Crucci v. Seterus, Inc., No. EP-13-CV-317-KC, slip op. (W.D. Tex. Nov. 21, 2013)(Cardone, J.)

The property owners in this foreclosure litigation obtained a temporary restraining order from a state court then defendants removed the case and filed a Rule 12(b)(6) motion.  Slip op. at 1-2.  Three weeks later, the property owners had failed to file a response and the District Court rejected their stock foreclosure claims—lack of proper notice under section 51.002 of the Texas Property Code and deed of trust, lack of an assignment to the mortgage servicer conducting the foreclosure, and breach of contract.  Id. at 3-10.  The District Court noted that a 12(b)(6) dismissal ordinarily affords the plaintiff an opportunity to amend.  But that general rule does not apply when the plaintiff has pleaded his “best case.”  The District Court presumed the property owners had given their best shot at the complaint based on their failure to respond and denied them any window in which to file an amended complaint.  Id. at 13-14.