IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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, James and Allene Miller, appeal the district court’s dismissal with

prejudice of their claims against BAC and NDE under the Texas Debt Collection

Act (“TDCA”), Tex. 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 court’s dismissal

of the Millers’ DTPA and Texas common law claims. We also AFFIRM the

district court’s dismissal of the Millers’ TDCA claims under §§ 392.304(a)(8),

United States Court of Appeals

Fifth Circuit

F I L E D

August 13, 2013

Lyle W. Cayce

Clerk

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(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 court’s denial of the Millers’

request for an accounting from NDE. We REMAND for further proceedings

consistent with this opinion.

I.

In December 2001, the Millers obtained a purchase money mortgage for

the Corey Drive property from Nexstar Financial Corp (“Nexstar”). The

mortgage note was secured by a deed of trust lien. 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 default from BAC on March 10, 2010.1 The written notice

warned the Millers that they faced loan acceleration and 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 May 3, 2010, they

called BAC at least three times, and that each call resulted in an unfulfilled

promise from a BAC call center representative to send them a loan modification

application. Further, the Millers allege that at least one of the call center

representatives assured them that there would be no need to make a premodification payment to cure the default.

On May 3, 2010, the Millers received a letter from BAC’s foreclosure law

firm stating that a foreclosure sale of the property would occur on June 1, 2010. 

The Millers allege that sometime between May 3, 2010, and May 18, 2010, a

1

It is not clear on the face of the Millers’ amended complaint why BAC would have

contacted the Millers about the default on March 10, 2010, when Nexstar’s assignment to it

did not become effective until April 7, 2010. See Am. Compl. ¶¶ 6, 9. It also is not clear

whether the mortgage already was in default at the time of the assignment.

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BAC foreclosure specialist named Victoria Masters informed them that she

would make sure a loan modification application arrived, and that the

foreclosure sale would be postponed while they attempted to modify their loan. 

The loan modification application arrived on May 18, 2010.

The Millers returned their completed application by mail on May 28, 2010. 

That same day, they were contacted by an agent of BAC who informed them that

the foreclosure auction would proceed on June 1, 2010. On May 31, 2010, the

Millers again spoke with Ms. Masters, the BAC foreclosure specialist. She

informed them that no postponement had yet been approved, but that she would

attempt to obtain such approval from Fannie Mae. Later that day, the Millers

allege Ms. Masters represented to them that she had obtained approval from

Fannie Mae for foreclosure postponement pending disposition of their loan

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 trustee. The Millers allege that Ms.

Hampton was an agent of NDE, acting at the behest of BAC.2 The Corey Drive

property sold at public auction. Sometime the following month, the Millers

voluntarily vacated the property at the request of the purchaser.

II.

The Millers filed suit on January 14, 2011, and amended their complaint

on September 22, 2011, ultimately raising claims under the Fair Debt Collection

Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., the TDCA, the DTPA, and

2 We assume this allegation is true for purposes of reviewing the district court’s

dismissal of the Millers’ claims. That said, NDE disputes the Millers’ allegation that Ms.

Hampton was its agent. In its opening brief, NDE characterizes itself as merely an “affiliated”

service provider to the foreclosure law firm retained by BAC. It is not clear what NDE means

by “affiliated,” and whether Ms. Hampton instead would have been an agent of BAC or the

foreclosure law firm.

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Texas common law. On October 17, 2011, BAC moved to dismiss the amended

complaint under Federal Rule of Civil Procedure (“Rule”) 12(b)(6). The

magistrate judge filed her 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 magistrate judge’s report, the

district 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 amend the judgment

pursuant to Rule 59(e). Among other things, the Millers argued that it was not

fair for the district court to have dismissed their claims against NDE. The

Millers emphasized that BAC’s motion to dismiss had not addressed their

request for an accounting of the foreclosure sale from NDE or for a distribution

of excess profits from the sale.4 The Millers contended that they had not had a

prior meaningful opportunity to justify those claims and, in their Rule 59(e)

motion, provided legal arguments as to why those claims should survive scrutiny

under Rule 12(b)(6).

