Case: 15-10373    Document: 00513295502    Page: 1   Date Filed: 12/04/2015




                     REVISED DECEMBER 4, 2015

         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                               No. 15-10373                      November 20, 2015
                             Summary Calendar
                                                                   Lyle W. Cayce
                                                                        Clerk
DIANA RUCKER ,
                                          Plaintiff–Appellant,
versus
BANK OF AMERICA, N.A.,
 as Successor by Merger to BAC Home Loans Servicing LP
 as Successor to Countrywide Home Loans, Inc.;
WELLS FARGO BANK, N.A., as Trustee for the Certificate Holder of
 Park Place Securities Inc., Asset-Backed Certificate Series 2005-WCW2,
                                          Defendants–Appellees.



                 Appeal from the United States District Court
                      for the Northern District of Texas




Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Diana Rucker appeals a summary judgment in favor of Bank of America,
N.A. (“BOA”), regarding her default on a home mortgage. Rucker specifically
appeals the conclusions that Section 51.002(d) of the Texas Property Code does
not give rise to a private cause of action and that claims under the Texas Debt
Collection Act (“TDCA”) are subject to the economic-loss rule. We affirm on
other grounds.
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                                      No. 15-10373
                                             I.
      Rucker bought her house in 2005 with a $175,000 loan from Argent Mort-
gage Company, LLC (“Argent”), executing a note and deed of trust. Argent
assigned the deed of trust to Wells Fargo Bank, N.A. (“Wells Fargo”), and BOA
is Wells Fargo’s loan servicer.

      Rucker defaulted in October 2007. She alleges that, on multiple occa-
sions between 2008 and 2012, she communicated with BOA about modifying
the loan but that BOA consistently denied her requests, failed to respond, or
misrepresented the status of the loan. On January 15, 2010, BOA sent Rucker
a notice of default indicating that it planned to accelerate the loan on Febru-
ary 14 if she did not bring it current. She failed to meet the deadline.

      BOA initiated foreclosure in August 2012. Rucker sued BOA and Wells
Fargo in state court in April 2013, alleging, among other claims, that BOA had
violated the Property Code and TDCA. BOA removed to federal court, which
granted summary judgment.

                                             II.
      We review a summary judgment de novo. LeMaire v. La. Dep’t of Transp.
& Dev., 

, 386 n.12 (5th Cir. 2009). We “may affirm [the] judgment
on any grounds supported by the record.” Palmer ex rel. Palmer v. Waxahachie
Indep. Sch. Dist., 

, 506 (5th Cir. 2009) (citation omitted).

                                            III.
      Rucker asserts that BOA violated Section 51.002(d). 1 She does not bring


      1   The section provides,
     Notwithstanding any agreement to the contrary, the mortgage servicer of the debt
   shall serve a debtor in default under a deed of trust or other contract lien on real
   property used as the debtor’ residence with written notice by certified mail stating
   that the debtor is in default under the deed of trust or other contract lien and giving
                                             2
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                                        No. 15-10373
a wrongful-foreclosure claim but instead maintains that that subsection con-
fers an independent private cause of action. The district court granted sum-
mary judgment on that claim, reasoning that Section 51.002(d) authorizes only
a claim for wrongful foreclosure.

       Even if, arguendo, Section 51.002(d) authorizes a private cause of action,
Rucker fails to state a claim. 2 The statute requires that the loan servicer pro-
vide notice of default and at least twenty days to cure before giving notice of
sale. BOA offered undisputed evidence that it sent Rucker a notice of default
on January 15, 2010, informing her that she had until February 14 to avoid
foreclosure by making all payments due since October 2007. Rucker does not
allege that BOA attempted to send her a notice of sale or to initiate foreclosure
before February 14. The January 15 letter gave her notice of the default and
provided more than the required twenty days to cure it. The Section 51.002(d)
claim fails as a matter of law.

