### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-40742 Summary Calendar

LAWRENCE M. MILTON, Plaintiff – Appellant

v. U.S. BANK NATIONAL ASSOCIATION, as Trustee for the Registered Holders of GSRPM 2004-1, Mortgage Pas s - Through Certificates; OCWEN LOAN SERVICING, L.L.C., Defendants – Appellees

Appeal from the United States District Court for the Eastern District of Texas Case No. 4:10-CV-538

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * Lawrence Milton appeals the district court’s summary judgment in favor of U.S

. B ank National Association (“U.S. Bank”) and Ocwen Loan Servicing, L.L.C. (“Ocwen”). For the following reasons, we AFFIRM. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Janu ary18 , 20 13 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 12-40742 Document: 00512118013 Page: 1 Date Filed: 01/18/2013No. 12-40742

BACKGROUND L awr e n c e Milt o n p urchased property located at 7712 Sar a go s a C r e e k R o a d in Plano, Texas (the “Property”), with a loan memorialized by a purchase money

n o t e in the amount of $295,000 (the “Note”), which was secured by a deed of trust on the Property (the “Deed of Trust”). U.S. Bank is the current holder of the Note and Deed of Trust, and Ocwen is the mortgage servicer for U.S. Bank. It is undisputed that, in July 2009, Milton defaulted on his payment obligations and Ocwen correspondingly sent Milton a Notice of Default, Notice of Acceleration of Loan Maturity, and Notice of Foreclosure Sale

. That fall, Milton applied for a l o a n m o dif ic atio n through the Home Affordable Modification P r o gr a m (“HAMP”). Milton alleges that, on October 2, 2009, Ocwen oral l y represented that his home would not be foreclosed upon while his HAMP application was pending, and that process i n g w o u ld likely take from 60 to 90 day s . By letter dated October 13, 2009—a letter Milton alleges he never received—Ocw e n r e ported that Milton was not eligible for a HAMP loan modification because the subject loan “failed the net present value or NPV test

as established by the gover n m e n t rules.” Ocwen separately mailed Milton a notice informing him that a non-judicial foreclosure sale had been scheduled for N o v ember 3, 2009. Milton alleges that, in response to that letter, he cal l e d Ocwen to confirm that foreclosure would not proc e ed until his HAMP application

was processed. According to Milton, an Ocwen representative orally confirmed that the Property would not be foreclos e d u p on while his application was pending. On November 3, 2009, the Property was sold at a foreclosure sale. Three days later, Milton received a handwritten notice from Ocwen informing him of the foreclosure. Milton alleges that over the next few days, he contacted Ocwen

on numerous occasions and was given co n flicting information. According to
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Milton, some representatives infor m e d hi m th at hi s HAM P ap p lic ati o n r e m ained pending; others informed him that it had been denied. Some told him that the foreclosure sale had been stopped; others told him that the Property had been sold and the sale was final. On November 23, 2009, M i l t o n filed this wrongful foreclosure action in Texas state court, and defendants timely removed to federal district court for the Eastern D i s t r ict of Texas on diversity grounds. The Second Amended Complaint, the operative pleading, asserts claims fo r breach of contract, p r o m i s s o r y e s t o p p e l , f r a u d , n e gl i g e n c e, gross negligence, ne gl i g e n t misrepresentation, and unreasonable collection efforts. The distri c t court granted defendants’ joint m o ti on for summary judgment, entered final judgment in favor of the defendants on all counts, and dismissed the case with prejudice. Milton timely appealed. STANDARD OF REVIEW We review a distric t c o u rt ’ s s u m m ary j udgment de novo, applying the same
s t a n dard as the district court

. Moss v. BMC Software, Inc. , 610 F.3d 917, 9 2 2 (5th Cir. 2010). Summary judgment is warranted if, viewing all evidence in the light most favorable to the non-moving party, the record d e m o n s tr at e s that there is no genuine issue of material fact a n d that the moving party is entitled to judgment as a matter of law. Id. (citing F E D
. R. C I V
. P. 56(a)). A fact is material if it “might affect the outcome of the suit under the governing law,” and a dispute is genuine if “the evidence is such that a reasonable jury could return a verdict f or th e no n m ovin g p arty . ” A n de rs o n v . L i b e r t y Lo b b y, I n c . , 4 7 7 U

. S

. 2 4 2 , 2 4 8 ( 1 9 8 6)

