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, Appellees

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 Osborne

Opinion by Justice Myers

Appellant Farrokh Ebrahimi appeals from a summary judgment granted in favor of 

appellees Caliber Home Loans, Inc., and U.S. Bank Trust, National Association, as trustee for 

LSF9 Master Participation Trust. In three issues, appellant argues her claims are not barred by res 

judicata, and that she provided sufficient evidence to support her claims for violation of the Texas 

Debt Collection Act and the Texas Deceptive Trade Practices and Consumer Protection Act. We 

affirm. 

BACKGROUND AND PROCEDURAL HISTORY

On September 18, 2003, appellant Farrokh Ebrahimi executed a note for $268,000 that was

payable to America’s Wholesale Lender. Along with the note, appellant executed a deed of trust 

(collectively referred to as the “loan”) granting a security interest in a property located at 1903 
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Ridge Creek Drive, Richardson, Texas 75082 (the “property”) to secure the note. The deed of 

trust identified Mortgage Electronic Registration Systems, Inc. (“MERS”) as the beneficiary under 

the security instrument, and America’s Wholesale Lender was the lender. The 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 loan by failing to make the installment payments. A notice of 

default dated May 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, appellee Caliber Home Loans, Inc. (“Caliber”) advised 

that on April 26, 2016, the servicing of the mortgage loan had been transferred from Bank of 

America to Caliber. 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 loan and it was referred to foreclosure. A 

June 6, 2016 notice of acceleration and a notice of a substitute trustee’s sale were sent to appellant 

via certified mail at the Ridge Creek Drive address. The notice of acceleration stated that Caliber 

was acting as the mortgage servicer for U.S. Bank, the mortgagee of the note, and that the 

mortgagee had accelerated the maturity date of the debt because of appellant’s failure to pay the 

past-due balance on the debt. The accompanying notice of substitute trustee sale advised that the 

property would be posted for sale on July 5, 2016. In response to a letter from appellant’s former 

attorney, Caliber sent a letter to appellant dated June 28, 2016, that enclosed a copy of the note, 
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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 abovereferenced loan, provides this response to the letter received by Caliber on June 2 

7, 2016, wherein [the] Kricken Law Firm 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 balance of 

$268,000.00 with America’s Wholesale Lender.

• 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 

Oklahoma 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 refer to the enclosed payment history and Hazard Insurance Policy.

On June 30, 2016, appellant filed suit against Caliber in the 162nd Judicial District Court 

of Dallas County in order to stop the foreclosure sale, alleging there were questions regarding the 

chain of title and the deed of trust was not a valid contract. Caliber removed the case to the United 

States District Court for the Northern District of Texas. Appellant and Caliber subsequently filed 

an agreed stipulation of dismissal, dismissing with the prejudice the lawsuit and “all claims 

asserted or which could have been asserted by Plaintiff against Defendant.” The federal district 
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court terminated the case pursuant to the agreed stipulation of dismissal. 

After the first lawsuit was dismissed, appellant still failed to make the installment payments 

towards the loan, and U.S. Bank again undertook preparations to conduct a foreclosure sale. On 

May 25, 2017, a new notice of acceleration and a notice of substitute trustee’s sale were sent to

appellant via certified mail to the Ridge Creek Drive address, advising appellant that the property 

was scheduled to be sold on July 4, 2017. 

In response, appellant brought the underlying suit against 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). Appellees filed a traditional and no-evidence motion for summary judgment. Appellant 

responded to the motion and filed a first amended petition. The amended petition included the 

causes of action for violation of the TDCA and the DTPA, and added a claim for wrongful 

foreclosure. 

