IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

SANTOS MOLINAR-OWENS, Plaintiff

-vsFIFTH THIRD MORTGAGE COMPANY

 Defendant

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CIVIL ACTION NO. 5:20-CV-00751

ORDER ON MOTION FOR SUMMARY JUDGMENT

On this date, the Court considered Defendant’s motion for summary judgment (docket no. 

26), Plaintiff’s response (docket no. 27), and Defendant’s reply (docket no. 30). After careful 

consideration, Defendant Fifth Third Mortgage Company’s motion is GRANTED.

BACKGROUND

On February 22, 2013, Plaintiff’s deceased former spouse, Jeffrey Peter Anthony Owens 

(“Mr. Owens”), signed a promissory note (“Note”) in the original principal amount of 

$215,117.00, payable in favor of Fifth Third Mortgage Company (“Defendant”).

1 The same day, 

Mr. Owens granted a security interest encumbering his homestead, located at 5620 Poppy Seed 

Run, San Antonio, Texas 78238 (the “Property”) by signing a Deed of Trust (“Deed of Trust”).

Collectively, the Note and Deed of Trust comprise the loan at issue in this lawsuit (the “Loan”), 

which was issued in renewal and extension of a pre-existing lien on the Property. Docket no. 26-

2; docket no. 26-3 at 11, 17. The Note provides that failure to make the required monthly payments 

constitutes a default allowing the mortgagee to accelerate the Note by requiring the unpaid balance 

1 Fifth Third Mortgage Company was the lender identified in, and beneficiary under, the Deed of Trust. Fifth 

Third Bank N.A., as successor by merger to Fifth Third Mortgage Company, is the mortgagee of record in accordance 

with the Deed of Trust.

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to be paid immediately. Docket no. 26-2 at 2. The Deed of Trust similarly authorizes the 

acceleration of the maturity date, and also allows the mortgagee to foreclose on the Property, 

subject to certain notice requirements. Docket no. 26-3 at 10.

Mr. Owens passed away on September 14, 2016, approximately one year after his marriage

to Plaintiff on September 13, 2015. Docket no. 27 at 16, 30. On January 12, 2018, after some 

confusion as to whether he died intestate, Mr. Owens’s sister, Laura Tompkins, was appointed as 

the executor of his estate. Docket no. 27 at 44. In his will, Mr. Owens left all of his property and 

estate to Ms. Tompkins and her husband, Mark Tompkins, in equal shares, thereby making them 

the beneficiaries of the Property. On January 17, 2018, Plaintiff and Ms. Tompkins entered into a

Rule 11 agreement, approved by the probate court on January 27, 2018, which authorized Plaintiff 

“to maintain her homestead interest and rights to the former marital residence” and indicated that 

“Santos Molinar-Owens shall have said residence refinanced in her name.” Id. at 50–52.

On February 19, 2018, Defendant sent a Notice of Default to Mr. Owens at the Property 

address by U.S. Certified Mail, Return Receipt Requested, advising that as of the date of the letter, 

the Loan was in default in the amount of $4,449.43, and that “failure to bring the loan current by 

March 25, 2018 (within 34 days from the date of th[e] letter) will result in acceleration of your 

loan, the foreclosure and sale of the property secured by the mortgage.” Docket no. 26-4 at 2. The 

default on the loan was not cured at any time.

On August 7, 2019, Defendant sent a Notice of Substitute Trustee’s Foreclosure Sale (the 

“Foreclosure Notice”) by certified mail to both the Property address and Ms. Tompkins as the 

administrator of Mr. Owens’s estate. no. 26-5 at 7–11. The Foreclosure Notice was also filed with 

the Bexar County Clerk and posted at the Bexar County Courthouse in accordance with Section 

51.002(b) of the Texas Property Code. Id. at 5. In relevant part, the Foreclosure Notice included 

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an acceleration provision indicating that “[d]efault has occurred in the payment of the Indebtedness 

secured by the deed of trust. Therefore, the beneficiary accelerates the maturity of the Indebtedness 

and declares the entire Indebtedness immediately due and payable.” Id. at 9. The Foreclosure 

Notice also indicated that the Property would be non-judicially foreclosed and sold on October 1, 

2019, at the Bexar County Courthouse. Id. at 7. 

