Sgroe v. Wells Fargo Bank, N.A.
2013 U.S. Dist. LEXIS 56843
| E.D. Tex. | 2013Background
- Plaintiff Sgroe and spouse executed a promissory Note for $86,100 and a Deed of Trust securing the_property on April 18, 2003, later assigned to Wells Fargo entities.
- Wells Fargo provided default notices after late payments beginning November 2008 and a reinstatement deadline of December 16, 2008.
- Part of a partial reinstatement/repayment agreement was entered January 29, 2009, but the April 28, 2009 payment was not made.
- The Note was accelerated and foreclosure proceedings were scheduled for September 1, 2009 after due notices.
- Foreclosure sale on September 1, 2009 resulted in FHLMC becoming the successful bidder; state forcible entry action followed in 2011-2012.
- Plaintiff filed various state-court petitions and sought injunctive relief and declaratory relief; Defendants moved for summary judgment, which the court granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| TDCA claim viability against Wells Fargo | Sgroe asserts misrepresentations/unauthorized charges and improper foreclosure. | Wells Fargo did not misrepresent or violate the TDCA; foreclosure allowed. | TDCA claims fail as a matter of law. |
| FTCA claim viability | Wells Fargo failed to provide cure opportunities before acceleration. | Plaintiff had multiple cure opportunities and failed to cure. | FTCA claim fails as a matter of law. |
| Unreasonable collection efforts | Defendant engaged in harassing collection practices. | Not a campaign of harassment; notices and foreclosure rights exercised per contract. | Unreasonable collection claim fails. |
| DTPA consumer status and claim viability | Sgroe is a consumer and Wells Fargo violated the DTPA. | Loan transaction not for consumer purchase of goods/services; not a consumer under DTPA. | DTPA claim dismissed as a matter of law. |
| Breach of contract, waiver, and good-faith duty | Defendant waived rights to accelerate/foreclose; breach of duty of good faith. | No waiver evident; no duty of good faith between mortgagor and mortgagee. | Breach, waiver, and good-faith claims dismissed; contract claims fail. |
Key Cases Cited
- La Sara Grain Co. v. First Nat’l Bank of Mercedes, 673 S.W.2d 558 (Tex. 1984) (consumer status for DTPA focus on transaction objective)
- Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640 (Tex. App.-Houston [14th Dist.] 2003) (statutory requirements; contract-based defenses in mortgage context)
- Vogel v. Travelers Indem. Co., 966 S.W.2d 748 (Tex.App.-San Antonio 1998) (UCC-not governed; duty of good faith not implied in mortgage liens)
- Dorsett v. Cross, 106 S.W.3d 213 (Tex.App.-Houston [1st Dist.] 2003) (nonpreclusion; contract-based defenses and performance issues)
- Lamar Homes, Inc. v. Mid-Continent Casual Co., 242 S.W.3d 1 (Tex. 2007) (economic loss rule applied to contract-based damages)