AFFIRMED; Opinion Filed April 15, 2019.

In The 

## Court of Appeals Fifth District of Texas at Dallas

No. 05 - 18 - 00456 - CV FARROKH EBRAHIMI , Appellant

V. CALIBER HOME LOANS, INC, AND U.S. BANK TRUST, NATIONAL ASSOCIATION, AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST , Appellee s

On Appeal from the 162nd Judicial District Court

Dallas County, Texas Trial Court Cause No. DC - 17 - 07628 

### MEMORANDUM OPINION Before Justices Myers, Molberg, and Osbor ne

Opinion by Justice Myers Appellant Farrokh Ebrahimi appeals from a summary judgment granted in favor of appellees C aliber H ome L oans, I nc . , and U.S. Bank Trust, National Association, as trustee for LSF 9 M aster P articipation T rust
. In three issues, appe llant argues h er claim s are not barred by res judicata , and that s he provided sufficient evidence to support h er claim s for violation of the Texas Debt Collection Act and the Texas Deceptive Trade Practices and Consumer Protection Act. We affirm. B ACKGRO UND AND P ROCEDURAL H ISTORY On September 18, 2003, a ppellant F arrokh E brahimi executed a n ote for $268,000 that was payable to America’s Wholesale Lender. Along with the n ote, a ppellant executed a d eed of t rust ( coll ectively referred to as the “ l oan”) granting a security interest in a property located at 1903– 2

–

Ridge Creek Drive, Richardson, Texas 75082 ( the “ p roperty”) to secure the n ote. The d eed of
t rust identifie d M ortgage E lectronic R egistration S ystems, Inc. (“MERS”) as the beneficiary under the se curity instrument , and America’s Wholesale Lender wa s the lender

. T he deed of trust specified there would be a period of not less than thirty days from the date the notice of default was given for the borrower to cure the default. MERS subsequently assigned the deed of trust to Bank of America , N.A., the successor by merger to BAC Home Loans Servicing LP, f /k / a Countrywide Home Loans Servicing LP (“Bank of America”). Appellant defaulted on the l oan by failing to make the installment pay ment s. A notice of default dated M ay 4, 2012, was sent to appellant at the 1903 Ridge Creek Drive address via certified mail. It advised that the “[t]he loan is in serious default because the required payments have not been made,” and stated that $15,237 .82 was due within thirty days to cure the default. In a letter to appellant dated May 5, 2016, a ppellee Caliber Home Loans, Inc. (“Caliber”) advised that on April 26, 2016, the servicing of the mortgage l oan had been transferred from Bank of America to C aliber. Thereafter, on May 19, 2016, Bank of America assigned and transferred the loan to appellee U.S. Bank Trust, N .A. , as trustee for the LSF9 Master Participation Trust (“U.S. Bank”). Appellant failed to cure her default under the l oan and it was referred to foreclosure. A June 6, 2016 notice of acceleration and a notice of a substitute trustee’s sale were se nt to appellant via certified mail a t the Ridge Creek Drive address

. The n otice of a cceleration stated that Caliber was acting as the m ortgage servicer for U.S. Bank, the mortgagee o f the note, and that the mortgagee had accelerated the maturity date of the debt because of a ppellant’s failure to pay the past

- due balance on the debt . T he accompanying n otice of s ubstitute t rustee s ale advi sed that the
p roperty would be posted for sale on July 5, 2016. In response to a letter from a ppellant’s former attorney , Caliber sent a letter to appellant dated June 28, 2016, that enclosed a copy of the note,– 3

–

the deed of trust, and the assignment of the deed of trust . The letter reads in part as follows: Caliber Home Loans, Inc., hereafter known as Caliber, servicer of the above

referenced loan, provides this response to the letter received by Caliber on June 2 7, 2016, wherein [the] Kricken Law Fir m requested validation of the debt owed. * * * * Loan Background and Status Our records reflect the following key events related to the loan: • September 18, 2003: The loan originated with a principal bala nce of $268,000.00 with America’ s Wholesale Lende r. • The previous servicer of the loan was Bank of America, N.A. • Caliber began servicing the loan on April 26, 2016. • The loan is due for May 1, 2012 and subsequent payments. • The last payment was received on December 11, 2015. • Due to the delinquency of the loan, the property was referred to foreclosure on January 16, 2015. • A foreclosure sale has been scheduled for July 5, 2016. Validation of Debt Pursuant to your request, copies of the following documents are being provided as evidence of the debt obligation to Caliber: 1. Please refer to the enclosed Note, Deed of Trust, and Assignment of Deed of Trust. 2. The current investor of the loan is LSF9 Master Participation Trust serviced by Caliber Home Loans, Inc. Our address is 13801 Wireless Way Okl ahoma City, OK 73134. Further, the information sought in this request is proprietary information and will not be provided. Please note the origination documents are held at an off

