Ada Elizondo v. U.S. Bank, N.A.

Opinion

NUMBER 13-20-00159-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ADA ELIZONDO, Appellant,

v.

U.S. BANK, N.A., Appellee.

On appeal from the County Court at Law No. 6 of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Silva Memorandum Opinion by Justice Silva

Appellant Ada Elizondo brought a suit against appellee, U.S. Bank, N.A. (U.S. Bank),

and Shapiro Schwartz, LLP (Shapiro) 1 asserting multiple claims and seeking injunctive relief

1 Shapiro, a law firm, is a named defendant in Elizondo’s original petition and each amended petition

filed thereafter. Elizondo additionally named Nationstar Mortgage LLC (Nationstar) as a defendant in the body of her first amended petition, filed November 15, 2017. However, Nationstar is not identified in the style of the case. In a letter brief to this Court, Elizondo confirmed that U.S. Bank is the only defendant on this case that was ever served or answered, and therefore, this Court has jurisdiction to review this appeal concerning only to prevent the foreclosure of her home following her mortgage default. U.S. Bank moved for

summary judgment on all of Elizondo’s claims. By seven issues, which we have consolidated

into one, Elizondo asserts that the trial court erred in granting U.S. Bank’s no-evidence and

traditional summary judgment motions. We affirm.

I. BACKGROUND

Elizondo obtained a loan to purchase her home on January 19, 2006, from Argent

Mortgage Company, LLC (Argent) in the principal amount of $159,920.00 and executed a

promissory note as well as a deed of trust pledging the subject property as security for the

loan. Following a series of assignments, U.S. Bank became the final entity to purchase the

promissory note and deed of trust. Nationstar Mortgage LLC (Nationstar) began servicing

the loan in 2013 and remains the servicer for the loan.

On July 10, 2017, Nationstar sent Elizondo a letter via certified and regular mail

notifying her that she was “past due for the [May 1, 2017] payment and due for all payments

from and including that date,” and Elizondo was therefore in “default under the terms and

conditions of the mortgage loan.” Nationstar demanded “a payment of $4,270.29, which

[was] the total amount due and owing as of the date of this letter, including all late

payments . . .” by August 9, 2017, to cure the default and to avoid acceleration of the loan.

U.S. Bank. See Fair Oaks Hous. Partners, LP v. Hernandez, 616 S.W.3d 602, 605 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (“A judgment is final for purposes of appeal when (1) the judgment expressly disposes of some, but not all, defendants; (2) the only remaining defendants have not been served or answered; and (3) nothing in the record indicates the plaintiff ever expected to obtain service on the unserved defendants, such that the case ‘stands as if there had been a discontinuance’ as to the unserved defendants.” (quoting Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962))); see also Dockum v. Wal-Mart Stores Tex., LLC, No. 13-10-00328-CV, 2012 WL 256124, at *2 (Tex. App.—Corpus Christi–Edinburg Jan. 26, 2012, no pet) (mem. op.). 2 At some unspecified point, Elizondo paid Nationstar $4,500.00. 2 Elizondo asserts

that the entire amount was “sufficient to cover approximately [three] periodic payments,” and

U.S. Bank, through its servicer Nationstar, had “acknowledged and agreed in [a] phone

conversation that the monies would be applied as periodic payments.”

On September 28, 2017, Shapiro sent Elizondo notice of acceleration and posting by

certified mail. 3 Elizondo was advised that if she intended to “avoid the foreclosure sale of

[her] property, all sums due must be paid prior to the date of sale,” scheduled for November

7, 2017. The notice contained the time, location, and terms of the sale.

