IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40895

ADRIAN VERDIN,

Plaintiff—Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION; WELLS FARGO BANK,

N.A.,

Defendants—Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:10-CV-590

Before ELROD and HIGGINSON, Circuit Judges, and MARTINEZ, District

Judge.*

PER CURIAM:**

Wells Fargo Bank, N.A. (“Wells Fargo”) foreclosed on Adrian Verdin’s

home and sold it to the Federal National Mortgage Association (“Fannie Mae”). 

Verdin sued Wells Fargo and Fannie Mae (“Defendants”) alleging various statelaw causes of action. The district court granted Defendants’ Rule 12(b)(6) motion

United States Court of Appeals

Fifth Circuit

F I L E D

August 15, 2013

Lyle W. Cayce

Clerk

* District Judge of the Western District of Texas, sitting by designation.

** 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.

 Case: 12-40895 Document: 00512343097 Page: 1 Date Filed: 08/15/2013
No. 12-40895

on Verdin’s negligent-misrepresentation and gross-negligence claims and

granted Defendants’ motion for summary judgment on Verdin’s remaining

claims. We AFFIRM.

I.

Wells Fargo extended Verdin a loan for the purchase of a Plano, Texas

residence (the “Property”). The loan was evidenced by a fixed-rate note (the

“Note”) and secured by a deed of trust (jointly referred to as the “Loan

Agreement”). Verdin defaulted on the Note when he did not make the required

payments for March and April of 2010. Wells Fargo mailed Verdin notice of his

default, but he neither cured his default nor made the May and June payments. 

Wells Fargo accelerated the Note and scheduled a foreclosure sale on August 3,

2010. In early July, Wells Fargo informed Verdin that he could reinstate the

Note by paying $21,371, the total amount due and owing at that time.

On July 27, exactly one-week prior to the scheduled foreclosure sale,

Verdin called Wells Fargo to discuss his options. Verdin alleges that during this

conversation, he requested the amount needed to reinstate the Note and

explained that he found a potential buyer willing to purchase the Property. 

According to Verdin, Wells Fargo responded by telling him “not to worry about

the foreclosure” and to submit a request for postponement of the foreclosure sale. 

Wells Fargo received Verdin’s request for postponement on July 30. In it, Verdin

requested that Wells Fargo “stop the foreclosure procedures so that [he could]

pursue the sale of the [Property].” On August 2, Verdin called Wells Fargo to

inquire about the status of the foreclosure sale. Wells Fargo told him that the

sale had not been postponed. 

2

 Case: 12-40895 Document: 00512343097 Page: 2 Date Filed: 08/15/2013
No. 12-40895

Approximately forty minutes before the scheduled foreclosure sale on

August 3, Verdin called Wells Fargo to ask if the foreclosure sale had been

postponed. Wells Fargo informed Verdin that, to postpone the sale, he must

produce proof of payoff funds totaling exactly $22,179.68, the current amount

due and owing on the Note. Verdin did not produce the required proof of payoff

funds, and Wells Fargo sold the Property to Fannie Mae.

Verdin sued Defendants in Texas state court, and Defendants removed the

case to the United States District Court for the Eastern District of Texas. The

district court dismissed Verdin’s negligent-misrepresentation and grossnegligence1

claims under Federal Rule of Civil Procedure 12(b)(6). The district

court also granted Defendants’ motion for summary judgment on Verdin’s claims

for breach of contract, anticipatory breach of contract, unreasonable collection

efforts, violations of the Texas Debt Collection Act (“TDCA”), quiet title, and

trespass to try title. Verdin timely filed a notice of appeal.

II.

We review de novo the district court’s order granting Defendants’ Rule

12(b)(6) motion on Verdin’s negligent-misrepresentation claim. Torch

Liquidating Trust ex rel. Bridge Assocs. L.L.C. v. Stockstill, 561 F.3d 377, 384

(5th Cir. 2009) (citation omitted). To prove a negligent-misrepresentation claim

in Texas, Verdin must establish, inter alia, that Defendants supplied him with

“false information” and that he suffered pecuniary loss in reliance on that

information. Horizon Shipbuilding, Inc. v. BLyn II Holding, L.L.C., 324 S.W.3d

840, 850 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citation omitted). 

