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

Case: 14-10560 Document: 00513014457 Page: 1 Date Filed: 04/21/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10560

United States Court of Appeals

Fifth Circuit

FILED

April 21, 2015

Lyle W. Cayce

DAVID THOMPSON; TONI THOMPSON, Clerk

Plaintiffs–Appellants,

versus

BANK OF AMERICA NATIONAL ASSOCIATION,

as Successor by Merger to BAC Home Loans Servicing, L.P.,

Formerly Known as Countrywide Home Loans;

U.S. BANK, N.A., as Trustee for

the Certificateholders of the LXS 2006-16N Trust Fund,

Defendants–Appellees.

Appeal from the United States District Court

for the Northern District of Texas

Before REAVLEY, SMITH, and GRAVES, Circuit Judges.

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.

Case: 14-10560 Document: 00513014457 Page: 2 Date Filed: 04/21/2015

No. 14-10560

I.

The Thompsons purchased the property in 2006 with a loan from Coun-

trywide Home Loans, BOA’s predecessor in interest. They executed a promis-

sory note (“Note”) and deed of trust (“DOT”), securing the Note with the prop-

erty. 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 Afford-

able Modification Program because they were not delinquent in their pay-

ments. 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 the 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.

2

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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 fore-

close 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.” Ulico 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 une-

quivocally manifested its intent to no longer assert its claim.” 2

Two obstacles block the Thompsons from establishing waiver by

1The dependent claims are for breach of contract, suit to quiet title, and violation of

Section 392.301(a)(8) of the Texas Finance Code.

2Sgroe v. Wells Fargo Bank, N.A., 941 F. Supp. 2d 731, 748 (E.D. Tex. 2013) (internal

quotation marks omitted) (quoting G.H. Bass & Co. v. Dalsan Prop.–Abilene, 885 S.W.2d 572,

577 (Tex. App.—Dallas 1994, no writ)). See also Williams v. Wells Fargo Bank, N.A., 560 F.

App’x 233, 239–40 (5th Cir. 2014).

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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 them 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. Postpon-

ing a foreclosure sale to give borrowers the opportunity to apply for a loan mod-

ification 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 superior interest in the property.

3 The Thompsons rely on U.S. Bank, Nat’l Ass’n v. Kobernick, 454 F. App’x 307 (5th

Cir. 2011), for the principle that “a nonwaiver clause may, in some circumstances, be waived.”

But they do not explain how that general rule applies to these facts. Regardless, that case is

distinguishable because it involved acts that more clearly evinced the bank’s intent to waive

its right to declare default.

4See Williams, 560 F. App’x at 239–40, Watson v. CitiMortgage, Inc., 530 F. App’x 322,

326–27 (5th Cir. 2013); Robinson v. Wells Fargo Bank, N.A., 576 F. App’x 358, 363–64 (5th

Cir. 2014).

4

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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 con-

sumer debt, or misrepresenting the consumer debt’s status in a judicial or gov-

ernmental proceeding.” “To violate the TDCA using a misrepresentation, the

debt collector must have made an affirmative statement that was false or mis-

leading.” 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 sug-

gested that the mortgage company had stated otherwise. In this context, state-

ments about loan-modification applications and the postponement of foreclos-

ure 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 represen-

tation 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

5 Verdin v. Fed. Nat. Mortg. Ass’n, 540 F. App’x 253, 257 (5th Cir. 2013) (internal

quotation marks omitted); see also Chavez v. Wells Fargo Bank, N.A., 578 F. App’x 345, 348

(5th Cir. 2014) (quoting the same standard); Williams, 560 F. App’x at 241 (same); Robinson,

576 F. App’x at 363 (same).

5

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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 and thus they do not state a claim under Sec-

tion 392.304(a)(19). 6 For this reason, we have previously rejected TDCA claims

arising from similar facts: a protracted process of applying for modification

that ends in foreclosure. 7 This case is analogous, and the district court did not

err in granting summary judgment on these two claims.

III.

