“Under Texas common law, a debtor may recover for wrongful foreclosure when an irregularity in the foreclosure sale contributes to recovery of an inadequate price for the property.” Iroh v. Bank of Am., N A, No. 4:15-CV-1601, 2015 WL 9243826, at *4 (S.D. Tex. Dec. 17, 2015), aff'd Iroh v. Bank of Am., N.A., 730 Fed.Appx. 236 (5th Cir. 2018) (quoting Matthews v. JPMorgan Chase Bank, NA, No. 3:11-CV-00972-M, 2011 WL 3347920, at *2 (N.D. Tex. Aug.1, 2011) (citing Am. Sav. & Loan Ass'n of Houston v. Musick, 531 S.W.2d 581, 587 (Tex. 1975))).
Foreclosing under a deed of trust seeks to enforce a security instrument and is not a debt collection covered by that Act. “The activity of foreclosing on a property pursuant to a deed of trust is not the collection of debt within the meaning of the FDCPA” Iroh v. Bank of Am., N.A., No. 15-cv-1601, 2015 WL 9243826, at *4 (S.D. Tex. Dec. 17, 2015) (quoting reference omitted and alterations removed), aff'd, 730 Fed.Appx. 236 (5th Cir. 2018); see also Brown v. Morris, 243 Fed.Appx. 31, 35 (5th Cir. 2007) (“[O]ur court has at least implicitly recognized that a foreclosure is not per se FDCPA debt collection.”)
Rather, she appears to be relying on a theory of attempted wrongful foreclosure, but there is no such cause of action. Foster v. Deutsche Bank Nat'l Tr. Co., 848 F.3d 403, 406-07 (5th Cir. 2017); Iroh v. Bank of Am., N.A., No. 4:15-CV-1601, 2015 WL 9243826, at *4 (S.D. Tex. Dec. 17, 2015). And, one who has never lost possession of her property cannot recover on a wrongful foreclosure theory.
(citation omitted)); Iroh v. Bank of America, N.A., 2015 WL 9243826, at *4 (S.D. Tex. Dec. 17, 2015). 2016 WL 2858903, at *5.
(citation omitted)); Iroh v. Bank of America, N A, Civ. Action No. 4:15-CV-1601, 2015 WL 9243826, at *4 (S.D. Tex. Dec. 17 , 20 1 5). Courts have rejected arguments based on lack of proper notice when the sale did not occur.