- site secured location with the respective custodian of records. 3. Please r efer to the enclosed payment history and Hazard Insurance Policy. On June 30, 2016, a ppellant filed suit against Caliber in the 162nd Judicial District Court of Dallas County in order to stop th e foreclosure sale, alleging there were questions regarding the chain of title and the d eed of t rust was not a valid contract. Caliber removed the case to the United States District Court for the Northern District of Texas. A ppellant and Caliber subsequen tly filed

an a greed s tipulation of d ismissal , dismissing with the prejudice the lawsuit and “ all claims asserted or which could have been asserted by Plaintiff against Defendant.” The federal d istrict– 4

–

c ourt terminated the case pursuant to the a greed s tipulation of d ismissal. After the f

irst l awsuit was dismissed, a ppellant still failed to make the installment payments towards the l oan , and U. S. Bank again undertook preparations to conduct a foreclosure sale. On May 25, 2017 , a new notice of accelerat ion and a notice of substitute trustee’s sale were se nt to appellant via certified mail to the Ridge Creek Drive address , advising appellant that the p roperty

w as scheduled to be sold on July 4, 2017. In response, a ppellant brought the underlying suit aga inst Caliber and U.S. Bank on June 28, 2017 to stop the foreclosure sale, asserting causes of action for violation of the Texas Debt Collection Act (TDCA) and the Texas Deceptive Trade Practices and Consumer Protection Act (DTPA)

. A ppellees filed a t raditional and n o - e vidence m otion for s ummary j udgment. Appellant responded to the motion and filed a fi rst a mended p etition. The a mended p etition included the causes of action for violation of the TDCA and the D TPA , and added a claim for wrongful forecl osure . As part of her r esponse, a ppellant included an affidavit in which she allege d that she had made all payments under the l oan and that she and her husband made repeated requests to Caliber for an accounting of the l oan. A ppellees filed a r eply in support of their m otion for s ummary j udgment that object ed to a ppellant’s summary judgment evidence because t he affidavit was self

serving, conclusory, and unsubstantiated. In addition, appellees argued that appellant’s claims were barred by res j udicata. They also filed a supplement to their summary judgment motion that

r espond ed to the new allegations in a ppell ant ’s f irst a mended p etition , arguing in part that appellant’s wrongful foreclosure claim fail ed as a matter of law

. 1 On March 19, 2018, the trial court signed an order granting appellees’ motion for summary judgment “on all grounds stated therein pursuant to R ules 166a(c) and 166a(i) of the Texas Rules

1 The supplement stated that it was incorporated into appellees’ summary judgment motion as if f ully set forth therein

.– 5

–

of Civil Procedure. ” This appeal followed. D ISCUSSION S TANDARD OF R EVIEW We review the trial court ’ s decision to grant summary judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm ’ n of Tex. , 253 S.W.3d 184, 192 (Tex. 2007). A party seeking a no

evidence summary judgment must assert that no evidence exists as to one or more of th e essential elements of the nonmovant ’ s claim on which the nonmovant would have the burden of proof at trial. See T EX
. R. C IV
. P . 166a(i); Henning v. OneWest Bank FSB , 405 S.W.3d 950, 957 (Tex. App.

— Dallas 2013, no pet.). “The motion must state the eleme nts as to which there is no evidence.” T EX
. R. C IV
. P. 166a(i)

. Once the movant specifies the elements on which there is no evidence, the burden shifts to the nonmovant to raise a fact issue on the challenged elements. See T EX
. R. C IV
. P . 166a(i); Henni ng , 405 S.W.3d at 957. We review a no

- evidence motion for summary judgment under the same legal sufficiency standard used to review a directed verdict. King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 750

– 51 (Tex. 2003); Flood v. Katz , 294 S.W.3d 756, 762 (Te x. App.

