Glenn M. Ihde and C. Alice Ihde v. First Horizon Home Loan Corporation, First Horizon Home Loans, First Tennessee Bank, N.A., Bank of New York Mellon F/K/A the Bank of New York, Keystone Lending Corporation
05-15-01084-CV
| Tex. App. | Nov 28, 2016Background
- In 2004 Glenn and C. Alice Ihde executed a $864,000 note and deed of trust with First Horizon; monthly payments began Feb. 1, 2006 and a 5% late fee was contractually authorized for past-due payments.
- The Ihdes made payments through February 2009, then stopped making payments; they submitted a hardship letter in May 2009 requesting modification and forbearance; First Horizon denied the modification in March 2011 for insufficient income.
- The Ihdes sued (July 2013) seeking to enjoin foreclosure and alleging misrepresentations during the loan-modification process against First Horizon, Bank of New York Mellon (BONY), Nationstar, and MetLife.
- Appellees moved for traditional and no‑evidence summary judgment in April 2015; the trial court granted summary judgment for appellees on June 8, 2015.
- On appeal the Ihdes argued they produced more than a scintilla of evidence to support claims for unjust enrichment, violations of the Texas Debt Collection Practices Act (TDCPA), and common-law fraud; the court reviewed under the no‑evidence standard and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Unjust enrichment | First Horizon (and others) said loan modification was the Ihdes' "only option," charged improper fees, and failed to communicate, creating a quasi‑contractual obligation to make restitution | No evidence of fraud, duress, or undue advantage; no promise of modification by defendants; fees compliant with loan terms | Affirmed summary judgment for defendants — plaintiff failed to raise more than a scintilla of evidence of unjust enrichment |
| TDCPA violations (§§ 392.304(a)(19), 392.303(a)(2), 392.304(a)(8)) | Repeated information requests and a sudden payment increase were deceptive, unfair, or mischaracterized the debt | Requests for information and payment adjustments do not, as alleged, constitute fraudulent or unconscionable collection practices; no proof of misleading misrepresentations | Affirmed — no more than a scintilla of evidence of TDCPA violations |
| Fraud | First Horizon’s statement that modification was the "only option" induced reliance; BONY’s statements showed misrepresentation | No evidence any appellee made a false, material representation; BONY was not servicing the loan when the statement was allegedly made; no proof of intent or detrimental reliance | Affirmed — plaintiffs failed to establish elements of fraud |
Key Cases Cited
- Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013) (no‑evidence summary judgment standard and legal‑sufficiency review)
- Walker v. Cotter Props., Inc., 181 S.W.3d 895 (Tex. App.—Dallas 2006) (unjust enrichment characterized as restitution where no contract exists)
- Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39 (Tex. 1992) (recovery for benefits obtained by fraud, duress, or undue advantage)
- Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323 (Tex. 2011) (elements of actionable fraud)