Pete Thomas v. EMC Mortgage Corporation, et
499 F. App'x 337
5th Cir.2012Background
- Thomases executed deed of trust, promissory note, and loan rider with banks in 1996 for a home.
- After falling behind in 2006, they pursued multiple repayment plans over four years; no permanent modification.
- State court suit in 2010 alleged various loan-modification and foreclosure-related claims; removed to federal court.
- District court granted summary judgment dismissing breach-of-contract claims and some other claims; RESPA/TDCPA claims initially survived but were later dismissed.
- This appeal challenges the district court’s summary judgment on contract, anticipatory breach, waiver, substitute trustee, and related claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Anticipatory breach claim sufficiency | Thomases argued anticipatory breach despite not addressed in banks' motion. | Banks' motion explicitly covered anticipatory breach and parties were on notice. | No reversible error; properly dismissed. |
| Substitute trustee appointment | EMC appointed substitute trustee; genuine issue of fact. | No summary-judgment evidence of appointment; insufficient under Celotex. | Dismissed; no genuine issue. |
| Waiver and unilateral contract | Banks waived rights by accepting post-default payments; unilateral contract existence. | No waiver; no express written waiver; no contract formed. | No waiver; no unilateral contract; judgment affirmed. |
| Duty of good faith and fair dealing | Banks breached duty by bad faith handling loan modification and foreclosure. | Texas law limits such duty absent special relationship; not present here. | No duty; no breach; affirmed. |
| TDCPA and Texas Finance Code claims | Defendants engaged in unlawful collection and misrepresentation of debt amounts. | Evidence insufficient; discussions about modification not misrepresentations; unsupported fees. | Claims rejected; grant of summary judgment affirmed. |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (burden on movant to show absence of material facts)
- Montgomery Ward & Co. v. Brewer, 416 S.W.2d 837 (Tex. Civ. App. Waco 1967) (unreasonable collection standard; outrageous techniques)
- G.H. Bass & Co. v. Dalsan Props. S Abilene, 885 S.W.2d 572 (Tex. App. S. Dallas 1994) (waiver principles; no implied relinquishment of rights)
- EMC Mortgage Corp. v. Jones, 252 S.W.3d 857 (Tex. App. Dallas 2008) (Texas pleading standard and evidence considerations)
- Thomas v. EMC Mortg. Corp., 2011 WL 5880988 (N.D. Tex. 2011) (summary judgment on contract-based claims; not a published reporter)