 4:23-cv-00847-SDJ-KPJ Document 37 Filed 08/23/24 Page 9 of 17 PageID #: 970
10

In the present case, there has been no undue delay. Plaintiff, proceeding pro se, filed the 

Second Motion for Leave to Amend (Dkt. 29) before the issuance of a scheduling order, prior to 

any discovery, and before the Court has addressed the sufficiency of his allegations. While several 

months elapsed between the filing of the Petition (Dkt. 1-2) and the Second Motion for Leave to 

Amend (Dkt. 29), this case remains in its procedural infancy due to the large number of pending 

dispositive and non-dispositive motions. Furthermore, given the early stage of these proceedings, 

it is unclear how any purported delay would hinder the Original Defendants’ “ability to respond to 

the proposed amendment or to prepare for trial.” Dueling, 623 F. App’x at 130. For all of these 

reasons, the Court will not deny leave to amend on the grounds of undue delay.

2. Undue Prejudice

The Original Defendants argue that permitting leave to amend will cause “undue prejudice 

and additional work” by rendering a number of motions and other filings moot. See Dkt. 33 at 5. 

In his reply, Plaintiff argues that additional work does not amount to undue prejudice. See Dkt. 35 

at 4–5. The Court agrees with Plaintiff. While several motions will be rendered moot by providing 

Plaintiff leave to amend, undoubtedly frustrating the Original Defendants and resulting in some

prejudice, that reason alone is insufficient to demonstrate undue prejudice. See, e.g., Texas v. 

I.R.S., No. 23-cv-406, 2024 WL 951202, at *1 (W.D. Tex. Mar. 5, 2024) (finding that having to 

refile a motion to dismiss is not a sufficient ground to deny leave to amend because, if that was 

“enough to constitute undue prejudice, no court would ever be able to grant leave to amend” 

(emphasis in original)); Jackson v. St. Charles Par. Hous. Auth. Bd. of Comm’rs, No. 18-7917, 

2019 WL 13274910, at *3 (E.D. La. Sept. 30, 2019) (granting leave to amend where the case had 

been pending for over a year and no scheduling order had been issued even though the plaintiff 

filed multiple amendments resulting in multiple motions to dismiss, delays in the case, and 

Case 4:23-cv-00847-SDJ-KPJ Document 37 Filed 08/23/24 Page 10 of 17 PageID #: 971
11

additional expenses). For this reason, the Court finds no undue prejudice at this early juncture and, 

thus, will not deny leave to amend on this basis.

3. Futility

The Original Defendants argue that additional amendment would be futile; that is, some of 

the claims added by Plaintiff fail to state a claim upon which relief could be granted. See Dkt. 33 

at 5. Specifically, the Original Defendants challenge the sufficiency of Plaintiff’s factual 

allegations supporting his claims of negligence and gross negligence, breach of contract, and 

slander of title. See id. at 6–7. The Court considers each of these claims below.

a. Breach of Contract

In the Fourth Amended Petition (Dkt. 29-1), Plaintiff asserts a breach of contract claim 

against Fifth Third and Fannie Mae. See Dkt. 29-1 at 9–13. The allegations in support thereof are 

difficult to decipher. Indeed, Plaintiff asserts that he “cannot prove a valid and enforceable contract 

between himself and the Defendants”—directly contradicting an element of his claim. See Dkt. 29-

1 at 10. Upon careful consideration, it appears that Plaintiff has alleged the wrong claim by 

mistake. Rather than trying to enforce the terms of the Loan Agreement, Plaintiff challenges the 

validity (or existence) of the assignment of the Loan Agreement to Fannie Mae. See, e.g., id. at 10, 

20. This is not a breach of a contract claim; rather, it is a wrongful foreclosure claim. See, e.g., 

Miller v. Homecomings Fin., LLC., 881 F. Supp. 2d 825, 829 & n.7 (S.D. Tex. 2012). Therefore, 

while Plaintiff’s proposed pleading fails to state a breach of contract claim and, thus, permitting 

amendment of such claim would be futile, to the extent Plaintiff wishes to assert a wrongful 

foreclosure claim, the Court grants leave for him to do so.