As part of her response, appellant included an affidavit in which she alleged that she had 

made all payments under the loan and that she and her husband made repeated requests to Caliber 

for an accounting of the loan. Appellees filed a reply in support of their motion for summary 

judgment that objected to appellant’s summary judgment evidence because the affidavit was selfserving, conclusory, and unsubstantiated. In addition, appellees argued that appellant’s claims 

were barred by res judicata. They also filed a supplement to their summary judgment motion that 

responded to the new allegations in appellant’s first amended petition, arguing in part that 

appellant’s wrongful foreclosure claim failed 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 Rules 166a(c) and 166a(i) of the Texas Rules 

 

1 The supplement stated that it was incorporated into appellees’ summary judgment motion as if fully set forth therein.
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of Civil Procedure.” This appeal followed. 

DISCUSSION

STANDARD OF REVIEW

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 noevidence summary judgment must assert that no evidence exists as to one or more of the essential 

elements of the nonmovant’s claim on which the nonmovant would have the burden of proof at 

trial. See TEX. R. CIV. 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 elements as to which there is no 

evidence.” TEX. R. CIV. 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

TEX. R. CIV. P. 166a(i); Henning, 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 (Tex. 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 scintilla 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 noevidence motion for summary judgment first. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 

(Tex. 2004).
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To prevail on a traditional summary judgment motion, a movant has the burden of proving 

she is entitled to judgment as a matter of law and that there is no genuine issue of material fact. 

TEX. R. CIV. 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, she 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 determining 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. Prop. 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. Where, 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. RES JUDICATA/WRONGFUL FORECLOSURE

In her first issue, appellant argues her 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 dismissed with prejudice) because 

both suits sought to challenge appellees’ right to foreclose by challenging the chain of title. In her 

brief, appellant repeatedly refers to the alleged improper foreclosure when claiming res judicata 

should not apply to her claims in this lawsuit, arguing in part that the prior lawsuit that was 
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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 related 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 response 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 the 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 foreclosure. See EverBank, N.A. v. Seedergy Ventures, Inc., 499 S.W.3d 

534, 544 (Tex. App.––Houston [14th Dist.] 2016, no pet.); In re PlainsCapital Bank, No. 13-16-

00592-CV, 2017 WL 1131092, at *5 (Tex. App.—Corpus Christi Mar. 27, 2017, no pet.) (mem. 

op.); Anderson 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 property 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. TEXAS DEBT COLLECTION ACT

In her second issue, appellant argues the trial court erred in granting summary judgment as 
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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 disclose 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.” TEX. FIN. CODE ANN. 

§ 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 owed, and that she 

requested (and was never sent) documentation for an accounting and proof of the assignment of 

the note. In addition, appellant alleged that appellees initiated the foreclosure and scheduled the 

sale of the home without providing prior notice. 

Appellant argues that the June 28, 2016 letter 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 had been assigned or was 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 takes these assertions at face value, the 
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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.” TEX. FIN. CODE ANN. § 392.304(b). Appellee Caliber Home Loans 

was the servicer of appellant’s home mortgage loan, the servicing of the loan having been 

transferred from Bank of America in April of 2016. Accordingly, the trial court properly granted 

summary judgment on appellant’s claim for violation of section 392.304(a)(4) of the Texas 

Finance Code. 

Appellant also argues that she provided competent summary judgment evidence in her 

affidavit that appellees violated 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 conclusory statements. Although appellees did 

not secure a ruling on their objections in the trial court, they contend their complaints were not 

waived and that objections that statements in an affidavit are conclusory are defects of substance 

that may be raised 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 not counted as 

summary judgment evidence.”). We need not resolve this question. Even if we assume the

affidavit was competent summary judgment evidence, appellant nonetheless failed to raise a fact 

issue regarding appellees’ alleged violations of section 392.304(a)(8). 

