# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 11159

**David Anton,**

Plaintiff

— Appellant **,**

versus
**US Bank Trust National Association, as Trustee,**

Defendant

— Appellee

**.**

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:19

- CV

- 862

Before **Owen,** Chief Judge **,** and **Clement** and **Duncan,** Circuit Judges

**. Per Curiam**  **:** *

David Anton sued U.S. Bank National Association (“U.S. Bank”) 1 claiming , inter alia , that U.S. Bank breached an a djustable

- r ate n ote and d eed

* Pursuant to **5th Circuit Rule** 47.5, the court has deter mined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Circuit Rule** 47.5.4.

1 In the district court, the named defendant was U.S. Bank National Association, as Trustee for the RMAC Trust , Series 2016

- CTT . As discussed herein, Rushmore Loan Management Services was the entity that serviced the loan, but the legal party in interest was U.S. Bank. The parties did not dispute this point. United States Court of Appeals Fifth Circuit 

### FIL ED October 6, 2021

Lyle W. Cayce Clerk Case: 20-11159 Document: 00516045133 Page: 1 Date Filed: 10/06/2021No. 20

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2 of t rust , as well as various alleged modifications thereto

. Anton also sought to enjoin U.S. Bank from selling the real property securing the n ote. The district court granted U.S. Bank’s motion for summary judgment and dismissed Anton’s complaint with prejudice. Anton timely appealed. We affirm.

**I. Facts**  **and Proceedings**
In 2005, A nton executed an a djustable

- r ate n ote in favor of Chevy Chase Bank, FSB. The n ote was secured by a d eed of t rust first lien on certain real property. Chevy Chase Bank, FSB later indorsed the n ote and d eed of

t rust to U.S. Bank. Rushmore Loan Management Services LLC (“Rushmore”) service d the loan on behalf of U.S. Bank , though U.S. Bank
maintain ed physical possession of the n ote.

Anton defaulted on the l oan in May 2018. At that time, Anton and
Rushmore allegedly communicated via email to discuss a repayment plan to cure the default, which specified that Anton would make certain payments in May, June, and July of 2018 to bring the loan current (“July Repaymen t Plan”) . Anton made the first payment, but he failed to make the next two.
Rushmore referred the l oan for foreclosure on July 20, 2018.

In the Fall of 2018 , Anton made various payments t o Rushmore t hat
it applied to his escrow obligations, as well as hi s principal and interest obligations for March 2018 through September 2018. Then, i n December 2018, Rushmore and Anton agreed, in writing, to a repayment plan (“December Repayment Plan”) pursuant to which Anton would make
payments to Rushmore for November and December on December 18 and December 31, respectively. Anton attempted to make those payments, but his bank reversed the payments for insufficient funds. Accordingly, on January 3, 2019, Rushmore mailed Anton a n otice of d efault and i ntent to

a ccele rate the l oan. Anton made a payment to Rushmore on January 31, 2019 , Case: 20-11159 Document: 00516045133 Page: 2 Date Filed: 10/06/2021No. 20

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3 to cover the November and December payment obligations still owed , but it

was insufficient to cure his outstanding balance. On May 23, 2019, counsel for Rushmore mailed Anton and his wif e a

n otice of a cceleration. On August 20, 2019, counsel for Rushmore mailed a

n otice of f oreclosure s ale to Anton and his wife, which specified that the foreclosure sale for the real property located at 2208 Indian Creek Drive, Fort Worth, Texas 76107 was scheduled for October 1, 2019. Counsel for
Rushmore also filed a n otice of f oreclosure s ale with the office of the Clerk for Tarrant County and posted a n otice of the f oreclosure at the Tarrant County Courthouse.
On September 27, 2019, Anton sue d U.S. Bank in the District Court of Tarrant County, Texas and alleged the following causes of action: (1) breach of contract; (2) common law fraud; (3) promissory estoppel; (4)
violations of the Texas Debt Collection Act (“TDCA”); (5) breach of the duty o f cooperation; and (6) negligent misrepresentation. Anton also sought to enjoin the foreclosure sale. On October 10, 2019, U.S. Bank removed the
action to the United States District Court for the Northern District of Texas.
U.S. Bank filed a motion for summary judgment as to all counts in Anton’s complaint , which t he district court granted , dismissing Anton’s complaint with prejudice. Anton timely appealed.