Lastly, we consider the evidentiary rulings excluding three exhibits. We

review for abuse of discretion the evidentiary decisions made for purposes of

summary judgment. Munoz v. Orr, 200 F.3d 291, 300 (5th Cir. 2000). The

court first excluded Exhibits B and D as not properly authenticated under Fed-

eral Rule of Evidence 901. Exhibit B is a printoff from the HOPE Loan Portal,

an online log maintained by Impact to catalogue any updates with the Thomp-

sons’ loan-modification application; Exhibit D is a handwritten call log seem-

ingly created by Impact employees as they contacted BOA for updates by tele-

phone. “To satisfy the requirement of authenticating or identifying an item of

evidence, the proponent must produce evidence sufficient to support a finding

that the item is what the proponent claims it is.” FED. R. EVID. 901(a). That

is not a heavy burden, and circumstantial evidence or testimony by a knowl-

edgeable witness can be sufficient. 8 In the case of an exhibit purported to rep-

resent an electronic source, such as a website or chat logs, testimony by a

6 See Singha v. BAC Home Loans Serv., L.P., 564 F. App’x 65, 70–71 (5th Cir. 2014).

7 Id.; see also Thomas v. EMC Mortg. Corp., 499 F. App’x 337, 343 (5th Cir. 2012).

8 United States v. Barlow, 568 F.3d 215, 220 (5th Cir. 2009); In re McLain, 516 F.3d

301, 308 (5th Cir. 2008).

6

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witness with direct knowledge of the source, stating that the exhibit fairly and

fully reproduces it, may be enough to authenticate. 9

The Thompsons fail to meet this standard. At no point does the affidavit

say that they have personal knowledge of the online log or that it represents

an unaltered version of the website. They similarly do not assert direct knowl-

edge of the call log. That is likely because, by all indications, those logs were

created and maintained by Impact, not the Thompsons. Nor do the logs have

characteristics that would authenticate them from their own appearance

under Rule 901(b)(4). We cannot say that the district court erred, much less

abused its discretion, in excluding the two exhibits as unauthenticated.

The final exhibit at issue is Exhibit E, which consists of a number of

sworn declarations by former BOA employees as part of a separate lawsuit.

The declarations describe various instances in which BOA employees were

instructed to interact dishonestly with mortgage customers. The district court

excluded the exhibit for two independent reasons: as inadmissible evidence of

prior bad acts under Federal Rule of Evidence 404 and as unduly prejudicial

under Federal Rule of Evidence 403. But the Thompsons fail to address the

district court’s reasoning in their briefs or explain how either rationale was

erroneous. As a result, they have waived the issue on appeal. 10

The summary judgment is AFFIRMED.

See Barlow, 568 F.3d at 220 (affirming, under plain-error review, the authentication

9

of online chat logs by testimony from one participant); see also Osborn v. Butler, 712 F. Supp.

2d 1134, 1146–47 (D. Idaho 2010) (finding a website properly authenticated where a knowl-

edgeable witness’s affidavit “explains that he printed the website, gave the website address,

and represented that it had not been altered or changed from the form maintained at the

website address”).

10 FED. R. APP. P. 28(a)(8)(A); United States v. Martinez, 263 F.3d 436–38 (5th Cir.

2001).

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No. 14-10560

GRAVES, Circuit Judge, concurring:

I agree with the majority that the district court’s grant of summary

judgment should be affirmed because Bank of America did not waive its right

to foreclose and made no actionable misrepresentations. I write separately to

clarify my view with respect to whether misrepresentations made during a loan

renegotiation may be actionable under Section 392.304(a)(19) of the Texas

Debt Collection Act.

The majority holds that the alleged misrepresentations on which the

Thompsons rely are not actionable under Section 392.304(a)(19) because they

were made in connection with the renegotiation of a loan rather than the

collection of a debt. I agree. Section 392.304(a)(19)’s catchall language

prohibits the use of “any other false representation or deceptive means,” not

already delineated in the statute, “to collect a debt or obtain information

concerning a consumer.” Section 392.001(a)(5), in turn, defines “debt

collection” as “an action, conduct, or practice in collecting, or in soliciting for

collection, consumer debts that are due or alleged to be due a creditor.”

Therefore, as this court held in Singha v. BAC Home Loans Serv., L.P., 564 F.

App’x 65, 70–71 (5th Cir. 2014), an unpublished opinion on which the majority

relies, misrepresentations that are made solely in connection with a loan

renegotiation are not, in and of themselves, debt collection activities under the

Texas Debt Collection Act. Singa, however, did “not announce a rule that

modification discussions may never be debt collections activities,” id. at 71, and

in my view, there may be circumstances in which misrepresentations made

during such discussions are actionable. Because I do not read the majority

opinion as holding otherwise, however, I concur.

8