Ada Elizondo v. U.S. Bank, N.A.
13-20-00159-CV
| Tex. App. | Oct 28, 2021Background:
- Ada Elizondo obtained a mortgage in 2006; U.S. Bank became holder of the note and Nationstar serviced the loan.
- Nationstar sent default/acceleration notices in 2017 and a foreclosure sale was scheduled for November 7, 2017; no foreclosure sale ultimately occurred.
- Elizondo paid $4,500 and alleges a Nationstar representative orally agreed the sum would be applied to upcoming periodic payments rather than reducing principal.
- Elizondo sued U.S. Bank (and others) asserting wrongful foreclosure, breach of contract (notice), unfair debt-collection (Tex. Fin. Code), DTPA violations, and promissory estoppel; she obtained temporary injunctive relief.
- U.S. Bank moved for no-evidence and traditional summary judgment; the trial court granted summary judgment for U.S. Bank on all claims. Elizondo appealed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Wrongful foreclosure | Elizondo alleged wrongful foreclosure based on foreclosure proceedings and notices. | No foreclosure sale occurred; wrongful-foreclosure cause requires an actual foreclosure and resulting grossly inadequate price. | Summary judgment for U.S. Bank; claim fails as a matter of law because no foreclosure occurred. |
| Breach of contract (notice) | U.S. Bank failed to follow notice/acceleration/posting requirements in the deed of trust. | U.S. Bank produced notice and related documents; Elizondo produced no evidence of the alleged notice breach. | Summary judgment for U.S. Bank; no-evidence SJ sustained because Elizondo failed to raise fact issue on alleged notice breach. |
| Unfair debt collection (Tex. Fin. Code §392.304(a)(8)) | Elizondo says U.S. Bank misrepresented status of her debt by promising application of the $4,500 to monthly payments. | The statute prohibits misrepresenting a debt's status in a judicial or governmental proceeding; Elizondo produced no evidence of such a proceeding, and her affidavit does not prove the statutory violation. | Summary judgment for U.S. Bank; no evidence of a §392.304(a)(8) violation. |
| DTPA §17.46(b)(12) | Elizondo contends U.S. Bank misrepresented contractual rights/obligations and DTPA relief is available. | Elizondo conceded she is not a "consumer"; a stand-alone DTPA claim requires consumer status. | Summary judgment for U.S. Bank; DTPA claim fails because plaintiff is not a consumer. |
| Promissory estoppel | Elizondo claims U.S. Bank promised to apply the $4,500 to future periodic payments and she relied to her detriment. | The note/deed of trust govern payment application and contain a "no oral agreements" clause; promissory estoppel is barred when an express contract covers the subject. | Summary judgment for U.S. Bank; promissory estoppel unavailable as a matter of law because the express contract controls. |
Key Cases Cited
- Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699 (Tex. 2021) (de novo review of summary judgment)
- First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214 (Tex. 2017) (procedural rule: consider no‑evidence motion first)
- Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000) (context on DTPA and when consumer status requirement is excused)
- Rachal v. Reitz, 403 S.W.3d 840 (Tex. 2013) (promissory estoppel unavailable where express contract covers the dispute)
- Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472 (Tex. 1995) (definition of producing cause for DTPA)
- Sauceda v. GMAC Mortgage Corp., 268 S.W.3d 135 (Tex. App.—Corpus Christi–Edinburg 2008) (elements of wrongful foreclosure)