UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

EDWARD L. VINSON,

Plaintiff,

v. No. 4:22-cv-0928-P

AMERIHOME MORTGAGE COMPANY, LLC

ET AL.,

Defendants.

ORDER & OPINION

Before the Court is Defendants’ Motion for Summary Judgment. ECF 

No. 8. Having considered the Motion, applicable law, and docket entries, 

the Court holds that the Motion is GRANTED.

BACKGROUND

Plaintiff Edward Vinson executed a Note for $480,000 to purchase

property in Mansfield, Texas (“the Property”). ECF No. 9 at 9. He 

secured repayment of the Note with a Deed of Trust (“Deed”). Id. 

Defendant Amerihome Mortgage Company is the holder of the Note and 

beneficiary of the Deed. Id. After Vinson failed to maintain his payments 

on the Note, Amerihome sent him notice of default and gave him time to 

cure the default. ECF No. 9-1. Vinson failed to do so. Id. So the Property 

was noticed for foreclosure sale. Id.

To halt the sale, Vinson sued Defendants in Texas state court for 

negligence, negligent misrepresentation, violation of Chapter 51 of the 

Texas Property Code, and breach of contract. ECF No. 1-5. After 

obtaining a temporary restraining order in state court, the case was 

removed to this Court. ECF No. 1. As a result, Vinson was ordered to 

replead and meet and confer with Defendants. ECF Nos. 3, 4. But he did 

neither. Defendants now move for summary judgment on Vinson’s 

claims—to which Vinson unsurprisingly did not respond.

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LEGAL STANDARD

Summary judgment is appropriate if “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(a). A fact is “material” if it could change the 

outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248 (1986). And a dispute about a material fact is “genuine” if “the 

evidence is such that a reasonable jury could return a verdict for the 

nonmoving party.” Id. The Court views the evidence in the light most 

favorable to the nonmovant but need not comb through the record in 

search of evidence creating a genuine issue of material fact. See 

Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). When no response 

is filed, the Court may accept the evidence supporting a movant’s motion 

for summary judgment as undisputed. Eversley v. MBank Dallas, 843 

F.2d 172, 174 (5th Cir. 1988).

ANALYSIS

Vinson asserts four claims: (1) negligence; (2) negligent 

misrepresentation; (3) violation of Chapter 51 of the Texas Property 

Code; and (4) breach of contract. ECF No. 1-5. Defendants move for 

summary judgment on each claim. 

A. Negligence

A plaintiff must establish three elements to state a negligence claim 

under Texas law: “(1) a legal duty; (2) a breach of that duty; and (3) 

damages proximately resulting from the breach.” Elephant Ins. Co., LLC 

v. Kenyon, 644 S.W.3d 137, 144 (Tex. 2022). “The initial burden of proof 

for each element of a negligence cause of action is on the plaintiff.”

JPMorgan Chase Bank, N.A. v. Borquez, 481 S.W.3d 255, 267–68 (Tex. 

App.—Dallas 2015, pet. denied). Defendants argue that Vinson’s 

negligence claim fails for two reasons: (1) they owe no duty to Vinson,

and (2) the economic-loss rule bars Vinson’s claim. ECF No. 9 at 5–7. 

The Court agrees with both reasons.

1. Defendants Owe No Duty to Vinson

Vinson asserts that Defendants had a duty to “to provide notice of 

any transfer, assignment, or sale of the note, to properly manage the 

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loan and the escrow amount, to comply with the notice provisions 

contained in the deed of trust before accelerating the note and 

foreclosing on the property, and, when applying for a mortgage 

modification, to protect their rights and not mislead them.” ECF No. 1-

5 at 3. Vinson contends that this duty “can be found in the regulation of 

the Department of Housing and Urban Development (“HUD”), which is 

incorporated with the Deed of Trust.” Id. But Defendants owe no such 

duty for at least three reasons.

First, Texas does not impose a legal duty on a mortgagee to a 

mortgagor that would give rise to a negligence claim. Scott v. Bank of 

Am., N.A., 597 F. App’x 223, 225 (5th Cir. 2014) (noting that there is no 

legal duty between parties to a contract absent some special relationship 

between them and holding that no such special relationship exists 

between mortgagor and mortgagee).

Second, the Deed does not mention, incorporate, or relate to any 

HUD regulations. Thus, because Vinson has not “identified any 

language referencing HUD regulations generally or specifically, much 

less any mandatory language, the Court holds that the deed here 

likewise fails to expressly incorporate HUD regulations.” Dees v. 