In a second report, dated September 24, 2012, the magistrate judge

addressed the Millers’ Rule 59(e) motion. The magistrate judge recommended

denial of the motion, explaining that the Millers’ written objections to her first

report had not encompassed the request for an accounting and distribution, even

though the Millers could have objected to her prior failure to address the

request. The magistrate judge further concluded that the Millers had not stated

3 NDE did not move to dismiss the amended complaint. Nevertheless, the magistrate

judge recommended dismissal as to both defendants, and the district court adopted that

recommendation. On appeal,the Millers challenge the district court’s dismissal oftheir claims

as to NDE on the grounds that NDE did not move to dismiss and, indeed, filed answers to both

the initial complaint and the amended complaint. We address this issue infra.

4 Nor had the magistrate judge addressed the request in her March 23, 2012 report.

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a claim for an accounting independent of their claims for wrongful foreclosure,

which she already had addressed in her first report and the district court

already had dismissed.

The Millers timely objected to this second report. Nevertheless, the

district court proceeded to adopt it upon de novo review, thereby denying the

motion to alter or amend the judgment. The Millers timely appealed. However,

they only pursue some of their claims on appeal, namely their: (i) TDCA claims

against BAC; (ii) DTPA claims against BAC; (iii) promissory estoppel claims

against BAC; (iv) wrongful foreclosure claims against both BAC and NDE; and

(v) request for an accounting from NDE and distribution of any excess profits.

III.

“We review de novo the grant of a 12(b)(6) motion to dismiss.” Gregson v.

Zurich Am. Ins. Co., 322 F.3d 883, 885 (5th Cir. 2003). “We generally review a

decision on a motion to alter or amend judgment under Rule 59(e) for abuse of

discretion.” Pioneer Natural Res. USA, Inc. v. Paper, Allied Indus., Chem. &

Energy Workers Int’l Union Loc. 4-487, 328 F.3d 818, 820 (5th Cir. 2003)

(citations omitted). “To the extent that a ruling was a reconsideration of a

question 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. With respect to those claims, the

magistrate judge rightly explained that the FDCPA distinguishes between

“creditors” and “debt collectors.” Compare 15 U.S.C. § 1692a(4) (creditors), with

15 U.S.C. § 1692a(6) (debt collectors). She then observed that the FDCPA

generally applies to debt collectors, but not to creditors, except “to the extent

that [a creditor] receives an assignment or transfer of a debt in default solely for

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the purpose of facilitating collection of such debt for another.” 15 U.S.C. §

1692a(4).5 The magistrate judge finally noted that we previously have held that

“mortgage servicing companies” and “debt assignees” are not debt collectors, and

therefore are not regulated by the FDCPA, “as long as the [mortgage] was not

in default at the time it was assigned” by the originator. Perry v. Stewart Title

Co., 756 F.2d 1197, 1208 (5th Cir. 1985) (citations omitted). Applying these

principles, the magistrate judge concluded that BAC was not a debt collector,

and thus was not subject to the FDCPA because, on the Millers’ 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 analyzed the Millers’ comparable claims under

the TDCA. The TDCA similarly distinguishes between creditors and debt

collectors. Compare Tex. Fin. Code § 392.001(3) (creditors), with Tex. Fin. Code

§ 392.001(6) (debt collectors). Its prohibitions apply only to debt collectors. See

Catherman v. First State Bank of Smithville, 796 S.W.2d 299, 302 (Tex. 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 § 392.001(7). It defines

third-party debt collectors 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 the same reasons that their FDCPA claims do. We

5 The magistrate judge relied on Pollice v. National Tax Funding, L.P., 225 F.3d 379,

403 (3d Cir. 2000) (citations omitted), in making this observation. We expressly adopt this

precedent from the Third Circuit.

6 As discussed supra, in note 1, this is not apparent from the Millers’ pleadings. See

Am. Compl. ¶¶ 6, 9. However, the Millers have not challenged the district court’s dismissal

of their FDCPA claims on appeal. Accordingly, the district court’s disposition of those claims

remains undisturbed and any challenge to that disposition is waived. See Swindle v.

Livingston Parish Sch. Bd., 655 F.3d 386, 392 & n.6 (5th Cir. 2011) (citations omitted).