On October 1, 2019, the Property was purchased at the foreclosure sale by Fifth Third for

$193,315.00. The foreclosure sale price represents 87.5% of the fair market value of the Property,

which was appraised at $221,020.00 by the Bexar County Central Appraisal District in 2019.

Docket no. 26-11. On November 4, 2019, the Property was conveyed to the Secretary of Veterans 

Affairs by warranty deed and recorded on the same date. Docket no. 26-6. The Secretary of 

Veterans Affairs then initiated a suit for forcible detainer against Plaintiff and all occupants of the 

Property in state court. On February 19, 2020, the Bexar County Justice of the Peace entered an 

Agreed Judgment of Possession—signed by representatives for both Plaintiff and Veterans 

Affairs—which provided that “[Veterans Affairs] is entitled to possession of the property located 

at 5620 Poppy Seed Run, San Antonio, Texas 78238.” Docket no. 26-7 at 2.

Despite Plaintiff’s agreement to yield possession of the Property to Veterans Affairs, it is 

undisputed that Plaintiff remains in possession of the Property. On June 22, 2020, Plaintiff filed 

this lawsuit in Bexar County state court seeking to enjoin Fifth Third or Veterans Affairs from 

taking possession of the Property notwithstanding the agreed judgment authorizing the transfer of 

possession. See docket no. 1-1 at 4–9. In her original petition, Plaintiff alleged that Fifth Third was 

“fully aware of the court order which awarded Plaintiff title to the subject property” and that it had 

wrongfully foreclosed on her homestead by failing to provide her with proper notices of default 

and foreclosure in accordance with Section 51.002 of the Texas Property Code before initiating 

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foreclosure proceedings. Id. at 6–7. On June 25, 2020, Fifth Third removed the action to this Court 

on the basis of federal question jurisdiction under 28 U.S.C. § 1331 (based on Plaintiff’s claims 

against a federal agency—the Department of Veterans Affairs) and diversity jurisdiction under 28 

U.S.C. § 1332. Docket no. 1 at 2–4. Thereafter, Plaintiff filed an amended petition, the operative 

complaint in this action. Docket no. 5.

On December 3, 2020, Secretary of Veterans Affairs conveyed the Property to Fifth Third 

by Deed Without Warranty. Docket no. 26-8. On March 24, 2021, the Court dismissed Plaintiff’s 

claims against Veterans Affairs without prejudice based on Plaintiff’s counsel’s representation at 

a status conference held on the same date that Plaintiff was unopposed to dismissal in light of the 

conveyance to Fifth Third. See Text Order, March 24, 2021.

Fifth Third now moves for summary judgment, asserting that Plaintiff’s wrongful 

foreclosure claim fails as a matter of law because (1) the pre-foreclosure notices complied with the 

requirements of Texas Property Code; (2) the foreclosure sale price representing 87.5% of the fair 

market value was not “grossly inadequate” under Texas law; and (3) Plaintiff continues to reside 

at the Property. Docket no. 26. 

DISCUSSION

I. Summary Judgment Standard

The Court shall grant summary judgment if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R.

CIV. P. 56. To establish that there is no genuine issue as to any material fact, the movant must 

either submit evidence that negates the existence of some material element of the non-moving 

party’s claim or defense, or, if the crucial issue is one for which the non-moving party will bear 

the burden of proof at trial, merely point out that the evidence in the record is insufficient to support 

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an essential element of the non-movant’s claim or defense. Little v. Liquid Air Corp., 952 F.2d 

841, 847 (5th Cir. 1992), on reh’g en banc, 37 F.3d 1069 (5th Cir. 1994) (citing Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986)). Once the movant carries its initial burden, the burden shifts to 

the nonmovant to show that summary judgment is inappropriate. See Fields v. City of S. Hous., 

922 F.2d 1183, 1187 (5th Cir. 1991). Any “[u]nsubstantiated assertions, improbable inferences, 

and unsupported speculation are not sufficient to defeat a motion for summary judgment,” Brown 

v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003), and neither will “only a scintilla of evidence” 

meet the nonmovant’s burden. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en 

banc). Rather, the nonmovant must “set forth specific facts showing the existence of a ‘genuine’ 

issue concerning every essential component of its case.” Morris v. Covan World Wide Moving, 

Inc., 144 F.3d 377, 380 (5th Cir. 1998). 

