Arias v. Wells Fargo Bank, N.A.

Filing 28

MEMORANDUM OPINION AND ORDER: The court accordingly grants Defendant's Motion for Summary Judgment (Doc. 10 ) to the extent that it dismisses with prejudice all claims asserted by Plaintiff in the Petition (Doc. 1-4), except for the claim ba sed on §§ 392.304(a)(8) and (19) of the TDCA, as asserted in Plaintiff's third ground for relief, regarding alleged deceptive representations made by Wells Fargo personnel regarding a modification made to Arias's loan. As set f orth in footnote four of this opinion, the court directs Defendant to address this ground in a supplement to its Motion for Summary Judgment by Friday, 6/21/2019, 5:00 p.m. Plaintiff may respond by Thursday, 6/27/2019, 12:00 p.m. (Ordered by Judge Sam A Lindsay on 6/18/2019) (axm)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
GUSTAVO ARIAS,
Plaintiff,
v.
WELLS FARGO BANK, N.A.,

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Civil Action No. 3:18-CV-00418-L

Defendant.
MEMORANDUM OPINION AND ORDER
Before the court are Defendant’s Motion for Summary Judgment (Doc. 10), filed October
22, 2018; Plaintiff’s Response to Defendant’s Motion for Summary Judgment (Docs. 15 and 16),
filed November 27, 2018; and Defendant’s Reply in Support of Its Motion for Summary Judgment
(Doc. 18), filed December 10, 2018. After carefully considering the motion, briefs, record, and
applicable law, the court grants Defendant’s Motion for Summary Judgment (Doc. 10) to the
extent herein set forth. The court orders that a supplement be filed to Defendant’s Motion for
Summary Judgment, as one of the grounds for relief asserted in Plaintiff’s Original Petition (the
“Petition”) was not addressed.
I.

Factual and Procedural Background
On October 20, 2009, Gustavo Arias (“Plaintiff” or “Arias”) executed a Note (the “Note”)

for a loan in the amount of $92,297 to purchase property at 1737 Beauford Road, Dallas, Texas,
75253 (the “Property”). 1 Pl.’s Original Pet., Doc. 1-4 at 3; Def.’s App., Doc. 12 at 9-10. The Note
designated NTFN, Inc. (“NTFN”) as the original lender, and Wells Fargo Bank, N.A. (“Defendant”

1

The legal description of the Property is: Lot 22B, in Block B/8827, of Vad Addition, Phase One, an Addition to the
City of Dallas, Dallas, County, Texas, according to the map thereof recorded under CC# 20080185319 of the Real
Property Records of Dallas County, Texas. Pl.’s Pet., Doc. 1-4 at 3.

Memorandum Opinion and Order – Page 1

or “Wells Fargo”) as the mortgage servicer of the loan. Def.’s App., Doc. 12 at 9-10. In connection
with the Note, Arias executed a security instrument (the “Deed of Trust”) to secure repayment of
the Note with the Property, which designated Mortgage Electronic Registration Systems, Inc.
(“MERS”) as the beneficiary and nominee for NTFN. Def.’s App., Doc. 12 at 86-96. The Deed of
Trust provides that the lender may accelerate the debt in the event of payment defaults, and it sets
forth procedures for foreclosure proceedings. Def.’s App, Doc. 12 at 90, 92-93 (Provisions 9(a)
and 18 of the Deed of Trust). On September 19, 2011, MERS executed a corporate assignment of
the Deed of Trust to Wells Fargo, assigning “the full benefit of all the powers and of all the
covenants and provisio[n]s therein contained.” Def.’s App., Doc. 12 at 99.
On September 15, 2017, Wells Fargo mailed Arias a letter (“Notice of Default”) informing
him that he was delinquent on his loan in the amount of $1,635.62 and, unless the payment was
made by October 20, 2017, Wells Fargo would require immediate payment of the full loan amount
pursuant to the Deed of Trust. Def.’s App., Doc. 12 at 58. The Notice of Default further informed
Arias that, if acceleration were to occur, Wells Fargo might “take steps to terminate [his]
ownership in the property by a foreclosure proceeding, which could result in Lender or another
person acquiring ownership of the property.” Id. Arias received the Notice of Default. Def.’s App.,
Doc. 12 at 76 (Request for Admission Nos. 12-13, signed on July 30, 2018). As Arias admitted he
received the Notice of Default and does not argue that he was unlawfully deprived of an
opportunity to cure the default payments within the time period required by law, the date of receipt
is of no moment.
Arias failed to cure the default by the deadline and, as a result, Wells Fargo mailed him a
Notice of Acceleration (“Notice of Acceleration”) on December 26, 2017, which Arias admitted
he received. Def.’s App., Doc. 12 at 66; Def.’s App., Doc. 12 at 76 (Request for Admission Nos.