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reject this conclusion, which erroneously affords the lone third-party debt

collectors reference talismanic significance despite the fact that the FDCPA is

a “distinguishable, federal statute.” See Monroe v. Frank, 936 S.W.2d 654, 660

(Tex. App. 1996) (citation and footnote omitted) (listing differences between the

two statutes). The TDCA’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 attempting to collect any debt owed or due or asserted to be

owed or due another to the extent such activity . . . concerns a debt which was

not in default at the time it was obtained by such person.” 15 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 it was assigned” by the originator. 756 F.2d at 1208

(citations omitted). However, we also held in Perry that servicers and assignees

are debt collectors, and therefore are covered, under the TDCA. See id. (citation

omitted). In light of Perry, we conclude 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 claims allege violations of Tex. Fin. Code §§

392.304(a)(8), (14), (18), and (19). Those provisions prohibit the following:

(8) misrepresenting the character, extent, or amount

of a consumer debt, or misrepresenting the

consumer debt’s status in a judicial or governmental

proceeding; . . .

(14) representing falsely the status or nature of the

services rendered by the debt collector or the debt

collector’s business; . . .

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(18) representing that a consumer debt is being

collected by an independent, bona fide organization

engaged in the business of collecting past due

accounts when the debt is being collected by a

subterfuge organization under the control and

direction of the person who is owed the debt; or

(19) using any other false representation or

deceptive means to collect a debt or obtain

information concerning a consumer.

The Millers allege that BAC repeatedly promised to send them a loan

modification application and to delay foreclosure. They further allege that,

notwithstanding its promises, BAC never responded to their submitted

application once it arrived and proceeded to foreclose upon their property. 

Accepting these allegations as true at the Rule 12(b)(6) stage, we conclude that

the Millers have stated a claim upon 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 amount that they owed; (iii) and that they had defaulted. 

Nothing in the Millers’ allegations suggests the BAC led them to think

differently with respect to the character, extent, amount, or status of their

debt—only that BAC promised to send them a loan modification application and

to delay foreclosure. 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 demonstrate that

BAC may have misrepresented the status or nature of the services it rendered. 

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The Millers allege that BAC “informed [Mr. Miller] that the terms of his loan

could be modified to cure the default and avoid foreclosure if he qualified for the

available options.” They further allege that BAC agents repeatedly promised to

send them an application for a loan modification, but never did until May 18,

2010. On the one hand, these allegations, at most, show that BAC promised to

send the Millers an application, which BAC ultimately did. The Millers do not

allege that BAC promised to grant the application.

Notwithstanding the above, the Millers also allege that BAC “informed Mr.

Miller that he did not need to make payments on the loan because delinquent

payments would be subsumed into the modified loan when it was concluded.” 

Moreover, the Millers allege “[t]hey were informed that the completed

application must be submitted by June 17, 2010.” Finally, the Millers allege

that Ms. Masters “informed Mr. Miller that she had obtained approval to

postpone the [June 1] foreclosure sale.” These allegations, at the least, show

that BAC promised to consider the application before foreclosing on June 1,

which the Millers allege that BAC did not do.

In light of this showing, we conclude that BAC may have harmed the

Millers by causing them, for example, to decline to liquidate property or seek

alternative financing before the June 1 foreclosure date—pending BAC’s

disposition of their application. Accordingly, the Millers have alleged sufficient

facts to state a claim against BAC, pursuant to § 392.304(a)(14), for

misrepresenting the status or nature of the services that it rendered. 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 it was an independent organization

responsible for collecting the Millers’ debt when, in fact, Bank of America, N.A.

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owned the Millers’ mortgage by assignment, and BAC was merely Bank of

America’s servicer. Irrespective of this contention’s possible validity,theMillers’

amended complaint contained no allegation about any representation by BAC

that it was an independent debt collector. Because the Millers have not alleged

any facts stating that BAC was a subterfuge organization for Bank of America,

they have not stated a claim upon which relief may be granted under §

392.304(a)(18).