For a court to conclude that there are no genuine issues of material fact, the court must be 

satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, 

that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a 

verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In 

making this determination, the court should review all the evidence in the record, giving credence 

to the evidence favoring the nonmovant as well as the “evidence supporting the moving party that 

is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested 

witnesses.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000). The Court “may 

not make credibility determinations or weigh the evidence” in ruling on a motion for summary 

judgment, id. at 150, and must review all facts in the light most favorable to the nonmoving party. 

First Colony Life Ins. Co. v. Sanford, 555 F.3d 177, 181 (5th Cir. 2009). 

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II. Analysis

A. The Rule 11 Agreement did not confer any rights to Plaintiff under the Deed of Trust

As a preliminary matter, the Court must address certain misconceptions Plaintiff evidently 

holds about the scope of the Rule 11 Agreement filed in the probate proceedings. The amended

petition indicates that Plaintiff mistakenly believes that she was “awarded [] title to the subject 

property” when she entered into the Rule 11 Agreement with Ms. Tompkins on January 27, 2018. 

Docket no. 5 at 7. She was not. 

The Rule 11 Agreement merely recognized Plaintiff’s homestead interest in the Property.2

See docket no. 27 at 50–52. Such an interest can prevent foreclosure under some circumstances. 

See TEX. CONST. art. XVI, § 50(a) (“The homestead of a family, or of a single adult person, shall 

be, and is hereby protected from forced sale, for the payment of all debts except for [the 

enumerated exceptions]”). However, the homestead provisions of the Texas Constitution offer no 

protection where, as here, the loan is a renewal and extension of an existing lien against the 

homestead. See id. § 50(a)(4) (excepting “the refinance of a lien against a homestead” from the 

homestead foreclosure protections afforded by the Texas Constitution); docket no. 26-3 at 11, 17 

(indicating that the Note was issued in renewal and extension of a lien against homestead property). 

Moreover, although the Rule 11 Agreement contemplated that “Santos Molinar-Owens 

shall have said residence refinanced in her name,” it did not make Plaintiff a party to the Loan or 

affect Fifth Third’s rights under the Note or the Deed of Trust in any way—Fifth Third was not a 

2 The amended petition also suggests that Plaintiff seeks to challenge the validity of the Agreed Judgment of 

Possession, recognizing that Veterans Affairs was entitled to possession of the Property, because “her counsel at the 

time made no effort to explain to the Court her ability to comply with the Probate Court Order and failed to explain 

the ramifications of [the] Court’s Order.” Docket no. 5 at 6. But Plaintiff’s failure to understand the implications of 

the agreement is not a ground for disturbing it. See Estes v. Republic Nat. Bank of Dallas, 462 S.W.2d 273, 276 (Tex. 

1970) (“[T]he general rule is that in the absence of a showing of fraud or imposition, a party’s failure to read an 

instrument before signing it is not a ground for avoiding it.”). A cause of action arising out of bad legal advice or 

improper representation is legal malpractice. Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 481 (Tex. App.—Dallas 

1995, writ denied).

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party to the Rule 11 Agreement. Docket no. 27 at 51–52. Plaintiff asserts that “Defendant 

manufactured the default” by refusing to accept each of three mortgage payments she attempted 

to make to cure the default or to discuss a new loan with Plaintiff “as she was not the obligor on 

the note, not a beneficiary under the will and not the Executor of the Estate.”3 Docket no. 27 at 3; 

see id. at 46–48. Fifth Third, however, was well within its rights under Texas law to refuse 

payments from Plaintiff, who was neither a party to the Deed of Trust nor a third-party beneficiary 

thereunder.

4 See Olivares v. Pyatt, No. 2:15-CV-81, 2015 WL 12751698, at *2 (S.D. Tex. Aug. 

26, 2015) (concluding that the bank was under no obligation to accept payments from a purchaser 

of property subject to a mortgage lien where bank had not consented to permit him to continue 

making payments under the loan agreement, to which he was not a party).

