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

No. 12-40895

ADRIAN VERDIN, Plaintiff—Appellant,
v. FEDERAL NATIONAL MORTGAGE ASSOCIATION; W ELLS 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: ** We l l s F a r go Bank, N.A. (“Wells Fargo”) f oreclosed o n Adrian Verdin’s home and sold it to the Federal National Mortgage Association (“Fannie Mae”). Verdin sued Wells Fargo and Fannie M a e (“Defendants”) alleging various statelaw causes of action. Th e district c ourt gr anted Defendants’ Rule 1 2(b)(6) motion 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 15, 2013 Ly l e W . Cay ce Clerk

* D is trict Jud ge of

the Wes tern D is trict of Texas , s itting by d es ignation.

* * Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should 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: 12-40895 Document: 00512343097 Page: 1 Date Filed: 08/15/2013No. 12-40895

on Verdin’s n egligent-misrepresentation a nd g r o s s-negligence claims and gran t e d D efendants’ motion for summary judgment on Verdin’s remaining claims. We AFFIRM. I. Wells F argo extended Verdin a loa n f or the p urchase o f a Plano, Texas residence (the “ Property”). The l oan w a s e v i d enced b y a fixed-rate note (the “Note”) and secured by a deed of t r u s t ( j ointly referred to as the “Loan Agreement”). Verdin defaulted on the Note when he did not make the required payments for M arch and April of 2010. Wells Fargo mailed Verdin notice of his default, b ut he neither c ured his d efault nor made the May and June payments. Wells F argo accelerated the Note and scheduled a foreclosure sale o n August 3, 2010. I n early July, Wells Fargo informed Ve r d i n t h at he could r e instate the Note by paying $21,371, the total amount due and owing at that time. On July 27, exactly one-week prior to the schedul e d f o r e closure sale, Verdin called W ells Fargo to discuss his options. Verdin alleges that d uring this conversation, he requested t h e 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 3 0. I n it, Verdin requested that Wells Far g o “ stop the foreclosure procedures so that [he could]
pursue the sale o f the [Property].” On August 2, Verdin call e d W e l l s F a rgo to inquire about the status o f the foreclosure sale. Wells Fargo told him that the sale had not been postponed.

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Approximately forty minutes b efore the s c heduled foreclosure sale on Augu s t 3 , Verdin called Wells Fargo to a sk if the foreclosure sale had been postponed. Wells Fargo informed Verdin that, to postpone the sale, he must produce proof of p ayoff funds totalin g e xactly $22,179.68, the current amount due and owing o n the Note. Verdin did not produce the required proof of payoff funds, and Wells Fargo sold the Property to Fannie Mae. Ve r di n s ued D efendants in Texas state c ourt, and Defendants removed th e case to the United States District C ourt for t he E astern District of Texas. The district court dismissed Verdin’s negligent-misrepresentatio n and grossnegligence 1 claims under Federal Rule of Civil Procedure 1 2(b)(6). The district court al s o gr a nt e d D efendants’ motion for summary j udgment on Verdin’s claims for breach of c ontract, a nticipatory breach of contract, unreaso n a b l e collection efforts, violations of the Texas Debt Collection Act (“TDCA”), qui e t t i tle, and trespass to try title. Verdin timely filed a notice of appeal. I I. We review de novo the distric t c o u rt’s order granting Defendants’ Rule 12(b)(6) mo t i o n on Verdin’s negligent-misrepresentation claim. Torch Liquidating Trust ex rel. Bri d ge A s s ocs. 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 i nf

o r m a t ion” and t hat he suffered pecuniary loss in reliance on that information. Horizon Shipbuilding, Inc. v. BLyn II Holding, L .L.C. , 324 S.W.3d 840, 8 50 (Tex. App.—Hous t o n [ 1 4 t h Dist.] 2010, no p et.) (citation omitted). Here, Verdin failed to plead facts establishing either element.

1 Verd in d idnot p urs ue his gros s - negligence claim on ap p eal. 3 Case: 12-40895 Document: 00512343097 Page: 3 Date Filed: 08/15/2013No. 12-40895

Under Texas law, “the misrepresentation at issue must be one of existing fact.” BCY W

a t e r S u p ply 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 i n the future is not actionable.” Id. ; see also Scherer v. Angel l , 253 S.W.3d 777, 781 (Tex. App.—Amarillo 2007, no pet.). Wells Fargo’s only a llegedly false representation—that Verdin should submit a request for postponement and “n o t worry about the foreclosure”—relates to a promise to do something in t he future. This representation is not one of existing fact and is not actionable under Texas law. E v e n if D e f

e n dants supplied Verdin with f alse information, T exas requ ir e s pecuniary l oss i ndependent from the loan agreement to support a negligent-misrepresentation claim. D.S.A., Inc. v. Hillsboro I ndep. Sc h

. D ist. , 973 S.W.2d 662, 663–64 (Tex. 1998) (citation o mitted). M ental anguish does not qualify as pecuniary loss. Fed. Land Bank Ass’n of T yler 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 c ourt granted Defendant’s motion for summary judgment on Verdin’s remaining claims. We review a g r a n t of summary j udgment de novo , applying the same standard as the district court and viewing the e vidence in the light m ost favorable to the nonmoving party. Amerisure Ins. Co. v. Navigators Ins. Co. , 611 F.3d 299, 3 04 (5th Cir

. 2 0 1 0). We address each o f Verdin’s remaining claims in turn.

