### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-41273

JAMES R. MILLER; ALLENE S. MILLER, Plaintiffs-Appellants,

v. BAC HOME LOANS SERVICING, L.P.; NATIONAL DEFAULT EXCHANGE, L.P., Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Texas

Before STEWART, Chief Judge, and DAVIS and WIENER, Circuit Judges. CARL E. STEWART, Chief Judge: This case pertains to the foreclosure sale of the property located at 810 Corey Drive in Whitehouse, Texas, by Defendants-Appellees, BAC Home Loans Servicing (“BAC”) and National Default Exchange (“NDE”). PlaintiffsAppellants, J ames and Allene Miller, appeal th e district court’s dismissal with prejudice of their claims against BAC and N D E under the Texas Debt Collection Act (“TDCA”), T ex. Fin. Code § 392.304(a), the Texas Deceptive Trade Practices Act (“DTPA”) , Tex. Bus. & Com. Code § 17.41 et seq. , and Texas common law. For the reasons provided herein, we AFFIRM the district c ourt’s dismissal of the Millers’ DTPA and T exas common law claims. We a lso AFFIRM the di s t r i c t court’s dismissal of the Millers’ TDCA claims under §§ 392.304(a)(8), U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Aug ust 13, 2013 Ly l e W . Cay ce Clerk Case: 12-41273 Document: 00512339912 Page: 1 Date Filed: 08/13/2013No. 12-41273

(18), a nd (19). We REVERSE the district court’s dismissal of the Millers’ TDCA claims u nder § 392.304(a)(14) as well as the district court’s denial of the Millers’ request f

or an a ccounting from ND E

. W e R E MAND for further proceedings consistent with this opinion. I. In December 2001, the Millers obtained a purchase money mortgage for the C orey Drive p roperty from Nexstar Financial Corp (“Nexstar”). The mortgage note was secured by a deed o f trust l ien. Effective April 7, 2010, Nexstar assigned the note and lien to BAC, which proceeded to act as the loan servicer. The Millers fell behind on their mortgage payments. Notwithstanding the effective assignment date of April 7, 2010, the Millers first received notice that their loan was in defa u l t f rom BAC on March 10, 2010. 1 The written notice warned the Millers that they faced loan acceleration a nd sale of the property at foreclosure auction unless they cured the default by April 9, 2010. The Millers allege that between March 10, 2010 and M ay 3, 2010, they called BAC at least three times, and that each c all re s u l t e d in an unfulfilled promise from a BAC call center representative to send them a l o an modification application. F urther, the M illers allege that at l e a s t o n e o f the call center representatives a ssured them tha t there would be n o need to make a premodification payment to cure the default. On May 3, 2010, the M illers received a letter from BAC’s foreclosure law firm stating that a foreclosure sale o f the property would occur on June 1, 2010. The M ille r s a llege that sometime between May 3 , 2010, and May 18, 2010, a

1 It is not clear on the f ace of the Millers ’ am end ed c o m p l a i n t w hy BAC would have contacted the M illers about the d ef ault on M arch 10, 2010, w hen Nexs tar’s as s ignm ent to it d id not becom e ef

f ective until Ap ril 7, 2010. See Am

. Com pl. ¶ ¶ 6 , 9. I t als o is not clear
w hether the m ortgage alread y was in def ault at the tim e of the as s ignm ent. 2 Case: 12-41273 Document: 00512339912 Page: 2 Date Filed: 08/13/2013No. 12-41273

BAC foreclosure specialist nam e d Vi c t o ria Masters informed them that she

w o u l d make sure a loan modification application arrived, and that the foreclosure sale would b e postponed while they attempted t o m odify their loan. The loan modification application arrived on May 18, 2010. The Millers r eturned their completed a pplication b y m ail on May 28, 2010. That same day, they were contacted by a n agent of BAC who informed them that the f oreclosure auction w ould proceed on J une 1, 2 010. On May 31, 2010, the Millers again sp o k e with M s. Masters, the BAC foreclosure specialist. She informed them that no postponement had yet been a pproved, but that she would attempt to obtain such approval from Fannie Mae. Later that day, the Millers alleg e M s. Masters represented to them that she had obtained approval from Fannie Mae for foreclos u r e postponement pending disposition of their l oan modification application. Notwithstanding this alleged representation of postponement, the foreclosure sale proceeded as scheduled on June 1, 2010. An individual named Carol Hampton acted as substitute trust e e . T he Millers allege that Ms. Hampton was an agent of NDE, acting a t the behest of BAC. 2 The Corey Drive property sold at public auction. Someti m e t h e following month, th e Millers voluntarily vacated the property at the request of the purchaser. II. The Millers filed suit on January 14, 2011, and amended their c o mplaint

on September 22, 2011, ultimately raising c l aims under the Fair D ebt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1 6 9 2 et seq. , the TDCA, the DTPA, and