B. Plaintiff’s wrongful foreclosure claim fails as a matter of law

Plaintiff alleges that Fifth Third wrongfully foreclosed on her homestead property by 

failing to comply with certain statutory notice requirements set forth in Section 51.002 of the Texas 

Property Code before initiating foreclosure proceedings.5 Docket no. 27, at 7–8. In Texas, a claim 

3 Plaintiff submits that these same barriers have thwarted her refinancing efforts. See docket no. 27 at 3. Despite 

her representation in the amended petition that she is “ready, willing and able to complete the transaction which would 

place the property in her stead,” docket no. 5 at 7, it appears that Plaintiff has been unable to secure financing to tender 

the amount due under the Loan, apparently because of problems with the Property’s foundation, see docket no. 26-13. 

Fifth Third asserts that Plaintiff’s failure to produce the amount due is itself dispositive of her wrongful foreclosure 

claim. See docket no 26 at 13 (citing McAuley v. Ameripro Funding, Inc., No. A-13-CV-679 LY, 2013 WL 12130363, 

at *7 (W.D. Tex. Dec. 3, 2013) (“[T]o set aside the foreclosure sale, a mortgagor must tender the amount owed on the 

mortgage.”)). Because this alleged defect appears to be curable, however, the Court will proceed to analyze the merits 

of Plaintiff’s wrongful foreclosure claim. 

4 While not specifically asserted by Plaintiff, the Court considers the possibility that Plaintiff is a third-party 

beneficiary to the Deed of Trust in light of its obligation to review the facts in the light most favorable to the 

nonmoving party. Sanford, 555 F.3d at 181. To overcome the presumption against third-party beneficiary agreements 

in Texas, City of Houston v. Williams, 353 S.W.3d 128, 145 (Tex. 2011), a plaintiff must establish that (1) the 

contracting parties intended to secure a benefit for the plaintiff and (2) the contracting parties entered into the contract 

directly for her benefit. Basic Capital Mgmt. v. Dynex Commercial, Inc., 348 S.W.3d 894, 900 (Tex. 2011). Here, 

there is no reason to believe that Plaintiff was an intended beneficiary of the Deed of Trust when it was executed on 

February 22, 2013, over two years before Mr. Owens and Plaintiff were married. Thus, to the extent Plaintiff ‘s claims 

depend on her status as a third-party beneficiary to the Deed of Trust, they fail as a matter of law. 

5 Although Plaintiff’s briefing describes the process by which a mortgage lender may obtain an order requiring 

the sale of property securing a lien through the Estates Code, Plaintiff concedes that “Fifth Third did not file an 

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for wrongful foreclosure requires a plaintiff to show: (1) a defect in the foreclosure proceedings; 

(2) a grossly inadequate selling price; and (3) a causal connection between the defect and grossly 

inadequate selling price. Foster v. Deutsche Bank Nat’l Trust Co., 848 F.3d 403, 406 (5th Cir. 

2017). A wrongful foreclosure claim cannot survive if the party asserting the claim never lost the 

property in question. Id. (citing Motten v. Chase Home Fin., 831 F. Supp. 2d 988, 1007 (S.D. Tex. 

2011) (reasoning that recovery is premised on lack of possession of the subject property)). 

1. The foreclosure proceedings were not defective

Plaintiff asserts that the foreclosure process was defective because Fifth Third failed to 

notify the executor of Owens’s estate (Laura Tompkins), the vested owners of the Property (Laura 

and Mark Tompkins), or the life estate and homestead interest holder (Plaintiff) of any default or 

intent to accelerate.6 Docket no. 27 at 7–12. Under Texas law, a foreclosure sale may be set aside 

as invalid if the notices required under § 51.002 are not properly and timely served. See Savers 

Fed. Sav. & Loan Ass’n v. Reetz, 888 F.2d 1497, 1501 n.6 (5th Cir. 1989). Section 51.002 of the 

Property Code requires that a debtor be served with two notices prior to foreclosure—a notice of 

application for sale of mortgage property in the Probate Court” and thus was subject to the “mandatory process for 

selling real property by non-judicial foreclosure.” Docket no. 27 at 8–9; see TEX. EST. CODE § 403.054 (“During an 

independent administration, a secured creditor whose claim is a preferred debt . . . is free to exercise any judicial or 

extrajudicial collection rights, including the right to foreclosure”). To the extent that Plaintiff’s claim for wrongful 

foreclosure implicates the Texas Estates Code, it fails as a matter of law given Defendant’s election to sell the Property 

by non-judicial foreclosure. 

