Opinion issued September 26, 2019

In The 

## Court of Appeals
For The 

## First District of Texas

———————————— NO. 01
- 18
- 00306
- CV

——————————— ANN DOUGLAS AASE , Appella nt

V. BUCKLEY MADOLE, P.C. , Appell e e

On Appeal from the 127th District Court

Harris County, T exas Trial Court Ca se No. 2017
- 33659
- A

MEMORANDUM OPIN ION
A ppellant Ann Aa se defaulted on her residential mortgage that was s ecur ed by a deed of trust

. Wells Fargo Bank , N.A., t he assignee of the deed o f t rust, sent
Aase a notice of default and in tent t o accel erate . A fter Aase failed to t im ely cure the default, W ells Fa rgo p urs ued forecl os ure and retained appellee Buckley2

Ma do le, P. C., as fo reclosure counsel

. Buckley Ma do le sent Aase a notice letter
under the Fair Debt C ollection Practices Act (FDC PA) , a nd te n days later, Buckley
Ma do le sent her a notice of accel eration of the loan and a notice of forecl osure sale. The property was t hen sold at forecl osure to Jelin is, LLC.
Aase su ed Wells Fargo, Buckley Ma do le , and Je lini s ( which was never
served )

. The t rial court granted the summary judgment motions of Wells Fargo and Buckley Ma do le and sever ed Aase ’ s cl aims against them . Aase appea ls only the

summary judgment in favor of Buckley Ma do le , asserting that its FDCPA letter
revoked or replaced Wells Far go ’ s n otice of default and intent to accel erate and
that the acceleration and foreclos ure was therefore improper and sho u ld be
rescinded

. We disagree and affirm the summary judgment for Buckley Ma do le

. Background
Ann Aa se purchased real property (a house) wit h a loan secured by a d eed of

t rust that was later assigned to Wells Fargo. Aase failed to make her September 2016 monthly payment, an d Wells Fargo sent he r a notice of default and intent to
accelera te (the Notice of Default ) dated October 17, 2016

. Th ere is no dispute that
Aase was in default. The Notice of Default included Aase ’ s delinquency amount ($7 ,435.47) an d set a November 21, 20 16 deadl ine for her to c ure the defa ult. The
No tice of Default ’ s t im eliness and content are not in dis pute

. T he de adli ne e xp ired
without A ase curing the default.3

Buck l e y Mado le , then a Dallas law firm, sent Aase a January 20, 2017 let ter (the FDCP A Letter ) with refer ence to Aa se ’ s loan and her p roperty with the following caption : “ FAIR DE BT COLLECTI ON PRACTICES A CT
N OTIFICATION

. ” 1 The te xt of the FDCPA Letter states that Buck l e y Madole
represent s Wells Fa

rgo and that it has been requested to pursue foreclos ure in

accor dance with Aase ’ s note , d eed of trust, and applicable law. The letter then

states the foll owing i nfor mation i n f our numbered paragr aphs : (1) the total

amount s to cure the defau lt and to pay off the debt as of January 13 , 2017; (2) the mailing address for Buck ley M adole and that the amounts to cure m ay vary and be
great er should Aa se choose to pay either amount, in w hich case Aase w i ll be
notified of the ad

just ed amount ; (3) that un les s Aase dis puted the v alidity of the
debt w ithin thirty days of her re ce ipt of the notice, Buck l e y Mado le would assume
th e debt t o be valid ; and (4) that if Aase dis puted the v alidi ty o f the debt w ithin thirty days of her re ceipt of the notice, Buck l e y Mado le would obtain and mail her

