# David Thompson v. Bank of America N.A., et > Court of Appeals for the Fifth Circuit · April 21, 2015 · 783 F.3d 1022 URL: https://www.frixlaw.com/law-library/cases/9806969 ## Case - **Full name:** David THOMPSON; Toni Thompson, Plaintiffs-Appellants, v. 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 - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** April 21, 2015 - **Citations:** 783 F.3d 1022; 2015 WL 1810738 - **Precedential status:** Published - **Opinion:** Concurrence by Graves - **Judges:** Reavley, Smith, Graves - **Nature of suit:** Private Civil Diversity - **Cited by:** 64 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9806969 ## How later opinions describe it (automated extraction) - holding at summary judgment that witness affidavits did not authenticate an online log because the affidavits did not “say that [the witnesses] have personal knowledge of the online log or that it represents an unaltered version of the website . . . likely because . . . th[e] … - explaining that, in a similar case to this one, “we have previously rejected TDCA claims arising from similar facts: a protracted process of applying for modification that ends in foreclosure.” - affirming summary judgment on section 392.304 claim because the plaintiffs were aware that they had a mortgage debt; of the specific amount that they owed; and that they had defaulted, and nothing in the record suggested that the mortgage company had stated otherwise - holding that twelve postponements of a planned foreclosure did not waive right to foreclose when DOT contained a non-waiver provision - applying test for waiver of rights in Texas and concluding that bank, by postponing foreclosure 12 times, did not intend to waive its rights under a deed of trust to foreclose ## Opinion text 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 *1028-1044 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 Fed.Appx. 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. Singha , 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9806969. Public record. Not legal advice.