Nationstar Mortg., LLC, 496 F. Supp. 3d 1043, 1050 (S.D. Tex. 2020).

Third, even if HUD regulations were incorporated into the Deed, 

HUD regulations do not give rise to such an independent legal duty 

either. See Roberts v. Cameron-Brown Co., 556 F.2d 356, 357 (5th Cir. 

1977) (“[HUD regulations] deal only with the relations between the 

mortgagee and the government, and give the mortgagor no claim to duty 

owed nor remedy for failure to follow.”); see also Baker v. Countrywide 

Home Loans Inc., No. 3:08-CV-0916-B, 2009 WL 1810336, at *3, 5 (N.D. 

Tex. June 24, 2009) (Boyle, J.) (noting that violation of HUD regulations 

could not establish a wrongful foreclosure claim because such 

regulations impose no duty on mortgagee to mortgagor, but finding that 

if HUD regulations were expressly incorporated into a deed of trust, 

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violation of them could support a breach-of-contract claim).1 Because no 

legal duty exists, Vinson cannot maintain a general negligence claim.

2. Economic-Loss Doctrine

The economic-loss doctrine also bars Vinson’s negligence claim. The 

doctrine “generally precludes recovery in tort for economic losses 

resulting from the failure of a party to perform under a contract.” Lamar 

Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 12 (Tex. 2007). To 

determine whether the economic-loss rule bars a tort claim, courts look 

to (1) “the source of the defendant’s duty to act (whether it arose solely 

out of the contract or from some common-law duty)” and (2) “the nature 

of the remedy sought by the plaintiff.” Colbert v. Wells Fargo Bank, N.A., 

850 F. App’x 870, 876 (5th Cir. 2021); see also Galyean v. Guinn, No. 

4:21-CV-1287-P, 2022 WL 15527769, at *6 (N.D. Tex. Oct. 24, 2022)

(Pittman, J). The source of the defendant’s duty to act is “typically 

contractual if the only loss or damage is to the subject matter of the 

contract.” Texas Bank & Tr. Co. v. Zucker, No. 6:18-CV-525-JDK, 2019 

WL 1922044, at *8 (E.D. Tex. Apr. 8, 2019). As for the nature of the 

remedy, a party must plead and prove either a personal injury or 

property damage rather than mere economic harm. See Express One 

Int’l, Inc. v. Steinbeck, 53 S.W.3d 895, 898 (Tex. App.—Dallas 2001, no 

pet.).

Here, Vinson fails to prove or allege an existing duty arising outside 

the loan documents. Nor does he prove or “allege non-economic damages 

resulting independently of the deed of trust.” See Law v. Ocwen Loan 

Servicing, L.L.C., 587 F. App’x 790, 796 (5th Cir. 2014). Thus, the 

economic-loss doctrine bars Vinson’s negligence claim.

* * *

Because Defendants owe no legal duty to Vinson and—even if they 

did—the economic-loss doctrine bars his negligence claim, Defendants 

are entitled to summary judgment on Vinson’s negligence claim.

1 Still, “[e]ven when the HUD regulations are supposedly incorporated into a deed 

of trust, courts have still found alleged violation of these regulations does not amount 

to a private cause of action.” Klein v. Wells Fargo Bank, N.A., No. A-14-CA-861-SS, 

2014 WL 5685113, at *6 (W.D. Tex. Nov. 4, 2014).

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B. Negligent Misrepresentation

Vinson also references that a lender can be found liable for negligent 

misrepresentation in his negligence cause of action. ECF No. 1-5 at 3–4. 

To the extent negligent misrepresentation is asserted as a separate 

claim, Defendants move for summary judgment on this claim.

Under Texas law, a claim for negligent misrepresentation consists of 

four elements:

(1) the representation is made by a defendant in the course 

of his business, or in a transaction in which he has a 

pecuniary interest; (2) the defendant supplies “false 

information” for the guidance of others in their business; 

(3) the defendant did not exercise reasonable care or 

competence in obtaining or communicating the 

information; and (4) the plaintiff suffers pecuniary loss by 

justifiably relying on the representation.

Gen. Elec. Cap. Corp. v. Posey, 415 F.3d 391, 395–96 (5th Cir. 2005). The 

alleged false information must be a misstatement of existing fact rather 

than a promise of future conduct. Id.

