Tran v. Gulf Coast Bank & Trust Company et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MY THI NHU TRAN
VERSUS
GULF COAST BANK & TRUST CO., ET AL.
CIVIL ACTION
NO. 24-1933
SECTION: D(5)
ORDER AND REASONS
Before the Court are three Motions to Dismiss: the first is filed by Lloyd &
Taylor, LLC and Samantha Tuyet Nguyen Tran,1 the second is filed by Nga Baird
and New World Realty, LLC,2 and the third is filed by Trieu Law, LLC.3 Plaintiffs
My Thi Nhu Tran and Tung Duc Vo oppose each Motion.4 Lloyd & Taylor, LLC, and
Samantha Tuyet Nguyen Tran5 and Nga Baird and New World Realty, LLC,6 have
filed replies. Plaintiffs have filed a sur-reply as to Baird and New World Realty’s
Motion.7
Before the Court is also the remaining portion Plaintiffs’ Motion for Leave to
File Supplemental Complaint Pursuant to Rule 15(d) as it pertains to the RICO
claim.8 	Defendants Nga Baird, New World Realty, LLC, Trieu Law, LLC, Lloyd &
Taylor 	Mortgage, 	LLC, 	and 	Samantha 	Tuyet 	Nguyen 	Tran 	(collectively,
“Defendants”) 	oppose 	the 	Motion.9 	Plaintiffs 	filed 	a 	reply.10 	After 	careful
1 R. Doc. 64.
2 R. Doc. 65.
3 R. Doc. 77.
4 R. Docs. 75, 76, and 82.
5 R. Doc. 80.
6 R. Doc. 81.
7 R. Doc. 153.
8 R. Doc. 119.
9 R. Doc. 122.
10 R. Doc. 123.
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consideration of the parties’ memoranda, the record, and the applicable law, the
Defendants’ Motions to Dismiss are GRANTED in part and DENIED in part. The
remaining portion of the Motion for Leave to File Supplemental Complaint is
DENIED.
I. 	FACTUAL BACKGROUND
This 	case 	arises 	out 	of 	an 	alleged 	home-loan 	scheme 	orchestrated 	by
Defendants 	against 	the 	Plaintiffs. 	In 	2020, 	Plaintiffs,11 who 	are 	Vietnamese
immigrants with limited English proficiency (LEP), began the process of buying a
home.12 	Throughout this process, Plaintiffs worked with Nga Baird, through her
company, New World Realty, LLC, as their realtor;13 Samantha Tuyet Nguyen Tran,
through her company, Lloyd & Taylor Mortgage, LLC, as their mortgage broker;14
Trieu Law, LLC as their Closing Agent;15 Gulf Coast Bank & Trust Co., as their
Bank;16 and Rance Mangipano of Gulf Coast Bank & Trust Co., as their loan officer.17
In October 2020, Plaintiffs found a home to purchase and began the process of
applying for a residential loan to purchase the property.18 Plaintiffs allege that they
11 From the Court’s understanding, Plaintiffs were married when they purchased the home at issue in
this case and have since either separated or formally divorced and as such, more recent facts
pertaining to this case involve only Ms. Tran. For the sake of clarity, particularly since this case
involves a defendant with the surname Tran, the Court will refer to Ms. Tran, Mr. Vo, or the both of
them as “Plaintiffs.”
12 Unless otherwise indicated, the Factual Background is taken from Plaintiffs’ Fourth Amended
Complaint, R. Doc. 61 at ¶ 16.
13 Id. at ¶¶ 13-14. 	Ms. Baird and New World Realty, LLC will be referred to collectively as the
“Realtor.”
14 Id. at ¶¶ 10-11. Ms. Tran and Lloyd & Taylor Mortgage, LLC will be referred to collectively as the
“Mortgage Broker.”
15 Id. at ¶ 12. Trieu Law, LLC will be referred to as the “Closing Agent” or “Trieu.”
16 Id. at ¶ 8.
17 Id. at ¶ 9. Mr. Mangipano and Gulf Coast Bank & Trust Co. will be referred to collectively as the
“Bank.”
18 Id. at ¶ 17.
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“expressed their concern about Plaintiffs’ substantial existing debts but Realtor
assured them that the debts would pose no problem” but that “an interest rate higher
than the current rate of 2.6% and a 25% down payment were required.”19 	The
Mortgage Broker ultimately presented Mr. Vo, who was the only applicant on the
loan, with a $160,500.00, 20-year loan, which carried a fixed 4.85% interest rate and
a monthly payment of $1,054.38.20 Plaintiffs allege that the Mortgage Broker advised
that Plaintiffs could refinance the loan for no charge.21 The Bank approved the loan
by the end of October 2020, and Plaintiffs closed on the home on December 3, 2020.22
Present at the closing were the Plaintiffs, the sellers, Trieu, the Mortgage Broker,
and another individual who Plaintiffs believe to be the sellers’ realtor.23 	Plaintiffs
allege that they “signed a single document written in English” and that “[n]o
documents were explained or translated to Plaintiffs in Vietnamese.”24
Plaintiffs allege that “[i]n or about fall 2023, Ms. Tran heard from another
client of [the Mortgage Broker] that the Bank would seize the Property if the Loan
was not paid off in three years.”25 Plaintiffs allege that the Realtor “confirmed that
the Loan had to be refinanced after three years and that the refinancing fees would
cost around $1,200.00.”26 	In November 2023, Plaintiffs contacted the Mortgage
Broker to refinance the loan and were advised that it would cost approximately
19 Id.
20 Id. at ¶ 20.
21 Id. at 19.
22 Id. at ¶¶ 23-24. Plaintiffs allege that although the closing documents have a date of December 4,
2020, the closing actually occurred on December 3, 2020. Id. at ¶ 24 n.6.
23 Id. at ¶ 24.
24 Id.
25 Id. at ¶ 31.
26 Id.
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$5,000 to refinance.27 Dissuaded by such a high fee, Plaintiffs contacted the Bank in
February 2024 to discuss refinancing through the Bank directly.28 The Bank denied
Plaintiffs’ 	application 	to 	refinance, 	however, 	due 	to 	insufficient 	income 	and
repayment ability.29
Shortly after, Plaintiffs discovered that the Bank had debited $1,508.04 on
January 24, 2024, and February 26, 2024, from Ms. Tran’s account, without her
knowledge or authorization.30 Plaintiffs went to The Mortgage Broker, who allegedly
advised Plaintiffs that the increased payments were applied towards interest only.31
The Mortgage Broker told Plaintiffs that she would communicate with the Bank and
that the Bank would return the payments.32 Plaintiffs allege that this never
happened.33 Later, The Mortgage Broker advised Plaintiffs “to lower the principal by
paying $2,000.00 so as to be able to refinance the Loan.”34
Concerned about the Bank’s unauthorized debiting of her account and its lack
of communication with Plaintiffs, Plaintiffs opened a deposit account with another
financial institution.35 The Mortgage Broker advised that a new bank had approved
Plaintiffs’ refinancing application and was willing to refinance Plaintiffs’ loan with
an interest rate of $6.499% for a 30-year term.36 Plaintiffs allege that the Mortgage
27 Id. at ¶ 32.
28 Id.
29 Id.
30 Id. at ¶ 33.
31 Id.
32 Id.
33 Id.
34 Id.
35 Id. at ¶ 35.
36 Id. at ¶ 36. It is unclear from the Complaint whether Plaintiffs ever successfully refinanced.
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Broker advised Plaintiffs that the Bank would withdraw $1,508.04 again in March
and that the Bank attempted to withdraw this amount on March 24, 2024.37
Plaintiffs allege that “[s]ince about February 2024, [the Mortgage Broker] attempted
to facilitate [Plaintiffs’] monthly mortgage payments to [the Bank]. 	On or about
March 12, 2024, [the Mortgage Broker] requested the login information—username
and password—for [Plaintiffs’] new checking account to review the daily transactions.
Plaintiff[s] declined to disclose the login information to [the Mortgage Broker].”38 In
April 2024, Plaintiffs received a mortgage statement showing that the Bank, without
authorization, retroactively reversed the February 27, 2024 payment Plaintiffs made
to the principal and applied it towards interest only.39
Plaintiffs allege that in March 2024, Plaintiffs learned through their attorney
that their 2020 mortgage contains different terms and conditions than what had been
relayed to them by the Defendants.40 Plaintiffs learned that the borrower is listed as
Tungmy LLC, which Plaintiffs allege is a fictitious company, that the loan is a
commercial loan, and that the mortgage indicated that the property was to be used
as a rental property instead of a primary residence as Plaintiffs intended.41 Plaintiffs
further allege that “the interest computation method ‘was on a 365/360 basis
resulting in a higher effective interest rate than the numeric interest rate stated in
the Note, the interest rate was variable and not fixed,” and “the due date changed
37 Id. at ¶ 37.
38 Id. at ¶ 38.
39 Id. at ¶ 47.
40 Id. at ¶ 40.
41 Id.
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from the 4th to the 24th of the month.”42 	Plaintiffs further allege that the loan
contained a related cash sale, a multiple indebtedness mortgage with a maximum
indebtedness limit of $50,000,000, and a pledge leases and rents with Plaintiffs, as
opposed to Tungmy, LLC, as the purchasers of the property, mortgagors, and
assignees of leases and rents.43 	Plaintiffs also contend that Tungmy, LLC was
established 	on 	or 	about 	November 	16, 	2020, 	without 	Plaintiffs’ 	knowledge 	or
authorization.44
In 	June 	2024, 	Plaintiffs 	obtained 	documents 	from 	the 	Bank, 	including
allegedly forged loan documents, all in English. Plaintiffs allege that at least twenty
documents were forged.45 	Plaintiffs further contend that a loan application was
approved prior to Plaintiffs’ submitting their Uniform Residential Loan Application
on October 23, 2020.46 	The Uniform Residential Loan Agreement, Plaintiffs argue,
shows that the information was obtained through face-to-face interviews but that
Plaintiffs never met with the Mortgage Broker’s staff.47 	This document likewise
describes Plaintiffs as United States citizens “despite the fact that the loan file
contained their green cards, meaning the loan originator knew that they were not
citizens.”48 	Plaintiffs further allege that the documents show that “in November
2020, there is a sudden switch [during the process of closing on the residence] from
42 Id.; see id. at n. 12 (“The interest rate, ‘subject to increase or decrease from time to time,’ was ‘based
on corresponding increases or decreases in Lender’s Prime Rate.’”).
43 Id. at ¶ 41; see La. Civ. C. art. 3141-3142.
44 Id. at ¶ 42.
45 Id. at ¶¶ 44-45.
46 Id. at ¶ 49.
47 Id. at ¶ 50.
48 Id. at ¶ 51.
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the residential to commercial loan through the establishment of the sham LLC by
Defendants.”49 Plaintiffs contend that the emails show that Defendants created two
LLC’s [sic]—one by Trieu’s Lee Sharrock and another by the Mortgage Broker’s Ms.
Samantha.”50 Plaintiffs argue that an email shows that a new checking account was
requested for Plaintiffs but that Plaintiffs never authorized the opening of an
additional account, nor were they given access to one.51 	Plaintiffs point to two
Certifications of Beneficial Owners and argue that while the versions contain the
same wet signature from Plaintiffs, the loan amounts are different and one version
has no loan number or information for Plaintiffs.52 	Plaintiffs also allege that the
Notice of Appraisal and Acceptance shows that Plaintiffs were notified and accepted
the appraisal but that “[t]his never happened.”53
On August 2, 2024, Plaintiffs filed suit in this Court, alleging violations of the
Truth in Lending Act, 15 U.S.C. § 1601; the Federal Racketeer Influenced and
Corrupt Organizations Act (RICO), § 18 U.S.C. § 1961; the Louisiana Racketeering
Act (LRA), La. R.S. § 1353; and the Fair Housing Act (FHA), 42 U.S.C. § 3601, et seq.
Plaintiffs further raise claims for annulment, fraud, breach of contract, unjust
enrichment, 	breach 	of 	fiduciary 	duty, 	negligent 	misrepresentation, 	and 	civil
conspiracy.54 After the suit was filed, Defendants filed three Motions to Dismiss. The
Court will outline the parties’ specific arguments in turn.
49 Id. at ¶ 52.
50 Id.
51 Id. at ¶ 54.
52 Id. at ¶ 55.
53 Id. at ¶ 61.
54 R. Doc. 61. The operative Complaint in this matter is the Fourth Amended Complaint, and this is
the only iteration that the Court considers.
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A. The Mortgage Broker’s Motion to Dismiss
On March 2, 2025, Mortgage Broker Samantha Tuyet Nguyen Tran and Lloyd
& Taylor Mortgage (together, the “Mortgage Broker”), filed the instant Motion.55 In
their Motion, the Mortgage Broker argues that all nine of the claims made against it
must be dismissed because “the complaint consists of little more than conclusory,
shotgun allegations against all seven defendants.”56 They first argue that Plaintiffs
lack standing to bring a RICO claim because any RICO claim related to the loan
belongs to the limited liability company listed as the borrower on the loan.57
Regarding the substance of the claim, the Mortgage Broker argues that Plaintiffs
have failed to allege specific facts concerning the conduct of an enterprise through a
pattern of racketeering activity and its either closed- or open-ended continuity.58 For
the same reasons, they argue that the RICO claim should be dismissed, the Mortgage
Broker believes the LRA claim must also be dismissed.59 As to the claim for fraud,
the Mortgage Broker argues that none of the factual allegations made in the
Complaint against them support a claim of fraud.60 The Mortgage Broker contends
that the alleged statements of the Mortgage Broker were not misrepresentations and
could not have caused justifiable reliance on those statements because Plaintiffs are
not parties to the loan and because relying on oral statements about a loan’s terms
once reduced to writing is unreasonable.61 The Mortgage Broker also contends that
55 R. Doc. 64.
56 Id. at p. 1.
57 R. Doc. 64-1 at pp. 5-6.
58 Id. at p. 7.
59 Id. at p. 16.
60 Id. at pp. 17-18.
61 Id.
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the negligent misrepresentation claim must also be dismissed because “Plaintiffs…
do not allege that defendants told them that the loan was a fixed-rate residential
mortgage loan.”62 Regarding the Fair Housing Act claim, the Mortgage Broker states
that Plaintiffs’ claim is barred by the two-year statute of limitations under the FHA
because the violation of the FHA allegedly occurred when representations were made
in October 2020 and “[t]he statute of limitations thus ran two years after October
2020 (through October 2022),” with Plaintiffs not filing suit until August 2024.63 The
Mortgage Broker argues that the breach of contract claim should likewise be
dismissed because Plaintiffs “do not explain what each defendant supposedly did, how
they failed to consider plaintiffs’ financial status, which professional advice and
services the defendants failed to provide, or which contractual obligations each
defendant did not perform.”64 The Mortgage Broker contends that Plaintiffs have
failed to state a claim that they breached any fiduciary duty owed to Plaintiffs
because the agreement between the parties “makes clear that no duty exists” and
because Plaintiffs have neither “alleged that the defendants violated any applicable
statutory duty” nor “pointed to any case law imposing a specific duty on mortgage
brokers under Louisiana law.”65 The claim for unjust enrichment also fails, according
to the Mortgage Broker, because there are no allegations that any enrichment was
unjustified and because the claim by law is subsidiary in nature and cannot be pled
62 Id. at pp. 18-19.
63 Id. at p. 19.
64 Id. at p. 20.
65 Id. at pp. 21-22.
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alongside another legal theory.66 Lastly, the Mortgage Broker argues that the claim
for civil conspiracy must also be dismissed because Plaintiffs fail to allege any facts
“to support the threshold allegation that defendants entered into any agreement to
commit the supposed intentional tort of fraud.”67
Plaintiffs 	first 	respond 	that 	the 	Mortgage 	Broker’s 	Motion 	“improperly
challenges the factual allegations contained in the complaint,” which violates “the
Rule 12(b)(6) standard, which requires the court to accept the Plaintiffs’ factual
allegations as true” at this stage of motion practice.68 As to the Fair Housing Act
claim, 	Plaintiffs 	argue 	that 	the 	Mortgage 	Broker 	violated 	the 	statute
“by providing misleading information in Vietnamese while executing loan documents
solely in English” and thus “prevented Plaintiffs from making an informed decision
and engaged in conduct that had a discriminatory effect based on national origin.”69
Plaintiffs additionally state that their FHA claim has “not prescribed, based on the
equitable principles of fraudulent concealment and equitable tolling” and continuing
violations doctrine.70 Plaintiffs next contend that their claim against the Mortgage
Broker under the Truth in Lending Act (“TILA”) should not be dismissed because the
Broker was “a creditor, improperly steered Plaintiffs into a loan they could not afford,
failed to properly consider their ability to repay, and failed to provide the requisite
disclosures 	under 	TILA.”71 Plaintiffs 	further 	allege 	that 	the 	Mortgage 	Broker