Elizondo filed suit against U.S. Bank and Shapiro on November 3, 2017, alleging

wrongful foreclosure, breach of contract, and unfair debt collection practices. Elizondo

requested and was granted a temporary restraining order and injunction to stall the

scheduled foreclosure proceedings. U.S. Bank filed a timely original answer, and on

February 14, 2019, U.S. Bank filed no-evidence and traditional motions for summary

judgment. U.S. Bank asserted that Elizondo’s three claims failed for the following reasons:

(1) Elizondo cannot recover under a claim of wrongful foreclosure where no foreclosure

occurred; (2) Elizondo has not shown U.S. Bank breached the loan agreement and cannot

prove damages as she remains in possession of the property; and (3) Elizondo has not

shown that U.S. Bank “misrepresent[ed] the status of a consumer debt” or took “any action

prohibited by law” for purposes of proceeding under her debt collection claim. As evidence,

2 Elizondo’s original petition states she submitted the payment via check, but the record is otherwise silent regarding when the payment was made, and a copy of the check was not included in the record. U.S. Bank does not contest that the payment was made at an unspecified point. 3 The parties dispute when Shapiro became engaged to begin foreclosure proceedings. Elizondo

claims in her original petition that the appointment occurred on October 18, 2017, but no documents were provided in substantiation of Elizondo’s claim. 3 U.S. Bank attached an affidavit from an officer of Nationstar; the note; the deed of trust; prior

deed assignments indicating U.S. Bank is the current mortgage owner; a servicing transfer

letter; notices of default; and a letter concerning the acceleration, posting, and notice of sale

of the subject property.

Elizondo thereafter filed an amended petition on April 29, 2019, raising new

complaints for waiver and estoppel4 and asserting Deceptive Trade Practices Act (DTPA)

violations. U.S. Bank submitted amended motions for summary judgment which addressed

Elizondo’s new claims. U.S. Bank argued Elizondo was unable to satisfy any element of her

DTPA claim, and Elizondo’s estoppel and waiver claims failed because (1) she “has not

articulated whether she asserts a claim for promissory estoppel or equitable estoppel,” and

neither theory supports her allegations; and (2) waiver is not an independent cause of

action. 5

Elizondo filed a response on August 26, 2019, and as evidence, she attached a

signed affidavit that reads as follows:

My name is Ada Elizondo. I am fully competent to make and give this Affidavit. [I] have personal knowledge of the facts stated herein, and they are true and correct.

[l] filed suit after Defendant moved to foreclose on my home. I had submitted a $4,500.00 payment to Defendant for my mortgage. On a phone conversation which the Defendant said was recorded, the Defendant said it would accept my payments to apply as monthly payments. It was agreed with Defendant’s phone representative that the payment would not simply reduce my principal balance payment. If it would have, then I would have held the money and just made the monthly payments as they became due. I was very surprised to learn that, despite what the Defendant had agreed to, the $4,500.00 payment was

4 Elizondo’s “waiver and estoppel” claim reads in its entirety: “To the fullest extent possible, Plaintiff

asserts the doctrines of waiver and estoppel to this matter.”

5 On appeal, Elizondo claims waiver was not a cause of action asserted. 4 just applied to reduce my principal balance. This put me in default the very next month, as I did not have the money to pay the next payment. This then snowballed and resulted in my home being filed for foreclosure as my note balance was accelerated. When Defendant failed to apply the payment as I instructed and as they agreed to[,] this caused the problems with my mortgage payments being late[] because I could not afford the next payments.

[I] have requested a payment history for exact dates through my lawyer, but [U.S.] Bank has not provided it to date.

U.S. Bank moved to strike Elizondo’s affidavit, arguing it was hearsay and conclusory.

The trial court granted U.S. Bank’s traditional and no-evidence motions for summary

judgment but made no ruling on U.S. Bank’s written motion to strike Elizondo’s evidence.

Elizondo filed a motion for new trial, which was denied by operation of law. This appeal

followed.

II. DISCUSSION

A. Standard of Review and Applicable Law

Our review of a summary judgment is de novo. Eagle Oil & Gas Co. v. TRO-X, L.P.,

619 S.W.3d 699, 705 (Tex. 2021). We take as true all evidence favorable to the nonmovant

and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.

Bush v. Lone Oak Club, LLC, 601 S.W.3d 639, 646 (Tex. 2020). “When a party moves for

both traditional and no-evidence summary judgments, we first consider the no-evidence

motion.” First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex.

