### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-10920

PAMELA RICHARDSON, Plaintiff–Appellant
v. WELLS FARGO BANK, N.A.; FEDERAL HOME LOAN MORTGAGE CORPORATION, Defendants–Appellees

Appeal from the United States District Court for the

Northern District of Texas USDC No. 4:11-cv-00359-A

Before STEWART, Chief Judge, and DAVIS and WIENER, Circuit Judges. PER CURIAM: * Plaintiff–Appellant Pamela Richardson appeals the s ummary judgment dismissal of all her claims against D efendants–Appellants W ells Fargo Bank, N.A. (“Wells Fargo”) and Federal Home Loan Mortga g e C orporation (“Freddie Mac”). As the f

acts are un d i sputed and Wells Fargo h ad the c ontractual right to foreclose on her house, we affirm. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D Aug ust 7, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-10920 Document: 00512334613 Page: 1 Date Filed: 08/07/2013No. 12-10920

Richardson owned a house in Grapevine, Texas, that was encumbered by a promissory note and deed of trust held by Wells Fargo. After she fell behind

on payments, Wells Fargo notified her of its intention to a ccelerate th e note and foreclose. Even though Richardson n e ver became c u rrent on her payments, Wells Fargo tried to work with her to avoid foreclosure and, to that end, offered her a Trial Period Plan and later offered her a Forbearance Plan. Richardson made s everal reduced payments under the Trial Period Plan while W ells Fargo refrained from foreclosure and assessed her eligibility f o r a permanent loan modification through the federal H ome Affordable Modification Program (“HAMP”) program. On J une 3, 2010, W ells F argo inf o r m e d Richa r d s o n t h a t she did not qualify for a loan modification under the HAMP program. The Trial Period Plan therefore e xpi r e d , and Richardson never received a permanent loan modification. The Forbearance Plan was then offered by Wells Fargo on August 4, 2010. Under i t , Richardson c ould avoid foreclosure by making a series o f s cheduled payments. The F orbearance P l a n r equired Richardson to “indicate [her] understanding and acceptance of the terms o f the forbearance agreement by immediately signing and returning this agreement.” Richardson made the first scheduled payment, but she does not dispute that she never accep t e d Wells Fargo’s offer of the Forbearance Plan by signing and returning it to Wells Fargo. On September 8, 2010, W ells Fargo notified Richardson that it w a s accelerating her note and scheduling a foreclosure sale f or O ctober 5, 2010. The home was sold to Freddie Mac on that d ate. Richardson filed suit against Wells Fargo a nd Freddie Mac, avoiding eviction u ntil May 2012. After extensive proceedings, the district court granted summary judgment to Wells Fargo and Freddie Mac and dismissed all of Richardson’s claims. Richardson asserts over a dozen points o f error in this appeal, but all are predicated on the mistake n p r e m i s e that either the Trial Period Plan or the

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Forbearance Plan prohibited Wells Fargo f rom foreclosing. On these undisputed facts, they did not. First, Wells Fargo foreclosed after the Trial Period Plan had expired and Richardson had failed t o qualify for a permanent l oan modification. Richardson attempts to read one term of the Trial Period Plan out of context to suggest that, having made the trial payments, she was automatically entitle d t o a l oan modification. B ut h er r e a di n g c onflicts with the plain language of the Trial Period Plan, which unambiguously makes loan modification contingent on both her m aking the required payments and her eligibility under the federal HAMP program. Richardson does not dispute that she was not eligible under HAMP,

so that, after the Tria l P e r i o d Plan expired, the terms of the note and deed of trust permitted Wells Fargo to foreclose. Second, the offer contained in the Forbearance Plan never resulted in an agreement n o t to foreclose because Richardson never accepted that offer pursuant to its plain terms. Although Richardson contends th a t W ells Fargo waived the signature requirement by accepting the first payment pursuant to the Forbearance Agreement, we perceive n o “intentional relinquishment” of the requirement that she actually accept W ells Fargo’s terms in writing, especially because Richardson already owed delinquent payments on the n ote. Cf. Ulico Cas. Co. v. A llied Pilots Ass ’n , 262 S.W.3d 773, 778 (Tex. 2008) (setting forth elements o f w aiver u n d e r Texas law). Thus, the Forbearance Plan was never binding, Wells F argo’s notice of the foreclosure sale was timely, and the transfer to Freddie Mac was proper. Richardson insists that there a r e g e n uine issues of material f act which precluded summary judgment on her claims for breach of contract, waiver, anticipatory breach of contract, wrongful foreclosure and eviction, suit to quiet title, negligent misrepresentation, and a h o s t of violations of the Texas Debt Col l e c tion Act. We need not recite the elements of these causes of a ction at

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length b ecau s e , a s a m a tter of law, n either the Trial Period Plan nor the Forbearance Plan contractually prevented W ells Fargo from foreclosing on her house, regardless of how many different ways Richardson attempts to dress up her claims. Accordingly, the foreclosure was proper i n all respects, so the district court’s judgment in favor of Wells Fargo a nd Freddie M ac dismissing Richardson’s action is AFFIRMED.

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