66 Id. at pp. 22-23.
67 Id. at p. 24.
68 R. Doc. 75 at p. 8.
69 Id. at pp. 9-10.
70 Id. at pp. 11-14.
71 Id. at p. 15.
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misrepresented loan terms and established and utilized a “sham LLC” in structuring
the loan.72 Plaintiffs insist that they have standing to bring their RICO claim because
they bring such claim “in their independent, individual capacities, in all respects
disassociated from the criminal LLC devised by the Defendants, including Mortgage
Broker” and because they have successfully pleaded an injury by a predicate act.73
Plaintiffs additionally argue that they have successfully alleged an enterprise under
RICO because both their complaint and the case statement “clearly describe an
association-in-fact enterprise comprising all Defendants, including Mortgage Broker,
with clear knowledge of the general nature of the enterprise and the fact that the
enterprise extends beyond its individual role” because both filings demonstrate that
the “scheme was not an isolated event but part of a larger and ongoing pattern of
racketeering activity involving mortgage fraud, wire fraud, and money laundering.”74
Plaintiffs contend that their allegations also satisfy the conduct and particularity
requirements of a RICO complaint 	and detail several actions that the Mortgage
Broker 	allegedly 	undertook, 	including 	“submitting 	false 	loan 	applications 	and
financial documents to qualify Plaintiffs for a loan that they would not have otherwise
qualified for” and helping to establish “the sham LLC to serve as a fictitious borrower,
misrepresenting 	the 	Plaintiffs' 	repayment 	capacity 	and 	the 	Loan’s 	purpose.”75
Plaintiffs further argue that both closed- and open-ended continuity are present
because 	Defendants 	“have 	continued 	sending 	misleading 	collection 	notices 	to
72 Id. at pp. 17-18.
73 Id. at pp. 24-26.
74 Id. at pp. 28-29.
75 Id. at pp. 31-32.
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Plaintiffs as recently as December 2024, demonstrating a pattern of fraudulent
activity over an extended period” and because, as part of the scheme, “Defendants
continue to attempt to extract payments from Plaintiffs, demand refinancing fees
under false pretenses, and threaten foreclosure, establishing a continued risk of
financial 	harm.”76 Regarding 	the 	RICO 	claim, 	Plaintiffs 	state 	that 	they 	have
sufficiently alleged a conspiracy and that the emails exchanged between Defendants
demonstrates 	this 	conspiracy.77 	Based 	on 	the 	incorporated 	RICO 	allegations,
Plaintiffs also claim that they have properly pleaded a claim under the LRA.78 As to
the breach of contract claim, Plaintiffs contend that the claim should survive because
the “Mortgage Broker undertook specific obligations, including completing the loan
application and securing a fixed-rate loan” and breached that agreement by failing to
act in good faith, provide truthful information, disclose key financial obligations and
ensure a proper loan application process, acting in bad faith throughout the process.79
Next, Plaintiffs argue that they have sufficiently pled a claim for fraud under
Louisiana law and in accordance with Fed. R. Civ. P. 9 because they allege that the
Mortgage Broker
affirmatively misrepresented the loan terms, promising Plaintiffs a
4.85% fixed-rate residential mortgage while securing a variable-rate
commercial loan; concealed material facts, including that the loan was
in the name of a sham LLC and carried a higher risk due to variable
interest; misled Plaintiffs regarding refinancing fees, falsely stating
that there would be no charges and later demanding excessive fees; and
76 Id. at pp. 35-36
77 Id. at pp. 37-43.
78 Id. at pp. 44-48.
79 Id. at pp. 49-50
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failed to disclose key loan terms in Vietnamese, knowing the Plaintiffs’
limited-English proficiency and reliance on [the Mortgage Broker].80
Plaintiffs also allege that the Mortgage Broker engaged in fraud by silence by failing
to disclose the true nature of the loan.81 Plaintiffs state that their negligent
misrepresentation claim should survive the Mortgage Broker’s Motion to Dismiss
because Plaintiffs have pled that the Mortgage Broker breached her duty “by
misrepresenting and omitting critical details about the loan,” including “that [she
was] securing a fixed-rate residential mortgage when, in reality, the loan was a
variable-rate commercial loan.”82 As to the breach of fiduciary duty claim, Plaintiffs
respond that their claim should not be dismissed because they have successfully
alleged that the Mortgage Broker owed a fiduciary duty to them and breached that
duty as a result of her actions and by participating “in a fraudulent scheme by
misrepresenting loan terms, concealing the true nature of the transaction, and
facilitating 	the 	establishment 	of 	the 	sham 	LLC 	without 	the 	Plaintiffs’
authorization.”83 Plaintiffs contend that, likewise, their claim for civil conspiracy
survives the Mortgage Broker’s motion because they have alleged a plausible claim
with wrongful acts including “fraud, forgery, breach of fiduciary duty, filing false
public records, false statements and entries, and violations of state and federal
lending laws.”84 Lastly, Plaintiffs argue that they have properly pleaded a claim for
unjust enrichment and that this claim should not be dismissed “[a]t this early stage”
80 Id. at p. 54 (internal citations omitted).
81 Id. at p. 57.
82 Id. at p. 60.
83 Id. at pp. 62-63.
84 Id. at pp. 64-66.
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because they are “entitled to plead unjust enrichment in the alternative to other
claims.”85
The Mortgage Broker replies generally that Plaintiffs’ response, as a whole,
“confuses the issues and misleads the Court with phantom quotes and straw man
arguments.”86 The Mortgage Broker reiterates that the FHA claim is time barred and
that even if the effect of an alleged FHA violation continues, a plaintiff “cannot use
the continuing violation theory to resurrect claims . . . concluded in the past.87” The
Mortgage Broker next contends that she is not a “creditor” within the meaning of the
term in the TILA and thus that the claim cannot stand.88 The Mortgage Broker urges
the Court to dismiss the RICO claim because Plaintiffs lack standing to bring a RICO
claim and because, even if they had standing, they fail to allege essential elements of
claims under RICO and the LRA, including the existence of an enterprise and a
pattern of racketeering activity.89 The Mortgage Broker also contends that the
standalone civil conspiracy claim must be dismissed because Plaintiffs fail to plead
any facts that demonstrate an agreement among Defendants to violate RICO and the
LRA.90 As to the claims for fraud and negligent misrepresentation, the Mortgage
Broker argues that Plaintiffs’ pleadings fail to satisfy the requirements of Fed. R. Civ.
P. 9(b) and that the fraud claim should be dismissed for a lack of justifiable reliance.91
The breach of contract claim should also be dismissed, according to the Mortgage
85 Id. at p. 69.
86 R. Doc. 80 at p. 2.
87 Id. at p. 3 (quoting McGregor v. La. State University Bd. of Sup’rs, 3 F.3d 850, 867 (5th Cir. 1993)).
88 Id.
89 Id. at pp. 4-5.
90 Id. at p. 6.
91 Id. at p. 7.
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Broker, because the Mortgage Loan Origination Agreement does not specify the terms
that the mortgage must contain and because the Mortgage Broker cannot be held
liable for any breach of the Plaintiffs’ loan agreement with the bank.92 The Mortgage
Broker contests the fact that the law imposes a fiduciary duty upon mortgage brokers
generally and argues that Plaintiffs have failed to demonstrate that any 	fiduciary
duty was owed.93 Lastly, the Mortgage Broker urges the Court to dismiss the unjust
enrichment claim because such claim is barred under Louisiana law unless the law
provides no other remedy.94
B. The Realtor’s Motion to Dismiss
On March 3, 2025, Realtor Nga Baird and New World Realty, LLC (together,
the “Realtor”), filed the instant Motion. In their Motion, the Realtor argues that eight
of the nine claims made against it must be dismissed because the Complaint is absent
of any factual allegations and thus fails to “state a claim to relief that is plausible on
its face.”95 They argue that Plaintiffs’ RICO and state racketeering claims fail because
the Complaint does not sufficiently allege the Realtor’s involvement in the alleged
racketeering, the existence of an enterprise, a pattern of racketeering activity among
the members of the enterprise, or a conspiracy.96 Additionally, the Realtor contends
that the “conclusory, shotgun” allegations made in the Complaint fail to meet the
requirement that Plaintiffs must plead with specificity the alleged wrongful conduct
92 Id. at p. 8.
93 Id. at pp. 8-9.
94 Id. at p. 9.
95 R. Doc. 65-1 at p. 6 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
96 Id.
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of each defendant named.97 For the same reason, Realtor states that Plaintiffs have
failed to allege any facts to support a fraud claim against them.98 Realtor also notes
that the representations that Plaintiffs allege the Realtor made do not evince “an
intent to deceive or even that she knew the statement was incorrect when made.”99
As to the claim for negligent misrepresentation, Realtor argues that Plaintiffs do not
allege that the Realtor “told them that the loan was a fixed-rate residential mortgage
loan” or that there were “any alleged misrepresentations by Ms. Baird or New World
Realty about the terms of the loan that plaintiffs justifiably relied on.”100 The Realtor
also asserts that Plaintiffs have failed to state a claim for breach of contract because
(1) Plaintiffs’ conclusory allegations, “devoid of any factual support,” cannot support
a claim for breach, (2) the purported written agreement did not create a contractual
relationship between Plaintiffs and the Realtor, and (3) there is no privity of contract
between Plaintiffs and the Realtor regarding Plaintiffs’ contract with Gulf Coast
Bank.101 Regarding the breach of fiduciary claim, the Realtor contends that Plaintiffs
fail to explain they “owed plaintiffs a fiduciary duty to disclose information to them
regarding the bank loan,” to specify “what Ms. Baird and New World Realty
supposedly 	knew 	and 	yet 	failed 	to 	disclose 	regarding 	the 	terms 	of 	the 	loan
agreement,” and to explain “how Ms. Baird or her real estate company allegedly failed
to act in the plaintiffs’ best interests or how they supposedly acted in bad faith.”102
97 Id. at p. 17.
98 Id.
99 Id. at p. 18.
100 Id. at p. 20
101 Id. at pp. 20-21.
102 Id. at p. 22.
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The Realtor contends that Plaintiffs’ claim for unjust enrichment likewise fails
because they do not allege that New World Realty received any “enrichment” and
“[t]he complaint contains no allegations that Ms. Baird did not actually perform work
as a real estate agent such that the enrichment would be unjustified.”103 The Realtor
maintains that Plaintiffs have not alleged facts that establish a civil conspiracy
because “[w]ithout any facts to support the threshold allegation that defendants
entered into any agreement to commit the supposed intentional tort of fraud,
plaintiffs failed to sufficiently allege the existence of a civil conspiracy.”104
Plaintiffs respond broadly that the Realtor’s Motion should be denied given
their “pervasive tendency to challenge, distort, and contradict the Plaintiffs’ factual
allegations.”105 In their opposition, Plaintiffs also note that the Realtor did not
address Plaintiffs’ Fair Housing Act claim, and they argue that those claims should
therefore be allowed to proceed.106 Regarding the individual claims, Plaintiffs argue
that 	their 	civil 	RICO 	claim 	should 	not 	be 	dismissed 	because 	Plaintiffs 	have
specifically alleged that the Realtor “actively participated in the scheme” and
“misrepresented the Loan terms, collected unearned commissions, and directly
participated in the closing despite knowing the underlying misrepresentations.”107 As
a 	result, they claim that these 	allegations 	“show 	that Realtor was an active
participant in the conduct of the enterprise’s affairs.”108 The Plaintiffs also contend
103 Id. at pp. 23-24.
104 Id. at pp. 24-25.
105 R. Doc. 76 at p. 9.
106 Id. at p. 10.
107 Id. at pp. 17-18.
108 Id.
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that they have sufficiently alleged an enterprise because the Fourth Amended
Complaint provides a common purpose—to profit from alleged fraudulent loan
transactions—and alleges that the Defendants “worked together in an organized
manner 	to 	accomplish 	this 	objective, 	with 	specific 	roles 	assigned 	to 	each
participant.”109 Plaintiffs additionally argue that both closed-ended and open-ended
continuity requirements have been successfully met and that they have successfully
alleged a conspiracy under Section 1962(d) because they have demonstrated that the
Realtor “knowingly agreed to participate in the enterprise’s scheme to defraud
Plaintiffs through misrepresentations, forged documents, and the improper use of a
sham LLC to secure the loan.”110 Regarding the Louisiana Racketeering Act claim,
Plaintiffs assert that, when “[r]ead in conjunction with the Plaintiffs’ civil RICO
claim,” the Fourth Amended Complaint demonstrates that they “have successfully
pleaded the LRA claim.”111 As to the breach of contract claim, Plaintiffs argue that
(1) the Realtor had an “obligation to act in the Plaintiffs’ best interest, provide
accurate information about the Loan terms, and ensure that the Loan application
process was handled correctly creates a contractual relationship under Louisiana
law,” (2) the Realtor’s conduct “in misrepresenting the loan terms, concealing
material information, and facilitating the creation of the sham LLC” constitutes
breach, and (3) there was privity of contract between Plaintiffs and the Realtor
because although she was not party to the loan agreement, “she was a party to the
109 Id. at p. 19.
110 Id. at p. 23.
111 Id. at pp. 24-25.
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separate real estate services agreement.”112 Plaintiffs further allege that the Realtor
acted in bad faith because she knowingly misrepresented terms of the contract to gain
leverage over the Plaintiffs.113 Plaintiffs argue that they have sufficiently alleged a
claim of fraud under Louisiana law because the Realtor “actively misrepresented the
Loan terms and concealed the true nature of the loan” and was “aware of the creation
of the LLC and actively participated in the Loan closing, despite knowing that the
Loan terms were inconsistent with what had been represented to Plaintiffs.”114
Similarly, 	Plaintiffs 	contend 	that 	they 	have 	stated 	a 	claim 	for 	negligent
misrepresentation because the Realtor had undertaken “a professional obligation to
provide accurate and complete information regarding the Loan terms and structure”
and that the statements that Ms. Baird made “about the loan terms were knowingly
false and that her failure to disclose the true nature of the loan constitutes a material
omission.”115 As to the claim for breach of fiduciary duty, Plaintiffs state that they
have successfully stated a claim because realtors have a fiduciary duty to disclose
under Louisiana law and Plaintiffs have alleged that the Realtor failed “to act in
Plaintiffs’ best interests and ensure that they obtained the most favorable loan terms
available.”116 Plaintiffs further allege that the Realtor failed “to provide translated
loan documents or ensure that Plaintiffs understood the true terms of the loan.
