Hunter v. Data Mortgage Inc et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TONIA LANETTE HUNTER, 	§
§
Plaintiff, 	§
§
VS. 	§ 	Civil Action No. 3:26-CV-2750-D
§
DATA MORTGAGE INC., D/B/A 	§
ESSEX MORTGAGE, et al., 	§
§
Defendants. 	§
MEMORANDUM OPINION
AND ORDER
In this removed action, pro se plaintiff Tonia Lanette Hunter (“Hunter”) seeks
declaratory and injunctive relief arising from the conduct of defendants Data Mortgage Inc.
(“Data Mortgage”), d/b/a Essex Mortgage (“Essex”), and Carrington Mortgage Services LLC
(“Carrington”), related to the nonjudicial foreclosure of Hunter’s property. Defendants move
to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. 	For the reasons
explained, the court grants defendants’ motions and also grants Hunter leave to replead.
I
Hunter alleges that she became delinquent on her mortgage payments during the
COVID-19 pandemic after contracting the virus and temporarily losing income.1 She then
1In deciding defendants’ Rule 12(b)(6) motions, the court construes Hunter’s petition
in the light most favorable to her, accepts as true all well-pleaded factual allegations, and
draws all reasonable inferences in her favor. See, e.g., Lovick v. Ritemoney Ltd., 378 F.3d
433, 437 (5th Cir. 2004). 	Because Hunter is proceeding pro se, the court construes the
allegations of her petition liberally. 	See Hughes v. Rowe, 449 U.S. 5, 9–10 (1980) (per
curiam); SEC v. AMX, Int’l, Inc., 7 F.3d 71, 75 (5th Cir.1993) (per curiam).
Case 3:26-cv-02750-D Document 18 Filed 10/13/26 Page 1 of 8 PageID <pageID>

received FHA/HUD Partial Claim assistance and resumed making payments. 	Later,
however, she was diagnosed with breast cancer, and the resulting medical expenses left her
unable to keep up with her payments. 	Hunter maintains that she contacted her mortgage
servicer seeking foreclosure-avoidance assistance and a reasonable loan-retention option.
She alleges that, despite her requests, “[d]efendants continued advancing the loan toward
foreclosure, even though [she] dispute[d] whether all contractual conditions precedent,
servicing obligations, notice requirements, and other legal prerequisites had been satisfied.”
Pet. (ECF No. 1-5) at 5.
Essex eventually filed a judicial foreclosure action in this court, assigned to Judge
Godbey. 	That case was dismissed without prejudice on the parties’ joint stipulation of
dismissal. Defendants then initiated nonjudicial foreclosure proceedings, issuing a notice of
acceleration and a notice of foreclosure sale. They scheduled the foreclosure sale for August
4, 2026.
On July 29, 2026 Hunter filed the instant suit in Texas state court, seeking declaratory
and injunctive relief. On August 4, 2026 the state court granted Hunter’s application for a
temporary restraining order (“TRO”). Essex, with Carrington’s consent, removed the case
to this court based on diversity jurisdiction. 	Defendants move to dismiss under Rule
12(b)(6). Hunter opposes the motions, which the court is deciding on the briefs, without oral
argument.
- 2 -
Case 3:26-cv-02750-D Document 18 Filed 10/13/26 Page 2 of 8 PageID <pageID>

II
“In deciding a Rule 12(b)(6) motion to dismiss, the court evaluates the sufficiency of
[the plaintiff’s complaint] by ‘accept[ing] all well-pleaded facts as true, viewing them in the
light most favorable to the plaintiff.’” Bramlett v. Med. Protective Co. of Fort Wayne, Ind.,
855 F.Supp.2d 615, 618 (N.D. Tex. 2012) (Fitzwater, C.J.) (second alteration in original)
(internal quotation marks omitted) (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 reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Id.; see also Twombly, 550 U.S.
at 555 (“Factual allegations must be enough to raise a right to relief above the speculative
level[.]”). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not ‘shown’—‘that the
pleader is entitled to relief.’” 	Iqbal, 556 U.S. at 679 (alteration omitted) (quoting Rule
8(a)(2)). 	“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 678.
- 3 -
Case 3:26-cv-02750-D Document 18 Filed 10/13/26 Page 3 of 8 PageID <pageID>