— Dallas 2009, pet. denied). Our inquiry focuses on whether the nonmovant produced more than a scintilla of probative evidence to raise a fact issue on the challenged elements. See King Ranch , 118 S.W.3d at 751. Evidence is no more than a scintill a if it is “‘ so weak as to do no more than create a mere surmise or suspicion ’ of a fact. ” King Ranch , 118 S.W.3d at 751 (quoting Kindred v. Con/Chem, Inc ., 650 S.W.2d 61, 63 (Tex. 1983) )

. If a no

- evidence motion for summary judgment and a traditional motion for summary judgment are filed which respectively asserts the plaintiff has no evidence of an element of its claim and alternatively asserts that the movant has conclusively negated that same element of the claim, we address the no

evidence motion for summary judgment first. Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 600 (Tex. 2004).– 6

–

To prevail on a traditional summary judgment motion, a movant has the burden of proving

s he is entitled t o judgment as a matter of law and that there is no genuine issue of material fact. T EX
. R. C IV
. P . 166a(c); Cunningham v. Tarski , 365 S.W.3d 179, 185

– 86 (Tex. App.

— Dallas 2012, pet. denied). When a defendant moves for summary judgment, s he must either (1) disprove at least one essential element of the plaintiff ’ s cause of action or (2) plead and conclusively establish each essential element of an affirmative defense, thereby defeating the plaintiff’ s cause of action. Cunningham , 365 S.W.3d at 186. In det ermining whether there is a genuine fact issue precluding summary judgment, evidence favorable to the nonmovant is taken as true and the reviewing court makes all reasonable inferences and resolves all doubts in the nonmovant ’ s favor. Id .; Nixon v. Mr. Pr op. Mgmt. Co., Inc. , 690 S.W.2d 546, 548

– 49 (Tex. 1985). A matter is conclusively established if reasonable minds cannot differ as to the conclusion to be drawn from the evidence. Cunningham , 365 S.W.3d at 186. Once a movant conclusively establishes an affirmative defense, the burden of production shifts to the nonmovant to present summary judgment evidence that raises a fact issue on at least one element of the movant’ s affirmative defense or an exception or defense to that affirmative defense. Id

. Wh ere, as here, the trial court’ s order granting summary judgment does not specify the grounds relied upon, we must affirm the summary judgment if any of the summary judgment grounds are meritorious. Id

. 1. R ES J UDICATA /W RONGFUL F ORECLOSURE In h er first issue, appellant argues h er claims are not barred by res judicata. As part of their summary judgment motion , appellees argued in part that appellant’s claims in the current lawsuit were duplicative of the claims in the prior lawsuit (which was dism issed with prejudice ) because both suits sought to challenge appellees’ right to foreclose by ch allenging the chain of title. In her brief, a ppellant repeatedly refers to the alleged imprope r foreclosure when claiming res judicata should not apply to her claims in this lawsuit , arguing in part that the prior lawsuit that was– 7

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dismissed in March of 2017 concerned an improper foreclosure sale scheduled by appellees to occur in July of 2016, but in the current case the facts relate d to an improper foreclosure that was scheduled for July of 2017. In their response, appellees clarify that they are not arguing res judicata applies to claims asserted in appellant’s first amended petition, which is her live pleading, and that they only asserted this defense in resp onse to allegations in the original petition. To prevail on a wrongful foreclosure claim, a plaintiff must show (1) a defect in the foreclosure sale proceedings; (2) a grossly inadequate selling price; and (3) a causal connection between the defect and th e grossly inadequate selling price. Sauceda v. GMAC Mortgage Corp ., 268 S.W. 3d 135, 139 (Tex. App.

— Corpus Christi 2008, no pet.). To the extent appellant is attempting to challenge the trial court’s summary judgment on her wrongful foreclosure claim by arguing it is not barred by res judicata, Texas law is clear that there is no cause of action in Texas for attempted wrongful foreclo sure. See EverBank, N.A. v. Seedergy Ventures, Inc ., 499 S.W.3d 534, 544 (Tex. App.

–

– Houston [14th Dist.] 2016, no pet. ) ; In re Plains Capital Bank , No. 13

- 16

- 00592

- CV, 2017 WL 1131092, at *5 (Tex. App.

— Corpus Christi Mar. 27, 2017, no pet.) (mem. op.) ; An derson v. Baxter, Schwartz & Shapiro, LLP , No. 14

- 11

- 00021

- CV, 2012 WL 50622, at *3 (Tex. App.

— Houston [14th Dist.] Jan. 10, 2012, no pet.) (mem. op.)