Louisiana law imposes a duty on brokers to furnish truthful information and to take
112 Id. at pp. 28-29.
113 Id. at p. 30.
114 Id. at p. 32.
115 Id. at p. 37.
116 Id. at pp. 40-41.
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reasonable steps to ensure that the client understands the transaction term.”117
Regarding the claim for civil conspiracy, Plaintiffs aver that they have adequately
pleaded all necessary elements of a civil conspiracy claim under Louisiana law
“including the existence of an agreement among the defendants to commit an
unlawful act, the actual commission of the act through misrepresentation and
forgery, and resulting financial harm to Plaintiffs.”118 Lastly, Plaintiffs assert that
their claim for unjust enrichment has successfully been alleged because they state
that 	the 	Realtor 	“received 	a 	$5,425.00 	commission 	from 	the 	fraudulent 	loan
transaction,” that “was tied directly to the improper structure of the Loan, which
Plaintiffs 	never 	knowingly 	agreed 	to 	and 	which 	was 	obtained 	through
misrepresentation and forgery,” constituting unjust enrichment under Louisiana
law.119
The Realtor replies that each of the challenged claims fails despite Plaintiffs’
arguments. In their Reply, the Realtor first notes that Plaintiffs’ opposition discusses
the Truth in Lending Act and responds that Plaintiffs “did not seek leave to assert a
TILA claim against Ms. Baird or New World Realty” and thus the claim “remains
asserted only against Gulf Coast Bank.”120 The Realtor contends that the Plaintiffs’
claims under RICO and the LRA fail because they have failed “to explain how the
defendants supposedly functioned as a ‘unit’” and have failed to plead necessary
117 Id.
118 Id. at p. 46.
119 Id. at pp. 46-47.
120 R. Doc. 81 at pp. 2-3.
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elements of either closed- or open-ended continuity.121 Substantively, the Realtor
contends that Plaintiffs fail “to allege that Ms. Baird knew that the plaintiffs
misunderstood the terms of the loan and yet failed to correct them.”122 The Realtor
likewise argues that the standalone civil conspiracy claim must fall because Plaintiffs
“did not specifically allege any facts that would show an agreement among the
defendants 	to 	violate 	RICO 	and 	LRA.”123 	As 	to 	the 	fraud 	and 	negligent
misrepresentation claims, the Realtor states that Plaintiffs’ allegations have failed to
meet the heightened pleading standard of Fed. R. Civ. P. 9(b) and that they
misrepresent their allegations in opposition to the present Motion.124 The Realtor
further contends that the Plaintiffs’ Complaint fails to state a claim for breach of
contract because the Realtor was not party to the loan agreement at issue and
“because the pamphlet [that the Realtor allegedly breached] is designed only to
provide information on agency law and in no way creates any obligations”; as a result,
“there can be no breach.”125 Regarding the claim for breach of fiduciary duty, the
Realtor states that Plaintiffs’ opposition mischaracterizes the allegations in the
Complaint and that those allegations fail to state a claim for breach of fiduciary
duty.126 Lastly, the Realtor argues that Louisiana law precludes a claim for unjust
enrichment because it is not available “if the law provides another remedy” and thus
Plaintiffs’ claim should be dismissed.127
121 Id. at pp. 3-4.
122 Id. at p. 5.
123 Id. at p. 6.
124 Id. at p. 7.
125 Id. at p. 8.
126 Id. at p. 9.
127 Id. at p. 10.
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Plaintiffs were granted leave to file a sur-reply solely as to their claim against
the Realtor under the Truth in Lending Act.128 Plaintiffs argue that TILA’s scope
extends to the Realtor because they “acted not as neutral sales agents, but as active
participants in structuring and steering a residential loan disguised as a commercial
credit line.”129 For that reason, Plaintiffs urge the Court not to dismiss their TILA
claim as to the Realtor.
C. The Closing Agent’s Motion to Dismiss
On March 14, 2025, the Closing Agent, Trieu Law, LLC, filed the instant
Motion. 	In its Motion, the Closing Agent argues that Plaintiffs make only five
allegations against it specifically and that these allegations, even when accepted as
true and viewed in the light most favorable to Plaintiffs, do not give rise to any
cognizable causes of action.130 Instead, the Closing Agent argues that the allegations
show that its role was limited to that of a closing agent and that it had no involvement
in the sale or financing of the property.131 The only potential wrongdoing identified
by Plaintiffs, the Closing Agent contends, is that it formed an LLC, that the closing
was done by a non-Vietnamese speaker, and that the mortgage was not witnessed by
uninterested, or impartial, witnesses.132 	The Closing Agent insists that the Bank
instructed it to set up the LLC and that in any event, the LLC was not used because
the Mortgage Broker had already formed an LLC.133 The Closing Agent further
128 R. Doc. 150; R. Doc. 153.
129 R. Doc. 153 at p. 3.
130 R. Doc. 77-1 at 1-2.
131 Id. at p. 2.
132 Id. at p. 9.
133 Id. at p. 10.
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argues that there is no requirement that witnesses at a closing be uninterested or
that the closing agent speak the same language as the buyers.134 The Closing Agent
states that Plaintiffs’ RICO and state racketeering claims fail because Plaintiffs have
not alleged any facts showing that Trieu 	Law controlled or managed an alleged
enterprise, that there was a pattern of racketeering activity, or that Trieu Law’s
actions are continuous or present a threat of future criminal activity.135 The Closing
Agent further argues that Plaintiffs’ claim under the FHA fails because Plaintiffs
have not alleged any discrimination against Plaintiffs, which is evidenced in part by
the fact that Plaintiffs’ loan was approved.136 The Closing Agent contends that there
is no basis to annul the mortgage because the mortgage was not based on any
misrepresentations or fraud, Plaintiffs were appropriately apprised of the conditions
of the mortgage, and because Plaintiffs had ample time to have all documents
translated 	and 	Louisiana 	law 	presumes 	that 	a 	person 	who 	signs 	a 	contract
understands the terms, conditions, and content of the document.137 	The Closing
Agent asserts that Plaintiffs’ fraud claim is not particular enough to proceed and that
any allegations of fraud are unsupported by evidence.138 	As to Plaintiffs’ negligent
misrepresentation 	claim, 	the 	Closing 	Agent 	avers 	that 	it 	never 	made 	any
representations to Plaintiffs and therefore, Plaintiffs’ claim necessarily fails.139
134 Id.
135 Id. at pp. 12-14, 15-16.
136 Id. at pp. 16-17.
137 Id. at pp. 21-22.
138 Id. at pp. 24-25.
139 Id. at pp. 26-27.
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Finally, Trieu Law argues that Plaintiffs’ unjust enrichment claim fails as duplicative
because the mortgage was a valid juridical instrument.140
In their opposition, Plaintiffs note that the Closing Agent did not address
Plaintiffs’ TILA and civil conspiracy claims, and they argue that those claims should
therefore be allowed to proceed.141 	Plaintiffs then attack many of the factual
statements alleged by the Closing Agent, arguing that they “import[] new alleged
facts” that are not included in, and often different from, those in Plaintiffs’ Complaint.
Plaintiffs reject the Closing Agent’s position that their factual allegations do not give
rise to any cognizable claim. 	Plaintiffs argue that their Complaint supports their
RICO and LRA claims because it alleges that Trieu, “along with other co-defendants,
engaged in a coordinated scheme to defraud Plaintiffs through a series of fraudulent
mortgage and financial transactions.”142 Plaintiffs claim that they also successfully
allege that the Closing Agent “conspired with other Defendants to misrepresent the
Loan terms, forge Loan documents, and misappropriate funds.”143 	Plaintiffs argue
that the cases cited by the Closing Agent are inapposite because they apply to racial
discrimination, as opposed to national origin discrimination, which Plaintiffs allege
is the basis of their claims.144 Plaintiffs maintain that they have sufficiently alleged
that Trieu discriminated against them.145 	Plaintiffs then point to their allegations
as 	to 	the 	alleged 	sham 	LLC 	as 	evidence 	of 	Trieu’s 	fraud 	and 	negligent
140 Id. at pp. 27-29.
141 R. Doc. 82 at p. 3.
142 Id. at p. 8.
143 Id. at pp. 8-13.
144 Id. at pp. 13-15.
145 Id. at p. 15.
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misrepresentation.146 	Finally, Plaintiffs reject the Closing Agent’s arguments as to
unjust enrichment on the basis that Plaintiffs have plead that the mortgage is not
valid.147 	Plaintiffs argue that Trieu was unjustly enriched when it received closing
costs and that no other cause of action by Plaintiff will recover this money.148
D. Plaintiffs’ Motion for Leave to File Supplemental Complaint149
On April 23, 2025, the parties attended a settlement conference with the then-
assigned Magistrate Judge.150 On May 19, 2025, Plaintiffs filed a Motion for Leave
to File Supplemental Complaint Pursuant to Rule 15(d), in which they explain that
they “seek to supplement their Fourth Amended Complaint to add factual allegations
and derivative causes of action arising from a judicially-supervised settlement
conference held on April 23, 2025.”151 	Plaintiff allege that during the settlement
conference, “Defendants presented a coordinated refinancing proposal under threat
of foreclosure, delivered with the appearance of judicial endorsement and designed to
coerce Plaintiffs into abandoning their claims.”152 Plaintiffs allege that this conduct
violated their rights under several acts, including federal conspiracy statutes, and
Plaintiffs seek to add “post-filing acts in furtherance of the RICO conspiracy
previously pled under 18 U.S.C. § 1962(d).”153
146 Id. at pp. 16-23.
147 Id. at p. 23.
148 Id. at pp. 24-25.
149 The Court incorporates the factual and procedural background from its prior Order and Reasons
regarding the present motion. See R. Doc. 145.
150 R. Doc. 98.
151 R. Doc. 119-2 at p. 2.
152 Id.
153 Id.
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In their opposition, Defendants point out that the parties’ deadline to amend
their pleadings expired on January 10, 2025, more than four months from the date of
Plaintiffs’ 	Motion; 	Defendants 	therefore 	argue 	that 	Plaintiffs 	must 	meet 	the
standards under Federal Rules of Civil Procedure 16 and 15 in order to be granted
leave to amend.154 Under these standards, Defendants argue, Plaintiffs’ Motion must
be denied as futile and in bad faith.155 	Defendants argue that no violation of law
arises from attending a settlement conference and extending an offer that the
receiving party deems insufficient.156 Defendants argue that “[a] different answer—
one that would open the door to ancillary disputes about the reasonableness or form
of parties’ offers—would make litigants reluctant to engage in settlement dialogue
and threaten the confidentiality of settlement conferences” and that “[a]llowing offers
made during a settlement conference to be the basis of supplemental complaints could
result in a chilling effect for future settlement negotiations and discourage parties
from future settlements.”157 	Even if failed settlement discussions could form the
basis of a legal claim, Defendants argue, Plaintiffs’ proposed claims fail on the
merits.158
In their reply, Plaintiffs argue that “[t]his is a motion to supplement, not
amend, and the standard under Rule 15(d) controls.”159 	Plaintiffs argue that their
proposed pleading is proper under Rule 15(d) because the allegations and claims
154 R. Doc. 122 at p. 4.
155 Id. at p. 5.
156 Id. at p. 6.
157 Id.
158 Id. at p. 9-10.
159 R. Doc. 123 at p. 2 (citing Rowe v. United States, 633 F.2d 799, 801 (9th Cir. 1980)).
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Plaintiffs seek to add occurred after the date of the pleading to be supplemented.160
Finally, Plaintiffs argue why the events at the April 23, 2025 status conference give
rise to claims under § 1962.161
On July 10, 2025, the Court issued an Order and Reasons denying Plaintiffs’
Motion in part.162 The Court deferred ruling on its motion as it pertains to adding
factual allegations in support of their existing RICO claims.163 The Court now
addresses that remaining portion of the motion in the present order.
II. 	LEGAL STANDARD
A. Motion to Dismiss for Failure to State a Claim
Under Federal Rule of Civil Procedure 12(b)(6), a defendant can seek dismissal
of a complaint, or any part of it, for failure to state a claim upon which relief may be
granted.164 To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’”165 	“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.”166 	But, no matter the factual content, a claim is
not plausible if it rests on a legal theory that is not cognizable.167 	In ruling on a
160 Id. at p. 4-5.
161 Id. at p. 5-11.
162 R. Doc. 145.
163 Id. at p. 18.
164 FED. R. C IV. P. 12(b)(6).
165 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
166 Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Ashcroft, 556 U.S. at 678) (quotation
marks omitted).
167 Shandon Yinguang Chem. Indus. Joint Stock Co., Ltd. v. Potter, 607 F.3d 1029, 1032 (5th Cir. 2010).
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motion to dismiss, the Court accepts all well-pleaded facts as true and views those
facts in the light most favorable to the non-moving party.168 The Court, however, is
not bound to accept as true conclusory allegations, unwarranted factual inferences,
or legal conclusions.169 	“Dismissal is appropriate when the complaint on its face
shows a bar to relief.”170
Fraud claims are analyzed under the heightened pleading standard of Federal
Rule of Civil Procedure 9(b).171 In alleging fraud under Rule 9(b), “a party must state
with particularity the circumstances constituting fraud or mistake.”172 	The Fifth
Circuit construes this standard “strictly, requiring the plaintiff to ‘specify the
statements contended to be fraudulent, identify the speaker, state when and where
the statements were made, and explain why the statements were fraudulent.’”173
In deciding a Rule 12(b)(6) motion to dismiss, a court is generally prohibited
from considering information outside the pleadings but may consider documents
outside of the complaint when they are: (1) attached to the motion; (2) referenced in
the complaint; and (3) central to the plaintiff’s claims.174 The Court can also consider
matters of public record and matters subject to judicial notice.175 Finally, and with
168 Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d 507, 513 (5th Cir. 2018).
169 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005).
170 Cutrer v. McMillan, 308 Fed. App. 819, 820 (5th Cir. 2009) (quotation and internal quotation marks
omitted).
171 FED. R. C IV. P. 9(b); Van Velzer v. Amegy Bank, 713 F. App’x 377, 378 (5th Cir. 2018).
172 Flaherty & Crumrine Preferred Income Fund, Inc. v. TXU Corp., 565 F.3d 200, 206-07 (5th Cir.
2009).
173 Id. (quoting Williams v. WMX Techs., Inc., 112 F.3d 175, 177 (5th Cir. 1997)).
174 Maloney Gaming Mgmt., LLC v. St. Tammany Parish, 456 Fed. Appx. 336, 340–41 (5th Cir. 2011).
175 Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodaux, Inc., No. 10-CV-4443, 2013 WL
1513406, at *3 (E.D. La. Apr. 11, 2013).
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respect only to Plaintiffs’ RICO claims, the Court may consider Plaintiffs’ RICO
Statement.176
B. Motion for Leave to File Supplemental Complaint
Courts consider the following factors in considering whether it is appropriate
to allow Plaintiffs to supplement their pleading:
[W]hether permitting the pleading would cause undue delay in the
proceedings or undue prejudice to the nonmovant, the movant is
acting in bad faith or with a dilatory motive, the movant has
previously failed to cure deficiencies by prior pleadings, or the
proposed pleading is futile in that it adds nothing of substance to the
original allegations or is not germane to the original cause of
action.177
The Court now turns to an analysis of each of Plaintiffs’ claims as it relates to
each Defendant’s Motion to Dismiss.
III. 	ANALYSIS
A. Plaintiffs’ TILA Claims
Plaintiffs allege that the Mortgage Broker is liable under the Truth in Lending
Act (“TILA”). TILA applies to creditors when four conditions are met: “(i) The credit
is offered or extended to consumers; (ii) The offering or extension of credit is done
regularly; (iii) The credit is subject to a finance charge or is payable by a written
agreement in more than four installments; and (iv) The credit is primarily for
176 R. Doc. 83. See Conwill v. Greenberg Traurig, LLP, No. 09-CV-4365, 2009 WL 5178310, at *2 n.16
(E.D. La. Dec. 22, 2009) (“[W]hen considering a Rule 12(b)(6) motion, courts routinely consider the
RICO case statement alongside the complaint.”).
177 Lewis v. Knutson, 699 F.2d 230, 239 (5th Cir. 1983); see also Jernigan v. McMillan, No. 22-CV-2580,
2023 WL 5516315, at *1 (N.D. Tex. Aug. 3, 2023) (“Judicial decisions to grant or deny Rule 15(d)
motions to supplement pleadings are generally based on the same factors of fairness courts weigh
when considering motions to amend pleadings under Rule 15(a).”) (internal quotations, citation, and
brackets omitted).
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personal, family, or household purposes.”178 	A creditor is defined as “a person who
regularly extends consumer credit that is subject to a finance charge or is payable by
written agreement in more than four installments (not including a down payment),
and to whom the obligation is initially payable, either on the face of the note or
contract, or by agreement when there is no note or contract.”179
a. The Mortgage Broker’s Motion to Dismiss as to Plaintiffs’ TILA Claim
The Mortgage Broker argues that to the extent Plaintiffs raise a TILA claim
against the Mortgage Broker, it must be dismissed because the Mortgage Broker is
not a creditor under TILA. 	Plaintiffs argue in turn that the Mortgage Broker held
itself out as the true lender and, thus, it qualifies as a lender under TILA.180
Based on the allegations in Plaintiffs’ Complaint, and accepting them as true
as the Court is required to do, Plaintiffs’ Fourth Amended Complaint does not state
a TILA claim against the Mortgage Broker. Plaintiffs do not allege that the Mortgage
Broker regularly extends credit or that Plaintiffs’ loan was initially payable to the
Mortgage Broker.181 Instead, Plaintiffs allege that the Mortgage Broker, along with
the Closing Agent “established two LLCs in the name of Plaintiffs” at the direction of
Gulf Coast Bank and in violation of TILA.182 But the regulation that defines creditor
178 Egana v. Blair’s Bail Bonds, Inc., 2018 WL 2463210, at *5 (E.D. La. June 1, 2018) (quoting 12 C.F.R.
§ 1026.1(c)(1)) (internal quotations omitted).