Here, Verdin failed to plead facts establishing either element.

1 Verdin did not pursue his gross-negligence claim on appeal.

3

 Case: 12-40895 Document: 00512343097 Page: 3 Date Filed: 08/15/2013
No. 12-40895

Under Texas law, “the misrepresentation at issue must be one of existing

fact.” BCY Water Supply Corp. v. Residential Invs., Inc., 170 S.W.3d 596, 603

(Tex. App.—Tyler 2005, pet. denied). “A promise to do or refrain from doing an

act in the future is not actionable.” Id.; see also Scherer v. Angell, 253 S.W.3d

777, 781 (Tex. App.—Amarillo 2007, no pet.). Wells Fargo’s only allegedly false

representation—that Verdin should submit a request for postponement and “not

worry about the foreclosure”—relates to a promise to do something in the future. 

This representation is not one of existing fact and is not actionable under Texas

law.

Even ifDefendants supplied Verdin with false information, Texas requires

pecuniary loss independent from the loan agreement to support a

negligent-misrepresentation claim. D.S.A., Inc. v. Hillsboro Indep. Sch. Dist.,

973 S.W.2d 662, 663–64 (Tex. 1998) (citation omitted). Mental anguish does not

qualify as pecuniary loss. Fed. Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d

439, 442–43 (Tex. 1991). Here, Verdin has merely alleged losses relating to the

Loan Agreement and mental anguish. Therefore, the district court did not err

by dismissing Verdin’s negligent-misrepresentation claim.

III.

The district court granted Defendant’s motion for summary judgment on

Verdin’s remaining claims. We review a grant of summary judgment de novo,

applying the same standard as the district court and viewing the evidence in the

light most favorable to the nonmoving party. Amerisure Ins. Co. v. Navigators

Ins. Co., 611 F.3d 299, 304 (5th Cir. 2010). We address each of Verdin’s

remaining claims in turn.

4

 Case: 12-40895 Document: 00512343097 Page: 4 Date Filed: 08/15/2013
No. 12-40895

Verdin alleges Wells Fargo breached the Loan Agreement by (1) failing to

provide Verdin an updated amount to reinstate the Note, and (2) pursuing

foreclosure of the Property after waiving its right to foreclose. To begin, the

Loan Agreement does not require Wells Fargo to provide updates on the exact

payment amount required to reinstate the Note;2therefore, Verdin’s claim fails

on that ground. Next, to waive its contractual right to foreclose, Wells Fargo

must have either intended to relinquish its right or intentionally engaged in

conduct inconsistent with that right. Ulico Cas. Co. v. Allied Pilots Ass’n, 262

S.W.3d 773, 778 (Tex. 2008). Waiver by implication only occurs when conclusive

evidence shows the party unequivocally manifests its intention to no longer

assert its right. G.H. Bass & Co. v. Dalsan Props.–Abilene, 885 S.W.2d 572, 577

(Tex. App.—Dallas 1994, no writ) (“[I]t is the burden of the party who is to

benefit by a showing of waiver to produce conclusive evidence that the opposite

party [unequivocally] manifested its intent to no longer assert its claim. This is

a particularly onerous burden.” (internal quotation marks and citation omitted)). 

Although Wells Fargo’s alleged statement that Verdin should not “worry about

the foreclosure” is inconsistent with its right to foreclose, it falls short of being

an unequivocal manifestation of Wells Fargo’s intent to forego that right.

Verdin also alleges that Wells Fargo anticipatorily breached the Loan

Agreement. To prevail on this claim, Verdin must prove “(1) an absolute

repudiation of [an] obligation; (2) a lack of a just excuse for the repudiation; and

(3) damage to the non-repudiating party.” Gonzalez v. Denning, 394 F.3d 388,

2 The Loan Agreement requires Wells Fargo to provide the borrower notice “ofthe right

to reinstate after acceleration” and allows the borrower to reinstate the Note “at any time prior

to . . . five days before sale of the Property,” but does not impose any contractual obligation on

Wells Fargo to calculate the reinstatement figure for the borrower.