. There was no foreclosure sale in this instance because appellant obtained a temporary restraining order on June 28, 2017, the same day she filed her original petition, preventing appellees from selling the p roperty at the scheduled foreclosure sale. Because there was no foreclosure sale, appellant’s claim for wrongful foreclosure necessarily fails as a matter of law. We conclude the trial court correctly granted summary judgment on appellant’s wrongful foreclosure claim , and we overrule appellant’s first issue. 2. T EXAS D EBT C OLLECTION A CT In h er second issue, appellant argues the trial cour t erred in granting summary judgment as– 8

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to her claim under the Texas Debt Collection Act because she presented sufficient summary judgment evidence that appellees violated sections 392.304(a)(4) and 392.304(a)(8) of the TDCA. Section 392.304 of the TDCA , entitled “Fraudulent, Deceptive or Misleading Representations,” provides in part that “ in debt collection or obtaining information concerning a consumer, a debt collector may not use a fraudulent, deceptive, or misleading representation” that fails “ to di sclose clearly in any communication with the debtor the name of the person to whom the debt has been assigned or is owed when making a demand for money .” T EX
. F IN
. C ODE A NN
. § 392.304( a)(4). The statute further provides that “ a debt collector may not use a fraudulent, deceptive, or misleading representation . . . misrepresenting the character, extent, or amount of a consumer debt, or misrepresenting the consumer debt’s status in a judicial or governmental proceeding.” Id

. § 392.304(a)(8). In her summary judgment affidavit, appellant claimed that appellees failed to provide an accurate accounting of payments and credits received, failed to apply payments received, failed to disclose the name of the person to whom the debt had been assigned or was o wed , and that she requested (and was never sent) documentation for an accounting and proof of the assignment of the note. In addition, appellant allege d that appellees initiated the foreclosure and scheduled the sale of the home without providing prior no tice. Appellant argues that t he June 28, 2016 l etter from Caliber violated section 392.304(a)(4) because it failed to clearly disclose in the communication with the debtor the name of the person to whom the debt ha d been assigned or wa s owed when making a demand for money. Appellant states in her affidavit that the “Assignment of Deed of Trust” enclosed with the letter was for the assignment from MERS to Bank of America , and it did not mention or identify either Caliber Home Loans, to whom the servicing of the mortgage loan had been transferred , or U.S. Bank Trust, the assignee/transferee of the loan

. However, even if one take s these assertions at face value, the– 9

–

June 28, 2016 letter identifies the owner of the debt, stating that “[t] he current investor of the loan is LSF9 Master Participation Trust. ” Moreover, the TDCA expressly provides that “ [s] ubsection 392.304(a)(4) does not apply to a person servicing or collecting real property first lien mortgage loans or credit card debts .” T EX
. F IN
. C ODE A NN
. § 392.304(b)

. A ppellee Caliber Home Loans was the servicer of appellant’s home mortgage loan , the servicing of the loan ha ving been transferred from Bank of America in April of 2016

. Accordingly, the t rial c ourt properly granted summary judgment on a ppel lant’s claim for violation of section 392.304(a)(4) of the Texas Finance Code. A ppellant also a rgues that she provided competent summary judgment evidence in her affidavit that appellees viol ated section 392.304(a)(8). Appellees respond that appellant’s affidavit , to which they objected in the trial court, is conclusory, unsubstantiated, and it is not competent summary judgment evidence. Appellees argue in their brief that paragraphs 6, 8, 9, 10, 11, 15, 16, 17, and 18 of the affidavit all include concl usory statements. Although appellees did not secure a ruling on their objections in the trial court , they contend the ir complaint s wer e not waived and that objections that statements in an affidavit are conclusory are defects of substance that may be rais ed for the first time on appeal. See, e.g., Vice v. Kasprzak , 318 S.W.3d 1, 11 (Tex. App.

— Houston [1st Dist.] 2009, pet. denied) (“[C]onclusory and self

- serving affidavits submitted as summary judgment evidence by either the movant or the non

- movant are n ot counted as summary judgment evidence.”). We need not resolve th is question. Even if we assume th e affidavit was competent summary judgment evidence, appellant nonetheless failed to raise a fact issue regarding appellees’ alleged violation s of section 392.304(a)(8). To begin with, appellant has not alleged appellees made any affirmative misrepresentation s regarding the character or amount of the loan. For a statement to constitute a misrepresentation under the TDCA , the debt collector mu st have made an affirmative statement that was false or– 10

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misleading. T

hompson v. Bank of Am. Nat’l Ass’n , 783 F.3d 1022, 1026 (5th Cir. 2015) ; Kruse v. Bank of N.Y. Mellon , 936 F. Supp . 2d 790, 792 (N.D. Tex. 2013); see also Reynolds v. Sw. Bell Tel., L.P

. , No. 2

- 05

- 356

- CV, 2006 WL 1791606, at *7 (Tex. App.