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Verdin alleges W e l ls Fargo breached the Loan A greement by (1) failing to p r o v i de Verdin an updated amount to reinstate the Note, and (2) pursuing for eclosure of t he Property after waiving i t s right to f oreclose. To begin, the Loan Agreement d o es not require Wells Fargo to provide updates on the exact payment amount required to reinstate the Note; 2 therefore, Verdin’s claim f ails

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

mu st have e ither i ntended to relinquish its right or intentionally engaged in conduct inconsistent with that right. Ulico Cas. Co. v . A l l i e d Pi lots Ass’n , 262 S.W.3d 773, 778 (Tex. 2008). Waiver b y implication only occurs when conclusive evidence shows the party unequivocally m anifests its i n t ention to no longer assert its right. G.H. Bass & Co. v . Dalsan Props.–Abilene , 885 S.W.2d 572, 577 (Tex. App.—Dallas 1 9 9 4 , n o writ) (“[I]t is the burden of the party who is to benefit b y a showing o f waiver to produce conclusive evidence that the opposite party [unequivocally] manifested its intent to no l onger assert its claim. This is

a particularly o n erous burden.” (int e r n al qu o t a ti o n m ark s a n d c it ation o mitted)). 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 b r e a c h e d the Loan Agreement. To p revail on this c laim, Verdin must prove “(1) an absolute repudiation of [an] obligation; (2) a lack of a just excuse for the repudiation; and (3) damage t o the non-repudiating party.” Gonzalez v. Denning , 394 F.3d 388,

2 The Loan Agreem ent requires Wells Fargo to p rovid e the borrow er notice “of the right to reins tate af

ter acceleration” and allow s the borrow er to reins tate the N ote “at any tim e p rior to

. . . f ive days bef

ore s ale of the Prop erty, ” but d oes not im p os e any contractual obligation on Wells F argo to calculate the reins tatem ent f igure f or the borrow er. 5 Case: 12-40895 Document: 00512343097 Page: 5 Date Filed: 08/15/2013No. 12-40895

394 ( 5th Cir. 20 0 4 )

. Here, Verdin i s unable t o demonstrate that Wells Fargo made a n absolute r epudiation of an obligation because p roviding mixed signals of a n i n tent to foreclose—i.e., suggesting that it would consider a postponement and not to worry about a foreclosure—does not rise t o an absolute declaration of intent to abandon an obligation. See, e.g. , Narvaez v . Wilshire Credit Corp. , 757 F. S u pp. 2d 621, 632 (N.D. Tex

. 2 010) (concluding that a bank’s c o nflicting messages regarding the status of a loan “[fell] short of the positive and unconditional repudiation n ecessary to maintain a cause of action for anticipatory breach”). 3 Verdin next a l l eges 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 d efendant’s conduct “was willful, wanton, malicious, and intended to inflict mental anguish and bodily harm.” E MC M o rtg

. Co rp . v . J

o n es , 2 5 2 S .W .3 d 8 5 7 , 8 6 8 (T e x . Ap p .—D a lla s 2 0 0 8 , n o p e t.) (citation omitted). Simply put, the record does no t contain any f acts t hat would s upport a finding t hat 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 m aintains that Wells Farg o v i o l ated § 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 f

a l s e r e presentation or deceptive m eans t o collect a debt.” Tex. Fin.

3 Becaus e each of Verd in’s breach- of

- contract claim s f ails , there is no bas is to conclud e that the f

o r e c l o s u r e s ale is void

. Accord ingly, Verd in is unable to es tablis h that he has s u p e r i o r t i tle to the Prop erty and , theref ore, his s uit to quiet title and tres p as s- to- try- title actions als o f

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

Code § 392.304(a) ( 1 9 )

. “To violate the TDCA u sing a misrepresentation, ‘the de b t c o llector must have made an affirmative statement that was false or misleading.’” Kruse v. Bank of N. Y. Mellon , — F.Supp.2d

— , 2 013 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. T ex. J an. 18, 2013)). Here, even assuming Wells Fargo told Verdin “ not to worry about t h e f o r e c losure,” Verdin does not allege that Wells Fargo made an affirmative statement that it w ould forgo foreclosure. Accordingly, the district c ourt did not e rr i n concluding that Wells Fargo’s statement “not to worry about the f oreclosure” did not constitute a violation of § 3 92.304(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 , I nc ., Civ. A. No. H-12-1875, 2012 WL 3648414, at *6 (S.D. Tex. Aug. 2 3, 2012)). Accordingly, Verdin’s claims under both §§ 392.304(a)(8) and (19) fail. Verdin’s c laim under § 392.3 0 3 ( a) ( 2 ) a lso fails because the Loan Agreement expressly a uthorizes 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 W e lls Fargo’s right t o accelerate and foreclose upon Verdin’s nonperformance. Moreover, t he TDCA d oes n ot prohibit a creditor from “exercising or threatening to e xercise a statutory or contractual right of seizure, repossession, or sale that does not requi r e c o u r t proceedings.” Tex. Fin. Code § 392.301(b)(3). 4 IV. For the f oregoing reasons, the district court’s orders granting Defendant’s motions to dismiss and for summary judgment are AFFIRMED.

4 Verd in’s reques t for an accounting and f or d eclaratory jud gm ent both f ail becaus e the d is trict court p rop erly dis p os ed of his und erlying s ubs tantive claim s .

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