2 W e a s s um e this allegation is true f or p urp os es of review ing the d is trict court’s d is m is s al of the M illers ’ claim s . That s aid , N D E d is p utes the M illers ’ a llegation that M s . H am p ton w as its agent. In its op ening brief, N D E characterizes its elf as m erely an “af f iliated ”
s ervice p rovid er to the f oreclos ure law f

irm retained by BAC. It is not clear w hat N D E m eans by “af f iliated , ” and whether M s . H am p ton ins tead w ould have been a n a g e n t of BAC or the f oreclos ure law f

irm

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Texas common law. O n October 17, 2011, BAC moved to dismiss the amended complaint under Federal Rule o f Civil Procedure (“Rule”) 12(b)(6). The magistrate judge filed h er report on March 23, 2012, in which she recommended that the district court dismiss all claims against both defendants. 3 After the Millers timely objected to the m a g istrate judge’s report, the dis t r ict court proceeded to adopt the report upon de novo review. The district court entered final judgment against the Millers on April 11, 2012. On May 8, 2012, the Millers moved to alter or a mend the ju d g m ent pursuant to R ule 59(e). A mong other things, the Millers argued that it was not fair for the district court t o h a v e d i s missed their claims against NDE. The Millers emphasized that BAC’s motion t o dismiss had not addressed t h e i r request f

or an accounting of the foreclosure s ale f rom NDE o r for a distribution of excess profits from the s ale. 4 The Millers contended that they had not had a prior meaningful opportunity to justify those c l aims and, in their Rul e 59(e) motion, p rovided legal a rguments as to why those claims should survive scrutiny under Rule 12(b)(6). I n a second report, dated September 24, 2012, th e m agistrate judge addressed the Millers’ Rule 59(e) motion. The m agistrate judge recommended denial o f the motion, explaining that the Millers’ written objections to h er first report h ad not encompassed the request for a n accounting and distribution, even though the Millers could h ave objected to her prior failure to address the request. The magistrate judge further concluded that the Millers had not stated

3 ND E d id not m ove to dis m is s the am end ed com p laint. N evertheles s , the m agis trate j ud ge recom m end ed d is mis s al as to both d ef end ants , and the d is trict court ad op ted tha t recom me n d ation. O n ap p eal, the M illers challenge the d is trict court’s dis m is s al of their claim s as to N D E on the ground s that N D E d id not m ove to d is m is s and , ind eed , f iled ans w ers to both the initial com p laint andthe am end ed com plaint. We ad d res s this is s ue i nf ra .

4 N or had the m agis trate jud ge ad d res sed the reques t in her M arch 23, 2012 rep ort.

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a claim for an accounting independent of their c laims for wrongful foreclosure, which she already had addressed in her first report and the district court already had dismissed. The Millers t imely objected to this second r e p ort. Nevertheless, the district court p roceed e d to adopt it upon de novo review, thereby denying the motion to alter or amend the judgment. The Millers timely appealed. H owever, they o nly pursue some of their claims o n appeal, namely their: (i) T DCA claims against BAC; (ii) D T PA c laims against BAC; (iii) promisso r y estoppel claims against BAC; (iv) w rongful foreclosure c laims against both BAC and N DE; and (v) request for an accounting from NDE and distribution of any excess profits. I II. “We review de novo the grant of a 12(b)(6) motion to dismiss.” Gregson v. Zurich Am. Ins. Co. , 3 22 F.3d 883, 885 ( 5th Cir. 2 003). “We generally r eview a decision on a motion to alter or amend judgment under R ule 5 9(e) for abuse of discretion.” Pioneer N atural Res. U