1 The top of the letter has the following statement:
LEGAL PRECEDENT IS N OT CLEAR AS TO WHET HE R THE SENDING O F TH IS LETTER MAKES US A DEBT COLLECTOR. TO THE EXTENT IT DOES, PLEASE BE ADVISED THAT THIS IS AN ATT E M PT T O COLLECT A DEBT , AND AN Y INFORMATION OB TAI NED WILL BE USED FOR THAT PURPO S E
. H OWEVER, IF YOU ARE IN BANKRUP T CY O R HAVE BEEN DISCHARGED IN BA NKR UPTCY , THIS LETTER IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED AS AN ATTEMPT TO COLLECT A DEBT OR AS AN AC T TO COLLECT, ASSES S, OR RE COVER ALL O R AN Y PORTION OF THE DEBT FROM YOU PERSONALLY.4

verification of the debt , and tha t if , w it hin thirty days of her re ceipt of the notice, Aase requ ested the name and address of the original cred itor, if d if ferent from the

current c r editor , Buck l e y Mado le would provid e her with the name and address of
the original cred itor

. Buck l e y Mado l e n ext se nt Aas e a January 30 , 2017 lett er ( the Notice of
Sale ) notif

ying her that the note had been accelerated and t h at fo rec lo sure of the

p roperty was scheduled for March 7, 2017. T he Notice of Sale i ncluded a not ice of
accel eration and notice of trus t e e ’ s sale. The fore cl osure took place as noticed , and
A ase was eventually ev icted.
Aase su ed Wells Fargo, Buckley Ma do l e , a nd Je lini s, seeking declarator y relief that the foreclosure w as void and should be resci nded because it was not properly noticed unde r the Texas Property Co de and the deed of trust. S he also
asserted c auses of action against Wells Fargo and Buckley Ma d o le fo r breach of

contract and for vio lating ch ap ter 92 of the Texas Finance Code (the Texas Debt
Collec tion Act) , with such violation be i ng a deceptive trade p ractice under chapter
17 of the Texas Busine ss and Commerce Code. All of Aase ’ s claims are pr emi sed

on her ass ertion s th at Buckley Ma do le ’ s FDCPA Letter revoked or replaced Wells Fargo ’ s Notice of D efault and that the FDCPA Letter was l egally inadeq uate in timing and content to serve as a default letter to support the Notice of Sale that was

sent ten day s after the FDCPA Letter

.5

B uck ley Madole mov ed for summar y judgm ent on the ground that its
FDCPA Letter was not a notice of default un der th e deed o f trust and T e xas law as

a matter of law and that it was entitl ed to summary judgment on all Aa se ’ s clai ms, wh ich were all ba sed on her allegation t hat the FDCPA Letter was a notice of
default that revoked or r ep lace d Wells Fargo ’ s Notice of Default

. The t rial court granted Buck ley M ad ol e ’ s summary judgment motion . Aase appeals, con tinuing to
assert that Buc kley M a do le ’ s FDCPA Letter “ undid the notice of intent to
accelerate that was in the Wells Fargo d efault l etter. ”
A nalysis
We review summ ary judgments de novo. City of Richardson v. Oncor Elec. Delivery Co. , 539 S.W.3d 252, 258 (Tex. 2018). S ummary judgme nt i s proper when the material fact s are not disputed and the moving party is entitled to judgment as a matter o f l aw. T EX

. R. C IV

. P. 166 a(c); Oncor Elec. , 539 S.W.3d at
258

– 59.

“ If a note or deed of trust secured by real property contains an optional
accelera tion clause, ” “ [ e ] ffective acceleration ” of the debt “ r equires t wo acts: (1) notice of intent to accelerate, and (2 ) notice of acceleratio n
. ” Holy C ross Church of God in Ch rist v. Wo lf , 44 S.W.3d 562, 566 (Tex. 2001) ; see EMC Mortg. Corp. v. Window Box Ass ’ n, Inc. , 264 S.W.3d 331, 335

– 36 (Tex. App.

— Waco 2008, no pet.)

