To be actionable under § 392.304(a)(8), the statement must "relate to the character, extent, or amount of the debt—categories that do not encompass statements about loan-modification applications and the postponement of foreclosure." Rabe v. Wells Fargo Bank, N.A., 616 F. App'x 729, 734 (5th Cir. 2015) (citing Thompson, 783 F.3d at 1026). Defendant cites several cases in support of this statement of law that representations regarding a potential loan modification do not give rise to a claim under § 392.304(a)(8) because they do not relate to the character, extent, or amount of the debt.
Notably, at some point after Mathews—and before the events at issue here—HUD revised that portion of its FAQ section, deleting the portion that defined a "branch office" as a "servicing office." Rabe v. Wells Fargo Bank. N.A., 616 F. App'x 729, 733 (5th Cir. 2015) (noting that the answer was changed at some point subsequent to 2012); Thomas J. Cunningham et al., The Evolving Interpretation of HUD's Face-to-Face Meeting Requirement, 68 Consumer Fin. L.Q. Rep. 117, 119 (2014) (noting that, at the time of the article's publication in 2014, the FAQ section had changed and no longer included the "servicing office" interpretation). Now, HUD's answer merely mirrors the regulation; it does not provide a new definition of "branch office" at all.
at 1026-27 (majority opinion) (citing Singha, 564 F. App'x at 70-71; Thomas v. EMC Mortg. Corp., 499 F. App'x 337, 343 (5th Cir. 2012) (unpublished)). Id. at 1026; see also Bassknight v. Deutsche Bank Nat'l Tr. Co., 611 F. App'x 222, 223 (5th Cir. 2015) (per curiam) (unpublished) (citing Thompson for the proposition that "[t]here is no viable [TDCA] claim when a mortgagee discusses a loan modification" (emphasis in original)); Rabe v. Wells Fargo Bank, N.A., 616 F. App'x 729, 734-35 (5th Cir. 2015) (per curiam) (unpublished) (citing Thompson in holding that a letter pertaining to a loan-modification application is not an actionable affirmative statement under § 392.304(a)(19)). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The character, extent, and amount of the debt categories listed in Section 392.304(a)(8) are "categories that do not encompass 'statements about loan-modification applications and the postponement of foreclosure.'" Rabe v. Wells Fargo Bank, N.A., 616 F. App'x 729, 735 (5th Cir. 2015) (quoting Thompson, 783 F.3d at 1026). And, to state a claim under Section 392.304(a)(8), a plaintiff must show that the defendant "made a misrepresentation that led her to be unaware (1) that she had a mortgage debt, (2) of the specific amount she owed, or (3) that she had defaulted."
In one category are "statements about loan-modification applications and the postponement of foreclosure.'" Rabe v. Wells Fargo Bank, N.A. 616 F.App'x 729, 735 (5th Cir. 2015)(quoting Thompson v. Bank of Am. Nat'l Ass'n, 783 F.3d 1022, 1026 (5th Cir. 2015)); Chavez v. Wells Fargo Bank, N.A., 578 F.App'x 345, 348 (5th Cir. 2014)("We have previously held that statements regarding loan modifications do not concern the 'character, extent, or amount of a consumer debt' under section 392.304(a)(8)"); Moreover, "[a]n agreement to delay foreclosure is subject to the Texas Statute of Frauds, and, accordingly, must be in writing to be enforceable." Milton, 508 Fed. Appx. at 328-329; Fields v. JP Morgan Chase Bank, N.A., 638 Fed. Appx. 310, 313 (5th Cir. 2016) ("[T]he statute of frauds acts to bar certain claims of misrepresentation under the TDCA.").
The character, extent, and amount of the debt categories listed in Section 392.304(a)(8) are "categories that do not encompass 'statements about loan-modification applications and the postponement of foreclosure.'" Rabe v. Wells Fargo Bank, N.A., 616 F. App'x 729, 735 (5th Cir. 2015) (quoting Thompson, 783 F.3d at 1026). And, to state a claim under Section 392.304(a)(8), a plaintiff must show that the defendant "made a misrepresentation that led her to be unaware (1) that she had a mortgage debt, (2) of the specific amount she owed, or (3) that she had defaulted."
His request is remedial in nature and depends upon the existence of a justiciable controversy between the parties. Rabe v. Wells Fargo Bank, N.A., No. 11-cv-787, 2013 WL 5458068, at *13 (E.D. Tex. Sept. 30, 2013) aff'd, 616 F. App'x 729 (5th Cir. 2015). Absent one, he cannot proceed.
Accordingly, the trial court did not err by granting summary judgment on this claimed TDCA-violation. See Rabe v. Wells Fargo Bank, N.A., No. 4:11-cv-787, 2013 WL 5458068, at *11 (E.D. Tex. Sept. 30, 2013), aff'd, 616 F. App'x 729 (5th Cir. 2015). Conclusion—Economic-Loss Rule