4. Section 392.304(a)(19)

Finally, even though § 392.304(a)(19) appears to be a catch-all, or residual,

provision for proceeding under the TDCA, the Millers did not allege any specific

deceptive acts or practices by BAC that could constitute a violation of the

provision. Instead, their amended complaint refers vaguely to BAC “using a

false representation or deceptive means to collect a debt.” See Am. Compl. ¶

41(d). Such a pleading is not sufficient to overcome dismissal under Rule

12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555-56 (2007) (citations omitted). The Millers, thus,

have not stated a claim upon which relief may be granted under § 392.304(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) are not consumers within the meaning of the 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 status is an essential

element of a DTPA cause of action.” Mendoza v. Am. Nat’l Ins. Co., 932 S.W.2d

605, 608 (Tex. App. 1996) (citation omitted). “In order to qualify as a consumer

under the DTPA, two requirements must be established. First, the person must

seek or acquire goods or services by purchase or lease. Second, the goods or

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services purchased or leased must form the basis of the complaint.” Id. (citations

omitted); see also Tex. Bus. & Com. Code § 17.45(4) (providing the statutory

definition of consumer).

“Generally, a pure loan transaction lies outside the DTPA because money

is considered to be neither a good nor a service. However, subsequent cases have

limited [this] doctrine.” Ford v. City State Bank of Palacios, 44 S.W.3d 121, 133

(Tex. App. 2001) (citations omitted). A loan sometimes may constitute a basis

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 have departed

from the “facially simple statement” that a “pure loan transaction lies outside

the DTPA”); Flenniken v. Longview Bank & Trust Co., 661 S.W.2d 705, 706-08

(Tex. 1983) (rejecting the argument that plaintiffs could not qualify as

consumers because their transaction with the defendant 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 her 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 activities. 

Unlike Lewis, the Flennikens did not seek to borrow money; they sought to

acquire a house. The house thus forms the basis of their complaint.”), with

Riverside Nat’l Bank v. Lewis, 603 S.W.2d 169, 175 (Tex. 1980) (“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 it to acquire their property on Corey Drive. 

However, the purchase money loan does not form the basis of the Millers’

complaint; rather, the Millers’ DTPA claim against BAC is based entirely on

their attempted modification of that loan. Such modification is akin to

refinancing in that it is not sought for the acquisition of a good 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 analogous to refinancing services. 

Refinancing is simply an extension of credit that does not qualify Plaintiff as a

consumer.” (citations omitted)); Fix v. Flagstar Bank, FSB, 242 S.W.3d 147, 160

(Tex. App. 2007) (holding that “the refinance cannot qualify as a good or service

under the DTPA” because the plaintiffs “had already purchased their house [and

thus the] refinance merely extended credit” (citation omitted)).

As in Ayers, “[h]ere, the alleged loan modification was not a part of the

financing scheme to acquire a house. It is an entirely separate and distinct

transaction, sought after the purchase of the house was complete.” 787 F. Supp.

2d at 455. The Millers’ complaint is therefore based on “a pure loan

transaction,” meaning the Millers do not qualify as consumers under the DTPA. 

See Ford, 44 S.W.3d at 133 (citations omitted). Accordingly, we affirm the

district court’s dismissal of the Millers’ DTPA claims.

C. Promissory Estoppel Claims Against BAC

The Millers allege that they would have borrowed other funds, or

liquidated property, to cure their default but for their detrimental reliance on

repeated assurances from BAC’s agents that (i) a loan modification application

was forthcoming; (ii) it would not be necessary to cure their default in the

interim; and (iii) the foreclosure sale would be delayed pending disposition of

their application. 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 erred in ruling on the statute of

frauds because the statute of frauds is an affirmative defense that BAC never

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pled in an answer but, rather, raised only in its Rule 12(b)(6) motion.7 We

conclude that the district court’s dismissal was not error.

“[W]hen a successful affirmative defense appears on the face of the

pleadings, dismissal under Rule 12(b)(6) may be appropriate.” Kansa Reins. Co.

v. Cong. Mortg. Corp. of Tex., 20 F.3d 1362, 1366 (5th Cir. 1994) (citation

omitted); see also Fisher v. Halliburton, 667 F.3d 602, 608-09 (5th Cir. 2012)

(citing Kansa, 20 F.3d at 1366, and noting that a claim may properly be subject

to a Rule 12(b)(6) motion where the complaint itself establishes the applicability

of an affirmative defense). 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 BAC concern oral

promises by either Ms. Masters or unnamed call center representatives. 