179 12 C.F.R. § 1026.2(a)(17).
180 R. Doc. 75 at pp. 15-16.
181 Although Plaintiffs argue in their opposition that a creditor is someone who regularly extends
consumer credit or is the party to whom the debit is initially payable, the regulation clearly requires
both conditions to be met for someone to be considered a creditor. R. Doc. 75 at p. 15. See 12 C.F.R.
1026.2(a)(17)(i) (defining a creditor as “A person who regularly extends consumer credit that is subject
to a finance charge or is payable by written agreement in more than four installments (not including
a downpayment), and to whom the obligation is initially payable . . . “).
182 R. Doc. 61 at ¶ 61.
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does not define it in a way that encompasses the Mortgage Broker, nor do Plaintiffs
provide any support for the idea that the definition of a creditor can be expanded to
include persons or businesses that hold themselves out as creditors. Absent authority
that TILA allows causes of action against a non-creditor that holds itself out as a
creditor, the Court is unwilling to read into the statute an entirely new and broadened
definition of the term creditor. 	For this reason, Plaintiffs’ TILA claim against the
Mortgage Broker is dismissed.
b. The Realtor’s Motion to Dismiss as to Plaintiffs’ TILA Claim
The Realtor argues that to the extent Plaintiffs raise a TILA claim against the
Realtor, it must be dismissed because the Complaint fails to state a plausible claim
against the Realtor for violations of the TILA. The Plaintiffs counter that the Realtor
falls within the definition of a “creditor” under the TILA and that the facts in the
Complaint are sufficient to allege the Realtor’s violation of the TILA because the
Realtor structured, arranged, or regularly facilitated credit secured by a dwelling.183
In support of their contention, Plaintiffs cite to the Fifth Circuit’s decision in Arnold
v. W.D.L. Investments, Inc., and claim that it stands for the proposition that “TILA
applies to individuals compensated for offering credit on behalf of a developer.”184 The
same definition of “creditor” described herein applies to Plaintiff’s claim against the
Realtor. Plaintiff’s reliance on Arnold is misplaced. In that case, the individuals who
were found to be creditors under TILA were both employees of the company that
183 R. Doc. 153 at p. 4.
184 703 F.2d 848, 849 (5th Cir. 1983); R. Doc. 153.
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offered the purchaser additional financing on the home that they were purchasing.185
The Arnold court only held that liability reached employees of the company offering
the additional financing; it did not address non-employees of “creditors.” Accepting
Plaintiffs’ well-pleaded allegations as true, as the Court is required to do,186 the
Plaintiffs have failed to allege facts sufficient for the Realtor to be considered a
creditor under the TILA. For this reason, Plaintiffs’ TILA claim against the Realtor
is dismissed.
B. Plaintiffs’ RICO Claims
RICO makes it “unlawful for any person employed by or associated with any
enterprise engaged in, or the activities of which affect, interstate or foreign commerce,
to conduct or participate, directly or indirectly, in the conduct of such enterprise’s
affairs through a pattern of racketeering activity or collection of unlawful debt.”187
Plaintiffs argue that Defendants’ conduct violates this provision of the RICO statute,
as well as § 1962(d), which prohibits a person from conspiring to violate any of the
provisions of the RICO statute. 	Though the different subsections of RICO are
distinct, they all share common elements: ““(1) a person who engages in (2) a pattern
of racketeering activity, (3) connected to the acquisition, establishment, conduct, or
control of an enterprise.”188
185 Id.
186 See Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d 507, 513 (5th Cir. 2018).
187 18 U.S.C. § 1962(c).
188 Abraham v. Singh, 480 F.3d 351, 355 (5th Cir. 2007) (quoting Word of Faith World Outreach Ctr.
Church, Inc. v. Sawyer, 90 F.3d 118, 122 (5th Cir. 1996)).
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a. The Closing Agent’s Motion to Dismiss as to Plaintiffs’ RICO Claim
The Closing Agent argues that Plaintiffs have failed to satisfy the second
element—a pattern of racketeering activity. The plain wording of the RICO statute
requires two predicate criminal actions enumerated under 18 U.S.C. § 1961.189 It is
well established that the word pattern was meant to import something more than
simply establishing the minimum number of predicates.”190 “To establish the pattern
element, a plaintiff must show both a relationship between the predicate offenses and
the 	threat 	of 	continuing 	continuity.”191 	Courts 	refer 	to 	these 	terms 	as 	the
“relationship” and “continuity” requirements, respectively.
“Criminal conduct forms a pattern if it embraces criminal acts that have the
same or similar purposes, results, participants, victims, or methods of commission, or
otherwise are interrelated by distinguishing characteristics and are not isolated
events.”192 	Continuity, on the other hand, is “a temporal concept,” which may be
established by showing “a closed period of repeated conduct” or “past conduct that by
its nature projects into the future with a threat of repetition.”193 These concepts are
referred to as “closed-” and “open-ended” continuity.194
To show closed-ended continuity, a plaintiff must allege a series of related
criminal acts extending over a substantial period of time.195 	Plaintiffs appear to
189 18 U.S.C. § 1961(1).
190 D&T Partners, LLC v. Baymark Partners Mgmt, LLC, 98 F.4th 198, 205 (5th Cir. 2024) (citation
modified).
191 Id. (citation modified).
192 H.J. Inc. v. NW. Bell Telephone Co., 492 U.S. 229, 240 (1989) (citing 18 U.S.C. § 3575(e)).
193 Id. at 241-42.
194 D&T Partners, 98 F.4th at 205.
195 Id.
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argue that they clear this hurdle by alleging various violations of identity theft, access
device, mail, wire, and bank fraud, and money laundering between 2020 and 2024.196
The Fifth Circuit has generally considered racketeering acts committed over a period
of one year to be a “substantial period of time.”197 Thus, viewing the facts as alleged
in a light most favorable to Plaintiffs,198 Plaintiffs have alleged that Defendants
committed a series of criminal acts over a substantial amount of time. This finding
is not dispositive, however, because duration is only one factor courts consider in
determining whether a defendant has engaged in a pattern of RICO activity.199
Courts also consider the number of victims injured by the alleged racketeering
acts.200 	The Fifth Circuit has found continuity when the racketeering scheme
involved “systemic victimization”201 and has, in contrast, been reluctant to deem
criminal conduct part of a RICO scheme when the damage affects a limited number
of victims.202 	Here, accepting Plaintiffs’ well-pleaded facts in the Fourth Amended
Complaint as true, Plaintiffs allege injury on behalf of themselves and no others.
Plaintiffs’ allegations center around Defendants’ scheme to defraud Plaintiffs; they
do not argue that Defendants’ conduct is part of systemic or repeated conduct to
individuals outside of Plaintiffs. Unlike other successful RICO cases, Plaintiffs allege
196 R. Doc. 82 at p. 10.
197 D&T Partners, 98 F.4th at 206.
198 See Midwest Feeders, Inc, 886 F.3d at 513.
199 Id.
200 Id.
201 See Abraham, 480 F.3d at 356.
202 D&T Partners, 98 F.4th at 206.
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a single injury caused by a single operation directed at one couple. 	Though not
dispositive, the absence of multiple victims weighs against a finding of continuity.203
In addition to duration and the number of victims, the Fifth Circuit has also
considered 	whether 	the 	unlawful 	conduct 	concerns 	one 	or 	multiple 	schemes.
Allegations of multiple schemes are “highly relevant” and will often support a finding
of continuity.204 	“On the other hand, courts are reluctant to find a RICO violation
when the complaint alleges unlawful conduct in pursuit of a ‘single effort, over a finite
period of time.’”205 	While multiple schemes are not necessarily a prerequisite for a
pattern of racketeering activity, “a single scheme to accomplish one discrete goal,
directed at one individual with no potential to extend to other persons or entities is
not the type of racketeering pattern RICO seeks to prohibit.”206 As noted above,
Plaintiff’s Complaint alleges a singular scheme to defraud Plaintiffs. In their
Amended RICO Case Statement, Plaintiffs summarily state that “[t]he predicate acts
alleged in the complaint directly furthered the enterprise’s fraudulent purpose and
were executed in coordination by the defendants to promote and conceal the unlawful
scheme.”207 While Plaintiffs attempt to stretch the life of the scheme to include the
creation of the fraudulent loan as well as the collection of the alleged fraudulent
mortgage 	payments, 	the 	alleged 	scheme 	remains 	a 	singular effort 	to 	defraud
Plaintiffs by entering into a fraudulent mortgage. 	Although this does not doom
203 Id. at 206-07.
204 Id. at 207 (citing H.J. Inc., 492 U.S. at 240).
205 Id. (quoting Efron v. Embassy Suites (P.R.), Inc., 223 F.3d 12, 21 (5th Cir. 2000)).
206 Id. (quoting SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1516 (10th Cir. 1990)).
207 R. Doc. 83 at p. 41.
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Plaintiffs’ claims, accepting Plaintiffs’ well-pleaded facts as true, as the Court must,
Plaintiffs’ claims do not support a finding of continuity.
Finally, courts consider “the alleged objective of the scheme and whether its
goals were finite.”208 Plaintiff’s Complaint alleges that the sole alleged scheme in this
case is one to defraud Plaintiffs through a fraudulent mortgage, presumably to
recover additional payments through inflated interest costs. 	By its definition, this
alleged scheme is finite and will cease when the term of the loan ends. 	Based on
Plaintiffs’ allegations, the alleged enterprise poses no threat of continued criminal
activity, because the alleged criminal activity exists for a singular purpose over a
limited amount of time. Indeed, “the entire enterprise reaches its logical conclusion
when the loan is paid off.”209
Viewing the well-pleaded facts in the Fourth Amended Complaint in the light
most favorable to the Plaintiffs, while Plaintiffs allege illegal activity over the course
of several years, the alleged illegal activity is part and parcel of a singular scheme to
defraud a singular couple through a singular transaction. 	While Plaintiffs may
ultimately 	succeed 	on 	their 	underlying allegations 	and 	show 	that 	Defendants
defrauded Plaintiffs, the theory of Plaintiffs’ case as stated in the Fourth Amended
Complaint210 and the Amended RICO Case Statement,211 accepted as true, does not
give rise to a RICO claim.
208 D&T Partners, 98 F.4th at 208 (citation modified).
209 See Nguyen v. JP Morgan Chase, N.A., 2024 WL 3877498, at *14 (E.D. La. Aug. 20, 2024) (finding
that plaintiffs failed to plead a pattern of racketeering activity by Chase Bank and Fannie Mae to
defraud plaintiffs by charging fraudulent interest fees because the purpose of the enterprise was for a
limited amount of time and therefore could not constate a pattern).
210 R. Doc. 61.
211 R. Doc. 83.
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Plaintiffs may prevail still on their RICO claim by showing open-ended
continuity. 	Open-ended continuity “exists when a threat of continuing criminal
activity extends indefinitely into the future.”212 A plaintiff may show this by alleging
that 	“the related predicates 	themselves involve a distinct 	threat 	of 	long-term
racketeering activity, either implicit or explicit . . . extending indefinitely into the
future” or that “the predicate acts or offenses are part of an ongoing entity’s regular
way of doing business.”213 Plaintiffs argue that open-ended continuity applies in this
case because Defendants’ conduct is ongoing as to Plaintiffs and because the alleged
conduct is part of Defendants’ regular way of doing business.
As to Plaintiffs’ first point, the Court notes that Plaintiffs repeatedly identify
the alleged fraud as occurring between 2020 and 2024.214 	The Supreme Court has
described the open-ended continuity concept as a threat of indefinite future criminal
activity. Here, the alleged fraud is not indefinite; indeed, any fraud would necessarily
cease with the life of the loan. Moreover, as to Plaintiffs’ second argument, it is true
that Plaintiffs allege in their RICO statement that Defendants “have employed nearly
identical tactics in other real estate transactions, including the use of sham LLCs,
forged documents, and the misclassification of commercial loans as residential
loans.”215 While the Court will accept all well-pleaded facts as true, as is appropriate,
it is not bound to accept as true conclusory allegations.216 Plaintiffs’ singular sentence
212 D&T, 98 F.4th at 208.
213 H.J., Inc., 492 U.S. at 242.
214 See Malvino v. Delluniversita, 840 F.3d 223, 233 (5th Cir. 2016) (a scheme that has concluded may
not be the basis for open-ended continuity).
215 R. Doc. 83 at p. 64.
216 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005).
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is just that—a conclusory allegation.217 Plaintiffs allege no facts to support this
statement. Accordingly, the Court finds that Plaintiffs have failed to properly allege
a pattern of racketeering activity, and thus, Plaintiffs’ § 1962(c) claim fails. 	And
because a § 1962(d) claim cannot survive absent an underlying RICO claim, Plaintiffs’
claim under § 1962(d) likewise fails.
b. The Realtor’s and the Mortgage Broker’s Motions to Dismiss as to
Plaintiffs’ RICO Claims
The Realtor and the Mortgage Broker also allege that Plaintiffs’ RICO claims
against them must be dismissed because Plaintiffs fail to plead a pattern of RICO
activity. 	For the reasons explained above, the Court agrees and grants the Realtor
and the Mortgage Broker’s Motions to Dismiss as to the RICO claim. 	Because the
Realtor and the Mortgage Broker’s RICO claims are not viable, the Court declines to
consider any additional basis for dismissal of the RICO claims asserted by the Realtor
or the Mortgage Broker.
C. Plaintiffs’ LRA Claims
The Louisiana Racketeering Act (“LRA”) is modeled after the federal Racketeer
Influenced and Corrupt Organization Act (“RICO”) and due to the paucity of case law
directly addressing the LRA, the Court “must look to federal case law construing the
federal Racketeer Influenced and Corrupt Organization Act.”218 All claims under
217 See Bustos v. invierte En Tex. LLC, 2024 WL 3364039, at *13 (S.D. Tex. June 3, 2024) (finding
allegations that defendants’ actions were not a one-time occurrence and that they had victimized
dozens of investors through the same scheme since 2015 through the repeated use of email, telephone,
and wire transmissions was conclusory and unable to support a finding of open-ended continuity).
218 Cox, Cox, Filo, Camel & Wilson, LLC v. Sasol N. Am. Inc., No. 2:11-CV-00856, 2013 WL 4516007,
at *3 (W.D. La. Aug. 22, 2013); see also State v. Touchet, 759 So. 2d 194, 196—197 (La. App. 3 Cir.
4/5/00).
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RICO, and thus under the LRA, share three elements: “(1) a person who engages in
(2) a pattern of racketeering activity, (3) connected to the acquisition, establishment,
conduct, or control of an enterprise.”219 Because the Court has found that Plaintiffs’
RICO claims against the Closing Agent, the Realtor, and the Mortgage Broker are
not viable because Plaintiffs have failed to plead a pattern of RICO activity, the Court
likewise finds that the claims asserted under the LRA must also be dismissed due to
a failure to plead a pattern of conduct that violates the LRA.
D. Plaintiffs’ Fraud Claims
Fraud under Louisiana law is defined as “a misrepresentation or a suppression
of the truth made with the intention either to obtain an unjust advantage for one
party or to cause a loss or inconvenience to the other.”220 To state a claim for fraud
under Louisiana law, the plaintiff must allege: (1) a misrepresentation of a material
fact; (2) that was made with the intent to deceive; (3) which caused justifiable reliance
with resultant injury.221
Federal Rule of Civil Procedure 9 requires a plaintiff alleging fraud or mistake
to “state with particularity the circumstances constituting fraud or mistake.”222
Allegations of fraud therefore “must meet a higher, or more strict, standard than the
basic notice pleading required by Rule 8.”223 “At a minimum, Rule 9(b) requires
allegations of the particulars of time, place, and contents of the false representations,
219 Abraham v. Singh, 480 F.3d 351, 355 (5th Cir. 2007) (quoting Word of Faith World Outreach Ctr.
Church, Inc. v. Sawyer, 90 F.3d 118, 122 (5th Cir. 1996)).
