Biggers v. BAC Home Loans Servicing, LP
2011 U.S. Dist. LEXIS 13104
N.D. Tex.2011Background
- Biggers sued BAC for breach of contract, wrongful foreclosure, negligent misrepresentation, and TDCPA/DTPA violations arising from BAC's actions to foreclose on their residence.
- Deed of trust securing the property named Megastar as lender; BAC later acquired the deed of trust and issued notices of sale through substitute trustees before formal assignment.
- BAC represented it had purchased the loan by 2009 and purported to be mortgagee/servicer, though assignment to BAC occurred May 18, 2010.
- Biggers allege BAC failed to provide proper default notice and cure opportunities and that substitute trustees acted without capacity, making foreclosure attempts potentially void.
- Court granted BAC a Rule 12(b)(6) dismissal on all claims except TDCPA; allowed leave to replead DTPA claim on a ground not raised by BAC; Biggers did not respond to prior motions.
- TDCPA claim found plausible and applicable to foreclosure-type actions; DTPA dismissed; negligent misrepresentation and other claims dismissed; summary judgment motion pending for remaining TDCPA issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does TDCPA apply to foreclosure actions? | Biggers argue foreclosures are debt collection under TDCPA. | BAC contends foreclosure actions are not debt collection under TDCPA. | TDCPA can apply to foreclosure actions (Erie-guess accepted). |
| Is the TDCPA claim plausibly pleaded? | Biggers allege improper notices and threats to enforce a lien without capacity, supporting TDCPA claim. | TDCPA claim insufficient or not properly pleaded. | TDCPA claim pleaded plausibly, with deficiencies in notices and capacity addressed. |
| Is the DTPA claim viable given TDCPA pleading? | DTPA relies on TDCPA violation; should be actionable under DTPA. | No standalone DTPA injury shown; TDCPA absence would foreclose DTPA claim. | DTPA claim dismissed due to lack of injury and causation showing, tied to TDCPA failure. |
| Are the breach of contract and wrongful foreclosure claims plausibly pleaded? | BAC breached by acting without capacity and foreclosing improperly. | Either BAC lacked capacity or was entitled as assignee, defeating breach; no plausible wrongful foreclosure without sale price irregularity. | Breach of contract and wrongful foreclosure claims are dismissed. |
| Is the negligent misrepresentation claim plausibly pleaded? | BAC misrepresented ownership/capacity to enforce lien and misled plaintiffs. | Amended complaint lacks pleaded reliance and pecuniary loss. | Negligent misrepresentation claim dismissed. |
Key Cases Cited
- Waterfield Mortgage Co. v. Rodriguez, 929 S.W.2d 641 (Tex.App.1996) (TDCPA context in foreclosure-related claims)
- Blanche v. First Nationwide Mortgage Corp., 74 S.W.3d 444 (Tex.App.2002) (TDCPA claims where foreclosure alleged; mortgagee's debt-collection activity scrutinized)
- Rey v. Acosta, 860 S.W.2d 654 (Tex.App.1993) (Wrongful foreclosure under TDCPA recognized in foreclosure context)
- Port City State Bank v. Leyco Constr. Co., 561 S.W.2d 546 (Tex.Civ.App.1977) (Elements of wrongful foreclosure; sale irregularity requires price impact)
- Peterson v. Black, 980 S.W.2d 818 (Tex.App.1998) (Limitations on wrongful foreclosure damages; need for actual loss or title transfer)