. “ Both notices must be ‘ clear and unequivocal. ’ ” H oly C ross6

Church , 44 S. W.3d at 566 (quoting Shumway v. Horizon Credit Corp. , 801 S.W.2d 890, 893 (Tex. 1991)) ; EMC Mortg. , 264 S.W.3d at 33 6

. The no tice of intent to
accele rate must deman d payment of the past

- due amount and provide an
oppor tun ity fo r the mortga gor to cure the de fault. Shumway , 801 S.W.2d at 893 (citing Ogden v. Gibraltar Sav. Ass ’ n , 640 S.W.2d 232, 233

– 3 4 (Tex. 1982)) ; see also Stoerner v. Wells Fargo Bank, N. A. , No. H

- 18

- 3631, 2019 WL 3553912, at *2 (S.D. Tex. Aug. 5, 2019)

. The no tice of default must give t he debtor at least tw e nty days t o cure the default before sending th e debtor a notice of foreclosure sale. See
T EX

. P R OP

. C ODE § 51. 00 2(d)

. This appeal boils down to the legal effect, if any, of Buckley Ma do le ’ s
FDCPA Letter on Well s Fargo ’ s pr ior Notice of Defa ult and the acceleration of
Aase ’ s debt and the foreclosure

. A fe d era l court in Texas recently addresse d th is

v ery i ssue.
In McCullough v. Wells Fargo Bank, N. A. , No. SA

- 18

- CV

- 01066

- FB , 2019
WL 612995 ( W .D. Tex. Jan. 1 5, 2019) , the plaintif f s sued Wells Fa rgo in state

court for br each of contract and to enjoin foreclosur e on their home. T he plaintiffs alleged th at Wel l s Fargo , the mortgagee, failed to serve them with a n otice of
default at leas t tw enty days before the notice of s ale. Wells Fargo rem oved the case
to federal court and moved the court to dismiss the case because the plaintiff s ’ pleading fail e d to stat e a c laim on which relief can be granted

.7

More specifically, after the plaintiff mor tgagor defaul ted, Wells Fargo sen t
him a notice of de fault dated Ap ril 18, 2018. Then, on A ugust 21, 2018, Bo nial & Associates, P.C., We lls Fargo ’ s foreclosure counsel, se nt t h e plaintiffs letter s ti tle d

“ F air D ebt C ollection P ractices A ct N otifica t i on
. ” 2 That letter inform ed the plaintif fs that the law firm represented Wells Fargo and had been requested to initiate foreclosure proceedings under the deed of trust that the p lain t iffs had
executed in favor of the original mor tgagee

. A p p r oxi m at el y ten days later, o n August 30, 2018, Bon ial & Associates sen t the plaintiff mor tgagor a notice of
acceleration and sale stating that a foreclosure sale was scheduled for October 2,
2 018. Mc Cullough 

### , 2019 WL 612995 , at *1. Like Aase, the plaintiffs in McCullough alleged that the law firm ’ s FD CPA

n otifica t i on letters were notices of default and that the law firm ’ s notice of sale letter, sent only nine days later, w as premature an d i n vi olation of Texas Property
Code section 51.002(d ) , which requires at least twen ty days ’ notice. Id. at *3. Wells Fargo argued, a nd the federal court agreed, that the law firm ’s FD CPA

n otifica t i on letters were not notices of default ; “ rather, they wer e initial

comm unication letters sent for the purpose of complying with 15 U.S.C. § 1692g

. Simply put, an initial communicatio n letter is not a notice of default. ” Id. at * 4

. The FD CPA , a f

ederal law,

2 Appel lee Buckley Ma dole is n ow kno wn as Bonial & Associa tes, P. C.8

requires a debt collector, within five da ys a fter its “init ial communic ation with a consumer in connection with the collection of any debt,” to send the consumer a written notice containing five disclosures. [ 3 ] 15 U.S.C. § 1692g(a) . The purpose of the debt collector’s ini tial letter un der § 1692g(a) “is to advise the debtor of the ‘right to seek validation of the debt and di spute the validity of the debt.’ ” EMC Mortg. Corp. v. Window Box Ass’n , In c. , 264 S.W.3d 331, 33 7 (Tex. App.