**II. Standard of Review**  We review a district court’s order granting a motion for summary judgment de novo, applying the same standard as the district court

. Hyatt v. Thomas , 843 F.3d 172, 17 6 (5th Cir. 2016). S ummary judgment is appropriate
whe n “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter o f law.” **Fed. R. Civ. P.** 56(a). A disputed fact is material if it “might affect the outcome of the suit under the governing law[.]” Hyatt , 843 F.3d at 177 (quoting Anderson v. Liberty Lobby, Inc. , 477 Case: 20-11159 Document: 00516045133 Page: 3 Date Filed: 10/06/2021No. 20

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4 U.S. 242, 248 (1986)). “We construe all facts and inferences in the light most favorable to the nonmoving party [

. ] ” Dillon v. Rogers , 596 F.3d 260, 266 (5th Cir. 2010) (quoting Murray v. Earle , 405 F.3d 278, 284 (5th Cir. 2005) ).

**III. D**  **iscussion**

Anton appeals only the distri ct court’s grant of summary judgment in favor of U.S. Bank as it pertains to his breach of contract claims and his
TDCA claims. We will address each claim in turn.

**A.**

Anton’s breach of contract claim s ultimately depend on the enforceability of the alleged July Repayment Plan and “ escrow repayment plan

. ” He alleges that U.S. Bank breached the July Repayment Plan in July
2018 when Rushmore referred t he l oan for foreclosure prior to the end of the month. He further alleges that , despite an agreement to spread his escrow payment obligations over a 60

- month period , Rushmore instead spread them

over a 24

- month period.
To succeed on a breach of contract claim in Texas, a plaintiff must
show: “ (1) the existence of a valid contract; (2) performance or ten dered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages to the plaintiff as a result of the defendant’s breach. ” Williams v. Wells Fargo Bank, N.A. , 884 F.3d 239, 244 (5th Cir. 2018) (per curiam) (quoting Caprock I nv. Corp. v. Montgomery , 321 S.W.3d 91, 99 (Tex. App.

— Eastland 2010, pet. denied) ).
The district court correctly concluded that the alleged July Repayment Plan was not an enforceable contract

. I n Texas, “[a] loan agreement in which the amount involved in the loan agreement exceeds $50,000 in value is not enforceable unless the agreement is in writing and signed by the party to be bound or by that party ’ s authorized representative. ” Case: 20-11159 Document: 00516045133 Page: 4 Date Filed: 10/06/2021No. 20

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5 **Tex. Bus. & Com. Code** § 26.02(b). And “[a]n agreement to modify such a loan must also be in writing to be valid. ” Bynane v. Bank of New York Mellon for CWMBS, Inc. Asset

- Backed Certificates Series 2006

- 24 , 866 F.3d 351, 361 (5th Cir. 2017) (citing Martins v. BAC Home Loans Servicing, L. P. , 722 F.3d 249, 256 (5th Cir. 2013) ).
It is undisputed that, following his default in May 2018, Anton and
Rushmore had various discussions via email and telephone regarding a repayment plan to bring the l oan current. However, those emails are
nowhere to be found in the record. Anton produced a number of emails that refer to a repayment plan , but they do not evidence an offer and acceptance of that plan, nor do they contain any other material terms relating to the plan. For example, o n July 3, 2018, R ushmore’s representative, David Viggiano, emailed Anton the following: “From what I am seeing, you still owe the June and the July repayment plan amounts to complete

– correct?” Then on July 30, Mr. Viggiano emailed Anton asking: “How much were you planni ng to pay today? The full amount to reinstate since the plan was originally set to complete end of July? ” Anton responded: “13k. I was told I had to get this in prior to end of July. That is why I’m calling today.” And Mr. Viggiano replied: “The last payment made was on 6/5/18 that was for the May repayment plan payment. There was no payment rest of J une and nothing in J uly so on 7/20/18, your file was referred to FC. The plan that we set up was to complete the reinstatement by end of July.”
Thus, it is apparent that there was some sort of understanding
between Anton and Rushmore pursuant to which Anton could cure his
default. But the terms of that “ agreement ”

— including without limitation
the precise amounts owed, payment deadlines, and conse quences for incomplete and/or untimely payments

— are wholly absent from the record. To satisfy the statute of frauds in Texas, a writing “must be complete within itself in every material detail and contain all of the essential elements of the Case: 20-11159 Document: 00516045133 Page: 5 Date Filed: 10/06/2021No. 20

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6 agreement.” Sterrett v. Jacobs , 118 S.W.3d 877, 879

– 80 (Tex. App.