6 Plaintiff’s summary judgment briefing also challenges the foreclosure based on the Affidavit of Military 

Status included with the Foreclosure Sale Deed, which indicates that Mr. Owens was not on active duty in any branch 

of the Armed Services in the twelve months preceding the foreclosure sale on October 1, 2019. See docket no. 27 at 

3,10 (citing docket no. 26-5 at 13–15). Plaintiff alleges the affidavit is “materially false” because it represents that Mr.

Owens was alive on October 1, 2019. Id. While the affidavit does incorrectly state that Mr. Owens was alive on the 

date of the foreclosure sale, the Court cannot agree with Plaintiff that it is “materially false.” The Affidavit of Military 

status is required in default judgment proceedings to ensure that servicemembers on active duty are afforded the 

protections of the Servicemembers Civil Relief Act (“SCRA”), 50 U.S.C. §§ 3901-4043. The SCRA prohibits a nonjudicial foreclosure sale of a servicemember’s property “during, or within one year after, the period of the 

servicemember’s military service.” 50 U.S.C. § 3953(c). Given that Mr. Owens died on September 14, 2016, it is 

undisputed that he was not on active duty status in the year preceding the foreclosure sale. Because neither Mr. Owens 

nor Plaintiff (as his spouse) were entitled to the protections of the SCRA on the date of the foreclosure sale, the 

misstatement in the affidavit that Mr. Owens was alive at the time is immaterial to the validity of the foreclosure.

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default and acceleration and a notice of sale. TEX PROP. CODE. § 51.002(b), (d); Rodriguez v. 

Ocwen Loan Servicing, LLC, 306 F. App’x 854, 855–56 (5th Cir. 2009) (per curiam). Plaintiff 

acknowledges that Fifth Third “did provide notice of the foreclosure sale to the Executor of the 

Estate of Jeffrey Owens.” Docket no. 27 at 9. Accordingly, Plaintiff’s attack on the sufficiency of 

the pre-foreclosure notices applies only to the notice of default and acceleration. The summary 

judgment record establishes that Fifth Third sent a notice of default and acceleration to Jeffrey 

Owens at the Property address on February 19, 2018. Docket no. 26-4 at 2–5. Plaintiff does not 

challenge the substance of the notice, which appears to comply with the requirements of Texas 

law.

7 Instead, she argues that the notice was deficient because it was sent to Mr. Owens, rather 

than the executor of his estate, the owners of the Property, or the occupant of the Property at the 

time the notice was issued. 

The Texas Property Code requires a mortgage servicer “shall serve a debtor in default under 

a deed of trust or other contract lien on real property used as the debtor’s residence with written 

notice by certified mail stating that the debtor is in default under the deed of trusts or other contract 

lien.” TEX. PROP. CODE § 51.002(d). Courts applying Texas law have agreed that mortgage lenders

need not send pre-foreclosure notices to any party other than the borrower, even where the nonborrowing party owns or occupies the subject property. See Olivares, 2015 WL 12751698, at *2–

3 (purchaser of property subject to mortgage lien who maintained possession of the property and 

made loan payments on behalf of the borrowers was not entitled to pre-foreclosure notices because 

he was not a party to the loan); Schlotte v. Option One Mortg. Corp., No. 09-11-00208-CV, 2012 

7 See Ogden v. Gibralter Savings, Ass’n, 640 S.W. 2d 232, 233 (Tex. 1982) (“In the case of a mortgage secured 

by a deed of trust, such notice must afford an opportunity to cure the default and bring home to the mortgagor that 

failure to cure will result in acceleration of the note and foreclosure under the power of sale.”); docket no. 26-1 at 3 

(Affidavit in Support of Motion for Summary Judgment); docket no. 26-4 at 2 (advising that “failure to bring the loan 

current by March 25, 2018 (within 34 days from the date of this letter) will result in acceleration of your loan, the 

foreclosure and sale of the property secured by the mortgage”).

