IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11806

GEORGE CLARK; VELMA CLARK, 

 Plaintiffs–Appellants,

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee for Morgan 

Stanley ABS Capital I, Incorporated, Trust 2006-HE3; WELLS FARGO 

BANK, N.A., doing business as America’s Servicing Company, 

 Defendants–Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:14-CV-3590

Before STEWART, Chief Judge, and JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

George and Velma Clark (the Clarks) defaulted on their home equity 

loan. After Deutsche Bank National Trust Company and Wells Fargo Bank, 

N.A. (the Creditors) took steps to foreclose on the home, the Clarks sued. The 

district court granted the Creditors’ motion to dismiss. The Clarks have 

 

* Pursuant to 5TH CIR. R. 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 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 22, 2018

Lyle W. Cayce

Clerk

 Case: 16-11806 Document: 00514315996 Page: 1 Date Filed: 01/22/2018
No. 16-11806

2

appealed only the dismissal of their § 392.304(a)(19) claim under the Texas 

Debt Collection Act (TDCA). We affirm the judgment of the district court.

I

We assume the facts are as the Clarks have presented them. They

executed a Texas Home Equity Note on their house in Rowlett, Texas in 2006. 

Deutsche Bank National Trust Company was assigned the loan and Wells 

Fargo Bank, N.A. became the loan servicer. Because of the TDCA’s two-year 

statute of limitations, only the Clarks’ allegations of improper loan practices

occurring on or after August 28, 2012, may provide the factual basis for this 

appeal.1 

In 2011, the Clarks defaulted on their home equity loan. Throughout

2013, the Clarks attempted to modify their loan to help remedy the default. 

On December 13, 2013, the Clarks received what they describe as a letter of 

eligibility for a Home Affordable Modification Program (HAMP) loan from 

Wells Fargo. The letter of eligibility states in part:

Now that we’ve received your documents, our loan processing team 

will carefully review what you’ve submitted to determine if you are 

eligible for mortgage payment relief under the Home Affordable 

Modification Program. I will follow up with you by Sunday, 

January 12, 2014 to outline next steps in the process and address 

any additional documents that might be needed to complete our 

review. While we are reviewing your information . . . your home 

will not be referred to foreclosure . . . . [I]t’s important for you to 

continue making your regular mortgage payments until you hear 

from us.

 

1 See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (“[A] person must bring suit 

for . . . injury to the estate . . . not later than two years after the day the cause of action 

accrues.”); Galindo v Snoody, 415 S.W.3d 905, 911 (Tex. App.—Texarkana 2013, no pet.) 

(“The parties agree that the two-year statute of limitations applies to all of [plaintiff’s TDCA] 

claims.”).

 Case: 16-11806 Document: 00514315996 Page: 2 Date Filed: 01/22/2018
No. 16-11806

3

The Clarks immediately sent in the HAMP loan application with the 

requested documentation. The complaint states that one week later, the 

Clarks received a letter stating that they failed to qualify “because [Wells 

Fargo] is prohibited from adjusting the original terms of the mortgage due to 

state law restrictions as provided under Texas Constitution Art. 16, 

Sec. 50 (a)(6).” The Creditors then filed an Application for Home Equity 

Foreclosure Order on the Clarks’ house, which was approved.

In response, the Clarks filed this lawsuit against the Creditors in state 

court, asserting claims for breach of contract and violations of the TDCA. The 

foreclosure proceeding was automatically stayed upon filing.2 The Creditors 

removed this action to federal court and filed a motion to dismiss. The district 

court granted the motion in part, but allowed the Clarks to re-plead several of 

their claims, including the § 392.304(a)(19) TDCA claim under the Texas 

Finance Code. In their second amended complaint, the Clarks alleged that the 

Creditors “[u]se[d] false representations or deceptive means to collect a debt 

and obtain information concerning a consumer, violating § 392.304(a)(19) of 

the Texas Finance Code.” In particular, “[Creditors] deceptively instructed and 

encouraged [the Clarks] to apply for the HAMP loan modification” and “made 

affirmative statements about [the Clarks’ loan] and a HAMP loan 

modification” even though this modification was not available to the Clarks. 

As a result of these alleged wrongdoings, the Clarks sought damages including

“attorney’s fees . . . , mental anguish, emotional distress, anxiety, depression, 

humiliation, apprehension, discomfort, annoyance,” and the “value of the time 

lost in attempting to correct [the Creditors’] errors.”

The Creditors again moved to dismiss. The district court granted the 

Creditors’ motion and dismissed all of the Clarks’ claims with prejudice, in part 

 

2 See TEX. R. CIV. P. 736.11.

 Case: 16-11806 Document: 00514315996 Page: 3 Date Filed: 01/22/2018
No. 16-11806

4

because the complaint failed to allege that any violation of the TDCA resulted 

in damages. The Clarks filed a notice of appeal, challenging only the district 

court’s dismissal of their § 392.304(a)(19) claim.

II

We review “a district court’s dismissal under a Rule 12(b)(6) motion de 

novo, accepting all well-pleaded facts as true and viewing those facts in the 

light most favorable to the plaintiffs.”3 “[A] complaint must contain sufficient 

factual matter, accepted as true, to ‘state a claim to relief that is plausible on 

its face.’”4 “A claim has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.”5 However, a complaint 

“requires more than labels and conclusions, and a formulaic recitation of the 

elements of a cause of action will not do.”6

III

The Clarks allege that the district court erred in dismissing their claim 

under § 392.304(a)(19) of the Texas Finance Code. All other issues were not 

briefed on appeal, and are thus waived.7 The Clarks failed to state a cause of 

 

3 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (quoting 

Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)).

