David Thompson v. Bank of America N.A., et

783 F.3d 1022, 2015 WL 1810738
CourtCourt of Appeals for the Fifth Circuit
DecidedApril 21, 2015
Docket14-10560
StatusPublished
Cited by57 cases

This text of 783 F.3d 1022 (David Thompson v. Bank of America N.A., et) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
David Thompson v. Bank of America N.A., et, 783 F.3d 1022, 2015 WL 1810738 (5th Cir. 2015).

Opinions

JERRY E. SMITH, Circuit Judge:

David and Toni Thompson appeal a summary judgment dismissing their state-law claims against Bank of America (“BOA”) and U.S. Bank, N.A. (“U.S. Bank”), arising from of the foreclosure on their home. They also appeal the exclusion of particular exhibits from the summary-judgment evidence. Because BOA did not waive its right to foreclose and made no actionable misrepresentations, we affirm.

I.

The Thompsons purchased the property in 2006 with a loan from Countrywide Home Loans, BOA’s predecessor in interest. They executed a promissory note (“Note”) and deed of trust (“DOT”), securing the Note with the property. The Note and DOT were assigned to U.S. Bank, with BOA acting as the loan servicer. In 2009, the Thompsons contacted BOA to try to negotiate a loan modification but were informed that they did not qualify for the Home Affordable Modification Program because they were not delinquent in their payments. Although they were also told not to stop making monthly payments, they later did so, then hired Impact Consulting Group (“Impact”) to assist in negotiating a modification.

Over the course of three years, the Thompsons, through Impact, engaged with BOA in a drawn-out process to assess their eligibility for a modification. They submitted multiple rounds of paperwork, and their application passed through numerous -reviews. But because they had stopped paying, they also received several letters notifying them of their default, giving them notice of foreclosure, and informing them that BOA was accelerating their payments under the loan’s terms. They did not resume payments or bring their account current; instead they requested postponements, and BOA agreed several times to delay the foreclosure sale while [1025]*1025the modification application was under review.

In December- 2012, BOA denied the loan-modification application, then foreclosed. The Thompsons filed a number of state-law claims against BOA and U.S. Bank, which they removed to federal court on diversity jurisdiction. The banks then moved for summary judgment on all claims, which the district court granted, and the Thompsons appeal only a subset of those claims.

II.

In this diversity-jurisdiction case, we apply Texas substantive law. Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir.2012). The Thompsons appeal the summary judgment of five state-law claims: breach of contract, suit to quiet title, and three violations of the Texas Debt Collection Act (“TDCA”). Three of those claims,1 however, depend on the legal theory that BOA waived its right to foreclose, which the district court rejected, so it is to that theory that we turn first.

A.

The Thompsons’ theory, in essence, is that BOA waived its right to foreclose through behavior inconsistent with that right, namely, the approximately twelve postponements of foreclosure to which BOA had agreed while their loan-modification application was pending. “The elements of waiver include (1) an existing right, benefit, or advantage held by a party; (2) the party’s actual knowledge of its existence; and (3) the party’s actual intent to relinquish the right, or intentional conduct inconsistent with the right.” Utico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 778 (Tex.2008). The central element is intent, which must be unequivocally manifested. Where waiver is claimed by inference rather than express renunciation, “it is the burden of the party who is to benefit ... to produce conclusive evidence that the opposite party unequivocally manifested its intent to no longer assert its claim.”2

Two obstacles block the Thompsons from establishing waiver by inference. First, the DOT explicitly disclaims any waiver through the delay of foreclosure: “Any forbearance by Lender in exercising any right or remedy ... shall not be a waiver of or preclude the exercise of any right or remedy.” We take that language at face value.3

Moreover, none of BOA’s alleged actions is inconsistent with its right to foreclose upon default. There is no evidence that BOA made any affirmative promise that it would not' foreclose or would continue offering postponements. Nor did the bank indicate, by word or action, that the Thompsons could stop paying or underpay their loan obligations without triggering acceleration or foreclosure. To the contrary, BOA sent them notices informing [1026]*1026them that they were in default and subject to foreclosure; the fact that BOA also invited them to apply for a possible loan modification is not inconsistent with that. Postponing a foreclosure sale to give borrowers the opportunity to apply for a loan modification or negotiate other accommodations does not manifest an intent to waive the right to foreclose.4

In light of this, summary judgment is proper on the three claims that rely on this theory. Because BOA did not waive its right, its foreclosure was not prohibited under Section 392.301(a)(8) and was not a breach of the loan agreement. Nor can the Thompsons maintain their quiet-title action, because they cannot show a superi- or interest in the property.

B.

The Thompsons appeal two other claims under the TDCA. They first assert that BOA violated Section 392.304(a)(8) of •the Texas Finance Code, which prohibits “misrepresenting the character, extent, or amount of a consumer debt, or misrepresenting the consumer debt’s status in a judicial or governmental proceeding.” “To violate the TDCA using a misrepresentation, the debt collector must have made an affirmative statement that was false or misleading.”5 The only statements that the Thompsons cite concern the status of their loan-modification application; they claim that BOA misrepresented that their application was under review, that BOA needed or received documents, and that a trial payment plan was being created. Yet those statements do not relate to the character of the debt, which is what the statute requires. In Miller v. BAC Home Loans Servicing, L.P., 726 F.3d 717, 723 (5th Cir.2013), this court held that a claim under Section 392.304(a)(8) failed because the plaintiffs “always were aware (i) that they had a mortgage debt; (ii) of the specific amount that they owed; (iii) and that they had defaulted,” and nothing suggested that the mortgage company had stated otherwise. In this context, statements about loan-modification applications and the postponement of foreclosure do not concern the “character, extent, or amount of’ the home loan, so they are not covered by the statute. Id.

Finally, the Thompsons appeal their claim under Section 392.304(a)(19), the TDCA’s catchall provision that prohibits “using any other false representation or deceptive means to collect a debt or obtain information concerning a consumer.” For this, they rely on the same alleged statements, all relating to the preparation and review of their modification application. But none of the alleged statements violates the statute. Communications in connection with the renegotiation of a loan do not concern the collection of a debt but, instead, relate to its modification

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783 F.3d 1022, 2015 WL 1810738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-thompson-v-bank-of-america-na-et-ca5-2015.