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WL 1951125, at *4 (Tex. App. May 31, 2012) (“Although [the purchaser] had an interest in the 

property, as noted above, he was not a party to the note or the deed of trust, and thus was not 

entitled to notice of the foreclosure sale.”). This is true even where the borrower is deceased. See

Bank of N.Y. Mellon Tr. Co. v. Hancock, No. 5:19-CV-270-H-BQ, 2020 WL 5417128, at *4 n.3

(N.D. Tex. May 18, 2020), findings, conclusions, and recommendation accepted, 2020 WL 

2989023 (N.D. Tex. June 4, 2020) (concluding that notice of acceleration directed to deceased 

borrower after her death rather than to her heirs—one of whom resided on the subject property—

was adequate under Texas law); Deutsche Bank Tr. Co. Ams. for Residential Asset Mortg. Prods., 

Inc. v. Comstock, No. 3:16-CV-3210-G-BH, 2018 WL 3352992, at *9 (N.D. Tex. June 11, 2018), 

report and recommendation adopted, 2018 WL 3344374 (N.D. Tex. July 9, 2018) (finding 

mortgage servicer had satisfied notice requirement by notifying the debtor, who was deceased, of 

the default and acceleration); Morgan v. Chase Home Fin., LLC, 306 F. App’x 49, 52–56 (5th Cir. 

2008) (concluding that deceased borrower’s common-law wife and administrator of his estate was 

not entitled to notice of default and an opportunity to cure).

Despite Plaintiff’s possession of the Property on the date Fifth Third sent the notice of 

default, Plaintiff was not the “debtor” under the Deed of Trust and thus was not entitled to notice 

under Texas law.

8 Nor, indeed, were the Tompkins, as the owners of the Property, see Olivares, 

2015 WL 12751698, at *2–3; Hancock, 2020 WL 5417128, at *4 n.3, or Ms. Tompkins, as the 

administrator of Mr. Owens’s estate, see Morgan, 306 F. App’x at 52–56.9 In short, the notice of 

8 Even if Plaintiff were a borrower under the Deed of Trust, the notice directed to Mr. Owens at the Property 

address—where Plaintiff evidently lived at the time and continues to reside—would likely constitute constructive 

notice to Plaintiff under Texas law. See Daniels v. Regions Bank, No. 4:19-cv-00416-P, 2019 WL 4735800, at *10–

12 (N.D. Tex. Sept. 27, 2019) (finding such constructive notice where, as here, the deed of trust stated that “[n]otice 

to any one Borrower shall constitute notice to all Borrowers unless Applicable law expressly requires otherwise.”). 

9 Fifth Third asserts that, even if Ms. Tompkins were entitled to notice, as either an owner of the Property or 

the administrator of Mr. Owens’s estate, Plaintiff would not have third-party standing to assert claims on her behalf. 

Docket no. 30 at 2–3. Generally, a litigant has third-party standing to sue on behalf of another individual if: (1) the 

litigant has suffered an injury-in-fact giving the litigant a sufficiently concrete interest in the outcome of the issue; (2) 

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default and intent to accelerate sent to Mr. Owens—the only debtor under the Deed of Trust—after 

his death was sufficient under the Texas Property Code. See id. at 55 (Texas law does not require 

a mortgage servicer “in the event of the death of a debtor . . . to conduct some level of investigation 

to determine the legal heirs for purposes of proper notification prior to foreclosure.”).

2. The selling price at the foreclosure sale was not “grossly inadequate”

Plaintiff has also failed to demonstrate a genuine issue of material fact as to the second 

element of a wrongful foreclosure claim—a grossly inadequate selling price. Foster, 848 F.3d at 

406. The “weight of Texas authority rejects a determination of gross inadequacy where . . . [the] 

property sells for over 60% of fair market value.” Fed. Deposit Ins. Corp. v. Blanton, 918 F.2d 

524, 531–32 (5th Cir. 1991). As such, “[t]he Fifth Circuit has recognized, that under Texas law, a 

selling price is not grossly inadequate if the property sells for at least 60% of its fair market value.”

Ayers v. Parker, No. SA-12-CV-621-XR, 2013 WL 4048328, at *8 (W.D. Tex. July 29, 2013) 

(citing Fed. Deposit Ins. Corp. v. Blanton, 918 F.2d 524, 531 (5th Cir. 1990)). 

Here, Plaintiff cannot establish that the selling price for approximately 87.5% of the fair 

market value was “grossly inadequate” under Texas law. Indeed, she appears to concede as much, 

instead arguing that alleged deficiencies in the pre-foreclosure notices excuse her from 

demonstrating that the sale price was inadequate. Docket no. 27 at 11 (citing Matthews v. 