Memorandum Opinion and Order – Page 2

14-15, signed on July 30, 2018). The Notice of Acceleration informed Arias that Wells Fargo, as
both the mortgage servicer for the Note and mortgagee for the Deed of Trust, would “initiate legal
proceedings in connection with the foreclosure of a Deed of Trust associated with [Arias’s] real
estate loan,” pursuant to § 51.0025 of the Texas Property Code, and notified Arias that the Property
would be sold at the Dallas County Courthouse on February 6, 2018. Def.’s App., Doc. 12 at 66.
On February 5, 2018, Arias filed the Petition and Application for Temporary Restraining
Order (Doc. 1-4) in County Court at Law Number One of Dallas County, Texas, alleging that
Wells Fargo had violated the Texas Debt Collection Act (the “TDCA”) and the Texas Property
Code, and asserting a claim for breach of contract. 2 The Petition asserts that Wells Fargo lacked
the authority to initiate foreclosure proceedings against Arias; failed to provide him with certain
notices required by law prior to initiating foreclosure proceedings; made fraudulent representations
about the amount of debt owed by him; and breached the express terms of the Deed of Trust. On
February 6, 2018, the presiding state judge granted the restraining order, which temporarily
enjoined Wells Fargo from threatening or initiating a foreclosure action for the Property. Doc. 17. On February 19, 2018, Wells Fargo removed the action to federal court on the basis of diversity
jurisdiction. Arias continues to retain possession of the Property and has not made a mortgage
payment since July 2017. Def.’s App., Doc. 12 at 77 (Request for Production 17-18).
On October 22, 2018, Defendant moved for summary judgment on all claims asserted by
Plaintiff in the Petition. Docs. 10-11. Defendant first argues that it has authority to foreclose based
on its statuses as both the “mortgagee” to the Deed of Trust and “mortgage servicer” of the Note.
Second, Defendant argues that it did not violate the TDCA because the evidence shows that it

2

The Petition also seeks a declaratory judgment that any deed to the Property executed pursuant to a substitute trustee’s
sale on February 6, 2018, and any conveyance since such sale, be rendered void by the court. As the sale did not take
place on February 6, 2018, due to the commencement of this litigation, and in light of Arias’s continued possession
of the Property, this request is now moot.

Memorandum Opinion and Order – Page 3

provided Arias with the notices required under the Texas Property Code, and Arias has failed to
set forth any evidence that Defendant made fraudulent representations about the amount of debt
owed by him, or that Defendant improperly collected certain interest or fees. Third, Defendant
argues that, as a matter of law, Plaintiff may not assert a private right of action under the Texas
Property Code and, even if he could, the evidence shows that Defendant complied with the relevant
provisions under that statute. Finally, Defendant argues that it is entitled to judgment as a matter
of law on Arias’s breach of contract claim because he failed to allege a breach or specify a
contractual provision in the Deed of Trust that was breached.
II.