2017). Under Rule 166a(i), a party may move for a no-evidence motion for summary

judgment “on the ground that there is no evidence of one or more essential elements of a

claim or defense on which an adverse party would have the burden of proof at trial.” TEX. R.

CIV. P. 166a(i). “To defeat a no-evidence motion, the non-movant must produce evidence

5 raising a genuine issue of material fact as to the challenged elements.” Parker, 514 S.W.3d

at 220. “If the non-movant fails to meet its burden under the no-evidence motion, there is no

need to address the challenge to the traditional motion as it necessarily fails.” Id. at 219.

To be entitled to traditional summary judgment, a movant must establish there is no

genuine issue of material fact so that the movant is entitled to judgment as a matter of law.

TEX. R. CIV. P. 166a(c); Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130 (Tex. 2018).

A defendant who conclusively negates a single essential element of a cause of action or

conclusively establishes an affirmative defense is entitled to summary judgment on that

claim. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018) (citing Centeq Realty, Inc. v.

Siegler, 899 S.W.2d 195, 197 (Tex. 1995)). “If the movant carries this burden, the burden

shifts to the non-movant to raise a genuine issue of material fact precluding summary

judgment.” Siegler, 899 S.W.2d at 197. Evidence is conclusive only if reasonable people

could not differ in their conclusions. Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525

S.W.3d 671, 681 (Tex. 2017); City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

Where, as here, “the trial court’s order does not specify the grounds for its summary

judgment, we must affirm the summary judgment if any of the theories presented to the trial

court and preserved for appellate review are meritorious.” Provident Life & Acc. Ins. v. Knott,

128 S.W.3d 211, 216 (Tex. 2003); see Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 587

(Tex. 2015). We address each of Elizondo’s claims against U.S. Bank in turn.

B. Wrongful Foreclosure

Elizondo sued U.S. Bank for wrongful foreclosure. “Under Texas law, a cause of

action for wrongful foreclosure has three elements: ‘(1) a defect in the foreclosure sale

6 proceedings; (2) a grossly inadequate selling price; and (3) a causal connection between

the defect and the grossly inadequate selling price.’” Houle v. Casillas, 594 S.W.3d 524, 540

(Tex. App.—El Paso 2019, no pet.) (quoting Sauceda v. GMAC Mortg. Corp., 268 S.W.3d

135, 139 (Tex. App.—Corpus Christi–Edinburg 2008, no pet.)); see also Pineda REO, LLC

v. Lomix Ltd. P’ship, No. 13-17-00277-CV, 2019 WL 5799990, at *5 (Tex. App.—Corpus

Christi–Edinburg Nov. 7, 2019, pet. denied) (mem. op.). “The purpose of a wrongful

foreclosure action is to protect mortgagors against those sales where, through mistake,

fraud, or unfairness, the sale results in an inequitably low price.” Casillas, 594 S.W.3d at 540

(quoting In re Keener, 268 B.R. 912, 921 (Bankr. N.D. Tex. 2001)); see Am. Sav. & Loan

Ass’n of Hous. v. Musick, 531 S.W.2d 581, 587 (Tex. 1975) (“There must be evidence of

irregularity, though slight, which irregularity must have caused or contributed to cause the

property to be sold for a grossly inadequate price.”). A wrongful foreclosure action does not

encompass a claim for attempted wrongful foreclosure. See EverBank, N.A. v. Seedergy

Ventures, Inc., 499 S.W.3d 534, 544 (Tex. App.—Houston [14th Dist.] 2016, no pet.); see

also In re PlainsCapital Bank, No. 13-16-00592-CV, 2017 WL 1131092, at *5–6 (Tex. App.—

Corpus Christi–Edinburg Mar. 27, 2017, no pet.) (mem. op.) (“[T]here is no cause of action

in Texas for attempted wrongful foreclosure.”).