JPMorgan Chase Bank, NA, No. 3:11-CV-00972-M, 2011 WL 3347920, at *6 (N.D. Tex. Aug. 1, 

the litigant has a close relationship with the third party on whose behalf the right is asserted; and (3) there is a genuine 

obstacle to the third party’s ability to protect her own interests. Kowalski v. Tesmer, 543 U.S. 125, 130 (2004). While

Defendant correctly observes that there is no reason to believe that Ms. Tompkins faces a genuine obstacle to 

protecting her own interests, standing rules appear to be more relaxed in the context of a foreclosure sale. Goswami v. 

Metro. Sav. & Loan Ass’n, 751 S.W.2d 487, 489 (Tex. 1988) (“[W]hen the third party has a property interest, whether 

legal or equitable, that will be affected by such a sale, the third party has standing to challenge such a sale to the extent

that its rights will be affected by the sale.”). Nonetheless, “standing to bring a claim is only useful when one has a 

viable claim to bring.” Olivares, 2015 WL 12751698, at *3. Given the adequacy of selling price and Plaintiff’s 

continued possession of the Property, even third-party standing would do nothing to cure the deficiencies in her claim 

for wrongful foreclosure. 

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2011) (“While Plaintiff does not explicitly allege that an inadequate sale price was recovered for 

the Property, the Court is not convinced by the cases cited by Defendants, which generally relate 

to technical errors in the foreclosure process, that a plaintiff given no notice of an opportunity to 

cure cannot sue for wrongful foreclosure.”). This argument is unavailing, however, given the 

Court’s conclusion that Defendant’s pre-foreclosure notices were adequate under Texas law.

Because neither the pre-foreclosure notices nor the selling price were deficient, Plaintiff 

cannot establish the third element of a claim for wrongful foreclosure—a causal connection 

between the defect in the foreclosure proceedings and the gross inadequacy of the selling price. 

Foster, 848 F.3d at 406. Accordingly, her claim for wrongful foreclosure fails as a matter of law.

3. Plaintiff’s possession of the Property precludes her wrongful foreclosure claim

Even if Plaintiff could demonstrate an issue of material fact as to the adequacy of the preforeclosure notices and foreclosure sale price—and the Court concludes that she cannot—she 

would not be entitled to relief under Texas law because she has not lost possession of the Property. 

A wrongful foreclosure claim cannot survive if the party asserting the claim has not lost possession 

of the property in question. Motten v. Chase Home Fin., 831 F. Supp. 2d 988, 1007 (S.D. Tex. 

2011) (reasoning that recovery is premised on lack of possession of the subject property). As such, 

Texas courts do not recognize an action for attempted or anticipatory wrongful foreclosure. See

Motten, 831 F. Supp. 2d at 1007. Despite the Agreed Judgment of Possession acknowledging that 

Plaintiff was not entitled to possession of the Property, it is undisputed that Plaintiff remains in 

possession of the Property. Thus, Plaintiff’s wrongful foreclosure claim cannot survive summary 

judgment. 

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C. Plaintiff is not entitled to injunctive relief

Because Plaintiff’s substantive claim for wrongful foreclosure fails as a matter of law, it 

cannot support her claim for injunctive relief. See docket no. 5 at 4–5. “Under Texas law, a request 

for injunctive relief is not itself a cause of action but depends on an underlying cause of action.” 

Cook v. Wells Fargo Bank, N.A., No. 3:10–CV–0592–D, 2010 WL 2772445, at *4 (N.D. Tex. July 

12, 2010) (citing Brown v. Ke–Ping Xie, 260 S.W.3d 118, 122 (Tex. App.—Houston [1st Dist.] 

2008, no pet)). Accordingly, injunctive relief is not appropriate here.

CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment (docket no. 26) is 

GRANTED. The Clerk is DIRECTED to enter judgment in favor of Defendant and against 

Plaintiff. Plaintiff shall take nothing by her claims and her claims are DISMISSED WITH 

PREJUDICE.

Defendant is awarded costs and may file a bill of costs pursuant to the local rules. A final 

judgment pursuant to Rule 58 will follow.

It is so ORDERED.

SIGNED this 31st day of January, 2022.

XAVIER RODRIGUEZ

UNITED STATES DISTRICT JUDGE

Case 5:20-cv-00751-XR Document 34 Filed 01/31/22 Page 13 of 13