Adrian Verdin v. Federal Natl Mortgage Assoc, et a
540 F. App'x 253
5th Cir.2013Background
- Verdin’s Texas home was foreclosed by Wells Fargo and sold to Fannie Mae; Verdin sued Wells Fargo and Fannie Mae in state court for various claims later removed to federal court.
- Verdin defaulted on the March–April 2010 payments; Wells Fargo accelerated the loan and scheduled a foreclosure sale for August 3, 2010.
- Verdin sought reinstatement by paying the then-current amount and discussed a potential sale; Wells Fargo told him to postpone foreclosure instead.
- Shortly before the sale, Wells Fargo required payoff funds of $22,179.68 to postpone; Verdin did not provide proof of payoff funds and the sale proceeded.
- The district court granted Rule 12(b)(6) dismissal of negligent-misrepresentation and gross-negligence and granted summary judgment on remaining claims; the court of appeals affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Verdin states a negligent-misrepresentation claim under Texas law. | Verdin relies on Wells Fargo’s statements about postponement as misrepresentations. | Promised future actions are not existing-fact misrepresentations; no pecuniary-loss independent from the loan. | Yes; the claim fails because the statements were about future actions and no pecuniary loss apart from the loan. |
| Whether Wells Fargo waived its right to foreclose or anticipatorily breached the loan. | Wells Fargo’s remarks implied waiver and anticipatory breach. | No unequivocal waiver or absolute repudiation; mixed signals insufficient for anticipatory breach. | Waiver/anticipatory breach not proven; district court correctly granted summary judgment. |
| Whether Verdin’s TDCA claims fail. | Defendant engaged in false representations and deceptive means to collect a debt. | No affirmative misrepresentation; refusal to provide a payoff quote is not a misrepresentation. | Claims fail under TDCA §§ 392.304(a)(8) and (a)(19). |
| Whether Wells Fargo engaged in unreasonable collection efforts or other contractual breaches. | Wells Fargo acted willfully and harassed Verdin to collect the debt. | Record lacks willful, wanton conduct; actions were within contractual/loan rights. | No basis for unreasonable-collection or other contractual breach claims. |
| Whether the foreclosure or related actions void Verdin’s title or support relief such as quiet title. | Foreclosure irregularities render title void and justify quiet-title relief. | Without substantive defect in underlying claims, foreclosure sale stands. | Dismissal of quiet-title and related claims affirmed. |
Key Cases Cited
- Torch Liquidating Trust ex rel. Bridge Assocs. L.L.C. v. Stockstill, 561 F.3d 377 (5th Cir. 2009) (de novo standard for reviewing Rule 12(b)(6) dismissals; burden of pleading)
- Horizon Shipbuilding, Inc. v. BLyn II Holding, L.L.C., 324 S.W.3d 840 (Tex. App.—Houston [14th Dist.] 2010) (existing-fact misrepresentation; future promises not actionable)
- BCY Water Supply Corp. v. Residential Invs., Inc., 170 S.W.3d 596 (Tex. App.—Tyler 2005) (misrepresentation must be an existing fact)
- Scherer v. Angell, 253 S.W.3d 777 (Tex. App.—Amarillo 2007) (promises about future actions not actionable)
- D.S.A., Inc. v. Hillsboro Indep. Sch. Dist., 973 S.W.2d 662 (Tex. 1998) (pecuniary loss requirement for negligent-misrepresentation independent of the loan)
- Gonzalez v. Denning, 394 F.3d 388 (5th Cir. 2004) (elements for anticipatory breach)
- G.H. Bass & Co. v. Dalsan Props.–Abilene, 885 S.W.2d 572 (Tex. App.—Dallas 1994) (waiver requires unequivocal manifestation of intent)
- Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773 (Tex. 2008) (waiver and contractual-right considerations in Texas law)