Danny Robinson v. Wells Fargo Bank, N.A., e
576 F. App'x 358
| 5th Cir. | 2014Background
- Danny signed the Texas Home Equity Note; both Danny and Shirree signed the Deed of Trust and an escrow-waiver; Shirree did not sign the Note and the Deed states a non‑note signer is not a debtor.
- Wells Fargo paid overdue property taxes without the Robinsons’ knowledge, increased monthly payments, and the Robinsons fell behind after being told to miss payments to qualify for HAMP.
- Danny received repeated collection calls on his cell phone and a written notice of default/intent to accelerate; Wells Fargo later offered a HAMP trial plan but foreclosed and sold the property to Freddie Mac before April 17, 2010.
- The Robinsons sued in Texas state court asserting TDCA claims and various state-law claims (unreasonable collection, breach, waiver, quiet title); defendants removed; district court dismissed most claims and granted summary judgment on TDCA claims.
- The Fifth Circuit affirmed: it addressed notice requirements under Texas Property Code/Texas Finance Code, harassment by repeated calls, misrepresentation-based TDCA claims, waiver, and quiet-title claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to send a separate notice to Shirree violated Tex. Fin. Code §392.301(a)(8) via Property Code §51.002 | Shirree wasn’t separately notified of default; separate notice was required | Shirree is not a debtor (didn’t sign Note); constructive notice through shared address suffices | No violation — Shirree was not a debtor and constructive notice was adequate |
| Whether repeated calls violated Tex. Fin. Code §392.302(4) (harassment) | Danny received several calls per day, often at work; this volume supports harassment | Calls were to Danny’s cell (the contact number he provided); no calls at odd hours or threats | No genuine dispute: volume alone, without odd-hour calls or other extenuating circumstances, insufficient to show intent to harass |
| Whether alleged promises (no foreclosure during modification; must be delinquent to qualify) violated Tex. Fin. Code §392.304(a)(8)/(19) (misrepresentation) | Wells Fargo misled Robinsons into believing no foreclosure would occur during modification and that delinquency was required for HAMP | These were promises or statements about future conduct/eligibility and not shown to be knowingly false when made | Dismissed — future promises are not actionable absent facts showing they were made with no intent to perform or were false when made |
| Whether Wells Fargo’s delay/forbearance waived its foreclosure rights and whether Robinsons can quiet title | Delay and loan‑modification discussions amounted to conduct inconsistent with foreclosure rights; title is therefore superior | Forbearance/modification discussions do not unequivocally manifest intent to relinquish foreclosure rights; deed expressly preserves lender rights | Dismissed — no unequivocal waiver; lender retained right to foreclose; quiet-title fails without showing superior equity |
Key Cases Cited
- Trinity Universal Ins. Co. v. Empr’s Mut. Cas. Co., 592 F.3d 687 (5th Cir. 2010) (standard of review for summary judgment)
- WTFO, Inc. v. Braithwaite, 899 S.W.2d 709 (Tex. App.—Dallas 1995) (Texas law treats §51.002 as providing constructive notice of foreclosure)
- Household Credit Servs. v. Driscol, 989 S.W.2d 72 (Tex. App.—El Paso 1998) (multiple daily calls at inconvenient times can support harassment finding)
- Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773 (Tex. 2008) (elements and strictness of waiver—unequivocal manifestation required)
- Hahn v. Love, 321 S.W.3d 517 (Tex. App.—Houston [1st Dist.] 2010) (plaintiff bears burden to prove superior equity in a suit to quiet title)