please the court i'm david reeky and i'm here for mr mrs douglas jason and cheryl douglas i'd like to talk about basically three things from from our brief the st and probably most important thing in this case is notice and the notice issued was in the summary judgment that was granted against my clients foreclosure sale were sent were properly sent to mr mrs douglas we have tacked his affidavit on the basis that st off he it was just conclusory as far as that there was or it was but it was sent that's shows that the paper postal service center but it was returned as undeliverable you was sent but it wasn't proper what was in the letter what was in the foreclosure show us the actual excel aeration and if if we could look on there saying something was sent and returned as undeliverable but we don't know what was in that on the law we do it when they don't want what is th of two thousand and seventeen which was twenty two days before the foreclosure sale and made the nd two thousand and seventeen so clearly and the notices he s he said he just concluded that this was notice of acceleration and there has to be a thirty day if we look at the deed of trust and we both agree that the deed of trust must be strictly construed and if we look at the deed of trust there's a copy there is the deed of trust and all throughout this record there's a copy i picked on page law provides otherwise that doesn't apply the notice shall specified the default the action required to cure the default a date not less than thirty days from the date of the notice is given to b by which the default must be cured and then a skipping ahead there will result in acceleration of the sum secured by the security instrument and sale of property this must be strictly construed in a number of cases that say that fact the wells fargo says in their brief on page twenty that it must be strictly construed as the deed of trust there's another  section that i think is i think is very relevant to what we're talking about this is on page two hundred and forty two section fifteen where it says notices  notice to bar or in connection with this security instrument shall again shall be deemed to have been given to the borrower when mailed by st class mail or when actually delivered to  borrower borrowers notice address if sent by other means so that the property code provides for sending the notices by certified mail which the property could provide th minimum but if we're strictly construing the deed of trust it should be sent by st class mail also why it's an important there is a letter this is from customer service at wells fargo and it says new payment your new payment will be three thousand one hundred and ninety nine dollars eighty six cents and then it says starting may st two thousand and seventeen your new mortgage payment will be in the amount of three thousand one hundred and ninety nine dollars eighty six cents and it says no action required right and this is a fairly standard anyone who  home as part of their mortgage payment escrows their taxes and insurance every year your taxes and insurance change they almost always go up to him and so you they have to adjust your escrow payment this is a standard form letter that i get every year it's as though now you o seventy eight dollars more dollars a month in escrow because the property taxes went up and you're saying if you're reading this to say that i think your clients had to about twenty thousand dollars in unpaid mortgage you're taking this to say no action required oh we're just going to forgive the banks nice we're just going to forgive twenty thousand dollars i mean is there no action required what that means is that don't worry about making up this escrow on the back side you're going to start going forward with an adjustment no action is required unpaid loan amount my point is they received this letter right because it was sent by st class mail the way the deed of trust provides the sort of these certified letters were not sent in addition to certified by st class mail it's likely if they received this the march th two thousand and seventeen letter they would have received the foreclosure notice the acceleration if it had been sent my st we know they didn't receive that has said on the liberal we have the proof of the mail was it was in someone didn't accept it apparently but going back to my i thought this was the no action required was the basis for your t d notice courts notice is the big issue right but that i had understood it more to be an issue of dating get the mail i didn't understood it understand you're now making the argument that even assuming argue end of this letter was sent that that they say they sent that that was untimely so i'm just want to i just want to take another look at that argument in your brief where is it the thirty day argument is not in there is that in a brief this but the whole question we're talking about here is no is is given given proper notice if you look at what sammy who does it but the proper notice argument that i have understood you to be making is the one that you were just discussing with judge cost about the letter the argument you made the beginning of your argument seem to be more substantive that even assuming that letter was sent properly it was untimely and insufficient that argument i did not gather from your briefing yes we attacked it on in the summary judgment response but we didn't put it in the brief if the court would look at our summary judgment response we did talk about who it is ok and you understand on appeal you need to raise things as the appellant in your look if you let me ask you because you're starting to run out of time i want to get