Summary Judgment Standard
Summary judgment shall be granted when the record shows that there is no genuine dispute

as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is “genuine”
if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary
judgment, the court is required to view all facts and inferences in the light most favorable to the
nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v.
Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). Further, a court “may not make
credibility determinations or weigh the evidence” in ruling on a motion for summary judgment.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 25455.
Once the moving party has made an initial showing that there is no evidence to support the
nonmoving party’s case, the party opposing the motion must come forward with competent

Memorandum Opinion and Order – Page 4

summary judgment evidence of the existence of a genuine dispute of material fact. Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). On the other hand, “if the movant
bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is
asserting an affirmative defense, he must establish beyond peradventure all of the essential
elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780
F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). “[When] the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for
trial.’” Matsushita, 475 U.S. at 587. (citation omitted). Mere conclusory allegations are not
competent summary judgment evidence, and thus are insufficient to defeat a motion for summary
judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not competent summary judgment
evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).
The party opposing summary judgment is required to identify specific evidence in the
record and to articulate the precise manner in which that evidence supports his or her claim. Ragas,
136 F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search
of evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.; see
also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). “Only disputes
over facts that might affect the outcome of the suit under the governing laws will properly preclude
the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues that are
“irrelevant and unnecessary” will not be considered by a court in ruling on a summary judgment
motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of
an element essential to its case and on which it will bear the burden of proof at trial, summary
judgment must be granted. Celotex, 477 U.S. at 322-23.

Memorandum Opinion and Order – Page 5

III.

Analysis
A.

Texas Debt Collection Act Claims
1.

Threatening to Take an Action Prohibited by Law

Plaintiff asserts that Defendant violated § 392.301(a)(8) of the TDCA, which prohibits a
debt collector from “threatening to take an action prohibited by law.” Tex. Fin. Code Ann. §
392.301(a)(8) (West 2016). Arias asserts that Defendant threatened to take an action prohibited by
law in violation of the TDCA because: (1) Defendant failed to give notice before giving the notice
of acceleration and the notice of sale in compliance with Texas Property Code § 51.002(b)
(requirements for a notice of sale) and § 51.002(d) (requirements for a notice of default); and (2)
alternatively, to the extent it gave such notice, Defendant lacked the capacity as “mortgagee” to
issue such notices stating that it intended to effect a foreclosure sale of the property. Pl.’s Original
Pet., Doc. 1-4 at 4-5.
With respect to whether Wells Fargo provided a notice of sale that conformed with the
requirements of § 51.002(b), this issue is moot, as Arias maintains possession of the Property, and
the record does not show that Wells Fargo has taken further steps to foreclose the Property aside
from sending the Notice of Acceleration indicating an intent to sell the Property on February 6,
2018, which did not transpire due to the filing of this lawsuit. With respect to whether Wells Fargo
gave Arias notice pursuant to § 51.002(d), the court determines that the Notice of Default sent by
Wells Fargo on September 15, 2017—which Arias concedes he received—satisfied the statutory
requirements as a matter of law. See Def.’s App., Doc. 12 at 76 (Request for Admission Nos. 1213, signed on July 30, 2018) (admitting that Arias received the Notice of Default).
Section 51.002(d) of the Texas Property Code states in part:
Notwithstanding any agreement to the contrary, the mortgage
servicer of the debt shall serve a debtor in default under a deed of
Memorandum Opinion and Order – Page 6

trust or other contract lien on real property used as the debtor’s
residence with written notice by certified mail stating that the debtor
is in default under the deed of trust or other contract lien and giving
the debtor at least 20 days to cure the default before notice of sale
can be given under Subsection (b).
Tex. Prop. Code Ann. § 51.002(d) (West 2014). Wells Fargo produced an authenticated letter 3 sent
by it to Arias by certified mail on September 15, 2017, notifying him that he was delinquent on
his loan in the amount of $1,635.62. Def.’s App., Doc. 12 at 58. The letter stated that Arias had
until October 20, 2017—more than the twenty days required by law—to cure the default and avoid
acceleration of the debt. Id. As the letter complied with Section 51.002(d) of the Texas Property
Code, the court determines that Defendant is entitled to judgment as a matter of law with respect
to Arias’s claim that it failed to provide notice pursuant to this provision.
The court further determines that Defendant, as both the mortgage servicer of the Loan
and assignee of the Deed of Trust, was entitled as a matter of law to send the Notice of Default
and initiate foreclosure proceedings against Arias.

