*1 to enforce the district court REMAND award.
the arbitral THOMPSON; Thompson, Toni
David
Plaintiffs-Appellants, AMERICA NATIONAL AS-
BANK OF
SOCIATION, Merger as Successor Servicing, L.P.,
to BAC Home Loans
Formerly Countrywide Known Loans; Bank, N.A., as U.S.
Home the Certificateholders
Trustee for Fund, Defen- 2006-16N Trust LXS
dants-Appellees.
No. 14-10560. Appeals,
United States Court
Fifth Circuit.
April *2 (“BOA”) against Bank America (“U.S. Bank”), arising
and U.S. N.A. their home. from the foreclosure on particu- appeal the exclusion of summary-judgment from the exhibits lar *3 BOA did not waive evidence. Because right to foreclose and made no actionable misrepresentations, we affirm. I. Thompsons purchased property
in a from Countrywide 2006 with Loans, predecessor Home inter- BOA’s promissory They est. executed note (“Note”) (“DOT”), trust and deed of secur- property. The Note ing the Note Bank, to assigned and DOT were U.S. acting as the loan servicer. In BOA to try contacted BOA to in- negotiate a loan modification but were qualify not for the they formed did Program Home Affordable Modification they delinquent not in their were payments. they were also told Although monthly to stop making payments, they so, Impact later did then hired Con- sulting Group (“Impact”) nego- to assist tiating a modification. Peacock, (argued), B. Jr. David M. Jack Vereeke, Vereeke, & Gagnon, Peacock years, Over the course of three P.C., Dallas, TX, Plaintiffs-Appellants. for Thompsons, through Impact, engaged with Danner, Dwayne Litigation
Richard process in a BOA drawn-out assess Counsel, Alexander, Nathan Esq., Tatiana They eligibility their for modification. Anderson, Attorney (argued), Templeton paperwork, multiple submitted rounds of Stafford, P.L.L.C., Dallas, TX, McGlinchey application passed through and nu- their Defendants-Appellees. they -reviews. But because had merous
stopped paying, they received several default, notifying giv- letters them their foreclosure, ing notice and inform- them accelerating ing them REAVLEY, SMITH, Before payments under the loan’s terms. GRAVES, Judges. Circuit bring their payments did not resume SMITH, Judge: JERRY E. Circuit current; requested account instead agreed several postponements, and BOA appeal a sum- Thompson David and Toni delay times the foreclosure sale while mary judgment dismissing their state-law benefit, existing right, was under re- or advantage held (2) by a party; view. actual party’s knowl- (3) edge existence; of its party’s In BOA denied the December- relinquish actual intent the right, or then application, fore- loan-modification intentional conduct inconsistent with the filed a closed. The number of right.” Utico Cas. Co. Allied Pilots against BOA and U.S. state-law Ass’n, (Tex.2008). 262 S.W.3d to federal court removed intent, The central element is which must diversity jurisdiction. The banks then on unequivocally manifested. Where waiv- summary judgment moved for on all er is claimed inference rather than claims, granted, which the district express renunciation, “it is the burden of only Thompsons appeal subset of *4 party the who ... produce is to benefit to claims. those conclusive the opposite party evidence that II. unequivocally its manifested intent to no longer assert its claim.”2 case, In diversity-jurisdiction this ap we Texas substantive law. Gines v. D.R. ply Two obstacles the Thompsons block (5th Horton, Inc., 812, 816 Cir. from establishing by waiver inference. 2012). Thompsons appeal the sum First, the DOT explicitly any disclaims mary judgment of state-law five claims: waiver through delay the of foreclosure: contract, title, quiet of to breach suit and “Any by Lender in exercising forbearance three violations of the Texas Debt Collec any ... right remedy shall not be a (“TDCA”). Act tion Three of those waiver of or the preclude any exercise of claims,1however, on depend legal the theo right or remedy.” take that language We right foreclose, that BOA to ry waived its at face value.3 rejected, which the district so it is to Moreover, theory that that we turn first. none of BOA’s actions right is inconsistent its to with foreclose A. upon default. is no There evidence that any promise BOA made affirmative that it Thompsons’ theory, in es sence, would not' would foreclose or continue of- right is that its BOA waived to Nor fering postponements. did the bank through foreclose behavior inconsistent indicate, action, by word or that the right, that the namely, approximately paying or stop underpay of could postponements twelve foreclosure to obligations triggering loan without agreed which BOA had while their loan- their pending. modification was acceleration or foreclosure. To the con- (1) trary, informing “The elements of waiver include BOA sent notices them dependent Thompsons rely 1. The are for breach of on U.S. con- 3.The Nat’l tract, title, quiet Kobernick, (5th suit to and violation of Sec- Fed.Appx. Ass’n v. 454 307 392.301(a)(8) tion of the Texas Finance Code. Cir.2011), principle for the that "a nonwaiver circumstances, may, clause in some Bank, N.A., Sgroe Fargo v. Wells 941 they explain waived.” But do not how that 731, (E.D.Tex.2013) (internal F.Supp.2d 748 general applies Regard rule these to facts. omitted) quotation (quoting marks G.H. Bass less, distinguishable that case is because it Prop.