to the t t c a question on the statute of frauds so i understand the concept that if you all were trying to enforce an oral agreement qua oral agreement that that would be barred by the stench of profits are you seeking damages separate and apart from enforcing the agreement that you're seeking under the t t c a that are separate from saying the agreement was valid yes ok since tell me but i know there was mentally anguish tell me about that explain how that is different because i don't think you can backdoor around the statute of frauds but i think your argument is you're not asserting something that can all over the place on this so i'm trying to understand is there if if what you're trying to do is enforce an oral agreement of the t t c a then that your argument that's fine but i have the impression you were doing something else can you tell me what that is yes i'm contending th payments you know they they listed with the payments to the missed payments were and they misrepresented it and if i did that cause that's a violation under the texas death and what harm did that cause it a different from us enforcing the oral agreement that was reached well because under the t t c a we can get attorney's fees court costs medical bills pain and suffering out of pocket expenses loss of equity it's  had to get lots of equity well under the t t c a it's whatever is a result of violating the t t c it is like medical bills we can get we've gotten medical bills before under the t t c because of the stress involved in losing your home and what is your best case for the proposition that the statute of frauds does not bar and at t d c d c and claim that the the  all the cases cited in all of the briefing what should we look at that best care catches the fact that in your view stature fraud simply is not a defense to the t t c inklings your honor i would say just the statute  itself and that's the what that's what i would rely on what is because of the law floating around in this case what is the misrepresentation that's the basis for your t d c a claim they misrepresented the amounts that were due and they did it in two different letters march rd and there was another letter of one hundred two thousand and seven but the amount due was wrong only if the oral agreement oral conversation was  mr and then they have the total and is wrong so they're misrepresenting the and they do play there's all this you know there's been so many iterations of this so many complaints in the district court did you plead that that was relied fourteen thousand dollars had been taken up who doesn't know if fourteen thousand dollars has been taken out of your bank account especially someone i mean if your home is almost in foreclosure not exactly they're going to have money all over the place i read today they said they didn't agree to the bank lot of money they knew pretty quick but how did it harm them in any way how did it harm them in any way then if they knew the bank hadn't done it how did it harm because they're in foreclosure as a result of  continuing once they decide in foreclosure the breadth of the missed record is they said they're going to take fourteen thousand dollars and withdraw from our bank account and put it in the against the mortgage and they didn't do that and we knew that in two well it does all you have to do is transfer it yourself want to do that obviously those arguments were weight because they were not bristle is admitted here but i also don't want the court to be confused about a couple of things st of all there notice of acceleration and notice of sale that's at issue in this case is being confused with the notice of default which is what was talked about in the deed of trust so that the notice of default has to be sent at least what you have evidence of is obviously the certified mail and i think we i think we've got also evidence that it was simply a st close mail and that's what i mean the evidence in hand in other words the let the the envelope because the st class mail you don't track the way you do a certified mail i'm going to get back to the t t c a because i have to say st i've ever heard and that doesn't necessarily mean anything but i've been involved in texas litigation for over thirty years and i i never heard of the statute of frauds applying to the t d ca when the point of that is that banks make mr abbott i mean of course if they made an agreement in writing we wouldn't need the t t c eggers you would force the agreement in writing so i i understand that you can't use the t t c a to rewrite the loan but why is it not independently actionable assuming argue endo that your cut your bank did make misrepresentations regardless of whether they were agreement that wells fargo allegedly breached and because they reached it there were subsequent misrepresentations of the amount i don't understand their argument to be that the agreement itself then they foreclose on you that the damage there would be the foreclosure it's not that you're saying ok we need to go back and have this new contract that was was waving everything else in the past but i didn't know you were going to foreclose on my house and now  that situation and that caused me to have a heart palpitations and whatever i mean i'm i'm not making light of that i'm just saying that's the argument that is exactly i mean the whole reason you have these kinds of consumer protection statutes is exactly because you don't have an enforceable contract to rely on or whatever but banks are making misrepresentations and shouldn't they get the oh just ignore the foreclosure notice i santa don't worry about it and then they foreclose or yeah i think that would be actionable