MEMORANDUM OPINION AND ORDER
Before the Court is a Motion for Summary Judgment (doc. 35) filed by Defendants The Bank of New York Mellon f/k/a The Bank of New York, as Successor Trustee to JPMorgan Chase Bank, N.A., as Trustee for the Holders of the SAMI II Trust 2004-AR7, Mortgage Pass Through Certificates Series 2004-AR7 (“Bank of New York”), and Bank of America, N.A., as a named party and successor by merger to BAC Home Loans Servicing, L.P. (“Bank of America”) (collectively “Defendants”). For the reasons stated below, the Court finds the Motion should be and hereby is GRANTED.
I.
BACKGROUND
Plaintiffs Dennis and Madison Krusе refinanced their home at 10573 Inwood Road, Dallas, Texas 75229 (the “Property”) in 2004 with a loan obtained from non party Countrywide Home Loans for $2,944,403.00. In 2007, Plaintiffs’ business suffered severe losses, forcing Plaintiffs to close their business and causing them to fall behind on their mortgage payments. In 2011, Defendants initiated foreclosure proceedings. Plaintiffs allege that they contacted Bank of America about a loan modification and were told that foreclosure would be postponed to allow them to submit financial information about a repayment plan. Plaintiffs also allege they called Bank of America inquiring about the amount needed to bring their account current and that no one from Bank of America returned their call.
Whеn Plaintiffs realized their foreclosure sale had not been postponed, they filed the present lawsuit alleging breach of contract, anticipatory breach of contract, unreasonable collection, malice, viоlations of the Texas Finance Code, and negligent misrepresentation. Pis. Br. 2. Defendants filed a Motion to Dismiss, which the Court granted in part and denied in part. Doc. 25, Order. Plaintiffs’ remaining claims are for violations the Texas Debt Collection Act (“TDCA”), cоdified in Sections 392.304(a)(8). and 392.304(a)(19) of the Texas Finance Code. Defendants move for summary judgment as to these two remaining claims (doc. 35). Plaintiffs have
II.
LEGAL STANDARDS
A. Summary Judgment
Federal Rule of Civil Procedure 56(a) provides summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The substantive law governing a, matter determines which facts are material to a case. Anderson v. Liberty Lobby, Inc.,
Once the summary judgment movant has met this burden, the non-movant must “go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Little v. Liquid Air Corp.,
III.
ANALYSIS
Plaintiffs’ remaining claims are based on alleged violations of the TDCA, specifically Tex. Fin.Code §§ 392.304(a)(8) and 392.304(a)(19). Section 392.304(a)(8) prohibits misrepresenting the character, extent or amount of a consumer debt and Section 392.304(a)(19) prohibits using “[a]ny false representation or deceptive means to collect a debt.”
Defendants move for summary judgment on three grounds: (1) Bank of America did not make an affirmative statement that was false or misleading, (2) any alleged oral representation made by Bank of America is barred by the statute of frauds, and (3) Plaintiffs have offered no evidence that they have sustained actual damages as a result of Defendants’ alleged TDCA violations. The Court will address each argument below.
A. Misleading Statement
“To violate the TDCA using a misrepresentation, ‘the debt collector must have made an affirmative statement that was false or misleading.’ ” Hassell v. Bank of Am., N.A., CIV.A. H-12-1530,
Plaintiffs provide Dennis Kruse’s Affidavit as evidence that they contacted Bank of America on November 15, 2011 to ask about a loan modification. Pl.App. 2. According to Kruse, “Melanie” at Bank of
Defendants provide summary judgment evidence in the form of a Deсlaration by Bank of America Assistant Vice President Yeny Beltran. Defs. App. 1-2. Beltran states “at no time did Bank of America promise it would postpone the foreclosure of Plaintiffs’ property.” Defs. App. 2.
Because Plaintiffs and Defendants рrovide conflicting accounts through proper summary judgment evidence of the alleged misrepresentation by a Bank of America representative, the Court concludes there is a genuine issue of material fact as to whether Defendants made an affirmative statement that was false or misleading.