Importantly, the Millers do not allege that BAC promised to sign a prepared

document that comports 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. BAC Home Loans Servicing, L.P., ___ F.3d ___,

2013 WL 3213633, at *5 (5th Cir. June 26, 2013) (collecting citations and holding

that promissory estoppel only overcomes Texas’s statute of frauds where the

alleged oral agreement to modify a loan is accompanied by the lender’s or its

agent’s promise to sign a written agreement validating the oral agreement that

itself satisfies the statute of frauds).8

7 Unlike NDE, BAC did not file an answer to either of the Millers’ complaints.

8 Garcia v. Karam, 276 S.W.2d 255 (Tex. 1955), which the Millers cite in their opening

brief, did not implicate promissory estoppel and did not arise in the home loan modification

context. Garcia therefore is not inconsistent with Martins.

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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) motion. 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 wrongful foreclosure claims against BAC and NDE. Under Texas law, a

wrongful foreclosure claim ordinarily requires a showing of (i) “a defect in the

foreclosure sale proceedings”; (ii) “a grossly inadequate selling price”; and (iii) “a

causal connection between the defect and the grossly inadequate selling price.” 

Sauceda v. GMAC Mortg. Corp., 268 S.W.3d 135, 139 (Tex. App. 2008) (citing

Charter Nat’l Bank—Hous. v. Stevens, 781 S.W.2d 368, 371 (Tex. App. 1989)). 

The district court adopted the magistrate judge’s finding that the Millers had

satisfied the first element of a wrongful foreclosure claim, but had not alleged

facts satisfying the second and third elements. On appeal, the Millers do not

dispute the magistrate judge’s finding. Instead, the Millers argue that they are

entitled to a less stringent standard because they are not attacking the validity

of the foreclosure sale but, rather, are seeking only compensatory damages

arising from the sale.

The Millers are correct that the above three-part standard—in particular

the requirement to show a grossly inadequate selling price—does not apply to

all wrongful foreclosure claims under Texas law. However, the cases on which

the Millers rely establish only a particularized exception whereby the plaintiffmortgagor may avoid showing a grossly inadequate selling price if he or she

alleges that the defendant-mortgagee (lender) deliberately “chilled” the bidding

at the foreclosure sale. See, e.g., Charter Nat’l Bank, 781 S.W.2d at 371 (holding

that a mortgagor is not required “to prove a grossly inadequate selling price in

a situation where the bidding at a non-judicial foreclosure sale was deliberately

‘chilled’ by the affirmative acts of a mortgagee and the injured mortgagor seeks

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a recovery of damages rather than a setting aside of the sale itself” (emphasis

omitted)). The cases do not stand for the Millers’ broader proposition that

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 with the

bidding process of the foreclosure sale. The only defects they alleged were vague

failures to comply with Texas statutory requirements in effecting the sale, and

that BAC had agreed to postpone foreclosure. See, e.g., Am. Compl. ¶¶ 32-33, 65-

68. Thus, the “chilled bidding” exception does not apply. Because the exception

does not apply, and because the Millers 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 district court erred in

denying their motion to alter or 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 had not contained any discussion of their request for an

accounting from NDE, and that NDE had not moved to dismiss their claims on

any basis.

In light of our holding reversing the district court’s dismissal of the

Millers’ TDCA claims 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 AFFIRM the district court’s dismissal of the

Millers’ DTPA and Texas common law claims. We also AFFIRM the district

court’s dismissal of the Millers’ TDCA claims under 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 court’s denial

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 Case: 12-41273 Document: 00512339912 Page: 15 Date Filed: 08/13/2013
No. 12-41273

of the Millers’ request for an accounting from NDE. We REMAND for further

proceedings consistent with this opinion.

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 Case: 12-41273 Document: 00512339912 Page: 16 Date Filed: 08/13/2013