-Abilene, & Co. v. Dalsan 885 S.W.2d clearly involved acts that more evinced the writ)). (Tex.App.-Dallas 577 no right bank’s intent to waive its to declare Bank, N.A., Fargo See also Williams v. Wells default. being Yet subject payment plan trial created. in default and they were them that do relate to the char- those statements not foreclosure; that the fact to debt, which is what the statute acter the possible loan apply for them invited In Miller v. BAC Home Loans requires. that. not inconsistent with is L.P., Servicing, F.3d give sale to bor- a foreclosure Postponing Cir.2013), that a un- this court held claim a loan apply opportunity rowers the 392.304(a)(8)failed because der negotiate other accommo- modification or (i) “always they that plaintiffs were aware an intent not manifest dations does (ii) debt; mortgage specific had a to foreclose.4 right waive the (iii) owed; they they amount that this, summary is judgment light In defaulted,” suggested nothing had rely on claims that the three proper on company had stated other- mortgage not waive Because BOA did theory. context, In this statements about wise. was not right, prohibited foreclosure its loan-modification applications 392.301(a)(8) and was not under Section do con- of foreclosure postponement can agreement. Nor breach of “character, extent, or amount of’ cern quiet-title maintain loan, are not the home so covered action, superi- cannot show the statute. Id. property. in the interest *5 Finally, Thompsons appeal 392.304(a)(19), under their claim B. prohib catchall that provision the TDCA’s appeal two other Thompsons “using or any representation other false They the TDCA. first assert claims under deceptive to collect debt or obtain means 392.304(a)(8) of that BOA violated Section For concerning information a consumer.” Code, prohibits (cid:127)the Finance Texas this, they rely on alleged the same state extent, character, or “misrepresenting the ments, and relating preparation all to the debt, misrepre or amount of a consumer modification of their application. review in a senting the consumer debt’s status But none of the statements violates “To judicial governmental proceeding.” the statute. Communications in connec using misrepresenta violate the TDCA renegotiation of a do not tion tion, must made an collector have the debt but, in concern the collection of a debt that false or statement stead, relate to its and thus affirmative that only statements misleading.”5 they do not state claim under Section cite concern the status 392.304(a)(19).6 reason, For have we application; their loan-modification rejected arising previously TDCA claims misrepresented claim that BOA that from similar facts: a protracted process review, that BOA applying was under modification that in forec ends documents, analogous, that a case needed or received losure.7 This is Williams, 239-40, (5th Cir.2014) standard); Fed.Appx. (quoting 4. See 560 at the same Inc., Fed.Appx. Williams, CitiMortgage, (same); Watson v. 530 Fed.Appx. 560 at 241 Rob 322, (5th Cir.2013); v. Wells inson, 326-27 Robinson (same). Fed.Appx. 576 at 363 N.A., 358, Bank, Fargo Fed.Appx. 576 363-64 (5th Cir.2014). Serv., L.P., Singha BAC 6. See Home Loans (5th Cir.2014). Fed.Appx. 564 Ass'n, Mortg. 5. v. Fed. Nat. 540 Fed. Verdin Cir.2013) (internal Appx. quota 257 Id.; Mortg. Corp., 7. see also Thomas v. EMC omitted); tion v. Wells marks see Chavez (5th Cir.2012). Fed.Appx. 499 N.A., Fargo in granting district court did not err sum- tered version of the website. simi- mary judgment on these two larly claims. do not assert direct knowledge of the log. because, call That likely is by all
III. indications, logs those were created and Lastly, we consider the eviden by maintained Impact, not Thompsons. tiary rulings excluding three exhibits. We Nor do the logs have characteristics review for abuse of discretion the eviden would authenticate them from their own tiary purposes decisions made for of sum 901(b)(4). appearance under Rule We can- Orr, mary judgment. Munoz v. say erred, the district court much 291, 300 The court first discretion, less abused its in excluding the excluded B D properly Exhibits as not two exhibits as unauthenticated. authenticated under Federal Rule of Evi The final exhibit at issue is Exhib printoff
dence 901. Exhibit B is a
from
E,
it which
of a
consists
number of
Portal,
sworn
the HOPE Loan
an online log
by
declarations
former BOA
by
employees
maintained
as
Impact
catalogue any
part of a separate lawsuit.