To begin with, appellant has not alleged appellees made any affirmative misrepresentations

regarding the character or amount of the loan. For a statement to constitute a misrepresentation

under the TDCA, the debt collector must have made an affirmative statement that was false or 
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misleading. Thompson 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 provide her with an accounting of 

the payments and other documentation concerning the loan, but she points to no affirmative 

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. But 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 deed of trust expressly provided

that appellees “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 

insufficient to cure the default under the loan were authorized by the deed of trust and did not 

violate 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 shortly 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. 
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Statements such as these, however, are not misrepresentations of the “character, extent, or amount 

of a consumer debt.” See TEX. FIN. CODE ANN. § 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 Plastics 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 promises to send an accounting or delay foreclosure were made 

without any intention of appellees performing them 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, appellees’ alleged oral promise to delay foreclosure is governed by the statute 

of frauds. The 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.” TEX. BUS. & COM. CODE ANN. § 26.02(b). The definition of “loan 

agreement” includes an agreement to “delay repayment of money” or “to otherwise extend credit 

or make a financial accommodation.” 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 oral modifications of a written 

contract subject to the statute of frauds are also subject to the statute of frauds if they materially 

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). Therefore, agreements to modify an existing loan 

agreement, including to forgo or delay foreclosure, are subject to the statute of frauds. See, e.g.,
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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. Thus, any 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 appellees’ alleged oral promise to delay foreclosure was ever 

reduced to writing, nor does she allege appellees 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 appellees’ alleged oral representation that they would delay foreclosure in order to give 

appellant 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 Worth 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 appellant 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. It

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 of sale can be given. TEX. PROP. CODE ANN. 

§ 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 
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mail is complete when the notice is deposited in the United States mail, postage prepaid and 

addressed to the debtor at the debtor’s last known address,” and that “[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, stated 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. 

The notice, a copy of which was attached to the affidavit, stated 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 and 

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 stated that on or about May 25, 2017, appellant was sent 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 

on July 4, 2017. Copies of the May 25, 2017 notice of acceleration and the notice of substitute 

trustee’s sale were attached to the affidavit. 

Appellees 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 in order to avoid acceleration. The 

time that passed between the notice of default and the ultimate acceleration of the loan obviously 

far exceeded the requisite statutory period and the thirty days’ notice specified in the deed of trust. 

Furthermore, appellant’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 mail does not 

establish that appellees failed to comply with the statutory requirements. The statute makes it clear 
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that service is completed upon deposit in the mail, not actual receipt; there is no requirement that 

a plaintiff physically receive the notice in order for service to be valid and effective. See TEX.

PROP. CODE ANN. § 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). Indeed, appellant’s contention 

that she never received any notice of the foreclosure is undermined by her actions in filing this suit 

to enjoin the foreclosure sale before it occurred. Accordingly, the trial court did not err in granting 

summary judgment on appellant’s claims 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 support her claim that appellees violated the DTPA. More specifically, appellant 

argues that appellees used fraudulent, deceptive, or misleading representations in the collection of 

appellant’s debt. As support for this contention, appellant relies on statements in her 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 TEX. BUS. &

COM. CODE ANN. § 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. 
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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 the 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.” TEX.

BUS. & COM. CODE ANN. § 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 complaint.” Fix 

v. Flagstar Bank, FSB, 242 S.W.3d 147, 159 (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 service.” 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). Since the Riverside decision, however, “the supreme court has limited the case 

to its facts, emphasizing that the claimant in Riverside sought only an extension of credit and 

nothing more.” Fix, 242 S.W.3d at 159. Thus, borrowers 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, 707 (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-
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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 is 

serviced is not a consumer because the basis of the claim is “the subsequent 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 related 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 (Tex. App.––Tyler 1999, no pet.). 

Appellant’s DTPA claim is not premised on any deceptive acts regarding the purchase of 

the property itself. Her claims––e.g., that appellees failed to provide her with an accurate 

accounting and failed to comply with an alleged oral agreement to delay foreclosure––are based 

on how the mortgage loan 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 activities, and 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, appellant does not complain about any allegedly deceptive acts related 

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

played no role in the transaction under which appellant purchased the property; they were 

subsequent assignees/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. 

We 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 15th day of April, 2019.