Here, Vinson has not shown or specified what existing fact 

Defendants allegedly misstated to him, how Defendants failed to 

exercise reasonable care in communicating the alleged 

misrepresentation to him, how he justifiably relied on the 

misrepresentation to h is detriment, or what pecuniary loss he suffered 

because he relied on Defendants’ misrepresentation. And because no 

response is filed, the Court may accept Defendants’ evidence as 

undisputed. See Eversley, 843 F.2d at 174.

Defendants are thus entitled to summary judgment on Vinson’s 

negligence-misrepresentation claim.

C. Texas Property Code

Vinson also brings a claim under the Texas Property Code, alleging 

that Defendants did not provide the requisite notice of default, an 

opportunity to cure such default, or notice of sale as required by Tex. 

Prop. Code § 51.002(b)(3) and (d). ECF No. 1-5 at 5. Defendants contend, 

however, that there is no private right of action for violating Chapter 51 

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of the Texas Property Code. 

This Court’s precedent agrees. See Mitchell v. PHH Mortg. Corp., No. 

4:21-CV-1258-P, 2022 WL 6950351, at *4 (N.D. Tex. Oct. 12, 2022)

(Pittman, J.) (“[T]here is no independent cause of action for breach of § 

51.002.”); see also Rucker v. Bank of Am., N.A., 806 F.3d 828, 831 n.2 

(5th Cir. 2015) (“[T]he federal district courts that have addressed [the 

issue] seem to conclude that Section 51.002(d) does not intend an 

independent private cause of action.”). 

Defendants are thus entitled to summary judgment on Vinson’s

Texas-Property-Code claim.

D. Breach of Contract

Vinson next asserts that Defendants are liable for breach of contract 

for allegedly failing to follow HUD regulations under the Deed. ECF No. 

1-5 at 5–6. There are four elements of a breach-of-contract claim: (1) the 

existence of a valid contract; (2) performance or tendered performance 

by the plaintiff; (3) breach of the contract by the defendant; and (4) 

damages to the plaintiff because of the defendant’s breach. See Williams 

v. Wells Fargo Bank, N.A., 884 F.3d 239, 244 (5th Cir. 2018); USAA Tex. 

Lloyds Co. v. Menchaca, 545 S.W.3d 479, 501 n.1 (Tex. 2018).

A violation of the HUD regulations may sustain a breach-of-contract 

claim if the regulations are explicitly incorporated into the Deed. 

Hernandez v. Home Sav. Assoc. of Dall., 606 F.2d 596, 601 (5th Cir.

1979). But as mentioned above, the Deed fails to expressly incorporate 

any HUD regulations. And even if it did, Vinson has failed to show a 

genuine issue of material fact on the second element of his claim—his

performance or tendered performance. See ECF No. 1-5. The undisputed 

evidence establishes that Vinson breached the Deed and Note by failing 

to make payments. Vinson was thus in default of the contract terms and 

cannot maintain a suit for breach of that contract. See Eby Const. Co. v. 

Dallas Area Rapid Transit, 369 F.3d 464, 470 (5th Cir. 2004). 

Defendants are thus entitled to summary judgment on Vinson’s

breach-of-contract claim.

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E. Relief

Vinson also seeks attorney fees and injunctive and declaratory relief

in his Complaint. ECF No. 1-5 at 6–10. To recover attorney fees, a 

plaintiff must prevail on a cause of action in which attorneys’ fees are 

recoverable. See Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 

1997). Similarly, injunctive and declaratory relief are forms of relief that 

depend on the success of underlying claims. See Collin Cty. v. 

Homeowners Ass’n for Values Essential to Neighborhoods, 915 F.2d 167, 

170–71 (5th Cir. 1990) (declaratory relief); Cook v. Wells Fargo Bank, 

N.A., No. 3:10-CV-0592-D, 2010 WL 2772445, at *4 (N.D. Tex. July 12, 

2010) (Fitzwater, J.) (injunctive relief). Because Vinson’s claims are all 

subject to dismissal, he cannot succeed on his claims for attorney fees or 

injunctive and declaratory relief.

CONCLUSION

Because there is no genuine dispute as to any material fact and 

Defendants are entitled to judgment as a matter of law, the Court 

GRANTS Defendants’ Motion for Summary Judgment (ECF No. 8) and 

DISMISSES Vinson’s claims with prejudice.

SO ORDERED on this 11th day of April 2023.

Mark T. Pittman

UNITED STATES DISTRICT JUDGE

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