220 La. Civ. C. art 1953.
221 Kadlec Med. Ctr. v. Lakeview Anesthesia Associates, 527 F.3d 412, 418 (5th Cir. 2008) (applying
Louisiana law).
222 Fed. R. Civ. P. 9(b)
223 Shushany v. Allwaste, Inc., 992 F.2d 517, 521 (5th Cir. 1993).
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as well as the identity of the person making the misrepresentation and what he
obtained thereby.”224 “In other words, Rule 9(b) requires the who, what, when, where,
and how to be laid out.”225 “Malice, intent, knowledge and other condition of mind of
a person may be averred generally.”226 Still, “pleading scienter requires more than a
simple allegation that a defendant had fraudulent intent.”227 	To successfully plead
scienter, “a plaintiff must set forth specific facts that support an inference of fraud.”228
“When a claim is asserted against multiple defendants, Rule 9(b) requires
specific, separate allegations detailing the allegedly fraudulent conduct of each
defendant.”229 “In other words, a complaint cannot, consistent with Rule 9(b), group
all defendants into ‘one wrongdoing monolith.’”230
a. The Mortgage Broker’s Motion to Dismiss as to Plaintiffs’ Fraud Claim
The Mortgage Broker argues that Plaintiffs’ allegations, many of which fail to
specify which allegations are against which Defendants, are insufficient to state a
claim for fraud.231 	The Mortgage Broker argues that the allegations that relate
specifically to the Mortgage Broker do not support a fraud claim.232 	Finally, the
Mortgage Broker argues that, even if the Mortgage Broker had made fraudulent
statements, those statements could not have caused justifiable reliance, as is required
224 Id.
225 In re Pool Prods. Dist. Market Antitrust Litig., 988 F.Supp.2d 696, 723 (E.D. La. 2013) (quoting
Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 724 (5th Cir. 2003)) (citation modified).
226 Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1068 (5th Cir. 1994) (quoting F ED. R. C IV.
P. 9(b)) (citation modified).
227 Id.
228 Id.
229 In re Am. Intern. Refinery, 402 B.R. 728, 738 (W.D. La. 2008) (citations omitted); see In re Pool
Prods. Dist. Market Antitrust Lit., 988 F.Supp.2d 696, 722-23 (E.D. La. 2013)).
230 Id. (quoting 1st Am. Bank & Tr. by Levitt v. Frogel, 726 F.Supp. 1292, 1295 (S.D. Fla. 1989)).
231 R. Doc. 64-1 at pp. 16-17.
232 Id. at p. 17.
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for a fraud claim, because: (1) the alleged statements concerning the loan because
Tungmy, LLC—not Plaintiffs—is the borrower of the loan; (2) Plaintiffs knew there
were income requirements before entering into the loan; and (3) it would be
unreasonable to rely on oral representations concerning a loan when the loan was
ultimately memorialized into writing.233
At the outset, the Court agrees that general allegations that “all Defendants,”
without 	naming 	or 	identifying 	a 	particular 	defendant, 	committed 	an 	act 	are
insufficient to support a claim for fraud.234 This style of pleading fails to provide any
type of specificity, namely who is alleged to have committed the fraud. 	With that
said, Plaintiffs’ allegations as to the Mortgage Broker in particular are as follows: the
Mortgage Broker “presented the terms of the loan to Plaintiffs as a $160,500.00, 20-
year term at a fixed 4.85% interest rate with a monthly mortgage payment of
$1,054.38, due each month” and the Mortgage Broker “never disclosed to Plaintiffs
that the Loan in fact had a variable interest rate and that the rate was expected to
fluctuate.”235
Accepting these allegations as true and viewing them in the light most
favorable 	to 	the 	Plaintiffs, 	the 	allegations 	fall 	short 	of 	Rule 	9(b)’s 	pleading
requirements. Plaintiffs do not indicate when or where this conversation took place
233 Id.
234 In re Alamosa Holdings, Inc., 382 F.Supp.2d 832, 857 (N.D. Tex. 2005) (“Any allegations in the
Complaint made against “Defendants” . . . do not meet the requirements of pleading allegations of
fraud . . . .”); Hawkins v. Sanders, 2023 WL 2565403, at *3 (E.D. La. Mar. 17, 2023) (“Mere ‘conclusory
allegations against defendants as a group’ that ‘fail to allege the personal involvement of any
defendant’ are insufficient to put Defendants on notice of their alleged wrongdoing.”) (citation
modified); Rodriguez v. Meta Platforms, Inc., 2025 WL 1262596 (E.D. La. Apr. 10, 2025).
235 R. Doc. 61 at ¶¶ 20, 21.
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or give any other supporting information. Rule 9(b) requires Plaintiffs to “specify the
statements contended to be fraudulent, identify the speaker, state when and where
the statements were made, and explain why the statements were fraudulent.”236
Further, Plaintiffs fail entirely to allege facts that could support an inference that the
Mortgage Broker intended to defraud Plaintiffs. 	Plaintiffs do not even summarily
allege that the Mortgage Broker intended to defraud Plaintiffs. 	At most, Plaintiffs
allege that the Mortgage Broker provided information as to the terms of Plaintiffs’
loan and that the information provided turned out to be incorrect. These generalized,
vague allegations are not enough to support a claim for fraud under a Rule 12(b)(6)
analysis.
b. The Realtor’s Motion to Dismiss as to Plaintiffs’ Fraud Claim
The 	Realtor 	raises 	almost 	identical 	arguments 	in 	favor 	of 	dismissal 	of
Plaintiffs’ fraud claim. 	Specifically, the Realtor argues that many of Plaintiffs’
allegations as to the Realtor itself fall short of Rule 9(b)’s pleading requirements.237
The Realtor further argues that the few specific allegations pertaining to the Realtor
itself fail to establish fraud because the alleged statements were either true or
because Plaintiffs fail to allege fraudulent intent.238 Finally, the Realtor argues that
any fraudulent statement could not have caused justifiable reliance because: (1) the
LLC, not Plaintiffs, is the proper party to the loan agreement; (2) Plaintiffs allege
that they “fully relied on” the Mortgage Broker to convey the terms of the loan; (3)
236 Elson v. Black, 56 F.4th 1002, 1009 (5th Cir. 2023) (quoting Williams v. WMX Tech., Inc., 112 F.3d
15,,178 (5th Cir. 1997)) (citation modified).
237 R. Doc. 65-1 at p. 17.
238 Id. at p. 17-18.
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Plaintiffs knew there were income requirements before entering into the loan; and
(4) the loan was reduced to writing.239
For the same reasons explained above, the Court finds that general allegations
as to Defendants’ conduct as a collective fail to meet the Rule 9(b) pleading standard.
Plaintiffs’ specific allegations as to the Realtor are: “Plaintiffs expressed their concern
about Plaintiffs’ substantial existing debts but Realtor assured them that the debts
would pose no problem, however, an interest rate higher than the current rate of 2.6%
and a 25% down payment were required . . . . Realtor advised that there would be no
income or credit requirements,”240 “Realtor produced a purported contract containing
the Plaintiffs’ forged signatures and dates,”241 and that the Realtor “confirmed that
the Loan had to be refinanced after three years and that the refinancing fees would
cost around $1,200.00, which turned out to be untrue.”242
Accepting these allegations as true, these allegations fail to meet the pleading
standards required by Rule 9(b). Similar to Plaintiffs’ allegations against the
Mortgage Broker, these allegations do not provide any supporting details, including
where or when the alleged comments were made.243 	Moreover, Plaintiffs fail to
explain how the first two allegations are fraudulent.244 Finally, Plaintiffs fail to offer
239 Id. at p. 18-19.
240 R. Doc. 61 at ¶ 17.
241 Id. at ¶ 115.
242 Id. at ¶ 31.
243 See Elson, 56 F.4th at 1009.
244 Plaintiffs’ claim that “Plaintiffs did not meet the financial and credit requirements of [the Bank]
and in all respects did not qualify to receive any real estate mortgage loan in the amount and for the
terms for which the application was made” is entirely conclusory and not afforded the benefit of truth.
R. Doc. 61 at ¶ 22. See Elson, 56 F.4th at 1009 (“Plaintiffs must . . . explain why the statements were
fraudulent.”).
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any allegations which, if proven at trial, would show that the Realtor intended to
defraud Plaintiffs. 	While Plaintiffs make broad and conclusory allegations that the
Realtor conveyed information which “turned out to be untrue” and provided falsified
documents to Plaintiffs to sign, Plaintiffs do not allege—or allege any facts that would
suggest—that the Realtor sought to defraud Plaintiffs. Accepting Plaintiffs’ limited
allegations as true, and viewing them in a light most favorable to Plaintiffs, Plaintiffs’
fraud claim against the Realtor fails under this analysis.
c. 	The Closing Agent’s Motion to Dismiss as to Plaintiffs’ Fraud Claim
The Closing Agent (“Trieu”) too argues that Plaintiffs have failed to state a
claim against it. Trieu argues that the bulk of Plaintiffs’ fraud allegations relate to
Defendants generally and that Plaintiffs fail to specify which Defendants participated
in what conduct. Trieu then argues that Plaintiffs’ forgery allegations fail to support
a fraud claim because under Louisiana law, “an individual who signs a contract is
presumed to have understood its contents absent evidence to the contrary” and
“Plaintiffs have no evidence, other than their own self-serving testimony, to support
the allegation that Plaintiffs’ signatures on the mortgage loan documents were
forged.”245
For the reasons explained above, the Court does not consider Plaintiffs’
generalized allegations relating to all Defendants without identifying any particular
defendant. It considers only Plaintiffs’ allegations relating specifically to Trieu, which
245 R. Doc. 77-1 at p. 25-26.
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is limited to an allegation that Trieu formed one of the allegedly fraudulent LLCs.246
But this allegation, like Plaintiffs’ allegations relating to other Defendants, falls short
of Rule 9(b)’s pleading requirements. 	While Plaintiffs allege the “how” and “who”
questions contemplated by Rule 9(b), Plaintiffs do not allege when or where in their
Complaint. 	And despite Plaintiffs’ argument in their opposition, and while viewing
the facts in the light most favorable to Plaintiffs, the Court does not find that “during
the Loan application and closing process” and “in loan documents, public filings, and
communications with . . . Defendants” is sufficient to state a claim for fraud.247 While
such an allegation may be enough to meet the standard pleading requirements under
Rule 8, these are precisely the type of general and imprecise allegations that Rule 9’s
heightened pleading standard seeks to prevent.
Finally, like their fraud claims against the Mortgage Broker and the Realtor,
Plaintiffs fail to allege any facts going to Trieu’s scienter. While Plaintiffs may raise
generalized allegations that the purpose of the LLC was to defraud Plaintiffs, Rule
9(b) requires Plaintiffs to allege facts which, if proven, would establish that Trieu
intended to defraud Plaintiffs. Plaintiffs have failed to do so and thus, for this reason,
and the reasons outlined above, Plaintiffs’ fraud claim against Trieu fails.
246 R. Doc. 61 at ¶ 117 (“Defendants established the sham LLC in the name of Plaintiffs and without
their knowledge and authorization. In fact, Defendants established two different LLCs. Settlement
Agent, Mortgage Broker, and GCBT were directly involved in establishing the LLCs. Defendants then
proceeded to file into the public records the false and fraudulent documents.”) (internal citations
omitted) The Court additionally notes that this allegation is made against all Defendants, which, the
Court reiterates, is insufficient to satisfy the strictures of Rule 9(b).
247 R. Doc. 82 at p. 19.
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E. Plaintiffs’ Breach of Contract Claims
The elements for breach of contract under Louisiana law are: (1) the obligor's
undertaking of an obligation to perform; (2) that the obligor failed to perform the
obligation (i.e. breach); and (3) that the breach resulted in damages to the obligee.248
The Civil Code defines an obligation as “a legal relationship whereby a person, called
the obligor, is bound to render a performance in favor of another.”249 “To state a claim
for breach of an insurance contract under Louisiana law, a plaintiff must allege a
breach of a specific policy provision.”250 	Failure to do so “is enough to render the
complaint deficient.”251
a. The Mortgage Broker’s Motion to Dismiss as to Plaintiffs’ Breach of
Contract Claim
The Mortgage Broker argues that Plaintiffs have failed to state a claim against
it for breach of contract. The Mortgage Broker argues that “Plaintiffs do not include
any facts to support” their “conclusory allegations” that the Mortgage Broker
breached the parties’ contract.252 	The Mortgage Broker further argues that, to the
extent Plaintiffs claim that the Mortgage Broker breached the loan agreement,
Plaintiffs’ claim must fail because the Mortgage Broker was not a party to that
contract.253
248 SnoWizard, Inc. v. Robinson, 897 F.Supp.2d 472, 478 (E.D. La. 2012).
249 Id. ( QUOTING LA. C IV. C ODE art. 1756).
250 Engles v. Great Lakes Ins. SE, 675 F.Supp.3d 702, 706 (E.D. La. 2023) (quoting Louque v. Allstate
Ins. Co., 314 F.3d 776, 782 (5th Cir. 2002)) (internal quotations omitted).
251 Id. at 707 (quoting Omkar, LLC v. AmGUARD Ins. Co., 624 F.Supp.3d 646, 652 (E.D. La. 2002))
(internal quotations omitted).
252 R. Doc. 64-1 at p. 20.
253 Id. at p. 21.
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As to the first element, the Court finds that the Complaint alleges facts
sufficient to allege the existence of a contract between the parties. 	The Complaint
alleges that “Plaintiffs entered into an agreement with . . . Mortgage Broker for the
selection and purchase of a home, and obtainment of a residential mortgage loan.”254
The Complaint alleges that this agreement was memorialized in the Mortgage Loan
Origination Agreement, which Plaintiffs attach to their operative Complaint.255
Plaintiffs allege in their operative Complaint that:
[T]he Mortgage Broker failed to honestly and truthfully fill out the loan
application; failed to analyze the Plaintiffs’ income and debt, and failed
to properly determine the maximum mortgage that the Plaintiffs could
afford; failed to educate Plaintiffs in the home buying and financing
process, 	advise 	them 	about 	the 	different 	types 	of 	mortgage 	loan
products, and demonstrate how closing costs and monthly payments
would 	vary 	under 	each 	product; 	failed 	to 	provide 	the 	requisite
disclosures (TILA, good faith estimate, etc.); failed to assist Plaintiffs in
understanding and clearing credit problems; and failed to disclose the
Mortgage Broker’s compensation.256
Plaintiffs do not identify the specific provisions of the agreement that these failures
are alleged to have violated. The Fifth Circuit has held that “in order to allege a valid
‘claim for breach of an insurance contract under Louisiana law, a plaintiff must allege
a breach of a specific policy provision.’”257 However, this requirement does not extend
to general breach-of-contract claims under Louisiana law, and the Fifth Circuit
recently 	declined 	to 	extend 	any 	requirement 	of 	pleading 	a 	specific 	breached
254 R. Doc. 61 at ¶ 127.
255 Id. at ¶ 137 (citing R. Doc. 61-25 at p. 13).
256 R. Doc. 61 at ¶ 137.
257 Hibbets v. Lexington Ins. Co., 377 F. App’x 352, 355 (5th Cir. 2010) (quoting Louque v. Allstate Ins.
Co., 314 F.3d 776, 782 (5th Cir. 2002)).