III
A
Defendants move to dismiss Hunter’s request for declaratory and injunctive relief on
the ground that Hunter has failed to allege a plausible claim. According to Hunter’s state-
court 	petition 	(“petition”), 	defendants 	have 	proceeded 	with 	foreclosure 	despite 	her
“disput[ing] whether all contractual conditions precedent, servicing obligations, notice
requirements, and other legal prerequisites had been satisfied.” 	Pet. (ECF No. 1-5) at 5.
Hunter also alleges that
the parties dispute whether Defendants presently possess the
legal 	authority 	to 	proceed 	with 	foreclosure, 	whether 	all
contractual or statutory conditions precedent have been satisfied,
whether the prior acceleration of the loan and subsequent
dismissal of the federal foreclosure action affect Defendants’
present right to foreclose, and whether all required notices and
foreclosure procedures have been properly completed.
Id. at 6. These allegations are insufficient to state a plausible claim.
Even when Hunter’s petition is “liberally construed,” it lacks the specificity needed
to determine whether she has pleaded a plausible claim. Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). For example, Hunter does
not does not identify which contractual or statutory conditions defendants failed to satisfy.
Nor does she specify which servicing obligations or notice requirements defendants failed
to meet, or which foreclosure procedures they failed to follow. And her assertion that there
is a “dispute” as to whether defendants “presently possess the legal authority to proceed with
foreclosure,” Pet. (ECF No. 1-5) at 6, is, at most, a “conclusory statement[]” that lacks legal
- 4 -
Case 3:26-cv-02750-D Document 18 Filed 10/13/26 Page 4 of 8 PageID <pageID>

foundation. Iqbal, 556 U.S. at 678.
B
Because Hunter has failed to plausibly plead a claim, she is neither entitled to
declaratory nor injunctive relief. The federal Declaratory Judgement Act “does not create
a substantive cause of action.” Metropcs Wireless, Inc. v. Virgin Mobile USA, L.P., 2009
WL 3075205, at *19 (N.D. Tex. Sept. 25, 2009) (Fitzwater, C.J.) (citing Lowe v. Ingalls
Shipbuilding, A Div. of Litton Sys., Inc., 723 F.2d 1173, 1179 (5th Cir. 1984)).2
Consequently, “[b]ecause [Hunter] has not pleaded a plausible substantive claim, the court
declines in its discretion to entertain [her] request for a declaratory judgment.” Turner v.
AmericaHomeKey Inc., 2011 WL 3606688, at *6 (N.D. Tex. Aug. 16, 2011) (Fitzwater,
C.J.), aff’d, 514 Fed. Appx. 513 (5th Cir. 2013).
The court also dismisses Hunter’s request for an injunction. 	“Under Texas law, a
request for injunctive relief is not itself a cause of action but depends on an underlying cause
of action.” Cook v. Wells Fargo Bank, N.A., 2010 WL 2772445, at *4 (N.D. Tex. July 12,
2010) (Fitzwater, C.J.) (citing Brown v. Ke-Ping Xie, 260 S.W.3d 118, 122 (Tex. App. 2008,
no pet.)); see also Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (holding that
injunctive relief requires that plaintiff first plead viable underlying cause of action). Because
2Although Hunter filed this lawsuit in Texas state court, “[w]hen a declaratory
judgment action filed in state court is removed to federal court, that action is in effect
converted into one brought under the federal Declaratory Judgment Act, 28 U.S.C. §§ 2201,
2202.” Redwood Resort Props., LLC v. Holmes Co., 2007 WL 1266060, at *4 (N.D. Tex.
Apr. 30, 2007) (Fitzwater, J.) (citing i2 Techs. US, Inc. v. Lanell, 2002 WL 1461929, at *7
n.5 (N.D. Tex. July 2, 2002) (Fish, C.J.)).
- 5 -
Case 3:26-cv-02750-D Document 18 Filed 10/13/26 Page 5 of 8 PageID <pageID>