S A, I nc. v. Paper, Allied Indus., Chem. & Energy Workers Int’l U nion Loc. 4-487

, 328 F.3d 818, 820 ( 5 t h C ir. 2003) (citations omitted). “To the extent tha t a r u l i n g was a reconsideration of a ques t i on of law, however, the standard of review is de novo .” Id. (citations omitted). IV. A. TDCA Claims Against BAC We acknowledge at the outset that the Millers do not appeal the district court’s dismissal of their FDCPA claims. W i t h r e spect t o those claims, the magistrate judge rightly e xplained that the F D CPA distinguishes between “creditors” and “debt c ollectors.” Compare 15 U.S.C. § 1692a(4) (creditors), with 15 U.S.C. § 1692a(6) (debt c ollectors). S h e t h e n observed that the FDCPA generally a pplies t o debt collectors, but not t o c r e d i tors, except “to the extent that [a creditor] receives an assignment or transfer of a debt in d e fault s olely for

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t he purpose of facilitating collection of s uch debt for another.” 15 U.S.C. § 1692a(4). 5 The magistrate judge finally noted that we previously have h eld that “mortgage servicing companies” and “debt assignees” are not debt collectors, and theref o r e a r e n o t r egulated by the FDCPA, “ as long as the [mortgage] was not in default at the time it was assigned” b y the originator. Perry v. Stewart Title Co. , 756 F.2d 1197, 1208 (5th Cir. 1985) (citations omitted). Ap p l y i n g these principles, the magistrate j u d g e concluded that BAC was not a debt collector, and thus was n o t subject t o the FDCPA because, on the M illers’ pleadings, BAC already had acquired the mortgage when the Millers defaulted on it. 6 We recount the magistrate judge’s FDCPA analysis because, immediately thereafter, the magistrate judge a nalyzed the Millers’ comparable claims under the TDCA. T he TDCA similar l y d i s t inguishes between creditors and debt collectors. Compare Tex. Fin. Code § 392.001(3) (creditors), with Tex. Fin. Code § 3 92.001(6) (debt collectors). Its prohibitions a pply only to debt collectors. See Catherman v. First State Bank of Smithville , 796 S.W.2d 299, 302 (T e x . App. 1990). The TDCA, however, also breaks out a third class of lien-holders, which it calls “third-party debt collectors.” See Tex. Fin. Code § 3 92.001(7). It defines third-p arty d eb t c ollectors by expressly referencing the FDCPA definition of debt collectors found in 15 U.S.C. § 1692a(6). In light of this reference, the magistrate judge concluded that the Millers’ TDCA claims must fail for t h e same reasons that their FDCPA c l aims do. We

5 The magis trate j ud g e relied on Pol l i ce v . Na ti ona l Tax Fundi ng, L. P. , 225 F. 3d 379, 403 ( 3d Cir. 2000) ( citations o m i t t e d) , in m ak ing this obs ervation. We exp res s ly ad op t this p reced ent f

rom the Third Circuit.

6 As d is cus s ed sup ra , in note 1, this is not ap p arent f rom the M illers ’ p lead ings

. See Am

. Com p l. ¶ ¶ 6, 9. H ow ever, the M illers have not challenged the dis trict court’s d is m is s al of their FD CPA claim s on ap p eal. Accord ingly, the d is trict court’s d is pos ition of thos e claim s rem ains und is turbed and any challenge to that d is p os ition is w aived

. See Sw i ndl e v . Li v i ngston Pa ri sh Sch. Bd. , 655 F. 3d 386, 392 & n. 6 ( 5th Cir. 2011) ( citations om itted )

.

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reject this conclusion, which erroneously affords the l o ne third-party debt collectors referen c e talismanic significance despite the fact that the FDCPA is

a “distinguishable, f

ederal statute.” See M onroe v. Frank , 9 36 S.W.2d 654, 660 (Tex. App. 1996) (citation a nd footnote omitted) (listing differences between the two statutes). T he T DCA’s definition of debt collector is broader than the FDCPA’s definition. See Perry , 756 F.2d at 1208 (citation omitted). Unlike the TDCA, the FDCPA expressly excludes from its definition of debt collector: “any
person collecting or a ttempting to collect any debt o wed or due or asserted to be owed or due another to the extent such activity