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provision.258 Viewing the allegations in a light most favorable to the Plaintiffs and
accepting all well-pleaded allegations as true, the Court finds that Plaintiffs have
sufficiently alleged a claim for breach of contract regarding the Mortgage Loan
Origination Agreement.259
However, to the extent Plaintiffs argue that the Mortgage Broker breached the
chief loan contract between Plaintiffs and the Bank, 260 Plaintiffs’ claim fails. As the
Mortgage Broker points out, the Mortgage Broker is not alleged to be a party to the
loan agreement between Plaintiffs and the Bank, and “no action for breach of contract
may lie in the absence of privity of contract between the parties.”261 Thus, any claim
by Plaintiffs that the Mortgage Broker breached the chief loan contract fails.
b. The Realtor’s Motion to Dismiss as to Plaintiffs’ Breach of Contract
Claim
The Realtor argues that Plaintiffs have failed to state a claim against it for
breach of contract. 	The Realtor argues that “Plaintiffs include no facts to support”
their “conclusory allegations” that the Realtor breached the parties’ contract.262 The
Realtor further argues that the alleged agreement between the Realtor and Plaintiffs
258 Spinosa v. Foremost Ins. Co. Grand Rapids Michigan, No. 24-30472, 2025 WL 304530, at *1 (5th
Cir. Jan. 27, 2025) (“…while Louisiana law is in play here, federal law is the key to the pleading
standards, and we do not require plaintiffs to plead the specific breached provision.”); see also Innova
Hosp. San Antonio, Ltd. v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 719, 731–32 (5th Cir.
2018) (rejecting the notion that “to properly plead a breach of contract claim, a plaintiff must identify
a specific provision of the contract that was allegedly breached”).
259 See R. Doc. 61-25 at p. 13.
260 See R. Doc. 61 at ¶134 (“To the extent that Realtor and Mortgage Broker facilitated and executed
the chief contract between Plaintiffs and GCBT, Realtor and Mortgage Broker stand in breach for the
same reasons stated above.”).
261 Pearl River Basin Land & Dev. Co. LLC v. Louisiana ex rel. Governor’s Off. Of Homeland Security
& Emergency Preparedness, 29 So.3d 589, 592 (La. App. 1 Cir. 2009) (citation omitted).
262 R. Doc. 65-1 at p. 20-21.
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is not an agreement at all but is an informational pamphlet.263 Finally, the Realtor
argues that, to the extent Plaintiffs claim that the Realtor breached the loan
agreement, Plaintiffs’ claim must fail because the Realtor was not a party to that
contract.264
The Court finds that Plaintiffs’ breach of contract claim against the Realtor
fails at the first element, namely the undertaking of an obligation to perform.
Plaintiffs allege that “Plaintiffs entered into an agreement with Realtor . . . for the
selection and purchase of a home, and obtainment of a residential mortgage loan.”265
Plaintiffs attached the purported agreement to their operative Complaint and assert
that “[t]his contract was never presented to Plaintiffs.”266 	Confusingly, Plaintiffs
allege that the Realtor breached the “fraudulent contract.”267
The most glaring issue with Plaintiffs’ breach of contract claim against the
Realtor is their own statement that the alleged contract “was never presented to
Plaintiffs” and is therefore “fraudulent.”268 “Under Louisiana law, a contract is
263 Id. at p. 21.
264 Id.
265 R. Doc. 61 at ¶ 127.
266 Id. at ¶ 135 (“Exhibit 3 contains a copy of a purported written agreement between Plaintiffs and
Realtor (Nga Baird). This contract was never presented to Plaintiffs, however, evidently, it was
intended by Realtor to be the contract between the parties. The date of the purported execution is
December 4, 2020, which is one day after the purchase of the Property. Plaintiffs never signed this
document. In breach of that – fraudulent – contract, Realtor failed to promote the Plaintiffs’ best
interests; failed to treat Plaintiffs honestly; failed to help Plaintiffs compare different financing
options; failed to explain the real estate terms; and failed to explain the closing costs and procedures.
Ultimately, Realtor failed at its agency duties.”). The Court finds it appropriate to consider the
purported agreement in deciding the present motion because it is attached to the Complaint,
referenced in the Complaint, and central to the Plaintiffs’ claim of breach of contract. See Maloney
Gaming Mgmt., L.L.C. v. St. Tammany Par., 456 F. App'x 336, 340–41 (5th Cir. 2011).
267 Id. (citation modified).
268 Id.
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formed by the consent of the parties established through offer and acceptance.”269
“Consent is an absolute necessity to the formation of a contract, and where there is
no meeting of the minds between the parties the contract is void for lack of
consent.”270 Accepting Plaintiffs’ allegations as true and viewing them in a light most
favorable to Plaintiffs, Plaintiffs did not consent to the purported agreement, and
there can be no breach of contract where there is no valid contract.271 For this reason,
Plaintiffs’ breach of contract claim as to the alleged agreement (or lack thereof)
between Plaintiffs and the Realtor fails, and the Court declines to consider the
Realtor’s additional arguments as to why Plaintiffs’ claim as to this agreement should
be dismissed.272
Finally, to the extent Plaintiffs argue that the Realtor breached the loan
agreement between Plaintiffs and the Bank,273 Plaintiffs’ claim fails. As the Realtor
points out, the Realtor is not alleged to be a party to the loan agreement, and “no
action for breach of contract may lie in the absence of privity of contract between the
parties.”274 	Thus, any claim by Plaintiffs that the Realtor breached the loan
agreement fails.
269 Moridani v. Stone Clinical Labs., LLC, 231 So.3d 803, 807 (La. App. 4 Cir. 2017).
270 Id. (citing Marseilles Homeowners Condo. Ass’n, Inc. v. Broadmoore, LLC, 111 So.3d 1099, 1111
(La. App. 4 Cir. 2001)) (citation modified).
271 See Bayou Rapides Corp. v. Dole, 165 So.3d 33, 383 (La. App. 3 Cir. 2015); J. Calderera & Co., Inc.
v. Stigler, 406 So.3d 1200, 1204 (La. App. 5 Cir. 2025).
272 To the extent Plaintiffs contend that they entered into a verbal agreement with the Realtor and
that the Realtor’s alleged conduct violated the terms of the verbal agreement, Plaintiffs’ claim fails
because, among other things, Plaintiffs do not allege the terms of the agreements or specify factual
allegations as to how the Realtor’s conduct violated any verbal agreement.
273 See R. Doc. 61 at ¶134 (“To the extent that Realtor and Mortgage Broker facilitated and executed
the chief contract between Plaintiffs and GCBT, Realtor and Mortgage Broker stand in breach for the
same reasons stated above.”).
274 Pearl River Basin Land & Dev. Co. LLC v. Louisiana ex rel. Governor’s Off. Of Homeland Security
& Emergency Preparedness, 29 So.3d 589, 592 (La. App. 1 Cir. 2009) (citation omitted).
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F. Plaintiffs’ FHA Claims
The Fair Housing Act (“FHA”) makes it unlawful “[t]o discriminate against any
person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the
provision of services or facilities in connection therewith, because of race, color,
religion, sex, familial status, or national origin.”275 It likewise provides that “[i]t shall
be unlawful for any person or other entity whose business includes engaging in
residential real estate-related transactions to discriminate against any person in
making available such a transaction, or in the terms or conditions of such a
transaction, because of race, color, religion, sex, handicap, familial status, or national
origin.276
a. The Mortgage Broker’s Motion to Dismiss as to Plaintiffs’ FHA Claim
The Mortgage Broker argues that Plaintiffs’ FHA claims must be dismissed as
time-barred. The statute of limitations for FHA claims is two years, and it begins to
run “after the occurrence or the termination of an alleged discriminatory housing
practice.”277 	Plaintiffs 	allege 	that 	the 	Mortgage 	Broker 	violated 	the 	FHA 	by
communicating incorrect loan terms and information to Plaintiffs in connection with
the purchase of their home. Plaintiffs advise in their Complaint that their association
with the Mortgage Broker began in October 2020 and that Plaintiffs closed on the
property on December 3, 2020.278 Reading the Complaint in the light most favorable
to Plaintiffs, the Court considers December 3, 2020, to be the end of the occurrence
275 42 U.S.C. § 3604(b).
276 42 U.S.C. § 3605(a).
277 42 U.S.C. § 3613(a)(1)(A); Lawrence v. Ctr. Props., LLC, 847 F. App’x 254, 256 (5th Cir. 2021).
278 R. Doc. 61 at ¶¶ 17, 24 n.6.
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that Plaintiffs allege gives rise to their FHA claim. Plaintiffs filed suit on August 2,
2024, over three and a half years later.279 Plaintiffs do not appear to dispute that the
actions that give rise to their FHA claim occurred more than two years before they
filed suit.280 	Plaintiffs argue, however, that their claims are not prescribed due to
equitable tolling and the continuing violation theory. The Court disagrees.
“Equitable tolling pauses the running of, or ‘tolls,’ a statute of limitations when
a litigant has pursued his rights diligently but some extraordinary circumstance
prevents him from bringing a timely action.”281 “Congress is presumed to incorporate
equitable tolling into federal statutes of limitations because equitable tolling is part
of the established backdrop of American law.”282 	The Fifth Circuit has recognized
that equitable tolling may be appropriate when a plaintiff is unaware of the facts
giving rise to the claim because of the defendant's intentional concealment of them.283
The Fifth Circuit has found that a limitations period may be tolled when two elements
are met: “first, that the defendants concealed the conduct complained of, and second,
that the plaintiff failed, despite the exercise of due diligence on his part, to discover
the facts that form the basis of his claim.”284 	The Plaintiffs bear the burden of
establishing that equitable tolling is appropriate.285
279 R. Doc. 1.
280 See supra note 278.
281 Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)) (citation modified).
282 Id. (citing Rotella v. Wood, 528 U.S. 549, 560 (2000)).
283 Granger v. Aaron’s, Inc., 636 F.3d 708, 712 (5th Cir. 2011) (citing Wilson v. Sec’y, Dep’t of Veterans
Affairs, 65 F.3d 402,404 (5th Cir. 1995)).
284 Trinity Marine Prods., Inc. v. United States, 812 F.3d 481, 489 (5th Cir. 2016) (quoting Texas v.
Allan Constr. Co., 851 F.2d 1526, 1528 (5th Cir. 1988)).
285 Id. (citing Wilson, 65 F.3d at 404).
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Plaintiffs argue that the Mortgage Broker fraudulently concealed the true
terms of the loan by communicating false terms to Plaintiffs in Vietnamese. Taking
this allegation as true, as the Court must do at this stage, Plaintiffs cannot prevail in
showing fraudulent concealment because Plaintiffs have not alleged that they
exercised due diligence in discovering their claims. 	Quite the opposite. 	Plaintiffs
allege that based on the paperwork they had access to, their attorney was able to
review the loan terms and determine that “the Note contains different terms and
conditions than what had been relayed to Plaintiffs by Defendants.”286 While the
Mortgage Broker may have verbally communicated to Plaintiffs loan terms that are
different than those in the executed loan documents, Plaintiffs do not allege that they
have not been in possession of the loan documents. Had Plaintiffs exercised due
diligence in having the loan documents translated or had an attorney review the
documents prior to signing them, they would have uncovered the alleged fraud.287
Thus, equitable tolling is not appropriate.
Nor 	does 	the 	continuing 	violation 	theory 	save 	Plaintiffs’ 	claims. 	“The
continuing violation theory provides that where the last act alleged is part of an
ongoing pattern of discrimination and occurs within the filing period, allegations
concerning earlier acts are not time-barred.”288 Plaintiffs argue that the continuing
violation applies here because “Ms. Tran was and remains subject to the illicit and
fraudulent terms of the Loan” and therefore, the violations are ongoing.289 	This
286 R. Doc. 61 at ¶ 40.
287 See id. at ¶ 24.
288 McGregor v. La. State Univ. Bd. of Sup’rs, 3 F.3d 850, 866 (5th Cir. 1993).
289 R. Doc. 61 at ¶ 145.
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application of the continuing violation theory has been expressly rejected by the Fifth
Circuit. As stated by the Fifth Circuit, “a plaintiff cannot use the continuing violation
theory to resurrect claims about discrimination . . . concluded in the past, even though
its effects persist.”290 That Plaintiffs refer to Plaintiffs’ ongoing obligations to pay the
loan as “continuing violations” does not change the fact that the alleged FHA violation
is the mortgage itself. 	Everything after the execution of the mortgage is merely a
result of a violation. For this reason, the continuing violation theory is unavailable
to Plaintiffs, and their FHA claim must be dismissed as time-barred.
b. The Closing Agent’s Motion to Dismiss as to Plaintiffs’ FHA Claim
The Closing Agent (“Trieu”) likewise seeks dismissal of Plaintiffs’ FHA claim,
although Trieu does so on the merits of the claim.291 Trieu argues that the Complaint
fails to allege that Trieu discriminated against Plaintiffs and that, as a result,
Plaintiffs’ FHA claim fails as a matter of law. Plaintiffs argue that this claim “is
rooted in allegations that Defendants engaged in a deliberate and coordinated scheme
to mislead and defraud Plaintiffs by exploiting their national origin and LEP status”
and that Defendants’ actions “constitute intentional discrimination under the Fair
Housing Act.”292
For a claim of intentional discrimination or “disparate treatment,” which
“refers to treating some people ‘less favorably than others because of a protected
290 McGregor, 3 F.3d at 867.
291 See R. Doc. 77-1 at pp. 16-19. Because Trieu has not argued that Plaintiffs’ FHA claim is time-
barred, the Court does not consider the statute of limitations as applied to the FHA claim against
Trieu.
292 R. Doc. 82 at p. 14.
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trait,’” there must be “evidence of discriminatory action” or “inferences from the fact
of differences in treatment.”293 “With discriminatory treatment claims, there can be
no liability without a finding that the protected trait (e.g., race [or national origin])
motivated the challenged action.”294 Plaintiffs’ Complaint alleges:
Defendants 	communicated 	information 	to 	Plaintiffs 	verbally 	in
Vietnamese, while all the documents and purported agreements were in
English, that is, a language that Defendants knew that Plaintiffs cannot
read and understand. Defendants also failed to provide the pertinent
documents in Vietnamese, the language that Plaintiffs can read and
understand.295
Accepting these facts as true, the Court finds that the vague and conclusory
allegations asserted against all Defendants collectively to be “legally insufficient to
support a reasonable inference of intentional [national origin] discrimination” against
the Closing Agent.296 For that reason, the FHA claim asserted against the Closing
Agent must be dismissed.
G. Plaintiffs’ Unjust Enrichment Claims
Plaintiffs also bring claims for unjust enrichment.297 	To plead a claim for
unjust enrichment under Louisiana law, a plaintiff must allege: “(1) an enrichment;
(2) 	an 	impoverishment; 	(3) 	a 	connection 	between 	the 	enrichment 	and
impoverishment; (4) an absence of justification or cause for the enrichment or
impoverishment; and (5) no other remedy at law available.”298
293 Inclusive Communities Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 909-910 (5th Cir. 2019)
(quoting Ricci v. DeStefano, 557 U.S. 557, 577, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009)).
294 Id.
295 R. Doc. 61 at ¶ 142.
296 See Inclusive Communities, 920 F.3d at 910.
297 R. Doc. 61 at ¶ 150.
298 Nine-O-Five Royal Apartment Hotel, Inc. v. Atkins, 151 So.3d 739, 755 n.25 (La. App. 4 Cir. 2014)
(citing United Enterprises Corp. v. Dixon Mortgage Group, Inc., 762 So.2d 43, 47 (La. App. 4 Cir. 2000)).
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a. The Mortgage Broker’s Motion to Dismiss as to Plaintiffs’ Unjust
Enrichment Claim
The Mortgage Broker argues that Plaintiffs’ unjust enrichment fails because
Plaintiffs do not allege that the only enrichment the Mortgage Broker received—the
broker fee—was unearned.299 The Mortgage Broker further argues that unjust
enrichment is subsidiary in nature and can only survive if all of Plaintiffs’ other
claims fail.300
The Court addresses the Mortgage Broker’s final argument first. 	Louisiana
Civil Code Article 2298, the Article pertaining to unjust enrichment, instructs that
unjust enrichment “is subsidiary and shall not be available if the law provides
another remedy for the impoverishment or declares a contrary rule.”301 	Courts
interpreting this Article, including the Louisiana Supreme Court, have explained
that the existence of another remedy at law will preclude an unjust enrichment
claim.302 	Plaintiffs 	argue 	that 	this 	does 	not 	preclude 	their 	claim 	for 	unjust
enrichment because “Louisiana law allows unjust enrichment claims to proceed
where other remedies may fail or prove unavailable.”303 Plaintiffs argue that if their
299 R. Doc. 64-1 at p. 22.
300 Id. at pp. 22-23.
301 LA. C IV. C ODE art. 2298.
302 Andretti Sports Marketing La, LLC v. NOLA Motorsports Host Committee, Inc., 2015 WL 13540096,
at *7 (E.D. La. Dec. 2, 2015); Ferrara Fire Apparatus, Inc. v. JLG Industries, Inc., 581 F. App’x 440,
444 (5th Cir. 2014); United States v. Cytogel Pharma, LLC, 2018 WL 5297753, at *16-17 (E.D. La. Oct.