Hunter has failed to state a plausible claim against defendants, she is not entitled to an
injunction, and her request for this relief is dismissed.
The court likewise dismisses Hunter’s request for an extension, or the issuance, of a
TRO.3 “To obtain a [TRO], an applicant must show entitlement to a preliminary injunction.”
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Wright, 1993 WL 13044458, at *1 (N.D. Tex.
June 15, 1993) (Fitzwater, J.). “The same four-factor test for preliminary injunctions also
has been extended to [TROs].” May v. Wells Fargo Home Mortg., 2013 WL 2367769, at *1
(N.D. Tex. May 30, 2013) (Fitzwater, C.J.) (quoting Asadoorian v. Travis, 2011 WL
2224984, at *1 (D. Mass. June 7, 2011)). 	A TRO is “simply a highly accelerated and
temporary form of preliminary injunctive relief,” and requires the party seeking such relief
to establish the same four elements for obtaining a preliminary injunction. Lee v. Verizon
Commc’ns, Inc., 2012 WL 6089041, at *1 n.2 (N.D. Tex. Dec. 7, 2012) (Fitzwater, C.J.)
(quoting Hassani v. Napolitano, 2009 WL 2044596, at *1 (N.D. Tex. July 15, 2009)
(Fitzwater, C.J.)). 	Therefore, Hunter must establish four elements to obtain a TRO
extension: (1) a substantial likelihood of success on the merits, (2) a substantial threat of
3Essex requests the court to “[d]issolve any existing [TRO].” D. Br. (ECF No. 12) at
10. Formal “dissolution of [a TRO], however, is not necessary; ‘a [TRO] issued by a state
court prior to removal will not remain in full force after removal any longer than it would
have remained in effect under state law[.]’” 	Wilson v. Bank of N.Y. Mellon, 2013 WL
5273328, at *13 (N.D. Tex. Sept. 18, 2013) (Horan, J.) (quoting George–Baunchand v. Wells
Fargo Home Mortg., Inc., 2011 WL 2551127, at *1 (S.D. Tex. June 27, 2011) (internal
quotation marks omitted)). “Under Texas law, a [TRO] expires after a period not to exceed
14 days.” Id. (citing Tex. R. Civ. P. 680). The state court entered the TRO on August 4,
2026. Accordingly, the TRO expired on August 18, 2026.
- 6 -
Case 3:26-cv-02750-D Document 18 Filed 10/13/26 Page 6 of 8 PageID <pageID>

irreparable harm if the TRO is not extended, (3) that the threatened harm outweighs any
damage that the TRO might cause the opposing parties, and (4) that the TRO will not
disserve the public interest. See, e.g., Jones v. Bush, 122 F.Supp.2d 713, 718 (N.D. Tex.
2000) (Fitzwater, J.) (addressing preliminary injunction standard) (citing Ruscitto v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 777 F. Supp. 1349, 1353 (N.D. Tex. 1991) (Fitzwater,
J.), aff’d, 948 F.2d 1286 (5th Cir. 1991) (per curiam) (unpublished table decision)), aff’d, 244
F.3d 134 (5th Cir. 2000) (per curiam) (unpublished table decision).
“The first requirement for obtaining a TRO (and, in turn, a TRO extension) is to
demonstrate a substantial likelihood of success on the merits.” Almo Invs. Ltd. v. Kaufman
Cnty., 2022 WL 15525759, at *2 (N.D. Tex. Oct. 27, 2022) (Fitzwater, J.). Hunter cannot
establish a likelihood of success on the merits because she has failed even to plausibly plead
a substantive claim. See Hunsinger v. Offer, 2022 WL 18143951, at *7 (N.D. Tex. Dec. 7,
2022) (Ramirez, J.) (“Because Plaintiff’s substantive claims are subject to dismissal on the
merits, he cannot establish any likelihood of success on the merits.”), rec. accepted, 2023
WL 122649, at *1 (N.D. Tex. Jan. 6, 2023) (Godbey, C.J.). Accordingly, Hunter is neither
entitled to an extension, nor to the issuance, of a TRO.
IV
In her response brief, Hunter requests leave to amend if the court is inclined to grant
defendants’ motions to dismiss. “Because the court’s usual practice when granting a motion
to dismiss is to permit a plaintiff at least one opportunity to replead, the court will give [the
plaintiff] an opportunity to amend [her] complaint.” Shah v. Univ. of Texas Sw. Med. Sch.,
- 7 -
Case 3:26-cv-02750-D Document 18 Filed 10/13/26 Page 7 of 8 PageID <pageID>

54 F.Supp.3d 681, 707 (N.D. Tex. 2014) (Fitzwater, C.J.) (citing In re Am. Airlines, Inc.,
Priv. Litig., 370 F.Supp.2d 552, 567-68 (N.D. Tex. 2005) (Fitzwater, J.)). And as a pro se
plaintiff, Hunter should be given a fair opportunity to plead her best case. 	See, e.g.,
Robinette v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 2004 WL 789870, at *1 (N.D. Tex.
Apr. 12, 2004) (Fitzwater, J.) (“Although the court granted Merrill Lynch’s motion to
dismiss, it gave Robinette one more opportunity to plead his best case, because he was
proceeding pro se.”). She must file her amended complaint no later than 28 days after the
date this memorandum opinion and order is filed.
* 	* 	*
For the reasons explained, the court grants defendants Essex’s and Carrington’s
motions to dismiss, and grants Hunter leave to replead.
SO ORDERED.
October 13, 2026.
_________________________________
SIDNEY A. FITZWATER
SENIOR JUDGE
- 8 -
Case 3:26-cv-02750-D Document 18 Filed 10/13/26 Page 8 of 8 PageID <pageID>