Elizondo does not dispute that no foreclosure has occurred in this case. 6 Because

Elizondo did not provide evidence of a foreclosure, see TEX. R. CIV. P. 166a(i), the trial court

appropriately granted U.S. Bank’s no-evidence motion for summary judgment on this claim,

and we need not address Elizondo’s challenge of the trial court’s ruling on U.S. Bank’s

6 In response to U.S. Bank’s motions for summary judgment, Elizondo requested that the trial court “defer ruling until any eventual foreclosure, at which time the claims would certainly be ripe.” 7 motion for traditional summary judgment. See Parker, 514 S.W.3d at 219; EverBank, 499

S.W.3d at 544.

C. Breach of Contract

Elizondo also brought forth a breach of contract claim against U.S. Bank stemming

from U.S. Bank’s alleged failure to provide notice as required by the note and deed of trust.

To succeed on a breach of contract action, Elizondo must show (1) the existence of

a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the

contract by the defendant, and (4) damages sustained by the plaintiff as a consequence of

that breach. Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882, 890 (Tex.

2019); Pisharodi v. Columbia Valley Healthcare Sys., L.P., 622 S.W.3d 74, 83 (Tex. App.—

Corpus Christi–Edinburg 2020, no pet.). In its no-evidence summary judgment motion, U.S.

Bank argued Elizondo is unable to show evidence of a breach or damages.

Elizondo’s pleading, with respect to her breach of contract claim, stated in its entirety:

5. COUNT TWO: BREACH OF CONTRACT

The Deed of Trust contains notice requirements that need to be followed by both Defendants, including the Substitute Trustee in its duty of impartiality and fairness. Such Notices including acceleration, positing, and as described in Paragraph 22 of the applicable Deed of Trust were not followed. For such breach, Plaintiff seeks damages and injunctive [r]elief.

Neither party disputes the existence of a valid contract: the note and deed of trust. U.S. Bank

produced evidence demonstrating that U.S. Bank provided the appropriate notices pursuant

to the contract language in its motions for summary judgment. In response, Elizondo did not

address or provide evidence of the breach alleged in her pleadings and challenged by U.S.

8 Bank. To the extent Elizondo produced evidence of breach, 7 it was not the breach she

alleged. Because Elizondo did not produce evidence raising a genuine issue of material fact

as to the challenged pleaded element, namely, U.S. Bank’s purported breach of contract

based on its failure to provide proper notices under the contact, the trial court appropriately

granted U.S. Bank’s no-evidence motion for summary judgment on this claim. See Parker,

514 S.W.3d at 220.

D. Unfair Debt Collection

Elizondo additionally asserted an unfair debt collection claim although it is unclear

what exact provision of the finance code she claims was violated. See TEX. FIN. CODE ANN.

§§ 392.301–.304 (prohibited debt collection methods). Elizondo’s pleading states in its entire

relevant portion:

6. COUNT THREE: UNFAIR DEBT COLLECTION

Defendants U.S. Bank National Association and Nationstar Mortgage LLC have engaged in unfair debt collection by misrepresenting the status of a consumer debt and by taking action prohibited by law. In this regard Plaintiff seeks injunctive relief as provided by the Texas Finance Code, together with economic damages.

In its no-evidence motion for summary judgment, U.S. Bank construed Elizondo’s

claim as one under § 392.301(a)(8) and § 392.304(a)(8) of the finance code and argued that

Elizondo failed to provide evidence of either. See id. §§ 392.301(a)(8), 392.304(a)(8).

Elizondo’s pleading and responses to U.S. Bank’s joint motions for summary judgment

provide little insight because Elizondo did not cite to the applicable statute where

appropriate. However, Elizondo cites to § 392.304 in her brief and argues, as she did before

7 Elizondo narrowly argued that the breach element was satisfied by new, never pleaded allegations that U.S. Bank improperly orally modified the contract. 9 the trial court, that her uncontroverted affidavit establishes that U.S. Bank “misrepresented

the status of the debt—that the lump sum would be applied as payments, not a simple

principal reduction.” See id. § 392.304. Thus, we interpret Elizondo’s claim to be under

§ 392.304 of the finance code, entitled “Fraudulent, Deceptive, or Misleading

Representations.” See id. § 392.304. Of the nineteen enumerated fraudulent, deceptive, or

misleading practices contained in § 392.304, only subsection (a)(8) concerns the

misrepresentation of debts. Id. Specifically, § 392.304(a)(8) makes it unlawful for a debt

collector to “misrepresent[] the character, extent, or amount of a consumer debt or

misrepresent[] the consumer debt’s status in a judicial or governmental proceeding.” Id.

