David Thompson v. Bank of America N.A., et
783 F.3d 1022
| 5th Cir. | 2015Background
- Thompsons bought their home in 2006 with a BOA predecessor loan, securing it with a note and deed of trust later assigned to U.S. Bank with BOA as servicer.
- In 2009 they sought a modification but were told they didn’t qualify for HAMP due to not being delinquent, and were advised to keep paying.
- They stopped paying, hired Impact Consulting to assist with modification negotiations, and BOA postponed foreclosure while review continued.
- Over three years, the modification process involved multiple rounds of paperwork and reviews, with BOA issuing default notices and foreclosure accelerations.
- In December 2012 BOA denied the modification and proceeded with foreclosure; the Thompsons asserted state-law claims against BOA and U.S. Bank in federal court via diversity jurisdiction.
- The district court granted summary judgment; Thompsons appeal on waiver-based claims, TDCA claims, and evidentiary rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BOA waived foreclosure by postponing. | Thompsons argue delay/show of forbearance implied waiver. | DOT excludes waiver from forbearance and actions were consistent with foreclosure rights. | No waiver; forbearances not an unequivocal relinquishment of the right. |
| TDCA §392.304(a)(8) misrepresentation during modification | Statements about review, documents, and trial plan misrepresented debt status. | Statements relate to modification, not debt character or amount. | Not actionable under §392.304(a)(8). |
| TDCA §392.304(a)(19) catchall misrepresentation | Misrepresentations during modification constitute unlawful debt collection. | Renegotiation discussions are not debt collection by itself. | Not actionable under §392.304(a)(19) as framed. |
| Whether the district court properly excluded Exhibits B and D as unauthenticated | Exhibits accurately reflect modification activity and calls. | Lacked authentication under Rule 901; logs likely created by Impact. | Exhibits B and D excluded; no abuse of discretion. |
| Whether Exhibit E (BOA declarations) was admissible | Declarations show misconduct by BOA employees; probative of bad acts. | Declarations were challenged on Rule 404/403 grounds; not addressed on appeal. | Issue waived; district court’s rationale not challenged on appeal. |
Key Cases Cited
- Utico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773 (Tex. 2008) (elements of waiver require unequivocal intent to relinquish rights)
- Miller v. BAC Home Loans Servicing, L.P., 726 F.3d 717 (5th Cir. 2013) (TDCA misrepresentation requires debt-character misstatement)
- Singha v. BAC Home Loans Serv., L.P., 564 F. App’x 65 (5th Cir. 2014) (modification discussions may not be debt-collection activities)
- Williams v. Wells Fargo Bank, N.A., 560 F. App’x 233 (5th Cir. 2014) (TDCA misrepresentation analysis in mortgage context)
- Robinson v. Wells Fargo Bank, N.A., 576 F. App’x 358 (5th Cir. 2014) (TDCA misrepresentation considerations in loan-modification context)
- U.S. v. Barlow, 568 F.3d 215 (5th Cir. 2009) (authentication of online logs and websites-supported by testimony)
- Osborn v. Butler, 712 F. Supp. 2d 1134 (D. Idaho 2010) (website authentication approach in evidentiary rulings)