. . . concerns a d ebt w hich was

n o t in default a t the time it was obtained by such person.” 1 5 U

. S

. C

. § 1692a(6)(F)(iii). As noted above, we held in Perry that this FDCPA exclusion encompasses mortgage servicing companies and debt assignees “as long as the [mortgage] was not in default at the time i t was assigned” b y the originator. 756 F.2d at 1208 (citations omitted). However, we also held in Perry that servicers a nd assignees

are debt collectors, and therefore are covered, under the TDCA. See i d. (citation omitted). In l ight of Perry , w e c o n c lude that BAC qualifies as a debt collector under the broader TDCA, irrespective of whether the Millers’ mortgage was already in default at the time of its assignment. The Millers’ TDCA c laims allege vi o l a tions of T ex. Fin. Code §§ 392.304(a)(8), (14), (18), and (19). Those provisions prohibit the following:

( 8) misrepresenting the character, extent, or amo u nt of a consumer debt, or misrepresenting th e consumer debt’s status in a judicial or governmental proceeding; . . . (14) r epresenting falsely the status or n ature of th e s e r v i ces r endered by the d ebt collector or the d ebt collector’s business; . . .

7 Case: 12-41273 Document: 00512339912 Page: 7 Date Filed: 08/13/2013No. 12-41273 (18) representing that a consumer deb t i s being collected by an independent, bona fide organization engaged in the business o f c ollect i n g past d u e accounts when the d ebt is b e i n g collected by a subterfuge organization und er the control and direction of the person who is owed the debt; or (19) using any oth e r false representation or deceptive means to collect a debt o r o btain information concerning a consumer.

T h e M illers allege that BAC repeatedly promised to send them a l o a n

m odification application and to delay foreclosure. They further allege that,

n o t w i thstanding its promises, BAC never responded to their submitted application onc e i t a r rived and proceeded t o foreclose upon their p roperty. Accepting these allegations as true at the Rule 12(b)(6) stage, we c onclude that the Millers have stated a claim u p o n which relief may be granted under § 392.304(a)(14). 1. Section 392.304(a)(8) The Millers’ allegations do not demonstrate that BAC misrepresented the character, extent, or amount of the Millers’ debt in violation of § 392.304(a)(8). This is because the Millers always were aware (i) that they had a mortgage debt; (ii) of the specific amo u n t that they owed; (iii) and that they had defaulted. Nothing in the Miller s ’ allegations suggests the BAC led them to think differently w i t h r espect to the character, extent, a mount, or status of their debt—only th at BAC promised to send them a loan modification application and to delay for e c l o s ure. Accordingly, the Millers have not stated a claim upon which relief may be granted under § 392.304(a)(8). 2. Section 392.304(a)(14) As for § 392.304(a)(14), however, the Millers’ allegations d e monstrate that BAC may h ave misrepresented the status or nature of the services it rendered.

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The Millers alleg e t h a t BAC “informed [Mr. M iller] that the terms of his l oan could be modified t o cure the d efault a nd avoid foreclosure if he qualified for the available options.” T hey further allege that BAC agents repeatedly promised to send them an application for a loan modification, but neve r d i d until May 18, 2010. On the one hand, these allegations, a t most, show that BAC promised to send the Millers a n application, which BAC ultimately did. The Millers do not allege that BAC promised to grantthe application. N o t w ith s t a n di n g th e above, the M illers also allege that BA C “i nf o r m e d M r . Miller that he did not need t o m a k e payments on the l oan because delinquent
paym e n t s w o u l d be subsumed into the modified loan w hen it was concluded.” Moreover, the Millers allege “ [t]hey were informed that the completed application must b e submitted by June 17, 2010.” Finally, the M illers allege that M s. Masters “informed Mr. M i l l e r that s he had obtained approval to postpone the [June 1] f oreclosure sale.” These alle g a t i o n s , at the least, show that BAC promised to consider the application before foreclosing o n J u n e 1, which the Millers allege that BAC did not do. In l i ght o f this showing, we conclude that BAC may have harmed the Millers by causing t h e m , for example, to decline to liquidate property or seek alternative financing before the June 1 foreclosure d a t e

—p e nding BAC’s disposition of their application. Accordingly, the Millers have alleged sufficient facts to state a c laim ag a i n st BAC, pursuant to § 392.304(a)(14), for misrepresenting the status or nature of the services that it rende r ed. We

reverse the district court’s dismissal of the Millers’ TDCA claims as to that basis, and remand for further proceedings consistent with this opinion. 3. Section 392.304(a)(18) With respect to § 392.304(a)(18), the Millers contended before the district court that BAC had misrepresented i t w a s an independent organization responsible for c ollecting the Millers’ debt w hen, in fact, Bank of America, N.A.

