FINDINGS, CONCLUSIONS, AND RECOMMENDATION REGARDING DEFENDANTS' MOTIONS TO DISMISS

JEFFREY L. CURETON, Magistrate Judge.

Pending before the Court are two motions to dismiss: (1) Defendant CitiMortgage, Inc. ("CitiMortgage")'s Motion to Dismiss [doc. #5], filed May 2, 2014, and (2) Defendant American Homes 4 Rent Properties Eight LLC ("AH4R")'s Motion to Dismiss [doc. #12], filed June 11, 2014. In his original petition filed on March 26, 2014 in the 352nd Judicial District of Tarrant County, Texas, pro-se Plaintiff Fred Mosely ("Mosely") claims that he "owns an equitable interest in the subject property stemming from a Residential Contract for Deed executed in July 2009" with the original mortgagor, Kim Wempa ("Wempa"), in which he has "paid approximately $70,000.00 towards this interest." (Plaintiffs Original Petition ("Pl.'s Pet.") at 1.) Mosely, also in the original petition, asserts claims against the Defendants for the following: (1) Petition to Set Aside Foreclosure Sale; (2) Declaratory Judgment; and (3) Request for Temporary Restraining Order and Application for Temporary Injunction. (Pl.'s Pet. at 4-6.) Defendant CitiMortgage removed the case to this Court on April 25, 2014.

In his original petition, Mosely asks, inter alia, the Court to set aside the foreclosure sale of his property, claiming that CitiMortgage did not properly perform acceleration of the debt because CitiMortgage "ceased to qualify as the Lender once the loan was sold to investors." (Pl.'s Pet. at 4.) In addition, Mosely requests a declaratory judgment in that CitiMortgage's "foreclosure sale was not performed in strict adherence to the deed of trust" and that "AH4R's rights in the property are subject to Plaintiffs petition to set aside the foreclosure sale." (Pl.'s Pet. at 5.) Furthermore, Mosely requests a temporary restraining order and application for temporary injunction, arguing that he was "being threatened with irreparable injury by the conduct of the Defendant AH4R to evict Plaintiff ... through a forcible detainer proceeding presently scheduled for Thursday, March 27, 2014." (Pl.'s Pet. at 5.)

In its Motion to Dismiss, CitiMortgage argues that, pursuant to Federal Rule of Civil Procedure 12(b)(6), all claims against it should be dismissed because Mosely's "underlying allegations fail as a matter of law." (CitiMortgage's Brief in Support of Motion to Dismiss ("CitiMortgage's Br.") at 2 (emphasis omitted).) CitiMortgage further argues that it was "not required to demonstrate a chain of note endorsements or even hold the note at all in order to foreclose." (CitiMortgage's Br. at 3.) CitiMortgage also claims, citing to case law, that both the "show-me-the note" and the "split-the-note" theories have been rejected by the Fifth Circuit Court of Appeals. (CitiMortgage's Br. at 3-7 .) In addition, CitiMortgage argues that Plaintiff has not brought a valid breach of contract or wrongful foreclosure claim and is not entitled to declaratory or injunctive relief. (CitiMortgage's Br. at 7-8.)

AH4R, in its motion to dismiss, claims, inter alia, that "Plaintiff has not pled any causes of action and merely pled legal remedies." (AH4R's Motion to Dismiss at 1.) In addition, AH4R argues that declaratory judgment is not a substantive cause of action and "Plaintiff has not pled any cause of action that would allow a court to grant a declaratory judgment." (AH4R's Br. at 5.) AH4R also claims that Mosely is not entitled to a temporary restraining order preventing it from evicting Mosely from the property because Mosely has failed to plead a viable cause of action against it. (AH4R's Br. at 5-6.)

A review of Defendant's motion indicates that Defendant has raised several potentially meritorious reasons as to why some or all of Plaintiffs claims should be dismissed. However, because Mosely, in his responses to Defendants' motions, makes several new allegations that, if properly alleged and incorporated into an amended complaint, could provide enough factual allegations to potentially survive a motion to dismiss, the Court concludes that Defendants' motions to dismiss should be DENIED and Plaintiff, who is proceeding pro se, should be given a final opportunity to amend his complaint to plead his "best case."1See, e.g., Dark v. Potter, 293 F. App'x 254, 256-57 (5th Cir. 2008).

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that CitiMortgage's Motion to

Dismiss [doc. #5] and AH4R's Motion to Dismiss [doc. #12] be DENIED WITHOUT PREJUDICE. It is further RECOMMENDED that Plaintiff, if he desires to continue to assert his claims against the Defendants, be allowed to file an amended complaint on or before October 23, 2014. Plaintiffs failure to timely file such complaint may result in the dismissal of this case without further notice.

NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge' s proposed findings, conclusions and recommendation within fourteen (14) days after the party has been served with a copy of this document. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(b)(1). Failure to file, by the date stated above, a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual findings and legal conclusions accepted by the United States District Judge. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

ORDER

Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until October 16, 2014 to serve and file written objections to the United States Magistrate Judge' s proposed findings, conclusions and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.

It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby is returned to the docket of the United States District Judge.