— Fort Worth June 29, 2006, pet. denied) (mem. op.)

. Appellant claims appellees failed to p rovide her with an accounting of the payments and other documentation concerning the loan , but she points to no a ffirmative statements from appellee regarding the loan that she believed to be false or misleading. See Burr v. JPMorgan Chase Bank, N.A. , No. 4:11

- CV

- 03519, 2012 WL 1059043, at *7 (S.D. Tex. Mar. 28, 2012)

. Appellant also argues that appellees’ failure to apply tendered loan payments is a violation of the TDCA . B ut as another court of appeals has noted, “nothing in the TDCA specifically makes misapplication of a payment or failure to apply a payment a prohibited misleading practice.” Shellnut v. Wells Fargo Bank, N.A ., No. 02

- 15

- 00204

- CV, 2017 WL 1538166, at *14 (Tex. App.

— Fort Worth Apr. 27, 2017, pet. denied ) (mem. op.)

. Moreover , the d eed of t rust expressly p rovided that a ppellees “ may return any payment or partial payment if the payment or partial payments are insufficient to bring the Loan current.” Appellees’ actions in returning payments that were in sufficient to cure the default under the l oan were authorized by the d eed of t rust and did not violat e the TDCA. See Burnette v. Wells Fargo Bank, N.A ., No. 4:09

- CV

- 370, 2011 WL 676955, at *5 (E.D. Tex. Jan. 27, 2011) (“[N]ot accepting Plaintiff’s payments, after he defaulted on the loan, was not in violation of the Deed of Trust.”)

. Appellant further argues that she is entitled to relief under section 392.304(a)(8) because she provided testimony via her affidavit that she would not have dismissed her first lawsuit but for appellees’ alleged representations that they would send an accurate accounting and a payoff amount to her short ly after the dismissal was finalized , and that they would not proceed with any foreclosure actions until she had an opportunity to pay whatever amount was actually owed.– 11

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Statements such as these, however, are not misrepresentations of the “character, extent, or amount of a consumer debt.” See T EX
. F IN
. C ODE A NN . § 392.304(a)(8); see also Miller v. BAC Home Loans Servicing, L.P ., 726 F.3d 717, 723 (5th Cir. 2013); Robinson v. Wells Fargo Bank, N.A ., 576 F

. App ’ x. 358, 363 (5th Cir. 2014). Furthermore, Texas law provides that a promise to do or refrain from doing an act in the future is not actionable unless the promise was made with no intention of performing it at the time it was made. See Formosa Plastic s Corp. USA v. Presidio Engineers & Contractors, Inc ., 960 S.W.2d 41, 48 (Tex. 1998); see also Robinson , 576 F . App ’ x. at 363. Neither of appellees’ alleged representations satisfy this standard because appellant does not allege that appellees’ alleged pr omises to send an accounting or delay foreclosure were made without any intent ion of appellees performing th e m at the time they were made. See Robinson , 576 F . App ’ x. at 363; Carey v. Fargo , No. H

- 15

- 1666, 2016 WL 4246997, at *4 (S.D. Tex. Aug. 11, 2016). Additionally , a

ppellees’ alleged oral promise to delay foreclosure is governed by the statute of frauds. T he statute of frauds bars the enforcement of loan agreements that exceed $50,000 in value unless the agreement “is in writing and signed by the party to be bound or by that party’s authorized representative.” T EX
. B US
. & C OM
. C ODE A NN
. § 26.02(b). Th e definition of “loan agreement” includes an agreement to “delay repayment of money ” or “to otherwise extend credit or make a financial accommodatio n.” Id

. § 26.02(a)(2) ; Bank of Tex., N.A. v. Gaubert , 286 S.W.3d 546, 556 (Tex. App.