5

 Case: 12-40895 Document: 00512343097 Page: 5 Date Filed: 08/15/2013
No. 12-40895

394 (5th Cir. 2004). Here, Verdin is unable to demonstrate that Wells Fargo

made an absolute repudiation of an obligation because providing mixed signals

of an intent to foreclose—i.e., suggesting that it would consider a postponement

and not to worry about a foreclosure—does not rise to an absolute declaration of

intent to abandon an obligation. See, e.g., Narvaez v. Wilshire Credit Corp., 757

F. Supp. 2d 621, 632 (N.D. Tex. 2010) (concluding that a bank’s conflicting

messages regarding the status of a loan “[fell] short of the positive and

unconditional repudiation necessary to maintain a cause of action for

anticipatory breach”).3

Verdin next alleges Wells Fargo used unreasonable collection efforts to

collect on its debt. Although the elements of such a claim are not clearly defined

and may vary from case to case under Texas law, all plaintiffs must show that

the defendant’s conduct “was willful, wanton, malicious, and intended to inflict

mental anguish and bodily harm.” EMC Mortg. Corp. v. Jones, 252 S.W.3d 857,

868 (Tex. App.—Dallas 2008, no pet.) (citation omitted). Simply put, the record

does not contain any facts that would support a finding that Wells Fargo’s

actions constituted “a course of harassment that was willful, wanton, malicious,

and intended to inflict mental anguish and bodily harm.” Id.

Verdin also maintains that Wells Fargo violated § 392.304(a)(19)

§ 392.304(a)(8), § 392.303(a)(2), and § 392.301(a)(8) of the TDCA. Section

392.304(a)(19) is a catch-all provision that prohibits a debt collector from “using

any other false representation or deceptive means to collect a debt.” Tex. Fin.

3 Because each of Verdin’s breach-of-contract claims fails, there is no basis to conclude

that the foreclosure sale is void. Accordingly, Verdin is unable to establish that he has

superior title to the Property and, therefore, his suit to quiet title and trespass-to-try-title

actions also fail.

6

 Case: 12-40895 Document: 00512343097 Page: 6 Date Filed: 08/15/2013
No. 12-40895

Code § 392.304(a)(19). “To violate the TDCA using a misrepresentation, ‘the

debt collector must have made an affirmative statement that was false or

misleading.’” Kruse v. Bank of N. Y. Mellon, — F.Supp.2d —, 2013 WL 1294088,

at *2 (N.D. Tex. Apr. 1, 2013) (quoting Hassell v. Bank of Am., N.A., Civ. A. H12-1530, 2013 WL 211154, at *4 (S.D. Tex. Jan. 18, 2013)). Here, even assuming

Wells Fargo told Verdin “not to worry about the foreclosure,” Verdin does not

allege that Wells Fargo made an affirmative statement that it would forgo

foreclosure. Accordingly, the district court did not err in concluding that Wells

Fargo’s statement “not to worry about the foreclosure” did not constitute a

violation of § 392.304(a)(19). Moreover, “‘[r]efusing to provide a payoff quote is

not an affirmative misrepresentation of the amount of debt.’” Hassell, 2013 WL

211154, at *4 (quoting Nolasco v. CitiMortgage, Inc., Civ. A. No. H-12-1875, 2012

WL 3648414, at *6 (S.D. Tex. Aug. 23, 2012)). Accordingly, Verdin’s claims

under both §§ 392.304(a)(8) and (19) fail. 

Verdin’s claim under § 392.303(a)(2) also fails because the Loan

Agreement expressly authorizes Wells Fargo to demand fees and charges in the

event of a default. Finally, Verdin’s claim under § 392.301(a)(8) fails because the

Loan Agreement vested Wells Fargo’s right to accelerate and foreclose upon

Verdin’s nonperformance. Moreover, the TDCA does not prohibit a creditor from

“exercising or threatening to exercise a statutory or contractual right of seizure,

repossession, or sale that does not require court proceedings.” Tex. Fin. Code

§ 392.301(b)(3).4

IV.

For the foregoing reasons, the district court’s orders granting Defendant’s

motions to dismiss and for summary judgment are AFFIRMED.

4 Verdin’s request for an accounting and for declaratory judgment both fail because the

district court properly disposed of his underlying substantive claims.

7

 Case: 12-40895 Document: 00512343097 Page: 7 Date Filed: 08/15/2013