25, 2018); Walters v. MedSouth Record Mgmt, LLC, 38 So.3d 241, 242 (La. 2010); JP Mack Industries,
LLC v. Mosaic Fertilizer, LLC, 970 F.Supp.2d 516, 521 (E.D. La. 2013); Patriot Contracting, LLC v.
Star Ins. Co., 2018 WL 1123586, at *5 (E.D. La. Mar. 1, 2018).
303 R. Doc. 75 at p. 68.
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remaining claims—the subject of three motions to dismiss—“fail, unjust enrichment
would provide the only available remedy.”304
Plaintiffs’ statement of the law is in direct conflict with what the law actually
provides. Indeed, courts interpreting Article 2298, including various sections of this
Court, the Fifth Circuit, and the Louisiana Supreme Court, have explained that “[t]he
important question is whether another remedy is available, not whether the party
seeking a remedy will be successful.”305 	This distinction is highlighted in the
Louisiana Supreme Court’s decision in Walters v. MedSouth Record Management,
LLC.306 	In that case, the plaintiff amended his petition to raise a claim for unjust
enrichment after his tort claim was dismissed.307 	The defendant filed an exception
of no cause of action, which the district court denied.308 In reviewing the district
court’s decision, the state Supreme Court held that the plaintiff was precluded from
recovering under unjust enrichment because he had pleaded a tort claim.309 It was
of no moment, the Court explained, that plaintiff’s tort claim was ultimately
unsuccessful; “[t]he mere fact that a plaintiff does not successfully pursue another
available remedy does not give the plaintiff the right to recover under the theory of
unjust enrichment.”310 	Indeed, to find otherwise “would be tantamount to allowing
304 Id. at p. 69.
305 Ferrara, 581 F. App’x at 443-44.
306 38 So.3d 241.
307 Id. at 242.
308 Id.
309 Id.
310 Id.
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any plaintiff who let his cause of action prescribe, or any plaintiff who knowingly
wrote a bad contract, to recover under an enrichment theory.”311
Plaintiffs have asserted ten causes of action against Defendants in this case.
However, unlike in Walters, Plaintiffs here have additionally asserted a claim for
unjust enrichment against many of the same Defendants. 	Whether Plaintiffs are
ultimately successful in pursuing those claims is of no import.312 While Fed. R. Civ.
P. 8(d) permits a party to plead separate, inconsistent claims in the alternative, “the
Fifth Circuit and Louisiana Supreme Court agree that if a plaintiff pleads alternative
claims, such as contract or delictual claims, the plaintiff cannot maintain a cause of
action for unjust enrichment on those same facts.”313 	Plaintiffs’ Fourth Amended
Complaint clearly establishes that other remedies exist and are available to Plaintiffs
and that Plaintiffs’ unjust enrichment claim is based on identical facts as their other
claims, and therefore, unjust enrichment is unavailable to Plaintiffs.314 Plaintiffs’
claim for unjust enrichment against the Mortgage Broker must be dismissed.
311 Id. (quoting Jim Walter Homes v. Jessen, 732 So.2d 699, 706 (La. App. 3 Cir. 1999)).
312 Ferrara Fire Apparatus, Inc., 581 F. App'x at 443–44 (“the important question is whether another
remedy is available, not whether the party seeking a remedy will be successful.”).
313 Matrix HVAC, LLC v. Daikin Applied Americas, Inc., No. CV 23-1669, 2023 WL 8701330, at *6
(E.D. La. Dec. 15, 2023) (Barbier, J.) (citing Ferrara Fire Apparatus, Inc., 581 F. App'x at 443-444;
Walters v. Medsouth Record Mgmt., LLC, 38 So. 3d 241, 242 (La. 2010)); see also Oliver v. Roehm Am.,
LLC, No. CV 21-1831, 2023 WL 2475695, at *5 (E.D. La. Mar. 13, 2023) (Brown, J.); Shaw v.
Restoration Hardware, Inc., No. CV 21-1540, 2022 WL 343458, at *6 (E.D. La. Feb. 4, 2022) (Lemelle,
J.); Bureau Veritas Commodities & Trade, Inc. v. Nanoo, No. CV 20-3374, 2021 WL 2142466, at *7–8
(E.D. La. May 26, 2021) (Vance, J.).
314 Even if this were not the law, the Court notes that not all of Plaintiffs’ claims are the subject of a
motion to dismiss as to every Defendant. By way of example, the Realtor notes that Plaintiffs’ FHA
claim “is not the subject of [its] motion.” R. Doc. 65-1 at p. 2. Furthermore, Defendants Gulf Coast
Bank and Trust and Rance Mangipano did not file a motion to dismiss. See also id. at 444 (holding
that because the plaintiff could have brought a claim for breach of contract for any damages it incurred
during the time the contract was still in effect, the Plaintiff cannot maintain a cause of action for
unjust enrichment during that time).
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b. The Realtor’s Motion to Dismiss as to Plaintiffs’ Unjust Enrichment
Claim
The Realtor likewise argues that dismissal of Plaintiffs’ unjust enrichment
claim is appropriate. As a basis for dismissal, the Realtor argues that Plaintiffs’ claim
may not succeed because Plaintiffs have pleaded other theories of recovery and
because the only enrichment Plaintiffs allege is work that the Realtor actually
performed.
For the same reasons stated above, the Court grants the motion to dismiss
Plaintiffs’ unjust enrichment claim against the Realtor under Fed. R. Civ. P. 12(b)(6).
c. 	The 	Closing 	Agent’s 	Motion 	to 	Dismiss 	as 	to 	Plaintiffs’ 	Unjust
Enrichment Claim
The Closing Agent also argues that dismissal of Plaintiffs’ unjust enrichment
claim is appropriate. 	As a basis for dismissal, the Closing Agent argues that
Plaintiffs’ claim may not succeed because Plaintiffs have pleaded other theories of
recovery and because “unjust enrichment cannot result from a valid juridical act.”315
For the same reasons stated above, the Court grants the motion to dismiss
Plaintiffs’ unjust enrichment claim against the Closing Agent under Fed. R. Civ. P.
12(b)(6).
H. Plaintiffs’ Breach of Fiduciary Duty Claims
Plaintiffs also argue that the Realtor and the Mortgage Broker breached their
fiduciary duties to Plaintiffs.316 	Under Louisiana law, the elements of a breach of
315 R. Doc. 77-1 at pp. 27-28.
316 R. Doc. 61 at ¶¶ 154 and 155.
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fiduciary duty are: (1) the existence of a fiduciary duty; (2) breach of the duty by the
fiduciary; and (3) damages resulting from the breach.317
a. The Mortgage Broker’s Motion to Dismiss as to Plaintiffs’ Breach of
Fiduciary Duty Claim
The Mortgage Broker argues that Plaintiffs’ fiduciary claims against it must
be dismissed because the Mortgage Broker did not owe a fiduciary duty to Plaintiffs.
The Mortgage Broker further alleges that Plaintiffs have not suffered any injury
because the LLC, not Plaintiffs, are the borrowers on the loan.
A fiduciary duty requires a fiduciary relationship.318 “A fiduciary relationship
has been described as one that exists when confidence is reposed on one side and
there is resulting superiority and influence on the other.’”319
One is said to act in a fiduciary capacity when the business which he
transacts, or the money or property which he handles, is not his own or
for his own benefit, but for the benefit of another person, as to whom he
stands in a relation implying and necessitating great confidence and
trust on the one part and a high degree of good faith on the other.320
“Whether a fiduciary duty exists, and the extent of that duty, depends on the facts
and circumstances of the case and the relationship of the parties.”321
Despite the Mortgage Broker’s insistence to the contrary, the Court finds that
Plaintiffs have successfully pleaded that the Mortgage Broker owed a fiduciary duty
to Plaintiffs. Plaintiffs pleaded that they were referred to the Mortgage Broker “for
317 United States Small Business Admin. v. Beaulieu, 75 F. App’x 249, 252 (5th Cir. 2003) (citing
Omnitech Int’l, Inc. v. The Clorox Co., 11 F.3d 1316, 1330 (5th Cir. 1994)).
318 Scheffler v. Adams & Reese, LLP, 950 So.2d 641, 647 (La. 2007) (citation modified).
319 Id. (quoting Plaquemines Par. Commission Council v. Delta Dev. Co., Inc., 502 So.2d 1034, 1040
(La. 1987)) (citation modified).
320 Id. (quoting State v. Hagerty, 251 La. 477, 493 (La. 1967)) (citation modified).
321 Hunters Run Gun Club, LLC v. Baker, 2019 WL 3400696, at *4 (M.D. La. July 26, 2019) (quoting
Scheffler, 950 So.2d at 647) (citation modified).
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a residential loan to purchase the Property.”322 	Plaintiffs further allege that they
provided their tax returns to the Mortgage Broker and that after review, the
Mortgage Broker advised Plaintiffs on the type of loan for which Plaintiffs were
eligible.323 	These factual allegations, which are accepted as true and viewed in the
light most favorable to Plaintiffs as is required under Fed. R. Civ. P. 12(b)(6),
plausibly allege that the Mortgage Broker owed a duty to Plaintiffs in facilitating
their mortgage and then breached that duty by failing to disclose to Plaintiffs that
the loan had a variable interest rate.324 Plaintiffs have also sufficiently alleged
damages as a result of the alleged breach.325 For those reasons, the Court denies the
Mortgage Broker’s motion to dismiss as it pertains to the claim for breach of fiduciary
duty.
b. The Realtor’s Motion to Dismiss as to Plaintiffs’ Breach of Fiduciary
Duty Claim
The Realtor argues that Plaintiffs “include no facts in their fourth amended
complaint that support their claim for breach of fiduciary duty against either Ms.
Baird or New World Realty” and that the Realtor had no duty to disclose information
to Plaintiffs regarding the bank loan.326
For a breach of fiduciary duty to have occurred, a fiduciary relationship must
have necessarily existed. A real estate broker “stands in a fiduciary relationship to
his client, and is bound to exercise reasonable care, skill and diligence in the
322 R. Doc. 61 at ¶ 17.
323 Id. at ¶ 19.
324 Id. at ¶¶ 20-21.
325 Id. at ¶¶ 33, 145.
326 R. Doc. 65-1 at p. 22.
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performance of his duties.”327 A broker’s duties are generally “limited to those which
can be analogically drawn from La. R.S. 37:1454 and from the customs and practices
of real estate brokers in general.”328 Because Plaintiffs have alleged that the Realtor
worked as a real estate broker for the Plaintiffs, and viewing the allegations in the
Complaint as true and in the light most favorable to the plaintiffs, Plaintiffs have
successfully alleged that the Realtor owed a fiduciary duty to them.
However, when isolating the facts as pled in the Complaint, and accepting
them as true, the Court finds that the allegations as stated do not give rise to a
cognizable 	claim 	of 	breach 	of 	fiduciary 	duty 	against 	the 	Realtor 	because 	the
allegations do not demonstrate that the Realtor breached their duty. While Plaintiffs
argue in their opposition to the present motion that they alleged that “Ms. Baird
assured them that the loan would be a fixed-rate residential loan with an interest
rate of 4.85%,” this allegation does not appear in the operative Complaint.329 As such,
the Court finds that the claim for breach of fiduciary duty against the Realtor must
be dismissed.
I. 	Plaintiffs’ Negligent Misrepresentation Claims
To state a claim for negligent misrepresentation in Louisiana, the plaintiff
must allege: (1) a legal duty on the part of the defendant to provide correct
327 Mallet v. Maggio, 503 So. 2d 37, 38 (La. Ct. App. 1 Cir. 1986), writ denied sub nom. Mallett v.
Maggio, 504 So. 2d 880 (La. 1987) (internal citation omitted).
328 Id. (quoting Leggio v. Realty Mart, Inc., 303 So.2d 920, 923–24 (La. App. 1 Cir.1974), writ
denied, 307 So.2d 629 (La.1975)).
329 Compare R. Doc. 76 at p. 41 with R. Doc. 61 at ¶ 19.
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information; (2) breach either by omission or affirmative misrepresentation; and (3)
damages based on the plaintiff’s reasonable reliance on the misrepresentation.330
a. The Mortgage Broker’s Motion to Dismiss as the Plaintiffs’ Negligent
Misrepresentation Claim
The Mortgage Broker argues that Plaintiffs’ claim fails because Plaintiffs “do
not allege that defendants told them that the loan was a fixed-rate residential
mortgage.”331 Plaintiffs allege in their operative Complaint that the Mortgage Broker
“presented the terms of the loan to Plaintiffs as a $160,500.00, 20-year term at a fixed
4.85% interest rate” and that the Mortgage Broker “never disclosed to Plaintiffs that
the Loan in fact had a variable interest rate and that the rate was expected to
fluctuate.”332 	This 	allegation, 	however, 	is 	insufficient 	to 	meet 	the 	pleading
requirements of Rule 9(b).333 	“At a minimum, Rule 9(b) requires allegations of the
particulars of time, place, and contents of the false representations, as well as the
identity 	of 	the 	person 	making 	the 	misrepresentation 	and 	what 	he 	obtained
thereby.”334 As the Court explained with relation to Plaintiffs’ fraud claim based on
the same allegation, Plaintiffs fail to allege when and where the Mortgage Broker
made this representation. Without these supporting factual allegations, Plaintiffs’
negligent misrepresentation claim cannot stand.
330 Kadlec, 527 F.3d at 418.
331 R. Doc. 64-1 at p. 19.
332 R. Doc. 61 at ¶¶ 20, 21.
333 See Benchmark, 343 F.3d at 723 (“Although Rule 9(b) by its terms does not apply to negligent
misrepresentation claims, [the Fifth Circuit] has applied the heightened pleading requirements when
the parties have not urged a separate focus on the negligent misrepresentation claims. That is the
case here, as Benchmark’s fraud and negligent misrepresentation claims are based on the same set of
alleged facts.”) (citation modified) (citing Williams v. WMX Techs., Inc., 112 F.3d 175, 177 (5th Cir.
1997)).
334 Id. (quoting Tel-Phonic Servs., Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1139 (5th Cir. 1992)).
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b. The 	Realtor’s 	Motion 	to 	Dismiss 	as 	the 	Plaintiffs’ 	Negligent
Misrepresentation Claim
“A real estate broker or agent owes a specific duty to communicate accurate
information to the seller and the purchaser and may be held liable for negligent
misrepresentation.”335 	Plaintiffs argue that the Realtor breached this duty by
assuring Plaintiffs “that they were securing a fixed-rate residential mortgage loan at
an interest rate of 4.85%” when “in reality, the Loan was a variable-rate commercial
loan issued in the name of a sham LLC without Plaintiffs’ consent or knowledge.”336
In support of their argument, Plaintiffs cite to paragraphs 19 and 20 of the operative
Complaint. Those paragraphs, however, allege representations made by the Mortgage
Broker. 	The only allegation relating to what the Realtor represented to Plaintiffs
regarding the loan is that the “Realtor assured them that the debts would pose no
problem, however, an interest rate higher than the current rate of 2.6% and a 25%
down payment were required . . . . Realtor advised that there would be no income or
credit requirements.”337 The basis of Plaintiffs’ claim is that they were bound to an
adjustable-rate mortgage despite being advised that they were receiving a fixed rate
mortgage. Plaintiffs do not allege that the Realtor made any representation to
Plaintiffs that they would receive a fixed rate mortgage.338 For that reason, the claim
does not survive the Realtor’s Motion.
335 Merlin v. Fuselier Const., Inc., 789 So.2d 710, 717 (La. App. 2 Cir. 2001).
336 R. Doc. 76 at p. 37.
337 R. Doc. 61 at ¶ 17.
338 As the Realtor points out, none of Plaintiffs’ other allegations relating to the Realtor support a claim
for negligent misrepresentation.