–

– Dallas, 2009, pet. dism’d w.o.j.). And o ral modifications of a written contract subject to the statute of frauds are also subject to the statute of frauds if they mater ially alter the obligations imposed by the original contract. Horner v. Bourland , 724 F. 2d 1142, 1148 (5th Cir. 1984); see also Deuley v. Chase Home Finance, LLC , Civ. A. No. H

- 05

- 04253, 2006 WL 1155230, at *2 (S.D. Tex. April 26, 2006)

. Th erefore , agreements to modify an existing loan agreement, including to forgo or delay foreclosure , are su bject to the statute of frauds. See , e.g.,– 12

–

Fields v. JP Morgan Chase Bank, N.A. , 638 F. App’x. 310, 313

– 14 (5th Cir. 2016) ; Williams v. Wells Fargo Bank, N.A ., 560 F. App’x. 233, 241 (5th Cir. 2014); Milton v. U.S. Bank Nat’l Ass’n , 508 F. App ’ x. 326, 329 (5th Cir. 2013) (per curiam)

. Because the original note was for $268,000 , an amount greater than $50,000, it was subject to the statute of frauds. Th us , a ny oral agreement to delay foreclosure , as alleged by appellant , would fall under section 26.02(b) and be included under the definition of “loan agreement” in section 26.02(a)(2). Appellant does not claim that a ppellees’ alleged oral promise to delay foreclosure was ever reduced to writing, nor does she allege a ppellees promised to sign a written agreement to postpone foreclosure that would comply with the statute of frauds. Hence , any claim under the TDCA based

on a ppellees’ alleged oral representation that they would delay foreclosure in order to give

a ppellant an opportunity to cure default is barred by the statute of frauds

. See Buchanan v. Compass Bank , No. 02

- 14

- 00034

- CV, 2015 WL 222143, at *4 (Tex. App.

— Fort Wo rth Jan. 15, 2015 , pet. denied) (mem. op.) ; Singh v. JP Morgan Chase Bank, N

. A

. , No. 4:11

- CV

- 607, 2012 WL 3904827, at *8 (E.D. Tex. July 31, 2012) , report and recommendation adopted , No. 4:11CV607, 2012 WL 3891060 (E.D. Tex. Sept. 7, 2012)

. Another argument made by appell a nt is that appellees violated the TDCA by initiating a foreclosure and scheduling the sale without providing prior notice. Section 51.002 of the Texas Property Code governs the sale of real property under deeds of trust or other contract liens. I t provides in part that a debtor in default under a deed of trust or other contract lien must be served with written notice by certified mail stating that the debtor is in default and giving the debtor at least twenty days to cure the default before notice o f sale can be given

. T EX
. P ROP
. C ODE A NN
. § 51.002(d). Notice of sale, in turn, must be given at least twenty

- one days before the date of sale by serving written notice of the sale by certified mail on each debtor who is obligated to pay. Id

. at § 51 .002(b)(3). Section 51.002(e) adds that “[s]ervice of a notice under this section by certified– 13

–

mail is complete when the notice is deposited in the United States mail, postage prepaid and addres sed to the debtor at the debtor’ s last known address , ” and th at “[t]he affidavit of a person knowledgeable of the facts to the effect that service was completed is prima facie evidence of service.” Id

. § 51.002(e). The affidavit of Nathaniel Mansi, a default service officer with Caliber, state d that on or about May 4, 2012, appellant was sent notice of her default under the loan via certified mail to appellant’s last known mailing address : 1903 Ridge Creek Drive, Richardson, Texas 75082

- 4609. Th e notice , a copy of which wa s attached to the affidavit, state d that $15,237.82 was due within thirty days to cure the default , and it provided in part as follows: If the default is not cured on or before June 3, 2012, the mortgage payments will be accelerated with the full amount remaining accelerated and becoming due a nd payable in full, and foreclosure proceedings will be initiated at that time. As such, the failure to cure the default may result in the foreclosure and sale of your property. Mansi’s affidavit also state d that on or about May 25, 2017, appellant was se nt a notice of substitute trustee sale via certified mail to her last known mailing address (1903 Ridge Creek Drive, Richardson, Texas 75082), advising that the property was scheduled to be posted for sale

o n July 4, 2017. C opies of the May 25, 2017 notic e of acceleration and the notice of substitute trustee’s sale we re attached to the affidavit

. A ppellees have produced competent summary judgment evidence that they sent appellant notice of default by certified mail that appropriately notified appellant of her default, her right to cure, the amount needed to cure, and a date by which to cure i n order to avoid acceleration. Th e time that passed between the notice of default and the ultimate acceleration of the loan obviously far exceed ed the requisite sta tutory period and the thirty days ’ notice specified in the deed of trust

. Furthermore, a

ppellant’s contention in her affidavit that she never received the notice of acceleration, notice of foreclosure, or notice of substitute trustee’s sale by certified m ail does not establish that appellees failed to comply with the statutory requirements. The statute makes it clear– 14