                                              IV.
       Rucker avers that BOA’s communications with her between 2008 and


    the debtor at least 20 days to cure the default before notice of sale can be given under
    Subsection (b). The entire calendar day on which the notice required by this subsec-
    tion is given, regardless of the time of day at which the notice is given, is included in
    computing the 20-day notice period required by this subsection, and the entire calen-
    dar day on which notice of sale is given under Subsection (b) is excluded in computing
    the 20-day notice period.
TEX. PROP. CODE ANN. § 51.002(d).
       2 Although the Texas Supreme Court has not decided this issue, the federal district
courts that have addressed it seem to conclude that Section 51.002(d) does not intend an
independent private cause of action. See, e.g., Anderson v. CitiMortgage, Inc., No. 4:13-CV-
369, 

, at *5 (E.D. Tex. July 1, 2014); Ashton v. BAC Home Loans Serv., L.P.,
No. 4:13-cv-810, 

, at *4 (S.D. Tex. July 19, 2013); Hill v. Wells Fargo Bank,
N.A., No. V-12-11, 

, at *7 (S.D. Tex. June 6, 2012). But see Sanchez v. Bank
of Am., N.A., No. 3:14-cv-2571-B, 

, at *5 (N.D. Tex. Jan. 30, 2015) (refusing
to dismiss claim under Section 51.002(d) on Federal Rule of Civil Procedure 12(b)(6) motion);
Hernandez v. U.S. Bank, N.A., No. 3:13-cv-2164-O, 

, at *6 (N.D. Tex.
Dec. 27, 2013) (same).
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                                      No. 15-10373
2012 violated Sections 392.301(a)(8), 392.303(a)(2), and 392.304(a)(8) of the
TDCA. The district court granted summary judgment on those claims, believ-
ing that the economic-loss rule applies to TDCA claims. After summary judg-
ment, but before the parties filed briefs on appeal, we decided, in McCaig v.
Wells Fargo Bank, N.A., 

, 474–75 (5th Cir. 2015), that the
economic-loss rule does not bar TDCA claims. That is of no moment, however,
because we affirm on a different ground. 3

       Section 392.301(a)(8) prohibits mortgage servicers from attempting to
recover an outstanding loan by “threatening to take an action prohibited by
law.” TEX. FIN. CODE ANN. § 392.301(a)(8). Rucker alleges that BOA’s threat-
ened foreclosure was prohibited by law because BOA had not yet given the
statutorily required notice of acceleration. Rucker cites McCaig for the propo-
sition that “[i]n determining whether foreclosure would be prohibited by law []
what matters is whether the mortgagee has a right to foreclose, not whether
the debt is considered in default.” 

.

       Rucker mischaracterizes McCaig, in which we decided that a mortgagee
violated Section 392.301(a)(8) by threatening to foreclose after specifically
waiving its right to do so. 

By contrast, we reasoned that the mort-
gagee would not have violated that subsection if it had retained its contractual
right to foreclose and the mortgage was in fact in default. 4 Here, BOA never



       3 One may justifiably posit that Rucker has waived her TDCA claims by failing to
assert them in her initial brief, though she raises them in her reply brief. See DSC Commc’ns
Corp. v. Next Level Commc’ns, 

, 326 n.2 (5th Cir. 1997). Rucker’s initial brief
asserts only that the district court erred by applying the economic-loss doctrine to claims
under the TDCA but does not mention McCaig or the merits of her TDCA claims. We decided
McCaig on June 10, 2015; Rucker filed her initial brief a month later. We need not decide
waiver, however, because each TDCA claim fails as a matter of law.
       4 

(citing Wildy v. Wells Fargo Bank, N.A., No. 3:12-cv-01831-
BF, 

, at *3 (N.D. Tex. Nov. 30, 2012) (“[F]oreclosure, or the threat of fore-
closure, is not an action prohibited by law when a plaintiff has defaulted on their
                                             4
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                                       No. 15-10373
waived its contractual right to foreclose, and Rucker was in default at all times
after October 2007. Thus, irrespective of any statutory notice requirements,
BOA did not violate Section 392.301(a)(8) by threatening to foreclose.