Therefore, to prevail on her unfair debt collection claim, Elizondo must prove that (1)

the debt at issue is a consumer debt; (2) U.S. Bank was a debt collector; (3) U.S. Bank

committed a wrongful act in violation of § 392.304(a)(8) against Elizondo; and (4) the

wrongful act injured her. See id. §§ 392.001, 392.304(a)(8); see also Gaber v. U.S. Bank

Nat’l Ass’n, No. 02-19-00243-CV, 2020 WL 5242419, at *5 (Tex. App.—Fort Worth Sept. 3,

2020, pet. denied) (mem. op.); Kyle v. Strasburger, No. 13-13-00609-CV, 2019 WL 1487357,

at *11 (Tex. App.—Corpus Christi–Edinburg Apr. 4, 2019, no pet.) (mem. op.).

U.S. Bank argues that the trial court was precluded, as we are now, from considering

Elizondo’s affidavit as evidence because the affidavit is conclusory, self-serving, and

contained hearsay. See TEX. R. CIV. P. 166a; Rogers v. RREF II CB Acquisitions, LLC, 533

S.W.3d 419, 436 (Tex. App.—Corpus Christi–Edinburg 2016, no pet.) (“A conclusory

statement is one that does not provide the underlying facts to support the conclusion and,

therefore, is not proper summary-judgment proof.”); see also Hernandez v. El Paso Prod.

10 Co., No. 13-09-184-CV, 2011 WL 1442991, at *7 (Tex. App.—Corpus Christi–Edinburg Apr.

14, 2011, pet. denied) (mem. op.) (“Summary judgment based on the uncontroverted

affidavit of an interested witness is proper if the evidence is clear, positive, direct, otherwise

credible, free from contradictions and inconsistencies and could have been readily

controverted.”). However, we need not resolve this question. Even if we assume Elizondo’s

affidavit was permissible summary judgment evidence, it does not provide evidence of a

misrepresentation under § 392.304(a)(8). See TEX. FIN. CODE ANN. § 392.304(a)(8).

Elizondo’s affidavit states, in relevant part, that she was told U.S. Bank “would accept

[her] payments to apply as monthly payments,” and its “fail[ure] to apply the payment as

[she] instructed and as they agreed to[,] . . . caused the problems with [her] mortgage

payments being late.” Notably, Elizondo does not argue that U.S. Bank’s actions constituted

a misrepresentation of the “character, extent, or amount of a consumer debt,” in reference

to the former part of the statute. See id.; Washington-Jarmon v. Onewest Bank, FSB, 513

S.W.3d 103, 114 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“Because the only

evidence presented by appellant does not raise a fact issue on whether there was a

misrepresentation regarding the amount of the debt, the trial court did not err by granting

summary judgment on appellant’s claim for a violation of the Act.”); see also Ebrahimi v.

Caliber Home Loans, Inc., No. 05-18-00456-CV, 2019 WL 1615356, at *5 (Tex. App.—

Dallas Apr. 15, 2019, pet. denied) (mem. op.) (concluding that plaintiff’s claim—that the

defendants “fail[ed] to apply tendered loan payments,” and as a consequence, her account

remained in default—did not entitle the plaintiff to relief under § 392.304(a)(8)); Shellnut v.

Wells Fargo Bank, N.A., No. 02-15-00204-CV, 2017 WL 1538166, at *14 (Tex. App.—Fort

11 Worth Apr. 27, 2017, pet. denied) (mem. op.) (“[N]othing in [§ 392.304] specifically makes

misapplication of a payment or failure to apply a payment a prohibited misleading practice.”).

