United States Court of Appeals

for 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 adjustable-rate note and deed 

* Pursuant to 5th Circuit Rule 47.5, the court has determined 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opinion should not be published and is not precedent except under the limited 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

FILED

October 6, 2021

Lyle W. Cayce

Clerk

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of trust, as well as various alleged modifications thereto. Anton also sought 

to enjoin U.S. Bank from selling the real property securing the note. 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, Anton executed an adjustable-rate note in favor of Chevy 

Chase Bank, FSB. The note was secured by a deed of trust first lien on certain 

real property. Chevy Chase Bank, FSB later indorsed the note and deed of 

trust to U.S. Bank. Rushmore Loan Management Services LLC 

(“Rushmore”) serviced the loan on behalf of U.S. Bank, though U.S. Bank 

maintained physical possession of the note.

Anton defaulted on the loan 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 Repayment 

Plan”). Anton made the first payment, but he failed to make the next two. 

Rushmore referred the loan for foreclosure on July 20, 2018.

In the Fall of 2018, Anton made various payments to Rushmore that

it applied to his escrow obligations, as well as his principal and interest 

obligations for March 2018 through September 2018. Then, in 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 notice of default and intent to 

accelerate the loan. Anton made a payment to Rushmore on January 31, 2019,

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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 wife a 

notice of acceleration. On August 20, 2019, counsel for Rushmore mailed a 

notice of foreclosure sale 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 notice of foreclosure sale with the office of the Clerk 

for Tarrant County and posted a notice of the foreclosure at the Tarrant 

County Courthouse.

On September 27, 2019, Anton sued 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 of 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 the 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, 176 (5th Cir. 2016). Summary judgment is appropriate 

when “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 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 

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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. Discussion

Anton appeals only the district 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 claims 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 the loan 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 tendered 

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 Inv. 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. In 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.” 

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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 loan 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, on July 3, 2018, Rushmore’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 planning 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 June and nothing in 

July 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 consequences 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 

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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 loan, 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 payment 

obligations in any specific way. Instead, he produced a series of emails 

between himself 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, dated 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 investor 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.” 

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At most, these emails indicate that Rushmore—or, as Anton suggests 

in his Declaration, its “predecessor in interest”—calculated 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.

Accordingly, 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 Repayment Plan by mailing him the notice of default and intent to 

accelerate 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 Anton again failed 

to make full and timely payments, the district court properly dismissed 

Anton’s breach of contract claim on this ground.

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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 

violated § 392.304(a)(8) of the Texas Finance Code by making false 

statements that his loan was in default and 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 him “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 default on the original loan 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 in fact the property had been referred for foreclosure. But these 

allegations are unsupported. To be sure, Rushmore referred the loan for

foreclosure on July 20, 2018. But that was only after Anton had failed to make 

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certain payments for June and July that were outstanding. In fact, Anton 

knew on July 3, 2018 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 loan when, in fact, he was not. 

And there is similarly no evidence that it referred the loan 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 Rushmore made misrepresentations that caused 

him to be unaware of his debt obligations or that he had defaulted. The 

district court properly dismissed his TDCA claim on this ground.

E.

Anton further argues that U.S. Bank violated § 392.304(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 “us[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 they were not yet fully reflected 

in the system. But this 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 reflected 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 

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

correctly. . . . Will get 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 

misrepresentations 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 ensure 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.

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