Narvaez v. Wilshire Credit Corp.
2010 U.S. Dist. LEXIS 137276
N.D. Tex.2010Background
- Narvaez purchased a Dallas home in 2006 with a note payable to WMC Mortgage Corp. and a deed of trust naming MERS as beneficiary.
- The loan was assigned to LaSalle Bank in 2008 and later became owned/held by U.S. Bank; Wilshire Credit Corp. served the loan.
- Defendants began charging force-placed insurance in 2008; Narvaez contends he had his own policy and credits were mishandled.
- In 2009 Narvaez fell behind due to a July 1, 2009 violent incident; notices of default and acceleration followed, with multiple cure opportunities discussed or offered.
- Foreclosure notices were issued and rescinded in late 2009; a state TRO pending in Dallas County preceded removal to federal court in January 2010.
- Narvaez asserted multiple claims (breach of contract, negligent misrepresentation, TDCA, RESPA, slander of title, unreasonable collection efforts) but later narrowed; the court evaluates remaining live claims on summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of contract elements satisfied? | Narvaez performed; Defs. breached deed by misstating amounts. | Narvaez failed to perform; no breach by Defs.; notices and cure rights satisfied. | GRANTED for Defendants |
| Anticipatory breach validly alleged? | Defs. repudiated reinstatement/loan modification obligations. | No positive, unconditional repudiation; messages were conflicting but not repudiation. | GRANTED for Defendants |
| TDCA § 392.304(a)(8) misrepresentation claim viable? | Force-placed insurance charges and non-disclosure misrepresent debt amount. | No misrepresentation shown; debt amount communicated. | DENIED summary judgment for Defendants; TDCA claim survives |
| Negligent misrepresentation actionable? | Defendants' misrepresentations caused economic loss independent of contract. | Injury is solely contract-based; no tort liability absent independent injury. | GRANTED for Defendants |
| Unreasonable collection efforts established? | Force-placed charges and refusal to allow cure/isolate debt collection as harassment. | No evidence of willful, malicious harassment; plaintiff remained in default. | GRANTED for Defendants |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (Supreme Court 1986) (federal summary judgment burden shifting standard)
- Ashe v. Corley, 992 F.2d 540 (5th Cir. 1993) ( Celotex standards applied to summary judgment burden)
- Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622 (5th Cir. 1998) (summary judgment standards in complex disputes)
- Dorsett v. Cross, 106 S.W.3d 213 (Tex.App.-Houston [1st Dist.] 2003) (excuse for nonperformance in contract due to causation)
- Longview Const. & Dev., Inc. v. Loggins Const. Co., 523 S.W.2d 771 (Tex.Civ.App.-Tyler 1975) (interference by one party may excuse performance or breach)
- EMC Mortgage Corp. v. Jones, 252 S.W.3d 857 (Tex.App.-Dallas 2008) (unreasonable collection efforts; standards vary by case)