B. Statute of Frauds
Defendants next argue that Plaintiffs’ TDCA claims are barred by the statute of frauds. Defendants argue that because Plaintiffs’ mortgage exceeded $50,000 and any modification would аt least result in the alteration of a lien on real property, the alleged oral representations to support Plaintiffs’ TDCA claims are barred by the statute of frauds. Defs. Br. 5. Plaintiffs respond that the statute of frauds only applies to the enforceability of oral agreements, while the TDCA deals with “prohibited debt collection methods.” Tex. Fin.Code, Subchapter D, §§ 392.301-306 (TDCA); Tex. Bus. & Com.Code § 26.02(b) (statute of frauds). Thus, Plaintiffs argue the statute of frauds has no relevance to the TDCA.
Under Texas law, the statutе of frauds makes any unwritten agreement for a loan in excess of $50,000 unenforceable. Tex. Bus. & Com.Code § 26.02(b). “An agreement'to delay foreclosure falls under § 26.02(b).” Milton v. U.S. Bank Nat. Ass’n, 4:10-CV-538,
Based on the parties’ briefing and its own research, the Court has found only three cases thаt squarely address the applicability of the statute of frauds to a plaintiffs TDCA claim. Two of the cases hold the statute of frauds bars a plaintiffs TDCA claim and the other case holds that the statute of frauds “has no bearing on the claims under the TDCA.” Singh v. JP Morgan Chase Bank, NA, 4:11-CV-607,
Due to the limited authority directly on point, the Court looks to an analogous Texas consumer proteсtion statute, the Texas Deceptive Trade Practices Act at Tex. Bus. & Com.Code Ann. §§ 17.41-17.63 (“DTPA”), to glean perspective on the applicability'of the statute of frauds to the TDCA. The DTPA grants consumers a cause of action when, inter alia, the consumеr has been the victim of a “false, misleading, or deceptive act or practice.” Tex. Bus. & Com.Code Ann. § 17.50(a). In addressing the applicability of the statute of frauds to the DTPA, a Texas court of appeals stated “it is not only the nature of damages sought but also the relationship of the promise to the purposes of the statute of frauds which controls the application of the statute.” Keriotis v. Lombardo Rental Trust,
More generally under Texas law, “a plaintiff may not recover tort for claims arising out of an unenforceable contract under the statute of frauds.” Hugh Symons Group v. Motorola, Inc.,
Based on the authority listed above, the Court concludes that the statute of frauds may act to bar certain claims of misrepresentation under the TDCA. Here, Plaintiffs allege Defendants orally misrepresented they would postpone foreclosure of the Property. This alleged oral agreement was to modify a term of the loan
Here, the “alleged misrepresentation^] and the damages sought support the conclusion that [Plaintiffs] are attempting to recover damages for failure to perform an oral promise govеrned by the statute of frauds.” Keriotis,
C. Actual Damages, Malice, Accounting, Declaratory Judgment
Becаuse summary judgment is proper as to all of Plaintiffs’ remaining claims, there are no substantive claims upon which actual damages, exemplary damages, an accounting, or a declaratory judgment may be awarded. Thus, Plaintiffs’ aforementioned requests are DISMISSED.
IV.
CONCLUSION
For the reasons stated above, the Court GRANTS Defendants’ Motion for Summary Judgment (doc. 35).
SO ORDERED.
Notes
. The Court takes its factual account from the uncontested facts contained in the summary judgment record. Any contested fact is identified as the allegation of a particular party.
. Plaintiffs are currently in possession of the Property and it has not been foreclosed upon.
. Paragraph 7.D of the Note states "[e]ven if, at a time when I am in default, the Note Holder doеs not require me to pay immediately in full as described above, the note Holder will still have the right to do so if I am in default at a later time.” Doc. 35-2) Def. App. 6. Paragraph 12 of the Deed of Trust entitled “Borrower Not Released; Forbearance By Lender Not a Waiver” states “[a]ny forbearance by Lender in exercising any right or remedy ... shall not be a waiver of. or preclude exercise of any right or remedy.” Doc. 1-1, Notice of Removal Ex. A.
. Plaintiffs’ only evidence of damages is presented in Dennis Kruse's Affidavit. PI. App. 3.