even though that wasn't in writing you know explain to me how that's not it's not auction the ball under the statute that they're citing of three a misrepresentation of the character extent or amount of the consumer did their promises being made and if those promises are broken they might be actionable under a different theory perhaps a breach of contract but that's where the statute of frauds comes into lender if the service or sends a document into a payment history let's say that doesn't accurately reflect the payments that have been made well they said you've done that or your client did that well they they talk about the two notices of default in january of march and march of two thousand and seventeen point out that happened before this alleged or early green day they called wells fargo about the fourteen thousand because they got those notices of the full and the notice is a default if you look at their pleadings they all they say is that they admit that they missed three payments prior to those notices but they don't say anything about whole st year of this loan they don't say that they made all of their payments train them for so they admit missing three but they say nothing about whether they made all of the other  so they have not pleaded a plausible claim that those notices a default were inaccurate there's a whole year of payments unaccounted for in their pleadings and also see that if a bank said oh we know you owe a lot of money but we're going to try to work modify this with you even though you know this money we're not going to foreclose for three months if they did go ahead and foreclose that that would be a misrepresentation but it does seem if the debt if you're saying they mischaracterized the debt the debt is what the contract provides for right and the statute of frauds determines limits when he changes to what the date is right if there's an oral agreement modifying the terms of the loan in the terms of that in the statute of over the ship you know so we don't need a bunch of statutes to tell us that the point is exactly this you've got disparate knowledge and ability and and power between the bank and the  ordinary consumer and so we are trying to avoid banks doing just what you're accused of having done now maybe you didn't do it i'm am not saying that but that's what these statutes are for and sent to me to use a contract defense against a misrepresentation consumer fraud statute seems odd that's all i'm saying and i'm just trying to understand i mean i agree you couldn't there for back door into an enforceable contract i agree with that but i don't know that means you don't have a cause of action and i'm not saying that they don't have any cause of action but they don't have the cause of action that they have alleged here because the reason we brought up the statute of frauds is because they're saying that the subsequent representation was an accurate because of this purported agreement if there's no agreement there's no misrepresentation later that's why the statute of frauds was brought up in this case we're not saying the statute of statute there but let's say there's an allegation that i want a phone call or someone said we'll forgive half of that you just know it's fifty grand and then they and that's sort of this case and then they send a bill say it still says you are one hundred  i mean that's you have to figure out what the debt actually is to know if that's a misrepresentation right and the debts under the statute of frauds the debt still one hundred dollars grand it assuming it's real estate i think eventually you have to figure out what the debt is but you're talking about it as an agreement what you're in forcing it as is what consequences to cause if all they were trying to do is say we're by sue on the modified contractor we sued it to rescind or reform the contract based on this representation i totally agree with you have are the characterized it but the question is are they then stringing them along oh we'll we'll handle the fourteen thousand you'll be fine so they think the fourteen thousand covered they therefore don't write the check is as judge cost to said they could have done and that triggers then the foreclosure and then they're in this foreclosure world that they're dealing with which maybe isn't any damages they have to pollute prove metalanguage that's a tough standard in texas but nonetheless that's the claim they're making and i'm not maybe in this case it's not particularly good claim but is it barred by the statute of frauds what you're describing sounds to me like more of a fraud or a negligent misrepresentation type of claim it would not misrepresentation but it can be if they don't intend to do it again let's string these people and say we'll take the fourteen then we don't because they did none of this makes sense to me they're doing auto auto with your all and then they stop doing it why are they they say they're going to take the fourteen thousand and they don't do it i mean none of this has made a lick of sense to me because it would seem like the bank would like to get paid rather than have the house that's almost always true unless there's something about this house i don't know so nothing in this case makes he says to me but we have to address the fact that whatever we resolve in this case will impact other cases and i'm disturbed by the notion that the statute of frauds precludes suits from misrepresentation under the ddca because that would mean it's a pretty useless statute i think that the court can decide that issue very narrowly based on how the claim was presented in this case and what the facts are in this case there's a lot of reasons why not