Rather, Elizondo asserts only that U.S. Bank misrepresented “the status of [her] consumer

debt,” in reference to the latter half of § 392.304(a)(8). See TEX. FIN. CODE ANN.

§ 392.304(a)(8). Elizondo’s reliance on the latter part of the provision is misplaced; the

statute prohibits a misrepresentation of “the consumer debt’s status in a judicial or

governmental proceeding.” 8 See id. (emphasis added). Even assuming that U.S. Bank’s

statements constituted a misrepresentation of Elizondo’s debt status, there was no evidence

presented that this alleged conversation between Elizondo and a Nationstar representative

occurred in a judicial or governmental proceeding. See Jaster v. Comet II Const., Inc., 438

S.W.3d 556, 564 (Tex. 2014) (“An action is a judicial proceeding, either in law or in equity,

to obtain certain relief at the hands of the court.” (quoting Elmo v. James, 282 S.W. 835, 839

(Tex. Civ. App.—Fort Worth 1926, writ dism’d w.o.j.) (cleaned up))); Proceeding, BLACK’S

LAW DICTIONARY (11th ed. 2019) (defining “judicial proceeding” as “[a]ny court proceeding;

any proceeding initiated to procure an order or decree, whether in law or in equity.”).

Because Elizondo did not provide evidence of a violation under § 392.304(a)(8), the

trial court appropriately granted U.S. Bank’s no-evidence motion for summary judgment on

this claim. See TEX. FIN. CODE ANN. § 392.304(a)(8); Parker, 514 S.W.3d at 220.

E. DTPA

Elizondo additionally sued U.S. Bank under the DTPA. “DTPA claims are created by

statute.” Jody James Farms, JV v. Altman Grp., Inc., 547 S.W.3d 624, 638 (Tex. 2018). The

8 We note that Elizondo does not explain in her brief how the affidavit provides evidence of the aforementioned. 12 DTPA seeks to “encourage consumers to litigate claims that would not otherwise be

economically feasible and to deter the conduct the DTPA forbids.” Amstadt v. U.S. Brass

Corp., 919 S.W.2d 644, 649 (Tex. 1996); see TEX. BUS. & COM. CODE ANN. § 17.50

(conferring standing to “consumers”). Elizondo specifically sued U.S. Bank under DTPA

§ 17.46(b)(12), which prohibits a defendant from “representing that an agreement confers

or involves rights, remedies, or obligations which it does not have or involve, or which are

prohibited by law.” See TEX. BUS. & COM. CODE ANN. § 17.46(b)(12); Gotcher v. Barnett, 757

S.W.2d 398, 403 (Tex. App.—Houston [14th Dist.] 1988, no writ).

Thus, to prevail in a DTPA action, Elizondo must provide evidence of the following:

(1) she is a consumer as defined by the statute, (2) U.S. Bank “represent[ed] that an

agreement confers or involves rights, remedies, or obligations which it does not have or

involve, or which are prohibited by law,” and (3) “these acts constituted a producing cause

of [Elizondo’s] damages.” See TEX. BUS. & COM. CODE ANN. § 17.46(b)(12); Doe v. Boys

Clubs of Greater Dall., Inc., 907 S.W.2d 472, 478 (Tex. 1995). “Consumer” is defined as “an

individual, partnership, corporation, this state, or a subdivision or agency of this state who

seeks or acquires by purchase or lease, any goods or services . . . .” TEX. BUS. & COM. CODE

ANN. § 17.45(4); see, e.g., Amstadt, 919 S.W.2d at 650 (concluding that homeowners were

consumers under the DTPA where “the homeowners purchased homes equipped with

polybutylene plumbing systems,” “[t]hese systems are goods, and they form the basis of the

homeowners’ complaints”). “‘Producing cause’ means ‘a substantial factor which brings

about the injury and without which the injury would not have occurred.’” Brown v. Tarbert,

LLC, 616 S.W.3d 159, 167–68 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (quoting

13 Doe, 907 S.W.2d at 481). “[A]n affirmative misrepresentation, rather than a failure to

disclose, is required” to violate § 17.46(b)(12). Lindsey Constr., Inc. v. AutoNation Fin.