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owned the M illers’ mortgage by assignment, and BAC was merely Bank of America’s servicer. Irrespective of this contention’s po s s ib l e v ali dity , th e M illers’ amended complaint contained no all e g a t i o n about any representation by BAC that it was an independent d ebt collector. Because the Millers have not alleged
any facts stating that BAC w as a subterfuge organization for Bank of A merica, they have not st a t e d a c l aim upon which relief may be granted under § 392.304(a)(18). 4. Section 392.304(a)(19) Finally, even though § 39 2 .304(a)(19) appears t o be a c atch-all, or residual, provision for proceeding u nder the TDCA, the Millers did not allege any specific deceptive acts or practices by BAC that could constitute a violation of the
prov i s i o n . Instead, their amended complaint refers v aguely t o BAC “using a false representation or decept i v e means to collect a debt.” See A m. Compl. ¶ 4 1(d). Such a pleading is n ot sufficient to overcome dismissal under R u l e 12(b)(6). See Ashcroft v . Iqbal , 556 U .S. 662, 678-79 (2009); Bell A tl. Corp. v. Twombly , 550 U.S. 544, 555-56 (2007) (citations o mitted). The Millers, th u s , have n ot stated a claim upon which relief may be granted under § 3 92.304(a)(19). B. DTPA Claims Against BAC The magistrate judge rejected the Millers’ claims under the DTPA, explaining that the statute protects “consumers” and that mortgagors (loan borrowers) a re n ot consumers within the meaning of th e statute. We agree that this is the general rule, but restate the test slightly differently to account for a
necessary nuance. “The DTPA protects consumers; therefore, consumer s t atus is an e ssential element of a DTPA c ause of action.” Mendoza v. Am. N at’l I ns. C o. , 932 S.W.2d 605, 608 (Tex. App. 1996) (citation omitted). “In order to qualify as a c o nsumer under the D TPA, two requirements m ust be established. First, the person must seek or acq u i r e goods or services by purchase or lease. Second, the goods or

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services p urchased or leased must form the b asis of the complaint.” Id. (citations

om i tted); see a lso Tex. Bus. & Com. Code § 1 7.45(4) (providing the s tatutory definition of consumer). “Generally, a pure loan transaction lies outside the DTPA b ecause money is considered to be neither a good nor a service. However, subsequent c a ses have limited [this] doctrine.” F ord v. City State Bank of Palacios , 44 S .W.3d 121, 133 ( Tex. App. 2001) (citations omitted). A loan sometimes may constitute a b a s i s for consumer status under the DTPA. See, e.g. , Walker v. F.D.I.C. , 970 F.2d 114, 123 (5th Cir. 1992) (collecting citations in which Texas courts h ave d eparted from the “facially simple statement” that a “pure loan transaction lies o u t s i d e the DTPA”); Flenniken v. Longview Bank & Trust Co. , 661 S.W.2d 705, 706-08 (Tex. 1 983) (rejecting the argument that plaintiffs could not qualify as

consu m e r s because their transaction with th e d efendant bank was a lending transaction, where the loan was used to finance the construction of a house). A mortgagor qualifies as a consumer under the DTPA if his or h er primary objective in obtaining the loan was to acquire a good or service, and that good or service forms the basis of the complaint. Compare Flenniken , 661 S.W.2d at 708 (“[T]he Flennikens make no complaint as to the Bank’s lending a ctivities. U nlike Lewis, the Flennikens did not seek to borrow money; they sought to

a c quire a house. The house thus forms the basis of their complaint.”), w i t h Riverside Nat’l Bank v. Lew is , 603 S.W.2d 169, 175 (Tex. 1 980) (“Lewis approached Riverside Bank with one objective; he sought to acquire money.”). Here, the Millers have alleged that their mortgage was a purchase money loan, meaning they obtained i t t o a c quire their property on Corey Drive. Howeve r , t h e purchase money loan does not form the b asis of the Millers’ complaint; rather, the Mi l l e r s ’ DTPA claim against BAC is based entirely on their attempted m odification of th a t l oan. Such modification is akin to refi n a n c i n g i n that it is not sought for the acquisition o f a go od or service, but