       Section 392.303(a)(2) prohibits mortgage servicers from using unfair or
unconscionable means such as “collecting or attempting to collect interest or
a charge, fee, or expense incidental to the obligation unless [the fee] is
expressly authorized by the agreement creating the obligation or legally
chargeable to the consumer.” TEX. FIN. CODE ANN. § 392.303(a)(2). On appeal,
Rucker claims that BOA assessed excessive fees—totaling roughly $2,000 over
seven years—but does not contest whether the DOT authorized BOA to assess
such fees. In fact, in response to the motion for summary judgment, Rucker
conceded, “Defendants may be authorized, by the Deed of Trust and Note, to
charge inspection fees or corporate advances as well as miscellaneous fees
. . . .” Section 392.303(a)(2) prohibits mortgage servicers from attempting to
assess fees when such fees are not authorized by the DOT; it does not create a
cause of action to challenge assessed fees as unreasonable. Rucker fails to
allege a violation of Section 392.303(a)(2), so summary judgment on that claim
is appropriate.

       Section 392.304(a)(8) prohibits mortgage services from making misrepre-
sentations about a debt. 5 Rucker must show BOA made a misrepresentation



mortgage.”)).
       5   The subsection reads,
       Except as otherwise provided by this section, in debt collection or obtaining infor-
    mation concerning a consumer, a debt collector may not use a fraudulent, deceptive,
    or misleading representation that employs the following practices: (8) misrepresent-
    ing the character, extent, or amount of consumer debt, or misrepresenting the consu-
    mer debt’s status in a judicial or governmental proceeding.
TEX. FIN. CODE ANN. § 392.304(a)(8).
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                                  No. 15-10373
that led her to be unaware (1) that she had a mortgage debt, (2) of the specific
amount she owed, or (3) that she had defaulted. Miller v. BAC Home Loans
Servicing, L.P., 

, 723 (5th Cir. 2013). Rucker contends BOA vio-
lated that subsection by sending her four letters stating that she owed BOA
different amounts. When examined more closely, the letters are consistent
with each other and are not a misrepresentation.

      BOA’s January 15, 2010, letter informed Rucker that to bring the loan
current, she had to pay $86,993.62 by February 14—an amount that repre-
sented her unpaid monthly charges since October 2007 plus late fees. BOA’s
July 12 letter informed Rucker that she owed $244,307.66—the total outstand-
ing principal, interest, charges, and fees. Like the January 15 letter, BOA’s
October 28, 2011, letter notified Rucker that she must pay $146,025.97 to bring
her loan current. Finally, like the July 12, 2010, letter, BOA’s August 20, 2012,
letter conveyed that Rucker still owed a total of $285,300.85.

      Rucker does not contend that any one letter is a misrepresentation in
and of itself but rather that the amounts differ, so the letters are misleading
as a whole. But the letters explicitly state that they are describing two differ-
ent types of obligations: notices of the entire outstanding obligation and notices
of the amount due to bring the loan current. Each category is internally consis-
tent and consistent with the other. Rucker’s amount to bring the loan current
continued to grow over time because she was not making adequate payments
and still occupied the property. The total outstanding obligation grew for the
same reason.    The letters were not misrepresentations but, instead, were
accurate descriptions of two different types of obligations and were specifically
identified as such.

      Moreover, Rucker fails to establish any of the elements required by Sec-
tion 392.304(a)(8). See 

alleges that BOA made her unaware

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                                  No. 15-10373
of her mortgage debt. Rather, she attempted to modify the debt up to when
she sued; she had to be aware of it to try to modify it. Additionally, as described
above, she fails to show how BOA’s alleged misrepresentations misled her as
to the “specific amount” owed. See 

fails, because each letter
specifically identifies the obligation it described and stated it accurately.

      Finally, Rucker offers no evidence that BOA misrepresented whether her
loan was in default. Even accepting, as true, her allegation that BOA repeat-
edly sent her information about loan modifications, there is no evidence that
BOA equivocated on the status of the loan. Indeed, each of the four letters
upon which Rucker bases her Section 392.304(a)(8) claim explicitly states that
the loan is in default. Rucker has no valid claim under Section 392.304(a)(8).

      AFFIRMED.




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