5

5 The Original Defendants attack the nominal claim (that is, breach of contract) while ignoring the substance of 

Plaintiff’s allegations. See Dkt. 33 at 7. In the Fifth Circuit, “a party need not include the proper label for a claim in 

their complaint”; indeed, the nominal characterization of the claim is wholly immaterial so long as the factual 

Case 4:23-cv-00847-SDJ-KPJ Document 37 Filed 08/23/24 Page 11 of 17 PageID #: 972
12

In his breach of contract discussion, Plaintiff also asserts that there is an implied-in-law 

contract, or quasi-contract, between the parties. See Dkt. 29-1 at 10–11. The Original Defendants 

make no argument regarding the futility of this particular claim, see Dkt. 33 at 7, and the Court 

declines to make arguments on their behalf, particularly given the liberal policy favoring 

amendment. Thus, if Plaintiff intends to raise a separate quasi-contract claim, he is free to do so in 

an amended pleading.

However, the Court notes that a quasi-contract “is not a contract at all but an obligation 

imposed by law to do justice even though it is clear that no promise was ever made or intended.” 

Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000) (citation omitted) (internal 

quotation marks omitted). For this reason, to the extent there is—in fact—a “valid, express 

contract” covering “the subject matter of the parties’ dispute, there can be no recovery under a 

quasi-contract theory.” Id. (citing TransAmerican Nat. Gas Corp. v. Finkelstein, 933 S.W.2d 591, 

600 (Tex. App.—San Antonio 1996, writ denied)). As mentioned above, see supra note 5, neither 

Plaintiff nor the Original Defendants have provided the writing purportedly transferring the Note 

to Fannie Mae; further, no such document was filed in the real property records. Accordingly, the 

Court withholds making any finding on this issue until it is presented with the written instrument.

allegations are sufficient to provide “fair notice” of the “grounds upon which [the claim] rests.” See Barron v. United 

States, — F.4th — (5th Cir. 2024) (citations omitted). Plaintiff clearly intends to challenge the existence or validity 

of any transfer of the Note. See Dkt. 29-1 at 10 (“Plaintiff cannot prove a valid and enforceable contract between 

himself and the [Original] Defendants.”); id. at 20 (“Plaintiff avers that the photocopy of the [N]ote furnished by Fifth 

Third . . . as proof of claim shows no evidence that it was sold to Fannie Mae.”). If Plaintiff’s allegations are 

insufficient to state a claim of wrongful foreclosure, the Original Defendants are free to raise those arguments in a 

dispositive motion, if any. Specifically, the Original Defendants could present the purported assignment of the Loan 

Agreement, which Plaintiff repeatedly mentions in his pleadings and exhibits. To date, the Original Defendants have 

failed to do so. The Court notes that no such assignment was ever filed in the real property records and, as such, the 

Court cannot take judicial notice of its existence.

Case 4:23-cv-00847-SDJ-KPJ Document 37 Filed 08/23/24 Page 12 of 17 PageID #: 973
13

b. Negligence & Gross Negligence

In the Fourth Amended Petition (Dkt. 29-1), Plaintiff asserts claims of negligence and gross 

negligence in the alternative to his breach of contract claim. See Dkt. 29-1 at 13. According to 

Plaintiff, Fifth Third, as the purported loan servicer, had a duty to validate that the debt was 

transferred to a new party. See id. at 14. Plaintiff asserts that Fifth Third did not do so. See id. at 15. 