address transaction and could just take the money from their can we don't know because you said we don't know what it can't don't know and so that i mentioned in my post fargo would know whether it was well fargas account well they do but it's not in the record and i would have to go outside to tell you payment from your account at a different bank is done all the time right but that wells fargo can't call up chase bank and say send me fourteen thousand dollars from this family's account without there being something in writing from some document or something from the plaintiffs there would need never talked i mean they're still in this house and they're not paying on the mortgage ya'll are still sitting around your bank is to a practically speaking just as lawyer and counselor it's hard for me to imagine that it hasn't come up that we need to resolve judge change you just about whether there were other damages being alleged specific to the t t c a not tied to the oral agreement and i'm not aware of any where they're claiming mental angu i went back through their ok materials and that was what because i had that question what are your damages and they're claiming mental anguish again that's a hard standard in texas i agree but it's still a it's not a claim i can say on a motion to dismiss didn't happen and i'm not sure that that's separate apart from the underlying alleged breach of the sort of agreement that they're alleging i do want to touch briefly on going back to the notice issue and actually the more specifically the due process claim that they talked about in their brief on the notice issue really in my mind is pretty simple the score to answer the question about notice in the ellis our consulting opinion it's directly on point it's controlling the published decision of this court and there's really not much more to say about that  on the due process i do want to point out one thing because they argued that they did not waive their due process claim even though they didn't plead it in the district court and they say that they didn't wave it because they've always been alleging this lack of notice issue that's kind of at the heart of their due process claim what they did not allege was that wells fargo is a state actor and that is an essential element of the due process claim and so that was never planned until they filed their response to the motion for summary judgment and the last point i want to make going back to the t t c a and and judge us to you had a some questions about that escrow statement and there is nothing  about the what is actionable under the t d c a and it says fraudulent deceptive misleading representation that employs the following practices mis representing the character extent or amount of a consumer debt or misrepresenting the consumer debt status in a judicial proceeding so if you look on page in our brief we go through this misrepresentation on january the th in a letter two thousand and seventeen where there's deep wells fargo says that they're behind by fifteen thousand but if you add character of the debt under the texas debt collection it and that's actionable under that act and the damages go beyond just mental anguish the damage is going to attorneys fees they've had to pay us response to that letter i think we were we were hired after the foreclosure was when we got it because we represented them on the he vixen and which  they're paying their pain thirty one hundred dollars into the registry of the court for the victualling that would have been their payment the mortgage company would have the wells fargo would have gotten that if they had  my folks catch up and that's why i said practically this case it is it should have happened i mean that we shouldn't be here all are here you are here on your way out the door but we shouldn't be here and you're  we weren't but you know that letter that was sent on the th of march that i referred to earlier is just such a sloppy thing and wells fargo is part of the get ready to  we're going to get to this payment and then where the evidence of that in the record at what they would have done that for this march th well i mean in the affidavit that were attached to that response to the summary judgment it goes into kind of what they were thinking what was sort of happening why this you know they were trying to get a feel me straightforward what would what's the evidence as to what they would have done but for this march th letter whatever that well if they weren't lulled into that false sense of security they would have tried to work with the mortgage company to avoid the foreclosure that's for the march th there caused them not to work with the mortgage i think it made it load them into a false sense of security yes i think that caused them to think everything's going to be ok we can do a loan modification or a forbearance playing on those claims were dismissed ri ok but didn't you also use this letter this escrow letter to say you didn't get a money hadn't received claim and your argument was that this letter means there was only one dollar payment left until they own the entire house this thirteen thousand dollars payment and therefore they should get all the rest of the equity in the house is due to them ok i thought i saw you didn't say the damages for the money hadn't received was everything that the entire value of the house except for the one we were taught many here in the alternative if the foreclosure was good then there's a surplus because under boren this court held that once you demand less than the total of the celebrated amount that it weighed and you were saying this is saying the only payment left till today on the whole house