3

The letter provided in Wells Fargo’s Appendix in support of its Motion for Summary Judgment is authenticated by
the Declaration of Jacqueline Hunter, made under penalty of perjury, and signed and dated by Ms. Hunter. Def.’s
App., Doc. 12 at 4-6. The declaration states that Ms. Hunter is the Vice President Loan Documentation for Wells
Fargo and states that the Notice of Default, attached as Exhibit A-3, “is a true and correct copy of a notice of default
dated September 15, 2017, which . . . was sent to Gustavo Arias by certified mail to the Property address.” Id., ¶ 5(c).
In Arias’s Response to Wells Fargo’s Motion for Summary Judgment, he objects to the admissibility of Ms. Hunter’s
declaration on the basis that she lacks personal knowledge of the documents that her declaration seeks to authenticate.
The court determines that Ms. Hunter, in her capacity as Vice President Loan Documentation for Wells Fargo Bank,
has personal knowledge of the documents to which she attests, and accordingly overrules Arias’s objection. Ms.
Hunter states that she has access to the loan records, including the Notice of Default, and knows how they are
maintained. Def.’s App., Doc. 12 at 4, ¶ 2. She further states that she has had access to and reviewed the loan records
relating to Arias and the Property. Id., ¶ 3. The court finds that these statements, and Ms. Hunter’s capacity in her role
at Wells Fargo, sufficiently establish that her declaration adequately authenticates the documents to which she attests
are true and correct copies, including the Notice of Default. Moreover, the court determines that the Notice of Default
is a business record that is admissible under Federal Rule of Evidence 803(6), as Defendant correctly argues in its
Reply. See Def.’s Reply, Doc. 18 at 3. In the declaration, Ms. Hunter states that the loan records, which include the
Notice of Default and which are electronically stored, are “kept in the course of Wells Fargo’s regularly conducted
activity and it is the regular practice of Wells Fargo to make the records in the Loan Records,” and “[t]he entries in
the Loan Records are made at or near the time of those events and conditions from information provided by people
with such first-hand knowledge.” Def.’s App., Doc. 12 at 4, ¶ 2. The court further determines that Ms. Hunter is a
qualified witness to set forth these requisite conditions for an admissible hearsay record pursuant to Federal Rule of
Evidence 803(6)(D), as she demonstrates that she “can explain the record keeping system of the organization and
vouch that the requirements of Rule 803(6) are met.” United States v. Brown, 553 F.3d 768, 792 (5th Cir. 2008).

Memorandum Opinion and Order – Page 7

Section 51.0025 of the Texas Property Code governs the administration of foreclosure
proceedings by a mortgage servicer on behalf of a mortgagee. This provision states:
A mortgage servicer may administer the foreclosure of property
under Section 51.0025 on behalf of a mortgagee if:
(1)
The mortgage servicer and the mortgage have entered into
an agreement granting the current mortgage servicer authority to
service the mortgage; and
(2)
The notices required under Section 51.002(b) disclose that
the mortgage servicer is representing the mortgage under a servicing
agreement with the mortgage and the name of the mortgagee and:
(A) the address of the mortgagee; or (B) the address of the mortgage
servicer, if there is an agreement granting a mortgage servicer the
authority to service the mortgage.
Tex. Prop. Code Ann. § 51.0025 (West 2014). In this case, Wells Fargo has set forth evidence that
it was both the mortgage servicer of the Loan and mortgagee with authorization to foreclose on
the Property. The Note executed by Arias designated Wells Fargo as the mortgage servicer of the
loan for the original lender, NTFN, Inc., see Def.’s App., Doc. 12 at 9-10, and Wells Fargo became
the mortgagee with respect to the Property when MERS, as nominee for NTFN, assigned it the
security instrument for the Property, the Deed of Trust, see Def.’s App., Doc. 12 at 86-89. Under
the Texas Property Code, a “mortgagee” is defined as “the grantee, beneficiary, owner, or holder
of a security instrument,” or, “if the security interest has been assigned of record, the last person
to whom the security interest has been assigned of record.” Tex. Prop. Code Ann. § 51.0001(4)(A),
(C) (West 2014). In its Appendix, Wells Fargo produces authenticated copies of both the Note and
the Corporate Assignment of the Deed of Trust establishing its status as both mortgage servicer
and mortgagee with respect to the loan for the Property. Def.’s App., Doc. 12 at 9-10, 86-89.
Defendants further argue that its rights as assignee under the Deed of Trust specifically authorize
it to foreclose and sell the Property. Def.’s Mot. for Summ. J., Doc. 11 at 13 (citing Martins v.