Specifically, Plaintiff asserts that Fifth Third presented a blank note and, thus, failed to validate 

whether it had a right to collect payments thereunder. Id.6 Likewise, Plaintiff argues that, after he 

tendered payment to Fifth Third via the silver surety bond, Fifth Third had the duty to pay off the 

loan, discharge the debt, and release the lien from the Property. Id. at 16–17. Once again, Plaintiff 

asserts that Fifth Third failed to satisfy its duty. Id. at 17. Plaintiff also appears to argue that all of 

the Original Defendants may be held liable in tort due to their participation in the foreclosure of 

the Property. See id. at 21. In response, the Original Defendants assert that “Plaintiff’s tort-based 

claims for negligence and gross negligence are barred by the economic loss doctrine because the 

sole potential basis for liability is contractual in nature by the terms of the Note and Deed of Trust.” 

Dkt. 33 at 6.

“Under Texas law, the economic loss rule ‘generally precludes recovery in tort for 

economic losses resulting from the failure of a party to perform under a contract.’” TIB—The 

Indep. BankersBank v. Canyon Cmty. Bank, 13 F. Supp. 3d 661, 670 (N.D. Tex. 2014) (quoting 

Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 12 (Tex. 2007)). However, as 

repeatedly emphasized above, it is unclear which of the Original Defendants, if any, is the assignee 

6 The Court notes that, rather than being an ineffective assignment, the Note could have been validly indorsed in blank. 

See TEX. BUS. & COM. CODE ANN. § 3.205(a). In that circumstance, the “instrument becomes payable to [the] bearer

and may be negotiated by transfer of possession alone until specially indorsed.” Id. § 3.205(b). But neither Plaintiff 

nor the Original Defendants have submitted the instrument itself. For this reason, the Court withholds any finding

regarding its validity.

Case 4:23-cv-00847-SDJ-KPJ Document 37 Filed 08/23/24 Page 13 of 17 PageID #: 974
14

of the Note and Deed of Trust. This issue controls the applicability, or lack thereof, of the economic 

loss doctrine. See Thompson v. Bank of Am., N.A., 13 F. Supp. 3d 636, 653 (N.D. Tex. 2014). 

Because the Court is bound to resolve questions of fact in Plaintiff’s favor at this time, denying 

leave to add this claim would be inappropriate. Inclusive Cmtys. Project, Inc., 920 F.3d at 899

(quoting Lewis, 252 F.3d at 357).

Plaintiff’s allegations obviously suffer from other serious infirmities. For example, 

Plaintiff attempts to substantiate the “duty” element of his negligence claims by reference to 

RESPA, among sources of statutory and common law. See Dkt. 29-1 at 14. Specifically, Plaintiff 

asserts that, upon receiving a qualified written request, Fifth Third had a duty to validate its 

ownership of the debt. See id. But the statutory provision cited by Plaintiff governs requests related 

to the servicing of the loan and, in fact, excludes requests to determine whether the defendant is 

the rightful owner of the debt, as well as requests to visually inspect the original, wet-ink 

promissory note. Haller v. Wells Fargo Bank, N.A., No. 17-cv-606, 2018 WL 6735094, at *5–6 

(E.D. Tex. Oct. 15, 2018). Likewise, Plaintiff asserts that Fifth Third had a duty to discharge the 

debt once it received his silver surety bond. See Dkt. 29-1 at 16–17. But assuming that Fifth Third 

and Fannie Mae are the appropriate servicer and assignee of the Loan Agreement, as Plaintiff 

necessarily does in making this argument, the debt could not be discharged by tendering a silver 

surety bond. See Dkt. 29-4 at 1 (“I will make all payments under this Note in the form of cash, 

check[,] or money order.”). Notwithstanding these issues, as explained above, the Court will not 

deny leave to amend on grounds not raised by the Original Defendants. Thus, Plaintiff is permitted 

to add claims of negligence, if any, in his amended pleading.