–

that service is complete d upon deposit in the mail, not actual receipt; there is no requirement that a plaintiff physically receive the noti ce in order for service to be valid and effective. See T EX
. P ROP
. C ODE A NN . § 51.002(e); Martins v. BAC Home Loans Serv., L.P ., 722 F.3d. 249, 256 (5th Cir. 2013); Thompson v. Bank of Am., N.A. , 13 F. Supp. 3d 636, 645

– 46 (N.D. Tex. 2014) ; see also Perkins v. Bank of Am ., 602 F . App ’ x. 178, 181 (5th Cir. 2015). In deed , appellant’s contention that she never received any notice of the foreclosure is under mined by her actions in filing th is suit to enjoin the foreclosure sale before it occurred. A ccor dingly, the trial court did not err in granting summary judgment on appellant’s claim s under the TDCA. We overrule appellant’s second issue

. 3. DTPA In her third issue, appellant contends that she has provided sufficient summary judgement evidence to supp ort her claim that a ppellees violated the DTPA. M ore s pecifically, a ppellant

a rgues that a ppellees used fraudulent, deceptive, or misleading representations in the collection of appellant’s debt . As support for this contention, appellant relies on statem ents in h er summary judgment affidavit , mentioned previously, regarding appellees’ alleged representation that they would send an accurate accounting and a payoff amount to her shortly after the dismissal of the first lawsuit, and that appellees would not proceed with any foreclosure actions until appellant had an opportunity to pay whatever amount was actually owed.

“ The DTPA grants consumers a cause of action for false, misleading, or deceptive acts or practices.” Amstadt v. U.S. Brass Corp ., 919 S.W.2d 644, 649 (Tex. 1996); see also T EX
. B US
. & C OM
. C ODE A NN . § 17.50(a) (1)

. The elements of a DTPA cause of action are that (1) the plaintiff is a consumer; (2) the defendant committed a wrongful act by engaging in a false, misleading, or deceptive act that is enumerated in a subdivision of the Texas Business and Commerce Code , section 17.46(b) , or breached an express or implied warranty, or engaged in an unconscionable action or course of action; and (3) the act was a producing cause of the plaintiff’ s damages.– 15

–

Henning v. OneWest Bank FSB , 405 S.W.3d 950, 968 (Tex. App.

– – Dallas 2013, no pet.) ; Godfrey v. Security Serv . Fed. Credit Union , 356 S.W.3d 720, 725 (Tex. App.

— El Paso 2001, no pet.); see also Cushman v. GC Servs ., LP, 657 F. Supp. 2d 834, 842 (S.D. Tex. 2009). But t he DTPA only provides a cause of action for “consumers,” and a consumer is defined as “an individual . . . who seeks or acquires by purchase or lease, any goods or services.” T EX
. B US
. & C OM
. C ODE A NN . § 17.45(4) ; Crown Life Ins. Co. v. Casteel , 22 S.W.3d 378, 386 (Tex. 2000); Riverside Nat’l Bank v. Lewis , 603 S.W.2d 169, 173 (Tex. 1980). In order to qualify as a consumer under the DTPA a person “must seek or acquire goods or services by lease or purchase” and “the goods or services sought or acquired must form the basis of the party’s compla i nt.” Fix v. Flagstar Bank, FSB , 242 S.W.3d 147, 1 59 (Tex. App.

– – Fort Worth 2007, pet. denied). Whether a person meets these requirements is a question of law

. Id

. “Generally, a person cannot qualify as a consumer if the underlying transaction is a pure loan because money is considered neither a good nor a ser vice.” Id

. (citing Riverside Nat’l Bank v. Lewis , 603 S.W.2d 169, 173

– 74 (Tex. 1980) ); see also Fuller v. Preston State Bank , 667 S.W.2d 214, 219 (Tex. App.

–

– Dallas 1983, writ ref ’ d n.r.e.) ; Comerica Bank

– Texas v. Hamilton , No. 05

- 93

- 01804

- CV, 1997 WL 421214 at *7 (Tex. App.

— Dallas July 28, 1997, no writ) (not designated for publication). S ince the Riversid e decision, however, “ the supreme court has limited the case to its facts, emphasizing that the claimant in Riverside sought only an ext ension of credit and nothing more. ” Fix , 242 S.W.3d at 159

. Thus, b orrowers can qualify as consumers if they borrow money for the purpose of buying a good or service and their complaint concerns the good or service they purchased. See , e.g., La Sara Grain Co. v. First Nat ’l Bank of Mercedes , 673 S.W.2d 558, 567 (Tex. 1984) ; Flenniken v. Longview Bank & Trust Co ., 661 S.W.2d 705, 70 7 (Tex. 1983) ; League v. Am. Home Mortg. Servicing Co. , No. 02

- 12

- 00317

- CV, 2013 WL 4679932, at *5 (Tex. App.

