### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-10307

WATER DYNAMICS, LIMITED; A.C.A.R. INDUSTRIES, L.L.C.; RALPH TORREZ, JR.; ANITA T. TORREZ; LEONA ESQUIBEL GRIJALVA, Plaintiffs - Appellants

v. HSBC BANK USA, NATIONAL ASSOCIATION, As Successor Trustee to Bank of America, N.A., Successor by Merger to Lasalle Bank National Association, as the Same May Be Amended from Time to Time, for the Benefit of the SBA and the Holders of the Business Loan Express SBA Loan-Backed Notes, Series 20, Defendant - Appellee

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:11-CV-614

Before DAVIS, JONES and SMITH, Circuit Judges. PER CURIAM: * U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Janu ary30 , 20 13 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR . R. 47.5, the cour t has det erm ined that this opi nion should not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-10307 Document: 00512130211 Page: 1 Date Filed: 01/30/2013No. 12-10307

The court has carefully considered this appeal in light of the briefs and pertinent portions of the record. Appellants here challenge the district court’s Rule 12(b)(6) dismissal of their claims against a lender, HSBC Bank USA, which foreclosed on a car wash prope rt y and is attempting to foreclose on one of the guarantors’ homes put up as collateral. We review the dismissal de novo , taking the facts in the light most favorable to the plaintiffs. In re K a t r i n a Canal Breaches Litig. , 495 F.3d 191, 205 ( 5th Cir. 2007). Finding no reversible error of fact or law, we affirm essentially for the reasons stated in the district court’s thorough opinion, and here need only summarize the essential faili n g s o f the Appellants’ position. 1. Wrongful Foreclosure Claim Appellants h a d to all e ge a defect in the foreclosure proceedings; a grossly inadequa t e f

o r eclosure sale price for the car wash property; and a causal connection between the defect and the inadequate price. Sauceda v. GMAC Mortg. Corp. , 268 S.W.3d 135, 139 (Tex. App.—Corpus Christi 2008). The defect they allege is that the offering of their property at auction was not announced, preventing their third party purchaser from coming forward to buy the property and pay off their loan. Assuming the truth of this all e g ati o n , Appellants still have failed to allege that the ultimate sale price was grossly inadequate. Texas

cases establish that a foreclosure price exceeding 50% is not grossly inadequate. See Terra XXI, Ltd. v. Harmon , 279 S.W.3d 781, 788 (Tex. App.—Amarillo 2007); Richardson v. Kent , 47 S.W.2d 420, 425 (Tex. Civ. App.—Dallas 1932). The sale price here was about 52% of Appellants’ proffered value. This co u rt is Erie -bound to follow uniform Texas law.

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2. Breach of Contract Claim Appellants allege breach of their contractual arr a ngements by the lender’s above-noted conduct at the foreclosure auction, by its failure to observe

an ora l m o dification of the payment terms, and by its not providing a payoff statement when they requested one, as required by Texas Business & Commerce Code § 9.210. Two unassail ab l e defenses plague this claim. First, Appellants

never acknowledge that Water Dynamics’ initial (and never cured) contract breach provoked their problems, and a party in default cannot assert a claim for breach against the other party. Dobbins v. Redden , 785 S.W.2d 377, 378 (Tex. 1990). Second, their alleged oral modi f ications of various agreements are unenforceable, contrary to the Texas statute of frauds, T E X
. B U S

. & C O M
. C O D E AN N
. § 2 6

. 0 2 ( a) ( 2 ) & (b) (West 2012), and cannot form the basis of contract breach claims. 3. Waiver Claim Waiver is the “intentional relinquishmen t o f a known right or intentional conduct inconsistent with claiming that right.”G.H. Bass & Co. v. Dalsan Props.—Abilene , 885 S.W.2d 572, 577 (Tex. App.—Dallas 1994) (citing Sun Exploration & Prod. Co. v. Benton , 728 S.W.2d 35, 37 (Tex. 1987)). Intent is the key to waiv e r . Id. Appellants’ “waiver” claims, as argued in their appellate brief, are simply reformulated contract breach claims: (1) the oral indication that lesser mont h l y payments would be accepted by the lender; ( 2 ) failing to provide a payoff statement when requested; and (3) failing to foreclose on the property properly. Allegations of “inconsistent and inequitable conduct” that allegedly violated the note, deed of trust, and oral modification, do not suffice to show an intentional waiver by the lender, especially in the face of the deed of trust’s anti-waiver provision. The cases cited by Appellants are fully
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distinguishable, not least because of the absence of such a provision. Moreover, in Longview Sav. & Loan Ass’n v. Nabours , 673 S.W.2d 357 (Te x . App.—Texarkana 1984), aff’d on other groun ds , 7 0 0 S.W.2d 901 (Tex. 1985), there was a pattern of companywide routine non-enforcement of n o t i c e s . In Trickey v. Gumm , 632 S.W.2d 167 (Tex. App.—Waco 1982), the lender accepted

a past due interes t p a y ment after sending a notice of default and apparently represented that the interest payment would prevent any acceleration. 4. Anticipatory Repudiation Claim Anticipatory br e a c h requires Appellants to plead that the defendant absolutely repudiated the contract; lacked just excuse for the repudiation; and damaged them. Gonzalez v. Denning , 394 F.3d 388, 394 (5th Cir. 2004). In lieu of repudiation, they allege no more in their appellate brief than the same deed of trust breaches already discussed. There is no legal basis to collapse these two

c l a ims, nor is there any basis to infer from the lender’s conduct a positive an d unequiv o cal repudiation of the contract. In addition, this claim cannot excuse the consequences of Appellants’ prior breach. 5. Unreasonable Collection Efforts Claim Appellants’ allegations may demonstrat e a failure to communicate between themselves and the l e n d e r, but they fall far short of satisfying the current Texas standard requiring “a course of harassme n t t h at was willful, wanton, malicious, and intended to inflict mental anguish and bodily harm.” See, e.g. , EMC Mortg. Corp. v. Jones , 252 S.W.3d 857, 868 (Tex. App.—Dall a s 2008) (quoting Montgomery Ward & Co. v. Brewer , 4 1 6 S

. W.2d 837, 844 (Tex. Civ. App.—Waco 1967)). This is the standard f o r claims of unreasonable collection efforts. Appellants’ brief fails to mention i t , b u t t his standard was cited with approval in a case in which their counsel pa rticipated,
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De Franceschi v. BA C H o m e Loans Servicing, L.P. , 477 F. App’x 200, 204–05 (5th Cir. 2012). Al though we are not bound by unpublished Fifth Circuit opinions issued on or after January 1, 1996, we endeavor to apply our case law consistently. Appellants have shown no reason to deviate f rom this standard. The district court’s judgment isAFFIRMED

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