Case 4:23-cv-00847-SDJ-KPJ Document 37 Filed 08/23/24 Page 14 of 17 PageID #: 975
15

c. Slander of Title

The Original Defendants argue that Plaintiff has not, and cannot, allege the elements of 

slander of title. See Dkt. 33 at 6–7. In his reply, Plaintiff concedes as much. Indeed, Plaintiff 

acknowledges that, “after further research[,] he agrees that the slander of title claim fails only for 

lack of a specific sale.” Dkt. 35 at 7. The Court agrees with parties. “The elements of slander of 

title are (1) the uttering and publishing of disparaging words, (2) falsity, (3) malice, (4) special 

damages, (5) possession of an estate or interest in the property disparaged, and (6) the loss of a 

specific sale.” McLaughlin v. Wells Fargo Bank, N.A., No. 12-cv-2658, 2013 WL 5231486, at *3 

(S.D. Tex. Sept. 13, 2013) (citations omitted). The “loss of a specific sale” is an essential element 

of a slander of title claim and, without it, a plaintiff is barred from recovering. See U.S. Enercorp, 

Ltd. v. SDC Mont. Bakken Expl., LLC, 966 F. Supp. 2d 690, 699 (W.D. Tex. 2013) (collecting 

cases). Because Plaintiff has not alleged this element of his claim and affirmatively concedes its 

absence, the addition of this claim would be futile. On this basis, the Court denies leave to amend 

with respect to Plaintiff’s proposed slander of title claim.

B. First Motion for Leave to Amend

Prior to filing the Second Motion for Leave to Amend (Dkt. 29), Plaintiff filed the First 

Motion for Leave to Amend (Dkt. 22), wherein Plaintiff sought leave to narrow down the claims 

and parties in this litigation. See Dkt. 22; see also Dkt. 22-1. Because Plaintiff’s second request is 

granted in part, and because amendment of a pleading “supersedes the original complaint and 

renders it of no legal effect,” King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (citation omitted), 

Plaintiff’s first request is now moot, and is denied as such.

Case 4:23-cv-00847-SDJ-KPJ Document 37 Filed 08/23/24 Page 15 of 17 PageID #: 976
16

C. Additional Amendments

Finally, the Court notes that Plaintiff filed a number of amended pleadings during the 

course of this litigation. See Dkts. 1-2 (Petition); Dkt. 6-1 (Amended Petition); Dkt. 10 (Second 

Amended Petition); Dkt. 22-1 (Third Amended Petition); Dkt. 29-1 (Fourth Amended Petition). 

While leave to amend “should be freely given when justice so requires,” it “is in no way 

automatic.” Weyerhaeuser Co. v. Burlington Ins. Co., 74 F.4th 275, 288 (5th Cir. 2023) (quoting 

Marucci Sports, L.L.C. v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014)). 

Furthermore, “at some point a court must decide that a plaintiff has had fair opportunity to make 

his case; if, after that time, a cause of action has not been established, the court should finally 

dismiss the suit.” Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003) (quoting 

Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986)) (internal quotation marks omitted). As 

explained above, Plaintiff has had a number of opportunities to amend his allegations. As the Court 

has now considered Plaintiff’s allegations and provides an additional opportunity to amend such 

allegations, the Court will not permit additional amendments before considering any pre-answer 

motion to dismiss asserted by the Original Defendants.

IV. CONCLUSION

For the foregoing reasons, the Second Motion for Leave to Amend (Dkt. 29) is GRANTED 

IN PART and DENIED IN PART. Specifically, the Second Motion for Leave Amend (Dkt. 29) 

is GRANTED with respect to Plaintiff’s quasi-contract, wrongful foreclosure, negligence, and 

gross negligence claims, and DENIED with respect to Plaintiff’s breach of contract and slander 

of title claims.

IT IS FURTHER ORDERED that the First Motion for Leave to Amend (Dkt. 22) is 

DENIED AS MOOT.

Case 4:23-cv-00847-SDJ-KPJ Document 37 Filed 08/23/24 Page 16 of 17 PageID #: 977
17

IT IS FURTHER ORDERED that Plaintiff shall file an amended pleading consistent with 

this Order no later than fourteen (14) days after receipt of this Order. The Original Defendants 

shall file an answer or pre-answer motion to dismiss no later than fourteen (14) days thereafter.

Case 4:23-cv-00847-SDJ-KPJ Document 37 Filed 08/23/24 Page 17 of 17 PageID #: 978