Memorandum Opinion and Order – Page 8

BAC Home Loans Servicing, L.P., 722 F.3d 249, 253-56 (5th Cir. 2013) for the proposition that an
assignee of deed of trust holds power to foreclose).
In response, Plaintiff argues that there are “potentially fatal defects in the chain of title”
that raise questions about the validity of an “appointment(s) of trustees (or, for that matter, an
assignment made by a putative nominee).” Pl.’s Resp., Doc. 16 at 5. Plaintiff cites case authority
relating to a homeowner’s right “to challenge the chain of assignments by which a party claims
the right to foreclose.” Id. at 4. Plaintiff fails, however, to produce any summary judgment
evidence to raise a genuine dispute of material fact that MERS’s assignment of the Deed of Trust
to Wells Fargo was defective, that there was a subsequent assignment made after Wells Fargo
became the assignee, or that any other circumstance exists that might raise a factual dispute
regarding the chain of assignments evidenced by Wells Fargo in its appendix. The court, therefore,
determines that no genuine dispute of material fact exists as to whether Wells Fargo is the assignee
of record for the Deed of Trust.
The court, moreover, determines that Wells Fargo, as the mortgage servicer and mortgagee,
has the authority to foreclose on the Property. As mortgage servicer of the Loan, Wells Fargo has
authority to administer foreclosure proceedings pursuant to § 51.0025 of the Texas Property Code.
As mortgagee, Wells Fargo also has authority to foreclose on the Property pursuant to the terms
set forth in the Deed of Trust explicitly authorizing it to do so. See Jones v. Deutsche Bank Nat’l
Trust Co., 2014 WL 3375032, at *5 (N.D. Tex. 2014) (J. Lindsay) (holding that the mortgagee,
who was an assignee to a Deed of Trust from MERS, had authority to foreclose on the Property
pursuant to the Deed of Trust). Accordingly, as Wells Fargo has set forth competent evidence that
it has authority to foreclose on the Property, it is entitled to judgment as a matter of law with

Memorandum Opinion and Order – Page 9

respect to Plaintiff’s claim that it lacked authority to issue the Notice of Default and Notice of
Acceleration in violation of § 392.301(a)(8) of the Texas Finance Code.
2.

Threats or Coercion

In his Petition, Arias asserts that Wells Fargo violated § 392.303(a)(2) of the TDCA, which
provides that a debt collector “may not use unfair or unconscionable means” by “collecting or
attempting to collect interest or a charge, fee, or expense incidental to the obligation unless [it] is
expressly authorized by the agreement creating the obligation or legally chargeable to the
consumer.” Tex. Fin. Code Ann. § 392.303(a)(2) (West 2016). Arias alleges that Wells Fargo
violated this provision by committing the following acts:
1.
Defendant has failed to properly account for and
acknowledge payments made through at least July, 2017 and
consequently has demanded payment from Plaintiffs of sums in
excess of those permitted under the Note and Deed of Trust, and
2.
Defendant has threatened to conduct one or more substitute
trustee’s sales of the Property, and thus to deprive Plaintiffs of title,
use and possession of the Property thereby.
Pl.’s Pet., Doc. 1-4 at 6. The second ground asserted by Plaintiff does not relate to an unfair or
unconscionable collection effort by a debt collector related to interest, charges, fees, or incidental
expenses, and, therefore, is not a proper basis for this claim.
With respect to the first ground asserted by Plaintiff, Wells Fargo argues that it is entitled
to judgment as a matter of law on this claim because, first, Arias has failed to set forth evidence of
any specific unauthorized fees or penalties that Wells Fargo allegedly imposed. Def.’s Mot for
Summ. J., Doc. 11 at 15. Defendant cites numerous cases in support of the proposition that a
general assertion of “wrongful charges” is insufficient to state a claim under Section 392.303(a)(2).
See, e.g., Williams v. Wells Fargo Bank, N.A., 560 F. App’x 233, 240 (5th Cir. 2014) (holding that
the plaintiff’s conclusory allegation that Wells Fargo “imposed numerous charges” that were
Memorandum Opinion and Order – Page 10