— Texarkana 2003); see also Bynane , 866 F.3d at 361

– 62. The emails Anton produced were not complete in themselves in every material detail.

Without an adequate written record of the agreement reflecting all the material terms and details describing the parties’ respective rights and obligations, the alleged July Repayment Plan is an unenforceable contract under the statute of frauds. Absent an enforceable contract modifying the
terms of the original l oan , Anton cannot maintain a cause of action against U.S. Bank for breaching the alleged July Repayment Plan. The district court properly dismissed Anton’s breach of contract claim on this ground.

**B**

**.** For the same reasons, the district court correctly concluded that Anton cannot maintain a claim against U.S. Bank for breaching the alleged

“ escrow repayment plan. ” Anton did not produce any evidence of a written
agreement by U.S. Bank or Rushmore to apportion his escrow payme nt obligations in any specific way. Instead, he produced a series of emails
between h imself and Mr. Viggiano reflecting only that Rushmore calculated
certain escrow payments based on a 60

- month spread.
First, Anton produced an email from Mr. Viggiano, dat ed August 2, 2018, stating: “ Got the investor to approve the paying of the $33 , 729.05 by the 20th and keep with the current escrow analysis that you are currently set up on.” Second , he produced an email from Mr. Viggiano , dated October 2,

2018 reflecting that certain escrow payments, calculated based on a 60

- month spread, were outstanding

. Third, he produced an email that he sent to Mr. Viggiano on May 29, 2019, in which he stated: “ I desperately want to make that happen and hope that the inve stor will approve the same escrow spread that they did last time and allow me to wire funds as soon as Friday this week in order to stop the process .” Case: 20-11159 Document: 00516045133 Page: 6 Date Filed: 10/06/2021No. 20

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7 At most, these emails indicate that Rushmore

— or, as Anton suggests in his Declaration, its “predecessor in interest”

— calculate d certain escrow payments based on a 60

- month spread. But this is far from evidence of a signed, written agreement by U.S. Bank or Rushmore obligating it to
calculate every escrow payment based on that same spread. The emails that Anton claims provide evidence of an “escrow repayment plan” are insufficient, taken together, because they are not complete in themselves and lack all the material terms required to form an enforceable contract. See
Sterrett , 118 S.W.3d at 879

– 80.

Accordi ngly, we conclude that, absent evidence in the record of an “escrow repayment plan” that satisfies the statute of frauds , the district

court properly dismissed Anton’s breach of contract claim on this ground.

**C.**

To the extent that Anton premises his breach of contract claim on the December Repayment Plan, that claim also fails. It is undisputed that he and
Rushmore entered a written agreement in December 2018, pursuant to which
Anton would make payments for November and December on December 18 and December 31, respectively . It is likewise undisputed that Anton failed to
do so

— his bank reversed the two payments he attempted to make due to
insufficient funds.

Anton cannot succeed on a claim that U.S. Bank breached the December Repaym ent Plan by mailing him the n otice of d efault and i ntent to

a ccelerate on January 3, 2019. He had once again defaulted , and as the district court observed, “[i] t is unreasonable to require Defendant to continue to arrange for a repayment of money already owed to it just to have Plaintiff not make the agreed

- upon repayments .” Because A nton again failed to make full and timely payments, t he district court properly dismissed Anton’s breach of contract claim on this ground. Case: 20-11159 Document: 00516045133 Page: 7 Date Filed: 10/06/2021No. 20