Servs., LLC, 541 S.W.3d 355, 365 (Tex. App.—Houston [14th Dist.] 2017, no pet.). U.S.

Bank challenged Elizondo’s ability to provide evidence of all three DTPA elements.

As to the first element, U.S. Bank argues that Elizondo, as a mortgagor, is not a

“consumer” under the act. See TEX. BUS. & COM. CODE ANN. § 17.45(4). Elizondo acquiesces

to her non-consumer status under the DTPA but avers that “the prong of the DTPA sued

upon does not require proving consumer status.” Elizondo argues this interpretation is

supported by a case from our sister court. See Webb v. Int’l Trucking Co., Inc., 909 S.W.2d

220, 228 (Tex. App.—San Antonio 1995, no writ).

However, Elizondo’s reliance on Webb is misguided. Webb concluded that the terms

of § 17.46(b)(12) do “not require consumer status, and do[] not involve a seeking to acquire

goods or services by purchase or lease” only under limited circumstances—when a plaintiff

is bringing an action under article 21.21 of the Texas Insurance Code, a since repealed

insurance code provision. See Act of May 19, 1995, 74th Leg., R.S., ch. 414, § 13, 1995

Tex. Gen. Laws 2988, 3000, repealed and recodified by Act of June 1, 2003, 78th Leg., R.S.,

ch. 1274, § 26(a)(1), 2003 Tex. Gen. Laws 4138 (current version in TEX. INS. CODE ANN.

§ 541.151) (emphasis added); Webb, 909 S.W.2d at 228. The Webb court reasoned that

article 21.21 of the Texas Insurance Code “states relief is available to ‘any person[,]’” which

is “broader than the DTPA, which, by itself, is limited to consumers.” Webb, 909 S.W.2d at

226. The Texas Supreme Court observed the limitation in Casteel, citing Webb and narrowly

holding that a plaintiff is “not required to be a consumer to bring an Article 21.21 claim for

14 the violation of DTPA [§] 17.46(b)(12).” Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 387

(Tex. 2000); see Brown & Brown of Tex., Inc. v. Omni Metals, Inc., 317 S.W.3d 361, 380

(Tex. App.—Houston [1st Dist.] 2010, pet. denied).

Unlike the plaintiffs in Webb and Casteel, Elizondo does not bring forth an insurance

code action wherein § 17.46(b)(12) is merely incorporated as an element within the principal

action. Cf. Casteel, 22 S.W.3d at 387; Webb, 909 S.W.2d at 228. Rather, her cause of action

here is her stand-alone DTPA claim. See TEX. BUS. & COM. CODE ANN. § 17.46(b)(12); see

also Sandoval v. DISA, Inc., No. 01-17-00846-CV, 2018 WL 6379665, at *10 (Tex. App.—

Houston [1st Dist.] Dec. 6, 2018, pet. denied) (mem. op.) (concluding that because plaintiff’s

DTPA claim “does not arise under the Insurance Code,” “Casteel does not relieve him from

the requirement that he prove consumer status for standing to sue under the DTPA”).

Because Elizondo is required to show evidence that she is a consumer under § 17.46(b)(12),

and she concedes her non-consumer status, the trial court appropriately granted U.S. Bank’s

no-evidence motion for summary judgment on this claim. See TEX. BUS. & COM. CODE ANN.

§ 17.46; Parker, 514 S.W.3d at 220.

F. Promissory Estoppel

As noted supra, Elizondo brought a claim of “estoppel” against U.S. Bank, and U.S.