“unfair and unconscionable” constituted a general assertion of “wrongful charges” that was
insufficient to state a claim under Section 392.303(a)(2)). Plaintiff’s Response wholly fails to
respond to this argument or offer any summary judgment evidence of any specific demands by
Wells Fargo for Arias to pay “sums in excess of those permitted under the Note and Deed of Trust.”
When a plaintiff fails to defend a claim in response to a motion to dismiss or summary judgment
motion, the claim is deemed abandoned. See Black v. Panola Sch. Dist., 461 F.3d 584, 588 n.1
(5th Cir. 2006) (concluding that the plaintiff abandoned her retaliatory abandonment claim when
she failed to defend the claim in response to a motion to dismiss); Hargrave v. Fibreboard Corp.,
710 F.2d 1154, 1164 (5th Cir. 1983) (explaining that a plaintiff, “in his opposition to a motion for
summary judgment cannot abandon an issue and then . . . by drawing on the pleadings resurrect
the abandoned issue.”). Accordingly, with respect to Arias’s assertion that Wells Fargo imposed
charges in violation of § 392.303(a)(2), he has abandoned this ground as a basis for his claim.
Arias also contends that Defendant violated this provision by failing to properly account
for and acknowledge payments he made through July 2017. Defendant argues that these allegations
“do not implicate § 392.303(a)(2), which includes no reference to ‘account[ing] for and
acknowledg[ing]’ payments on a loan.” Def.’s Mot. for Summ. J., Doc. 11 at 16. The court agrees
and, furthermore, Plaintiff failed to respond to this argument, and, accordingly, he has abandoned
this claim.
As Plaintiff has failed to set forth any evidence to support his conclusory allegations
regarding improper fees imposed by Wells Fargo, and further abandoned his claim by failing to
defend it in his response, there is no genuine dispute as to any material fact regarding this claim.
Defendant, therefore, is entitled to judgment as a matter of law with respect to Plaintiff’s claim
brought under § 392.303(a)(2) of the TDCA.

Memorandum Opinion and Order – Page 11

3.

Fraudulent, Deceptive, or Misleading Representations

In his Petition, Arias alleges that Wells Fargo violated §§ 392.304(a)(8) and (19) of the
TDCA, which respectively prohibit a debt collector from “misrepresenting the character, extent,
or amount of a consumer debt, or misrepresenting the consumer debt’s status in a judicial or
governmental proceeding” and “using any other false representation or deceptive means to collect
a debt or obtain information concerning a consumer.” Arias alleges that Wells Fargo violated this
provision by committing the following acts:
1.
Wells [Fargo], for itself or for an unknown third party, failed
to properly account for and acknowledge payments made through at
least July, 2017 and as a result of wrongful acceleration of the Note
has refused to recognize and abide by the terms of the Note and Deed
of Trust and refused payment from Plaintiffs;
2.
Defendant demanded Plaintiff pay one or more sums above
the amounts provided by the Note and Deed of Trust and/or that
were not owed to Defendant [sic];
3.
Defendant deceptively accepted Plaintiff’s request that the
Loan be considered for modification in the second half of 2017, then
Wells [Fargo] personnel later denied having ever received such
request, and subsequently Wells [Fargo] personnel advised Plaintiff
that he would not be considered, or could not be considered for a
modification since the Loan had been modified in 2015, yet no
record of such modification appears in the Records.
Pl.’s Pet., Doc. 1-4 at 6.
With respect to the second ground for Arias’s claim, the court, in the prior section of this
opinion, determined that he failed to set forth evidence that he was improperly charged for sums
in excess of the amounts provided by the Note and Deed of Trust. With respect to the first ground
for Arias’s claim, Wells Fargo argues that it is entitled to judgment as a matter of law because
Arias has set forth no evidence showing that Wells Fargo failed to properly account for and
acknowledge payments that he submitted towards his loan. Def.’s Mot. for Summ. J., Doc. 11 at