4 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 570 (2007)).

5 Id.

6 Twombly, 550 U.S. at 555.

7 Sama v. Hannigan, 669 F.3d 585, 589 (5th Cir. 2012) (citing United States v. 

Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000)).

 Case: 16-11806 Document: 00514315996 Page: 4 Date Filed: 01/22/2018
No. 16-11806

5

action upon which relief may be granted, and the district court properly 

dismissed this claim.8

Section 392.304(a)(19) is the TDCA’s “catchall provision.”9 It prohibits 

debt collectors from “using any other false representation or deceptive means 

to collect a debt or obtain information concerning a consumer.”10 To maintain 

a cause of action under § 392.304(a)(19), “the debt collector must have made 

an affirmative statement that was false or misleading.”11 Referring vaguely to 

“using a false representation or deceptive means to collect a debt . . . is not 

sufficient to overcome dismissal under Rule 12(b)(6).”12

The Clarks allege that the Creditors violated § 392.304(a)(19) by making 

“affirmative statements” encouraging the Clarks to apply for a HAMP loan

modification, even though they would not be approved for this modification. 

However, none of the Creditors’ alleged statements—including the letter of 

eligibility—affirmatively represented that the Clarks qualified or would 

qualify for the loan modification program. In an unpublished opinion, this 

court made clear that even when a creditor tells a debtor “not to worry” about 

qualifying for a loan modification, such encouragement is not an affirmative 

statement upon which relief may be granted under § 392.304(a)(19).13

Furthermore, the Clarks fail to allege a cause of action because, as we 

held in Thompson v. Bank of America National Association, “[c]ommunications 

 

8 U.S. ex rel. Doe v. Dow Chem. Co., 343 F.3d 325, 330 (5th Cir. 2003) (“[T]his Court 

may affirm on any grounds supported by the record below.”).

9 Thompson v. Bank of Am. Nat’l Ass’n, 783 F.3d 1022, 1026 (5th Cir. 2015).

10 TEX. FIN. CODE ANN. § 392.304(a)(19).

11 Thompson, 783 F.3d at 1026 (emphasis in original) (quoting Verdin v. Fed. Nat’l

Mortg. Ass’n, 540 F. App’x 253, 257 (5th Cir. 2014) (per curiam) (unpublished)). 

12 Miller v. BAC Home Loans Servicing, L.P., 726 F.3d 717, 724 (5th Cir. 2013)

(quotation marks omitted). 13 Chavez v. Wells Fargo Bank, N.A., 578 F. App’x 345, 348 (5th Cir. 2014) (per curiam)

(unpublished). 

 Case: 16-11806 Document: 00514315996 Page: 5 Date Filed: 01/22/2018
No. 16-11806

6

in connection with the renegotiation of a loan do not concern the collection of a 

debt but, instead, relate to its modification and thus they do not state a claim 

under Section 392.304(a)(19).”14 The Clarks do not dispute that their alleged 

misrepresentations relate solely to loan modifications. They instead assert 

that Thompson does not foreclose their loan-modification claim because a 

concurring opinion in Thompson stated that there may “be circumstances in 

which misrepresentations made during [loan] discussions are actionable.”15

The district court agreed, holding that the Clarks’ allegations came within 

§ 392.304(a)(19). However, this interpretation improperly reads an exception 

into the Thompson majority’s unconditional holding that loan-renegotiation

communications do not state a claim under § 392.304(a)(19). 

The Clarks rely on loan-modification discussions in the letter of 

eligibility to support their § 392.304(a)(19) claim. Yet we have repeatedly 

rejected similar TDCA claims arising from protracted loan-modification 

discussions that end in foreclosure.16 Thompson establishes that loan 

modification discussions are not within the scope of § 392.304(a)(19).17 

Accordingly, the district court did not err in granting the Creditors’ motion to 

dismiss because the Clarks failed to allege any affirmative factual statement

 

14 Thompson, 783 F.3d at 1026 (emphasis in original). 15 Id. at 1028 (Graves, J., concurring) (citing Singha v. BAC Home Loans Servicing, 

L.P., 564 F. App’x 65, 71 (5th Cir. 2014) (per curiam) (unpublished)).

16 Id. at 1026-27 (majority opinion) (citing Singha, 564 F. App’x at 70-71; Thomas v. 

EMC Mortg. Corp., 499 F. App’x 337, 343 (5th Cir. 2012) (unpublished)).

17 Id. at 1026; see also Bassknight v. Deutsche Bank Nat’l Tr. Co., 611 F. App’x 222, 

223 (5th Cir. 2015) (per curiam) (unpublished) (citing Thompson for the proposition that 

“[t]here is no viable [TDCA] claim when a mortgagee discusses a loan modification” (emphasis 

in original)); Rabe v. Wells Fargo Bank, N.A., 616 F. App’x 729, 734-35 (5th Cir. 2015) (per 

curiam) (unpublished) (citing Thompson in holding that a letter pertaining to a loanmodification application is not an actionable affirmative statement under § 392.304(a)(19)).

 Case: 16-11806 Document: 00514315996 Page: 6 Date Filed: 01/22/2018
No. 16-11806

7

“that allows the court to draw the reasonable inference that the defendant is 

liable for the misconduct alleged.”18

* * *

For the foregoing reasons, we AFFIRM the judgment of the district court.

 

18 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 570 (2007)).

 Case: 16-11806 Document: 00514315996 Page: 7 Date Filed: 01/22/2018