updates
Thompsons’
The declara
loan-modifi
tions describe various
application;
cation
D a
instances in which
Exhibit
is
hand
employees
were
log seemingly
written call
created
Im
instructed to inter
act
pact employees
dishonestly with
mortgage
contacted BOA for
customers.
updates by telephone.
The district court
satisfy
“To
the re
excluded the exhibit for
quirement
authenticating
independent
two
identifying
reasons: as inadmissible
evidence,
proponent
prior
item of
evidence of
must
bad acts under Federal
produce evidence
support
sufficient to
a Rule of Evidence 404
unduly preju
and as
finding that
proponent
the item is what the
dicial under Federal Rule of
Evidence
901(a).
claims it is.” Fed.R.Evid.
That is But
fail to address the
*6
burden,
heavy
not a
and circumstantial
reasoning
district court’s
in their briefs or
evidence
testimony by knowledgeable
or
explain how either rationale was errone
can
witness
be sufficient.8 In the case of
result,
ous. As a
have waived the
an
purported
represent
exhibit
an elec
appeal.10
issue on
source,
tronic
such
aas website or chat
summary judgment
The
is AFFIRMED.
logs, testimony by a witness with direct
source,
knowledge
stating
of the
that the
GRAVES,
Judge, concurring:
Circuit
fairly
it,
fully reproduces
exhibit
may
enough
to authenticate.9
I agree
majority
that the dis-
fail
grant
summary
to meet this
trict court’s
of
judgment
stan-
point
dard. At no
say
does the affidavit
should be
Bank
affirmed because
of Amer-
personal knowledge
have
of
ica
right
did not waive its
to foreclose and
log
represents
online
or that it
an unal- made
misrepresentations.
no actionable
I
Barlow,
8.
knowledgeable
United States v.
568 F.3d
where a
witness's
affidavit
(5th Cir.2009);
McLain,
website,
In re
"explains
printed
gave
that he
(5th Cir.2008).
address,
represented
the website
it
changed
had not been altered or
from the
Barlow,
(affirming,
See
write misrepresentations whether
respect may be renegotiation a loan during
made 392.304(a)(19) of under Section
actionable Act. Collection
the Texas Debt
n mis- holds that majority on which
representations under Section actionable
rely are not in
392.304(a)(19) they were made a loan renegotiation
connection I a debt. than the collection
rather 392.304(a)(19)’s catchall
agree. Section “any other the use prohibits
language means,” deceptive representation
false statute, “to in the already delineated con- information a debt or obtain
collect consumer.”
cerning turn,
392.001(a)(5), “debt collec- in defines conduct, action, practice as “an
tion” collection, soliciting for
collecting, or in alleged to that are due or
consumer debts Therefore, a creditor.”
be due Loans BAC Home Singha held in
Serv., L.P.,
Cir.2014), opinion on which unpublished relies, majority misrepresentations solely made connection with
that are not, in and of them- renegotiation are
selves, activities under debt collection Singha, howev- Act.
Texas Debt Collection
er, that modifica- “not announce a rule did collec- may never be debt
tion discussions view, activities,” my at
tions id. mis- may
there be circumstances during such discus-
representations made I do not Because
sions are actionable. holding other- majority opinion
read
wise, however, I concur.