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rather to finance an existing loan on previously acquired property. See Ayers v. Aurora Loan Servs., LLC, 787 F. Supp. 2d 451, 455 (E.D. Tex. 2011) (“[A] modification of an existing loan

. . . is an a logous to refinancing services. Refinancing is simply an extension of credit that does not qualify Plaintiff as a consumer.” (citations omitted)); Fix v. Flagstar Bank, F S B , 242 S.W.3d 147, 160 (Tex. App. 2007) (holding that “the refinance cannot qualify as a good or service under the D TPA” because the plaintiffs “had already purchased their h ouse [and thus the] refinance merely extended credit” (citation omitted)). As in Ayers , “ [h]ere, the allege d loan modification was not a part of the financing s c heme to acquire a house. It is an e ntirely separate and d i s tinct transaction, sought after the p urchase of the house was complete.” 787 F. Supp. 2d at 455. T h e M i l l ers’ complaint is therefore based on “a pure l oan transaction,” meaning the Millers do not qualify as consumers under the DTPA. See Ford , 44 S.W.3d at 1 3 3 ( c i tations omitted). Accordingly, we affirm the district court’s dismissal of the Millers’ DTPA claims. C. Promissory Estoppel Claims Against BAC The Millers a llege that they would have borrowed other funds, or liquidated property, t o cure their default but for their detrim ental reliance on repeated assurances f

rom BAC’s agents that (i) a loan modification application

w a s f orthcoming; (ii) it would not be n ecessary to c u re their default i n t h e interim; and (iii) the foreclosure sale would be delayed pending disposition of their a pplication. Adopting the magistrate judge’s recommendation, the district court dismissed these claims for common law promissory estoppel as barred by Texas’s statute of frauds. On appeal, the Millers focus their challenge on a question of civil procedure. They contend that the district court e rred in ruling on the statute of frauds because the statute of frauds is a n affirma t i v e defense that BAC never

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pled in an answer b ut, rather, rai s e d o nly in its Rule 12(b)(6) motion. 7 We conclude that the district court’s dismissal was not error. “[W]hen a successful affirmative d e fense appears on the face of the pleadings, dismissal under Rule 12(b)(6) may be appropriate.” Kansa Reins. Co.

v. Co ng
. M

o rtg. Corp. of Tex. , 20 F.3d 1 362, 1366 ( 5th Cir. 1994) (citation omitted); see also F

isher v . Hallib u r t on , 667 F.3d 602, 6 08-09 (5th Cir. 2012) (citing Kansa , 20 F.3d a t 1366, and noting that a claim may properly be subject to a Rule 12(b)(6) motion where the complaint itself establishes the a pplicability of an affirmative d efense). It is well-settled in Texas that agreements pertaining to loans in excess of $ 50,000 must be in writing, including modifications of those agreements. See Tex. Bus. & Com. Code § 26.02. Here, the entirety of the Millers’ allegations against BA C concern oral promises by eit h e r M s. Masters or unnamed call center representatives. Importantly, the Millers do not allege that BAC promised to sign a prepared document that c omports with Texas’s statute of frauds, which would have memorialized those promises. This omission is fatal to the Millers’ promissory estoppel claims. See Martins v. B AC H ome Loans Servicing, L.P. ,

_ __ F.3d ___, 2013 WL 3213633, at * 5 (5th Cir. June 26, 2013) (collecting citations and holding that promissory es t o p pel only overcomes Texas’s statute o f frauds where the allege d o r a l a g r e ement to modify a loan is accompanied by the lender’s or its agent’s promise to sign a w ritten agreement validating the oral agreement that itself satisfies the statute of frauds). 8

7 U nlik e N D E, BAC d id not f ile an ans w er to either of the M illers ’ com p laints

.

8 G a rci a v . Ka ra m , 276 S. W. 2d 255 (Tex. 1955) , w hich the M illers cite in their op ening brief, did not im p licate p rom is s ory es top p el and did not aris e in the hom e loan m od if ication context. G a rci a theref ore is not incons is tent w ith M a rti ns .

