IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 summary judgment

dismissal of all her claims against Defendants–Appellants Wells Fargo Bank,

N.A. (“Wells Fargo”) and Federal Home Loan Mortgage Corporation (“Freddie

Mac”). As the facts are undisputed and Wells Fargo had the contractual right

to foreclose on her house, we affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

August 7, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 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 accelerate the note and

foreclose. Even though Richardson never became current 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 several reduced payments under the Trial Period Plan

while Wells Fargo refrained from foreclosure and assessed her eligibility for a

permanent loan modification through the federal Home Affordable Modification

Program (“HAMP”) program. On June 3, 2010, Wells Fargo informed

Richardson that she did not qualify for a loan modification under the HAMP

program. The Trial Period Plan therefore expired, and Richardson never

received a permanent loan modification.

The Forbearance Plan was then offered by Wells Fargo on August 4, 2010. 

Under it, Richardson could avoid foreclosure by making a series of scheduled

payments. The Forbearance Plan required Richardson to “indicate [her]

understanding and acceptance of the terms of the forbearance agreement by

immediately signing and returning this agreement.” Richardson made the first

scheduled payment, but she does not dispute that she never accepted Wells

Fargo’s offer of the Forbearance Plan by signing and returning it to Wells Fargo.

On September 8, 2010, Wells Fargo notified Richardson that it was

accelerating her note and scheduling a foreclosure sale for October 5, 2010. The

home was sold to Freddie Mac on that date. Richardson filed suit against Wells

Fargo and Freddie Mac, avoiding eviction until 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 of error in this appeal, but all are

predicated on the mistaken premise that either the Trial Period Plan or the

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Forbearance Plan prohibited Wells Fargo from foreclosing. On these undisputed

facts, they did not.

First, Wells Fargo foreclosed after the Trial Period Plan had expired and

Richardson had failed to qualify for a permanent loan 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 entitled to a loan

modification. But her reading conflicts with the plain language of the Trial

Period Plan, which unambiguously makes loan modification contingent on both

her making 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 Trial Period 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 not to foreclose because Richardson never accepted that offer

pursuant to its plain terms. Although Richardson contends that Wells Fargo

waived the signature requirement by accepting the first payment pursuant to

the Forbearance Agreement, we perceive no “intentional relinquishment” of the

requirement that she actually accept Wells Fargo’s terms in writing, especially

because Richardson already owed delinquent payments on the note. Cf. Ulico

Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 778 (Tex. 2008) (setting forth

elements of waiver under Texas law). Thus, the Forbearance Plan was never

binding, Wells Fargo’s notice of the foreclosure sale was timely, and the transfer

to Freddie Mac was proper.

Richardson insists that there are genuine issues of material fact 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 host of violations of the Texas Debt

Collection Act. We need not recite the elements of these causes of action at

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No. 12-10920

length because, as a matter of law, neither the Trial Period Plan nor the

Forbearance Plan contractually prevented Wells Fargo from foreclosing on her

house, regardless of how many different ways Richardson attempts to dress up

her claims. Accordingly, the foreclosure was proper in all respects, so the district

court’s judgment in favor of Wells Fargo and Freddie Mac dismissing

Richardson’s action is

AFFIRMED.

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