Memorandum Opinion and Order – Page 12

17. Wells Fargo further contends that, contrary to Arias’s assertion that Wells Fargo wrongfully
accelerated the Note based on its failure to account for certain payments, Arias admitted that he
failed to make one or more payments on the loan in 2017. Def.’s App., Doc. 12 at 76 (Request for
Admission No. 11). Wells Fargo does not address Arias’s allegations in his third ground for relief
regarding communications he allegedly had with Wells Fargo employees about a modification to
his loan in 2015. 4
In response, Arias fails to address Wells Fargo’s argument regarding his first ground for
relief—relating to allegations that Wells Fargo failed to properly account for and acknowledge
certain payments—and, therefore, he has abandoned his claim to the extent it relies on this ground.
Black, 461 F.3d at 588 n.1; Hargrave, 710 F.2d at 1154. Furthermore, Arias does not produce any
evidence that the authenticated and complete loan records in Wells Fargo’s appendix (Exhibits A1 through A-3) are inconsistent with payments that he paid or communications that he had with
Wells Fargo personnel regarding the terms of his Loan and any modification that might have been
made to it. As Wells Fargo has produced competent evidence that it maintained an accurate loan
history reflecting Arias’s payments, and Arias has failed to come forward with competent
summary judgment evidence that raises a genuine dispute of material fact as to whether the loan
history properly reflects the payments he made, Defendant is entitled to judgment as a matter of
law on Arias’s claim under §§ 392.304(a)(8) and (19) of the TDCA with respect to the first and
second grounds alleged in the Petition. Matsushita Elec. Indus. Co., 475 U.S. at 586. The third

4

As Defendant does not raise this ground in its Motion for Summary Judgment, Plaintiff was under no obligation to
address it in his Response. Therefore, the issue of whether this third ground for Arias’s claim brought pursuant to §§
392.304(a)(8) and (19) of the TDCA —regarding representations allegedly made by Wells Fargo about a modification
to his loan—is pending before the court. As directed in the Conclusion of this opinion, the court instructs Defendant
to address this ground in a supplement to its Motion for Summary Judgment.

Memorandum Opinion and Order – Page 13

ground—regarding alleged communications by Wells Fargo personnel about a modification to
Arias’s loan—remain pending.
B.

Texas Property Code Claims

In his Petition, Arias asserts that Wells Fargo violated §§ 51.002(d) and (b) of the Texas
Property Code by failing to follow the notice requirements pursuant to those subsections and based
on Wells Fargo’s lack of capacity to foreclose. These arguments are identical to those made in
support of Plaintiff’s claim asserted under § 392.301(a)(8) of the TDCA, which were resolved in
Section III(A)(1) of this opinion.
Defendant argues in its Motion for Summary Judgment that § 51.002 of the Texas Property
Code does not create a private cause of action and, rather, simply “establishes the procedures for
conducting a foreclosure sale.” Def.’s Mot. for Summ. J., Doc. 11 at 18 (quoting Holy Cross
Church of God in Christ v. Wolf, 44 S.W.3d 562, 569 (Tex. 2001)). In response, Plaintiff concedes
that violations of the Texas Property Code provide a basis for TDCA claims and that he “does not
assert a private right of action under Texas Property Code Chapter 51.” Pl.’s Resp., Doc. 16 at 5.
“Although the Texas Supreme Court has not decided this issue, the federal district courts
that have addressed it seem to conclude that Section 51.002(d) does not intend an independent
private cause of action.” Rucker v. Bank of America, N.A., 806 F.3d 828, 830 n.2 (5th Cir. 2015)
(declining to decide the issue). As the Texas Supreme Court has yet to decide this issue and the
Fifth Circuit has declined to decide it in spite of federal district courts weighing in on it, this court
likewise will not take up the issue of whether § 51.002 of the Texas Property Code creates a private
cause of action. The court need not make this determination in light of its rulings in Section
III(A)(1) of this opinion that Wells Fargo has set forth evidence that establishes as a matter of law
that it complied with § 51.002(d) of the Texas Property Code and that the issue of whether it

Memorandum Opinion and Order – Page 14

complied with § 51.002(b) is now moot. Accordingly, Wells Fargo is entitled to judgment as a
matter of law with respect to this claim.
C.