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For these reasons, BAC was permitted to raise the statute of frauds as a defense in its Rule 12(b)(6) m otion. The district court did not err in dismissing the Millers’ promissory estoppel claims on that basis. D. Wrongful Foreclosure Claims Against BAC and NDE The Millers argue that the district court erred in dismissing their common law w rongful foreclosure claims against BAC and NDE. Under Texas law, a wrongful foreclosure c laim ordinarily requires a showing o f (i) “a defect in the foreclosure sale proceedings”; (ii) “a grossly inadequate selling price”; and (iii) “a causal c onnection between the defect and the grossly inadequate selling price.” Sauceda v. GMAC M

ortg. Corp. , 268 S

. W

. 3 d 135, 139 (Tex. App. 2008) (citing Charter N

at’l Bank—Hous. v. Stevens , 7 8 1 S

. W

. 2 d 368, 371 (Tex. App. 1989)). The district court adopte d t h e m a gistrate judge’s finding that the Millers had satisfied the first element of a wrongful foreclosu r e claim, b ut had not alleged facts s a tisfying the s e c o n d a n d third elements. On appeal, the Millers do not dispute the magistrate judge’s finding. I nstead, the Millers argue that they are entitled t o a less stringent standard because they are not attacking the validity of the foreclosure sale b ut, rather, are seeking only compe n satory damages arising from the sale. The Millers a re correct that the above three-part s tandard—in particular the requirement to s how a grossly inadequate selling price—does n o t a p ply to all wrongful foreclosure claims under T exas l a w. However, the cases on which the M i llers r ely establish only a particularized exception whereby the plaintiffmortgagor may avoid showing a grossly i nadequate selling price if h e or she alleges that the defendant-mortgagee (lender) deliberately “chilled” th e bidding at the foreclosure sale. See, e.g. , Charter Nat’l Bank , 781 S.W.2d at 3 71 (holding that a mortgagor is not required “to prove a grossly i n adequate s elling price in

a situation where the bidding at a non-judicial foreclosure s ale was d eliberately ‘chilled’ by the affirmative acts of a mortgagee and the injured mortgagor seeks

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a recovery of damages r ather than a setting aside o f the sale i t s elf” (emphasis

o m i tted)). The cases do not stand f or the Millers’ broader proposition tha t mortgagors are entitled to a less stringent standard simply by pleading that they confirm the foreclosure sale and seek only damages arising from that sale. Here, the Millers never alleged that BAC and NDE interfered w i t h the bidding process of the foreclosure sale. The only defects they alleged w ere vague failures to comply with Texas statutory r equirements in effecting th e s ale, and that BAC h ad agreed to postpone foreclosure. See, e.g. , Am. Compl. ¶ ¶ 32-33, 65- 68. Thus, the “chilled bidding” exception does not apply. Because the e xception does not apply, a nd b ecause t h e M i l l e r s do not dispute their failure to have alleged a grossly inadequate selling price, we affirm the district court’s dismissal of their wrongful foreclosure claims. E. Request for an Accounting and Distribution from NDE Finally, the Millers argue on appeal that the di s t r i c t court e rred in denying their m otion to alter o r amend the judgment pursuant to Rule 59(e). In that motion, the Millers had contended to the district court that its Rule 12(b)(6) dismissal of their claims h ad not contained any discussion of their request for an accounting from NDE, a nd that NDE had n ot moved t o dismiss their claims on any basis. In light of our holding reversing t h e d i s trict c ourt’s dismissal of the Millers’ TDCA c laims under § 392.304(a)(14), we also reverse the district court’s dismissal of the Millers’ request for an accounting from NDE. V. For the foregoing reasons, we A FFIRM the district court’s dismissal of the Millers ’ D T PA and Texas common law claims. We also A FFIRM the district court’s dismissal of the M i l l e r s ’ TDCA claims u nder Tex. Fin. Code §§ 392.304(a)(8), (18), and (19). We REVERSE the district court’s dismissal of the Millers’ TDCA claims under § 392.304(a)(14) as well as the district c ourt’s denial

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o f the Millers’ request for an accounting from N DE. We REMAND for f u r t h e r proceedings consistent with this opinion.

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