–– Fort Worth Aug. 29, 2013, no pet.) (mem. op.); Jackson v. Comerica Bank , No. 05

- 05

-– 16

–

01358

- CV, 2007 WL 926401 , at *1 (Tex. App.

– – Dallas Mar. 29, 2007 , no pet.) (mem. op

. )

.

“ A mortgagor qualifies as a consumer under the DTPA if his or her primary objective in obtaining the loan was to acquire a good or service, and that good or service forms the basis of the complaint .” Miller , 726 F.3d at 725

. But a mortgagor challenging how an existing mortgage i s serviced is not a consumer because the basis of the claim i s “the subs equent loan servicing and foreclosure activities, rather than the goods or services acquired in the original transaction.” Rojas v. Wells Fargo Bank, N.A ., 571 F

. App ’ x. 274, 279 (5th Cir. 2014) (citing Miller , 726 F.3d at 725)

. Also, “ [a] n activity rela ted to a loan transaction is a ‘service’ for DTPA purposes only if the activity at issue is, from the plaintiff’s point of view, an objective of the transaction, not merely incidental to it.” White v. Mellon Mort

. Co ., 995 S.W.2d 795, 801 (Te x. App.

–– Tyle r 1999, no pet.)

. Appellant’s DTPA claim is not premised on any deceptive acts re garding the purchase of
t he p roperty itself

. Her claims

– – e. g. , that appellees failed to provide her with an accurate accounting a nd failed to comply with an alleged oral agreement to delay foreclosure

– – are based

on how the mortgage l oan was administered or serviced. See Everson v. Mineola Comm. Bank, No. 12

- 05

- 334

- CV, 2006 WL 2106959, at *2 (Tex. App.―Tyler July 31, 2006, pet. denied) (mem. op.) ; Comerica Bank

– Tex. , 1997 WL 421214 , at *1

. Moreover, the servicing of an existing loan , foreclosure acti v i t ies , a nd a request to modify an existing loan do not involve a good or service under the DTPA

. See , e.g., Hansberger v. EMC Mortg. Corp ., No. 04

- 08

- 00438

- CV, 2009 WL 2264996 , *2 (Tex. App.

– – San Antonio July 29, 2009, pet. denied) (mem. op.) (citing Maginn v. Norwest Mortg. , Inc ., 919 S.W.2d 164, 167 (Tex. App.

– – Austin 1996, no pet.) ) ; Fowler v. U.S. Bank Nat’l Ass’n , 2 F. Supp. 3d 965, 974

– 75 (S.D. Tex. 2014)

. As we noted before, a ppellant does not complain about any allegedly deceptive acts re lated
to financing the purchase of the property ; her complaints concern activities that pertain to the servicing of the mortgage loan. See Brown v. Bank of Galveston, Nat ’l Ass ’n , 930 S.W.2d 140,– 17

–

144 (Tex. App.

— Houston [14th Dist.] 1996), aff’d , 963 S.W.2d 511 (Tex. 1998)

. In fact, a p pellees played no role in the transaction under which appellant purchased the property ; they were subsequent assigne es /transferees

. See Reule v. M & T Mortgage , 483 S.W.3d 600, 614 (Tex. App.

— Houston [14th Dist.] 2015, pet. denied)

. Accordingly, we conclude the trial court did not err in granting summary judgment on appellant’s DTPA claim , and we overrule appellant’s third issue. W e affirm the trial court’s judgment.

/Lana Myers/ LANA MYERS JUSTICE

180456F.P05– 18

– 

## Court of Appeals Fifth District of Texas at Dallas

JUDGMENT FARROKH EBRAHIMI, Appellant No. 05

- 18

- 00456

- CV V. CALIBER HOME LOANS, INC, AND U.S. BANK TRUST, NATIONAL ASSOCIATION, AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST, Appellees On Appeal from the 162nd Judicial District Court, Dallas County, Texas Trial Court Cause No. DC

- 17

- 07628. Opinion delivered by Justice Myers. Justices Molberg and Osborne participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED . It is ORDERED that appellees CALIBER HOME LOANS, INC, AND U.S. BANK TRUST, NATIONAL ASSOCIATION, AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST recover their costs of this appeal from appellant FARROKH EBRAHIMI. Judgment entered this 15 th day of April, 2019.