—

Waco 2008, no pet.) (quoting Eads v. Wolpoff & Abra mson, LLP , 538 F. Supp. 2d 981, 989 (W.D. Tex. 2008) ). “The notice requirements under 15 U.S. C. § 1692g(a) are di stinct from the notice requirements under the deed of trust in this case.” Jacaman v. Nationstar Mortgage , LLC , No. 04

- 17

- 00048

- CV, 2018 WL 842975, at *7 n.3 (Tex. App.

— San Antonio February 14, 2008, no pet.) [ (mem. op.)] (not designated for publication)

. Id. Like Buckley Madole ’ s FD CPA L etter to Aase, the let ters sent by Bon ial &
Associates to the McCullo ugh pla inti f fs cont ained all of the information required by the FD CPA

. Id. The federal court noted that, in contrast,

3 The five disclosure s required in the written notice are: (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirty days after receipt of the notice, di sputes t he validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collec tor; (4) a statement that if the consumer notifies the debt collector in writing within the thirty

- day period that the debt, or any portion ther eof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the co nsum er and a copy of such ve rification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the cons umer’s w ritten request within the thirty

- day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. 15 U.S.C. § 1692g(a)

.9

the Texas Property Code requires a “mortgage servicer

. . . [to] serve a debtor in default under a deed of trust

. . . with written notice by certi fied mail stating that the debtor is in default under the deed of trust

. . . and giving the debtor at least 20 d ays to cure th e default before notice of sale can be given

. . . . ” T EX

. P ROP

. C ODE A NN

. § 51.002(d) . The lett ers at issue here fail to meet the requirements of the Texas Property Code because they (1) were not sent by certified mai l; and (2) did not inform Plaintiffs that they had at least twenty days to cure the default before notice of sale could be given. It f ollows that t he letters were not notices of default. Cf. EMC Mortg. , 264 S.W.3d at 33 6

– 37 (determining th at a debt collector’s initial letter under the FDCPA di d not constitute a notice of acceleration because it did not comply with the requirements of a notice of acceleration unde r Texas law). Accordingly, Defendant [Wells Fargo] was not required by the Texas Property Cod e to provide Plaintiffs with an additiona l twenty days to cure the loan default after Bonial & Associates sent them the initial communication letters.
Id. (footnote omitted).
Ac cord ingly, because the law firm ’ s letter w as not a second and thus untimely notice of default, and bec ause the law firm ’ s F D CPA letters were not

not ices of de fault, th e federa l court h eld that Wells Fargo ’ s notice of default was timely under P roper ty Cod e se ction 51.002(d). Id. at *5.
W e agree wi th the feder al court ’ s anal ysis and similarly hold that Buck ley
Madole ’ s FDCPA Lett er to Aase was not a second d efault letter that “ undid , ”

re voked, or re placed Wells Fargo ’ s N otice of D ef ault to Aase. Buck ley Madole ’s
F DCPA Lett er was not a second no tice of default ; it was , “ [s] imply put, an initial
communication letter [ under the F D C PA , which ] is not a n otice of default. ” Id. at

* 4

. Moreover, Buckley Madole ’s FDCPA Lett er did not contain any language10

p u rpor ting to re voke or rep lace Wells Fargo ’s N otice of D ef ault

. The refore, Buck ley Madole ’s Notice of Sale to Aase was timely under
P roper ty Code section 51.002(d) a nd under Aase ’s deed of trust, which r equired
th irty days ’ notice

. Bec ause th e premise of Aase ’s c laims against Buck l e y M ad ole
fail s as a matter of law, the trial court properly granted Buck l e y Mad ole ’s motion for summary judgment

. C onclusion
We affirm the trial court ’ s summary judgment for Buck ley Madole

.

Richard Hightower Justice
Panel consists of Just ices Kelly , Hightower , a nd Cou ntiss

.