Bank objected to Elizondo’s lack of specificity and addressed what it presumed to be a

promissory estoppel or equitable estoppel claim. See Rima Group, Inc. v. Janowitz, 573

S.W.3d 505, 513 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (observing that “[t]he law

features many types of estoppel, including quasi-estoppel, equitable estoppel, judicial

estoppel, and estoppel by deed”). In Elizondo’s response to U.S. Bank’s motions for

15 summary judgment, Elizondo’s sole reference to her estoppel claim is subsumed in an

objection to U.S. Bank’s summary judgment evidence: “Defendant claims that Plaintiff’s

pleading of waiver and estoppel is not relevant because such claims are not causes of

action. Along the same vein, because Defendant did not plead any breach by Plaintiff, it

cannot in turn submit evidence of alleged breach.” Elizondo did not identify any evidence in

support of her estoppel claim in her summary judgment reply. On appeal, Elizondo maintains

that her affidavit constituted sufficient “summary judgment evidence to support her

promissory estoppel claim,” and U.S. Bank failed to “discharge its burden of proof” on its

summary judgment motions.

Promissory estoppel requires a showing of: (1) a promise; (2) foreseeability of

reliance upon the promise by the promisor; and (3) substantial reliance by the promisee to

his detriment. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 152 (Tex. App.—Houston [1st

Dist.] 2005, pet. denied) (citing, among others, English v. Fischer, 660 S.W.2d 521, 524

(Tex. 1983)). The doctrine of promissory estoppel, however, “presumes no contract exists.”

Rachal v. Reitz, 403 S.W.3d 840, 848 (Tex. 2013) (quoting Subaru of Am., Inc. v. David

McDavid Nissan, Inc., 84 S.W.3d 212, 226 (Tex. 2002)); see also Pabla v. Myers, No. 13-

20-00292-CV, 2021 WL 3196965, at *5–6 (Tex. App.—Corpus Christi–Edinburg July 29,

2021, no pet. h.) (mem. op.) (“Because there was no valid contract between the parties,

promissory estoppel may apply to [the appellant’s] allegations.”). “Promissory estoppel is an

equitable remedy that is unavailable when an express contract covers the dispute’s subject

matter.” Spicer v. Maxus Healthcare Partners, LLC, 616 S.W.3d 59, 122 (Tex. App.—Fort

Worth 2020, no pet.).

16 Elizondo claims in her affidavit that U.S. Bank promised to apply her $4,500 payment

to future “periodic payments,” and in reliance of U.S. Bank’s promise, Elizondo made the

payment, and her loan went into default the subsequent month after she was unable to pay

the next month’s payment. However, the oral agreement Elizondo alleges occurred

concerns a contracted matter: the application of payments. Elizondo does not dispute that

the note and deed she signed explicitly provided when and how payments must be made:

“[P]ayments shall be applied to each Periodic Payment in the order in which it became due.

Any remaining amounts shall be applied first to late charges, second to any other amounts

due under this Security Instrument, and then to reduce the principal balance of the Note.”

The note additionally stated: “If I make a prepayment of an amount less than the amount

needed to completely repay all amounts due under this Note and Security Instrument, my

regularly scheduled payments of principal and interest will not change as a result.” Moreover,

the note contained a “No Oral Agreements” provision, which read in relevant part: “This

written agreement represents the final agreement between the parties and may not be

contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the

parties.”

Because an express contract governs the subject matter of the alleged promise here,

Elizondo’s promissory estoppel claim is barred as a matter of law. See Rachal, 403 S.W.3d

at 848; Severs v. Mira Vista Homeowners Ass’n, Inc., 559 S.W.3d 684, 701 (Tex. App.—

Fort Worth 2018, pet. denied) (“If, however, a valid contract between the parties covers the

alleged promise, promissory estoppel is not applicable to that promise. Instead, the wronged

party must seek damages under the contract.” (quoting El Paso Healthcare Sys., Ltd. v.

17 Piping Rock Corp., 939 S.W.2d 695, 699 (Tex. App.—El Paso 1997, writ denied))). Contrary

to her assertions on appeal, Elizondo failed to present any evidence that she detrimentally

relied on a promise not covered by the contact, and the trial court appropriately granted U.S.

Bank’s no-evidence motion for summary judgment on this claim. Parker, 514 S.W.3d at 220.

We overrule Elizondo’s consolidated issues.

III. CONCLUSION

We affirm the trial court’s judgment.

CLARISSA SILVA Justice

Delivered and filed on the 28th day of October, 2021.