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8 **D**

**.** Anton also appeals the district court’s grant of summary judgment in favor of U.S. Bank as it relates to his TDCA claims. He argues that U.S. Bank

v iolat ed § 392.304(a)(8) of the T exas Finance Code by making false

statements that his loan was in default a nd by representing that a payment plan was in place when in fact the payment plan had been cancelled and the property referred for foreclosure. Section 392.304(a)(8) of the Texas Finance Code prohibits debt
collectors from “ misrepresenting the character , extent, or amount of a consumer debt, or misrepresenting the consumer debt ’ s status in a judicial or governmental proceeding .” To prevail on his claim for misrepresentation about a debt, Anton must show that U.S. Bank made a misrepresentation that
led h im “to be unaware (1) that []he had a mortgage debt, (2) of the specific amount []he owed, or (3) that []he had defaulted. ” Rucker v. Bank of Am.,
N.A. , 806 F.3d 828, 832 ( 5th Cir. 2015) (citing Miller v. BAC Home Loans Servicing, L.P. , 726 F.3d 717, 723 ( 5th Cir. 2013)).
Anton does not provide evidence supporting any of these three
elements. First, there is no dispute as to whether Anton knew he had a mortgage debt, and that he knew he was in default. Anton’s own briefing reflects this; indeed, his def ault on the original l oan was the very reason he
and Rushmore discussed repayment options in the first place. Similarly,
Anton does not provide any evidence that misrepresentations by U.S. Bank
or Rushmore led him to be unaware of the amount he owed.
Instead, Anton merely alleges that Rushmore incorrectly stated that he was in default, when he was not, and that a repayment plan was in place,
when i n fact the property had been referred for foreclosure . But these allegations are unsupported. To be sure, Rushmore referred the l oan for foreclosure on July 20, 2018. But th at was only after Anton had failed to make Case: 20-11159 Document: 00516045133 Page: 8 Date Filed: 10/06/2021No. 20

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9 certain payments for June and July that were outstanding . In fact, Anton knew on July 3, 20 18 that certain payments were missing for June and July.
There is no evidence in the record that Rushmore somehow gave Anton the false impression that he was current on the l oan when, in fact, he was not. And there is similarly no evidence that it referred the l oan for foreclosure
before Anton had a fair opportunity to cure his default by making timely payments for June and July.
For the foregoing reasons, Anton cannot maintain a TDCA claim against U.S. Bank for violations of § 392.304(a)(8). Anton failed to provide
evidence that U.S. Bank or R ushmore made misrepresentations that caused him to be unaware of his debt obligations or that he had defaulted . T he district court properly dismissed his TDCA claim on this ground.

**E**

**.** Anton further argues that U.S. Bank violated § 3 92 .304(a)(19) by failing to properly credit payments to his account. This argument is similarly unavailing. Section 392.304(a)(19) makes it unlawful for debt collectors to “ u s[e] any other false representation or deceptive means to collect a debt or obtain information concerning a consumer .” To support his claim that U.S. Bank violated § 392.304(a)(19), Anton points to email discussions with Mr. Viggiano from October 2018 in which Mr. Viggiano indicated that Rushmore had received payments from Anton, but that the y were not yet fully reflected in the system. But t his is hardly evidence that Rushmore misapplied those payments. In fact, those same emails reflect that Mr. Viggiano was diligently working to ensure that the payments Anton did make were re flected in the
system properly

— even if they were not reflected properly right away

. For example, on October 18, 2018, Mr. Viggiano emailed Anton: “ Trying to get Case: 20-11159 Document: 00516045133 Page: 9 Date Filed: 10/06/2021No. 20

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10 the payments that we took earlier this month to reflect in the system correctly

. . . . Will ge t handled. Will keep you posted.”

And , in any event, by October 26, 2018, Mr. Viggiano represented to Anton that the system “finally reflect[ed]” the proper amounts outstanding
for October. There is simply no evidence that Rushmore made any misrepresenta tions about how it applied Anton’s payments . If anything, the emails between Anton and Mr. Viggiano showed the opposite

— that
Rushmore was communicating truthfully with Anton about the status of his payments in the system and directing its efforts to ensur e that Anton’s payments were reflected in the system properly. The district court correctly dismissed Anton’s TDCA claim on this ground.

**IV. Conclusion**  Because there is no genuine issue of material fact as to any of the
counts in Anton’s complaint that he raised on appeal , the district court properly granted U.S. Bank’s motion for summary judgment as to those

counts and dismissed the same with prejudice

. The judgment is AFFIRMED. Case: 20-11159 Document: 00516045133 Page: 10 Date Filed: 10/06/2021