Breach of Contract Claim

Arias asserts a breach of contract claim based on Wells Fargo’s alleged violations of §
51.002(d) and (b) of the Texas Property Code. Pl.’s Pet., Doc. 1-4 at 8. Arias contends that such
violations “breached the express terms of the Deed of Trust contract.” Id.
Defendant argues that it is entitled to judgment as a matter of law as to this claim because
the summary evidence shows that it did not violate the asserted subprovisions of § 51.002. Def.’s
Mot. for Summ. J., Doc. 11 at 19. Accordingly, as proof of breach is an essential element of the
claim, Defendant argues Arias has failed to set forth evidence that it committed the alleged
breaches underlying his claim. Defendant further argues that Arias fails to assert a specific
contractual provision of the Deed of Trust that it allegedly breached. Defendant also argues that
it acted pursuant to its rights under the Deed of Trust when it sent the Notice of Default and Notice
of Acceleration. In response, Arias does not cite any specific provision of the Deed of Trust that
Wells Fargo allegedly breached and, rather, asserts that the violations of §§ 51.002(d) and (b) are
actionable as claims under the Texas Debt Collection Act, without explaining how the alleged
violations support his breach of contract claim. Pl.’s Resp., Doc. 16 at 6.
The court determines that Arias has failed to set forth any evidence that Defendant breached
the Deed of Trust based on alleged violations of § 51.002(d) and (b). The court, in section
III(A)(1) of this opinion, concluded that Defendant violated neither provision. Moreover, the
Deed of Trust specifically authorizes Defendant to send a Notice of Default and Notice of
Acceleration, and, therefore, as a matter of law, Wells Fargo could not have breached the
agreement by issuing such notices. In his response, Arias fails to cite any specific provision of

Memorandum Opinion and Order – Page 15

the Deed of Trust that Defendant allegedly breached and, therefore, the court cannot ascertain any
other grounds for this claim. As Plaintiff has failed to produce competent summary judgment
evidence that Defendant breached a provision of the Deed of Trust, there is no genuine dispute of
material fact regarding the breach of contract claim. Accordingly, Defendant is entitled to
judgment as a matter of law on Plaintiff’s breach of contract claim.
IV.

Conclusion
For the reasons herein stated, the court determines that Plaintiff has failed to raise a genuine

dispute of material fact as to his claims asserted pursuant to the TDCA and the Texas Property
Code, his breach of contract claim, and his request for declaratory relief to the extent herein stated.
The court accordingly grants Defendant’s Motion for Summary Judgment (Doc. 10) to the extent
that it dismisses with prejudice all claims asserted by Plaintiff in the Petition (Doc. 1-4), except
for the claim based on §§ 392.304(a)(8) and (19) of the TDCA, as asserted in Plaintiff’s third
ground for relief, regarding alleged deceptive representations made by Wells Fargo personnel
regarding a modification made to Arias’s loan. As set forth in footnote four of this opinion, the
court directs Defendant to address this ground in a supplement to its Motion for Summary
Judgment by Friday, June 21, 2019, 5:00 p.m. The supplement cannot exceed seven pages, and
any appendix is limited to ten pages. Plaintiff may respond by Thursday, June 27, 2019, 12:00
p.m., and the response also cannot exceed seven pages, with the same page limitations regarding
Plaintiff’s response and appendix. No reply may be filed without leave of court.
It is so ordered this 18th day of June, 2019.

_________________________________
Sam A. Lindsay
United States District Judge

Memorandum Opinion and Order – Page 16