Diana Rucker v. Bank of America, N.A.
806 F.3d 828
| 5th Cir. | 2015Background
- Rucker purchased a home in 2005, financed by Argent; deed of trust assigned to Wells Fargo; Bank of America (BOA) serviced the loan.
- Rucker defaulted in October 2007 and between 2008–2012 sought loan modifications; she alleges BOA denied, ignored, or misrepresented status of modification requests.
- BOA sent a January 15, 2010 certified notice of default giving Rucker until February 14 to cure; Rucker did not cure and BOA initiated foreclosure in August 2012.
- Rucker sued BOA and Wells Fargo in Texas state court in April 2013 asserting claims under Tex. Prop. Code § 51.002(d) and various sections of the Texas Debt Collection Act (TDCA); the case was removed to federal court.
- The district court granted summary judgment for BOA; on appeal the Fifth Circuit affirmed, resolving statutory-interpretation and TDCA issues against Rucker on alternative grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tex. Prop. Code § 51.002(d) creates an independent private cause of action | Rucker: § 51.002(d) supplies a standalone private cause of action (not just wrongful-foreclosure remedy) | BOA: § 51.002(d) does not create an independent cause of action; at minimum BOA complied with the statute by giving required notice | Court: Even assuming a private cause exists, summary judgment for BOA because BOA’s Jan. 15 notice satisfied § 51.002(d)’s 20-day cure requirement; claim fails as a matter of law |
| Whether BOA violated TDCA § 392.301(a)(8) by threatening unlawful foreclosure | Rucker: Threatening foreclosure was a threat to take action prohibited by law because acceleration notice requirements were unmet | BOA: It retained contractual right to foreclose and Rucker was in default, so threat was not prohibited | Court: No TDCA violation; BOA did not waive foreclosure rights and the debt was in default, so § 392.301(a)(8) claim fails |
| Whether BOA violated TDCA § 392.303(a)(2) by collecting unauthorized or excessive fees | Rucker: BOA assessed roughly $2,000 in excessive fees over seven years | BOA: The Deed of Trust authorized assessment of those fees; Rucker conceded DOT might authorize such charges | Court: No violation; § 392.303(a)(2) prohibits charging unauthorized fees but does not create a vehicle to challenge reasonableness when fees are authorized; summary judgment for BOA |
| Whether BOA violated TDCA § 392.304(a)(8) by misrepresenting debt amounts/status | Rucker: BOA’s letters showed differing amounts, misleading her about amount owed and loan status | BOA: Letters differentiated between amount to cure and total outstanding obligation; each was internally consistent and stated loan was in default | Court: No violation; letters accurately described different obligations, Rucker remained aware of debt and default, and she failed to prove the required elements for a § 392.304(a)(8) claim |
Key Cases Cited
- LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383 (5th Cir.) (summary judgment reviewed de novo)
- Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502 (5th Cir.) (appellate court may affirm on any ground supported by record)
- McCaig v. Wells Fargo Bank, N.A., 788 F.3d 463 (5th Cir.) (TDCA § 392.301(a)(8) analysis regarding threats to foreclose and waiver of foreclosure rights)
- Miller v. BAC Home Loans Servicing, L.P., 726 F.3d 717 (5th Cir.) (elements required to prove a § 392.304(a)(8) misrepresentation claim)
- DSC Commc’ns Corp. v. Next Level Commc’ns, 107 F.3d 322 (5th Cir.) (waiver arguments when issues raised only in reply brief)