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c. 	The Closing Agent’s Motion to Dismiss as the Plaintiffs’ Negligent
Misrepresentation Claim
The Closing Agent argues that Plaintiffs’ claim against it fails because
Plaintiffs have not alleged that Trieu owed them a duty or that it made any
misrepresentations to Plaintiffs. 	Plaintiffs allege that Trieu’s actions “extended far
beyond ministerial functions, creating a duty to disclose material facts about the
Loan’s structure and terms.”339 In response to Trieu’s argument regarding its lack of
duty, Plaintiffs summarily declare that “[a] duty to disclose arises where one party
has superior knowledge or control over material facts that are not accessible to the
other party, and the other party is relying on that information.”340 Plaintiffs fail to
cite any legal source for this statement. While the scope of the duty owed by Trieu to
Plaintiffs is unclear, the Court need not resolve the issue. Plaintiffs make no
allegation 	in 	the 	Complaint 	that 	Trieu was 	aware 	that 	Plaintiffs 	lacked any
knowledge regarding the mortgage arrangement or that Trieu made any statement
to Plaintiffs regarding the mortgage arrangement.341 Similar to the allegations
concerning the Mortgage Broker, these too are insufficient to meet the pleading
requirements of Rule 9(b) because they do not allege when and where the alleged
statement was made.342 Without supporting factual allegations, and accepting the
339 R. Doc. 82 at p. 21.
340 Id.
341 See R. Doc. 61 at ¶ 52.
342 See Benchmark, 343 F.3d at 723 (“Although Rule 9(b) by its terms does not apply to negligent
misrepresentation claims, [the Fifth Circuit] has applied the heightened pleading requirements when
the parties have not urged a separate focus on the negligent misrepresentation claims. That is the
case here, as Benchmark’s fraud and negligent misrepresentation claims are based on the same set of
alleged facts.”) (citation modified).
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allegation in the Complaint as true, Plaintiffs’ Fourth Amended Complaint fails to
state a claim for negligent misrepresentation as to the Closing Agent.
J. Plaintiffs’ Civil Conspiracy Claims
Finally, Plaintiffs bring a claim for civil conspiracy. A claim for civil conspiracy
under Louisiana law is rooted in Civil Code Article 2324. 	That Article does not by
itself impose liability for a civil conspiracy.343 	Instead, the actional element under
Article 2324 is the tort which the conspirators agreed to and ultimately perpetrate.344
Thus, to state a claim for civil conspiracy under Louisiana law, the plaintiff must
allege: (1) an agreement existed to commit an illegal or tortious act; (2) the act was
actually committed; (3) the act caused the plaintiff’s injury; and (4) there was an
agreement as to the intended outcome or result.345
a. The 	Mortgage 	Broker’s 	Motion 	to 	Dismiss 	as 	to 	Plaintiffs’ 	Civil
Conspiracy Claim
The Mortgage Broker argues that Plaintiffs have failed to properly allege the
existence of an agreement, thereby implicating the first and fourth elements required
to state a claim for civil conspiracy.346 The Mortgage Broker insists that “Plaintiffs
did not allege any facts that would support a finding that the defendants entered into
. . . an agreement—only that defendants ‘actively communicated.’”347 	This, the
Mortgage Broker argues, is insufficient to state a claim for civil conspiracy.
343 Thames v. Thames, 196 So.3d 653, 655 (La. App. 2 Cir. 2016) (citing Haygood v. Dies, 174 So.3d
1211 (La. App. 2d Cir. 2015)).
344 Id. (citing Haygood, 174 So.3d at 1211).
345 Jeff Mercer, LLC v. State ex rel. Dep’t of Transp. & Dev., 222 So.3d 1017, 1024 (La. App. 2 Cir. 2017)
(collecting cases).
346 R. Doc. 64-1 at 24.
347 Id.
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A claim under Article 2324 requires the plaintiff to allege the existence of “the
requisite agreement between the parties, i.e., the plaintiff must [allege] a meeting of
the 	minds 	or 	collusion 	between 	the 	parties 	for 	the 	purposes 	of 	committing
wrongdoings.”348 	Plaintiffs argue that they meet this standard by demonstrating
“direct coordination between Defendants to perpetrate fraud, as evidenced by their
joint participation in forging documents, misrepresenting loan terms, and creating
the sham LLC” which Plaintiffs allege is established through emails.349
Despite Plaintiffs’ insistence to the contrary, Plaintiffs fail to make any
allegations that Defendants entered into an agreement to defraud Plaintiffs. 	While
Plaintiffs allege that certain loan documents were forged, Plaintiffs do not allege that
Defendants agreed to forge the documents or that they did so with the purpose of
defrauding Plaintiffs. 	Plaintiffs merely allege that “Additional loan documents . . .
were obtained from [the Bank] in or about June 2024. 	All the documents were
forged.”350 	The 	same 	rings 	true 	for 	Plaintiffs’ 	allegations 	that 	Defendants
misrepresented the terms of the loan. Plaintiffs do not allege that Defendants agreed
to misrepresent to Plaintiffs that their adjustable-rate mortgage was a fixed-rate
mortgage. 	Instead, Plaintiffs’ allegations regarding the alleged misrepresentation
from the Mortgage Broker appear to undercut Plaintiffs’ argument that there was an
agreement among Defendants to misrepresent the terms of the mortgage. Plaintiffs
allege in their operative Complaint that “[the Mortgage Broker] presented the terms
348 Agrifund, LLC v. Radar Ridge Planting Co., Inc., 278 So.3d 1025,
349 R. Doc. 75 at p. 66.
350 R. Doc. 61 at ¶ 44.
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of the loan to Plaintiffs as a $160,500.00, 20-year term at a fixed 4.85% interest rate
. . . . [The Mortgage Broker] never disclosed to Plaintiffs that the Loan in fact had a
variable interest rate and that the rate was expected to fluctuate.”351 Any allegations
that the terms of the loan were misrepresented to Plaintiffs is limited to an allegation
that the Mortgage Broker misrepresented the terms of the loan.
Finally, Plaintiffs point to a thirty-page exhibit attached to their Complaint as
support for their argument that Defendants formed an agreement to defraud
Plaintiffs by binding them to an adjustable-rate mortgage instead of a fixed rate
mortgage.352 The cited exhibit includes various emails between Gulf Coast employees,
the Mortgage Broker, and Trieu.353 Plaintiffs point to certain emails discussing the
creation of LLCs in Plaintiffs’ names as allegations that Defendants agreed to defraud
Plaintiffs. While the emails may show at least an understanding that Trieu and the
Bank intended to create an LLC to facilitate the loan, they do not show that the
purpose of the LLC was to defraud Plaintiffs. Creating an LLC in Plaintiffs’ names
does not necessarily equate to binding Plaintiffs to an adjusted rate mortgage even
though they were told they were receiving a fixed rate mortgage. 	In other words,
even if Plaintiffs were to successfully show that all Defendants entered into an
agreement to create an LLC in Plaintiffs’ name, Plaintiffs would not succeed in
351 R. Doc. 61 at ¶¶ 20, 21.
352 The Court finds it appropriate to consider the email chain in deciding the present motion because
it is attached to the Complaint, referenced in the Complaint, and central to the Plaintiffs’ claim of civil
conspiracy, which concerns an alleged agreement among Defendants that Plaintiffs alleges the emails
evince. See Maloney Gaming Mgmt., LLC v. St. Tammany Parish, 456 Fed. Appx. 336, 340–41 (5th
Cir. 2011).
353 See generally R. Doc. 61-26.
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proving 	that 	Defendants 	entered 	into 	an 	agreement 	to 	bind 	Plaintiffs 	to 	an
adjustable-rate mortgage as opposed to a fixed-rate mortgage.
Plaintiffs’ Complaint make no allegation that Defendants entered into an
agreement 	to 	defraud 	Plaintiffs. 	Absent 	such 	an 	allegation, 	Plaintiffs 	cannot
successfully state a civil conspiracy claim under Article 2324.
b. The Realtor’s Motion to Dismiss as to Plaintiffs’ Civil Conspiracy
Claim
The Realtor likewise argues that Plaintiffs’ civil conspiracy claim fails because
Plaintiffs have failed to allege that Defendants agreed to defraud Plaintiffs.354 	For
the reasons explained above, the Court agrees. Accordingly, Plaintiffs fail to state a
civil conspiracy claim against the Realtor.
K. Whether Plaintiffs Should be Granted Leave to Amend
1. 	Leave to Amend the Dismissed Claims
Plaintiffs do not specifically ask for leave to amend in their response to any of
the present Motions; however, because the Federal Rules of Civil Procedure state that
the Court “should freely give leave when justice so requires,” the Court now considers
whether to grant Plaintiffs leave to amend.355 “An amendment is futile if it would fail
to survive a Rule 12(b)(6) motion.”356 Furthermore, “an amended complaint is futile
if it fails to state a claim upon which relief may be granted.”357 A district court’s
decision regarding leave to amend is “reviewed for an abuse of discretion,” and that
354 R. Doc. 65-1 at p. 24.
355 Fed. R. Civ. P. 15(a)(2)
356 Marucci Sports, LLC v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014) (citation
omitted).
357 Id. at 379.
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discretion is properly exercised “when it denies leave to amend for a substantial
reason, such as undue delay, repeated failures to cure deficiencies, undue prejudice,
or futility.”358 Here, Plaintiffs have filed five complaints since filing suit in August
2024.
Because the Plaintiffs’ claims under the Truth in Lending Act and for unjust
enrichment as to all three moving Defendants and the Fair Housing Act as to the
Mortgage Broker, are barred as a matter of law, the Court finds that any amendment
would be futile and thus declines to grant Plaintiffs leave to amend these claims.359
The Court also finds that amendment of the RICO, LRA, and fraud claims would be
futile under the standard set forth in Maurcci Sports, in which the Fifth Circuit
affirmed the district court’s denial of leave to amend after allowing the Plaintiff three
opportunities to do so.360 While the Court has never identified the deficiencies present
in 	Plaintiffs’ 	pleading, 	Plaintiffs 	have 	had 	notice 	of 	deficiencies 	identified 	by
Defendants in Motions to Dismiss filed by the Realtor361 and the Mortgage Broker362
prior to the filing of the Fourth Amended Complaint. In the Realtor’s prior motion to
358 Porretto v. City of Galveston Park Bd. of Trs., 113 F.4th 469, 491 (5th Cir. 2024) (quoting United
States ex rel. Spicer v. Westbrook, 751 F.3d 354, 367 (5th Cir. 2014)); see also Dussouy v. Gulf Coast
Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981) (“The types of reasons that might justify denial of
permission to amend a pleading include undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, and undue prejudice
to the opposing party.”).
359 Jamieson By & Through Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir. 1985) (“When futility is
advanced as the reason for denying an amendment to a complaint, the court is usually denying leave
because the theory presented in the amendment lacks legal foundation or because the theory has been
adequately presented in a prior version of the complaint.”).
360 Marucci Sports, L.L.C., 751 F.3d at 379 (“After allowing Marucci three opportunities to state a
claim upon which relief could be granted, the district court was satisfied that the defects in the
complaint could not be cured.”).
361 R. Doc. 28.
362 R. Doc. 31.
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dismiss which was pending before Plaintiffs filed their Fourth Amended Complaint,
she challenges Plaintiffs’ RICO, LRA, fraud, and unjust enrichment claims in the
Second Amended Complaint for similar, if not identical, reasons as she does the
claims in the Fourth Amended Complaint.363 The Mortgage Broker challenged all five
of the claims levied against her in the Second Amended Complaint: Plaintiffs’ RICO,
LRA, fraud, FHA, and unjust enrichment claims, for largely the same reasons as it
does now in the present motion.364 Because Defendants had given notice to Plaintiffs
regarding deficiencies in these claims in the form of Motions to Dismiss prior to the
filing of the Fourth Amended Complaint, the Court finds that leave to amend should
not be granted regarding Plaintiffs’ RICO, LRA, fraud, FHA, and unjust enrichment
claims 	because 	Plaintiffs 	had 	the 	opportunity 	to 	previously 	cure 	deficiencies
identified by the Defendants.
Furthermore, even if leave to amend these claims was not found appropriate
to be denied for the reasons stated above, Plaintiffs have amended the Complaint
multiple times, and this case has progressed well into discovery and is currently set
for trial on June 29, 2026.365 The Court finds that Plaintiffs have failed repeatedly to
cure deficiencies in their pleadings and that allowing leave to amend at this later
stage in the litigation would cause undue prejudice to Defendants and delay to the
Court as to these claims. For that additional reason, the Court declines to grant leave
363 See R. Doc. 28-1. Notably, in their Second Amended Complaint, Plaintiffs only assert four claims
against the Realtor: RICO, LRA, fraud, FHA, and unjust enrichment. (R. Doc. 19). Like her original
motion, in the present motion, the Realtor does not move to dismiss Plaintiffs’ claim under the FHA.
364 Compare R. Doc. 31-1 with R. Doc. 64-1.
365 See R. Docs. 14, 19, 61; R. Doc. 208.
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to amend the dismissed claims previously addressed in Defendants’ Motions to
Dismiss that were later denied as moot and without prejudice.366
Regarding the claims of negligent misrepresentation, breach of fiduciary duty,
and civil conspiracy as to all moving Defendants and the Fair Housing Act claim as
to the Closing Agent, the Court finds that Defendants have not failed repeatedly to
cure deficiencies regarding these claims and further finds that justice so requires
leave to amend these claims only.367
2. 	Plaintiffs’ Motion for Leave to File Supplemental Complaint
Because the Court has granted the Mortgage Broker’s, Realtor’s, and Closing
Agent’s Motions to Dismiss as they pertain to the claims brought under RICO, and
having considered the factors pursuant to Lewis v. Knutson, the Court denies
Plaintiffs’ Motion for Leave to File Supplemental Complaint Pursuant to Rule
15(d).368 The Court has found that Plaintiffs’ claim under § 1962(d) is futile and, as a
result, 	denies 	the 	remaining 	portion 	of 	Plaintiffs’ 	Motion 	for 	Leave 	to 	File
Supplemental Complaint as it relates to the claim under RICO, stemming from the
April 23, 2025 settlement conference.
366 R. Doc. 60.
367 Fed. R. Civ. P. 15(a)(2).
368 699 F.2d 230, 239 (5th Cir. 1983) (“whether permitting the pleading would cause undue delay in
the proceedings or undue prejudice to the nonmovant, the movant is acting in bad faith or with a
dilatory motive, the movant has previously failed to cure deficiencies by prior pleadings, or the
proposed pleading is futile in that it adds nothing of substance to the original allegations or is not
germane to the original cause of action.”); R. Doc. 119.
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IV. 	CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that the Motions to Dismiss369 are GRANTED
in part and DENIED in part. The Mortgage Broker’s Motion to Dismiss370 is
DENIED as it pertains to Plaintiffs’ claims for breach of contract and for breach of
fiduciary duty. The Motions are, in all other respects, GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Leave to File
Supplemental Complaint Pursuant to Rule 15(d)371 is DENIED.
IT IS FURTHER ORDERED that Plaintiffs are granted leave to amend their
Fourth 	Amended 	Complaint 	only 	as 	it 	relates 	to 	their 	claims 	of 	negligent
misrepresentation as to the Mortgage Broker, the Realtor, and the Closing Agent;
breach of fiduciary duty as to the Realtor; civil conspiracy as to the Mortgage Broker,
the Realtor, and the Closing Agent; and Fair Housing Act as to the Closing Agent.
IT IS FURTHER ORDERED that Plaintiff shall have until Friday, April
10, 	2026, 	to 	file 	a 	comprehensive 	Fifth 	Amended 	Complaint 	addressing 	the
deficiencies raised in this Order. The comprehensive amended pleading shall include
all of Plaintiff’s numbered allegations, as revised, supplemented, and/or amended,
which will become the operative complaint in this matter without reference to any
other document in the record. No new claims may be added, and no other remaining
claims may be supplemented, except for the ones noted above. Failure to timely file a
369 R. Docs. 64, 65, and 67.
370 R. Doc. 64.
371 R. Doc. 119.
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comprehensive Fifth Amended Complaint shall result in the dismissal of the claims
as set forth in this Order.
New Orleans, Louisiana, March 31, 2026.
_____________________________
WENDY B. VITTER
United States District Judge
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