. DISCUSSION Plaintiff’s b r e a c h of contract claim is premised on Ocwen’s al leged oral agreement to delay forec losure untilMil ton’s HAM P app li cation ha d been p roces sed. An agreement to delay foreclosure is subject to the Texas statute of frauds, and, accordingly, must be in writing to be enforceable. See T E X
. B U S
. & C O M
. C O D E §
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26.02(a), (b); Burnette v. Wells Fargo Bank, N.A. , No. 4:0-CV-370, 20 1 0 W L 1026968, at *4–*5 (E.D. Tex. Feb. 16, 2010) (applying Texas law); Deuley v. Chase Home Fin. LLC, No. H-05-04253, 2006 WL 1155230, at *2 (S.D. Tex. Apr. 26, 2006) (applying Texas law); Krudop v. Bridge City State Bank , No. 09-05-111 CV, 2006 WL 3627078, at *4 (Tex. App.–Beaumont Dec. 14, 2006, pet. denied). The district court held, and we agree, that because there was no wr i t t en agreement to delay foreclosure, plaintiff’s breach of contract claim is barred by the statute of frauds. Bank of Tex., N.A. v. Gaubert , 286 S.W.3d 546, 556 (Tex. App.–Dallas, 2009, pet. dism’d w.o.j.). The district court did no t address plaintiff’s remaining claims for
p r o m i s s o r y e s t o p p e l , f r a u d , n egligence, gross neglig e n c e , n e gl i g e n t misrepresentation, and unreasonable collection efforts on the basis that they

were inadequately briefed. We take no position on the adequacy of the briefing below, and hold, for the following reasons, that judgment as a matter of law was properly entered for the defendants. Plaintiff’ s p romissory estoppel claim is unavailing because plaintiff has failed to allege or introduce evidence that Ocwen promised to reduce its alleged oral misrepresentations into writing. See Maginn v. Norwest Mortg
. I n c . , 919 S.W.2d 164, 168 (Tex. App.–Austin 1996, no writ) (holding t h a t s u mmary judgment with respect to an estoppel claim is proper when no evidence exists to establish an oral agreement to reduce an otherwise unenforceable promise to wri t ing, in satisfaction of the statute of frauds); see also Deuley , 2006 WL 1155230, at *2 (dismissing estoppel claim p r edicated on mortgage servicer’s representation that it would accommo d ate plaintiffs’ request for loan assistance,

on the basis that the mortgage servicer never orally agreed t o r e d u c e that promise to writing). Plaintiff’s negligent misrepresentation claim fails because, “under Texas l a w , p r o m i s e s o f fu t u r e a c t i o n a r e n o t a c t i o n a b l e a s a
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n egligent-misrepresentation tort.” See De Franceschi v. BAC Home Lo a n s Servicing, L.P. , 477 F. App’x 200, 205 (5th Cir. 2012) ( citing Sc h e r e r v . Angell , 253 S.W.3d 777, 781 (Tex. App.–Amarillo 2007, no pet.)); see also Edwards v. Ocwen Loan Servicing, LLC, No. 9:10cv89, 2012 WL 844396, at *6 (E.D. Tex. M a r. 12, 2012) (holding that plaintiff did not state a viable claim for negligent repre s e n tation because the alleged misrepresentation—the mortgage servicer

woul d n o t f

o r e c l o s e o n th e p r operty while plaintiff’s loan modification application

was pending—was a promise of future conduct). But see Burnet t e , 2010 WL 1026968, at *7 (holding that plaintiff stated a viable claim for negl i g e nt misrepresentation in alleging that a m ortgage servicer misrepresented that a “foreclosure sale would not occur w h i l e D efendants reviewed [plaintiff’s loan modification application]”). 1 Plaintiff’s negligence and gross ne gligence claims fail because, under Texas law, there is “no special relationship between a mo rtgagor and mortgagee” that would give rise to a stand-alone duty of good faith and fair dealing. UMLIC VP LLC v. T & M Sales & Envtl. Sys., Inc. , 176 S.W.3d 595, 612 (Tex. App.–Corpus Christi, 2005, pet. denied); see also Burnette , 2010 WL 1026968, at *8 (dismissing plaintiff’s gross negligence claim on that basis). Finally, plaintiff’s fraud and unreasonable collection efforts claims are not supported by evidence sufficient to survive summary judgment. The summary judgment record is devoid of a n y evidence, apart from Milton’s unsupported

s p e c u lation, that the purported misrepresentations were made knowingly o r with reckless disregard for their falsity, In re FirstMerit Bank, N.A. , 52 S.W.3d 749, 758 (Tex. 2001), or were “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.–Dal l as, 2008, no pet.). Moreover, his reliance on oral

To the exten t that Burne tte is inco nsi st ent wi th this se ttl ed pr incip le of Texas law , we 1 dec line to fol lowit

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representations by customer service representatives that were contradicted by the terms of the loan agreement and the notice of foreclosure was not reasonable

as a matter of law. TMI, Inc. v. Brooks , 225 S.W.3d 783, 795 (Tex. App.–Houston [14th Dist.], 2007, pet. denied). Viewed in the light most favorable to Milton, no
r e asonable jury could conclude on the basis of the evidence before it tha t t h e defendants’ action s were fraudulent and their collection efforts were unreasonable. See Edwards , 2012 WL 844396, at *6–*7

. For the foregoing reasons, U.S. Bank and Ocwen are entitled to judgment as a matter of law. AFFIRMED.

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