IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-20246

GUILHERME CASALICCHIO, 

 Plaintiff - Appellant

v.

BOKF, N.A., doing business as Bank of Texas; FEDERAL HOME LOAN 

MORTGAGE CORPORATION, doing business as Freddie Mac, 

 Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

Before JOLLY, SMITH, and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Under Texas law, “the terms set out in a deed of trust must be strictly 

followed.” Univ. Sav. Ass’n v. Springwoods Shopping Ctr., 644 S.W.2d 705, 706 

(Tex. 1982). In this case, we are asked to decide just how strictly. The 

appellant, Guilherme Casalicchio, requests that we set aside a foreclosure sale 

of his residence because his lender, BOKF, N.A. (“BOKF”), mailed him a preforeclosure notice with the wrong deadline for curing default. As Casalicchio 

points out, the letter contained a deadline thirty days from the day the notice 

was printed, even though the deed of trust called for a deadline thirty days 

from the day the letter was mailed. 

United States Court of Appeals

Fifth Circuit

FILED

March 6, 2020

Lyle W. Cayce

Clerk

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Casalicchio all but concedes, however, that this mistake did not result in 

any harm or prejudice. We complete his thought process and conclude that 

there clearly was no harm or prejudice. Indeed, Casalicchio does not dispute 

that, even if the notice had stated the correct deadline, he would not have had 

the funds to pay the past-due balance on his account. Thus, applying Texas 

precedents, the district court correctly denied relief to Casalicchio, holding that 

BOKF’s “minor” non-compliance with the terms of the deed of trust did not 

justify unwinding a foreclosure sale. Accordingly, we affirm.

I.

On June 24, 2015, Guilherme Casalicchio received a $393,550.00 loan 

from BOKF, which allowed him to purchase a home in the Houston Energy 

Corridor. The loan was memorialized in a promissory note and secured by a 

deed of trust. The promissory note obliged Casalicchio to make “payments 

every month until . . . all of the principal and interest and any other charges” 

have been paid in full. But, having satisfied that obligation for about a year,

Casalicchio slacked into delinquency about August 2016.

After Casalicchio missed two consecutive payments, BOKF’s automated 

system generated a form letter that the parties call the “Default Letter” or 

“Cure Notice.” The letter, which we will call the “notice of default,”1 informed

Casalicchio that further delinquency would result in acceleration, i.e., in a 

demand for immediate payment of the full outstanding loan balance. The 

notice of default further explained that Casalicchio could prevent acceleration 

by paying the past-due balance on his account; that he had thirty days to do 

so; and that, after acceleration, he would retain the right to reinstate his loan 

by making missed payments, as well as the right to assert any legal defenses 

1 We believe that this term best comports with the Texas Property Code’s description 

of the document. Cf. TEX. PROP. CODE § 51.002(d); Montenegro v. Ocwen Loan Servicing, LLC, 

419 S.W.3d 561, 570 (Tex. App.—Amarillo 2013, pet. denied).

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to acceleration and foreclosure. Under the deed of trust, these disclosures were 

a necessary first step in the foreclosure process:

[BOKF] shall give notice to [Casalicchio] prior to acceleration 

following [Casalicchio’s] breach of any covenant or agreement in 

this [deed of trust]. The notice shall specify: (a) the default; (b) the 

action required to cure the default; (c) a date, not less than 30 days 

from the date the notice is given to [Casalicchio], by which the 

default must be cured; and (d) that failure to cure the default on or 

before the date specified in the notice will result in acceleration of 

the sums secured by [the deed of trust] and [a] sale of 

[Casalicchio’s] [p]roperty. The notice shall further inform 

[Casalicchio] of the right to reinstate after acceleration and the 

right to bring a court action to assert the non-existence of a default 

or any other defense . . . to acceleration and sale.

Importantly, the notice of default is dated September 5, 2016, which 

reflects the day that the document was printed by BOKF’s automated system, 

not the day that it was mailed.2 Accordingly, BOKF’s automated system

calculated a thirty-day cure window from the printing date and erroneously

instructed Casalicchio to deliver “a cashier’s check or certified funds for the 

total [past-due] amount . . . by noon on 10/05/16.” Casalicchio, of course, did 

not heed this instruction and his delinquency dragged on.

Nevertheless, BOKF chose not to accelerate right away. Instead, it

repeatedly offered to modify the terms of Casalicchio’s loan, e.g., by extending

the repayment period, offering Casalicchio reduced monthly payments, and

providing Casalicchio with an interest-free deferment of up to 30% of the loan’s 

outstanding principal. These loan-modification proposals, which were offered

to Casalicchio in November 2016 and March 2017, expressly informed 

Casalicchio that he could avoid foreclosure by resuming monthly payments. 

But, again, Casalicchio failed to take action.

2 The notice was mailed a week later, on September 12.

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By the summer of 2017, BOKF had exhausted its patience. On June 12, 

the bank accelerated Casalicchio’s loan and notified him that a foreclosure sale 

had been scheduled for the following month. By the time BOKF accelerated 

the loan, Casalicchio’s debt was 313 days (about ten months) delinquent. On 

July 4, the property was sold to the Federal Home Loan Mortgage Corporation 

(“Freddie Mac”), which took title and soon initiated eviction proceedings in 

Texas state court. To date, Casalicchio remains delinquent but continues to 

possess the property. He has vigorously and successfully resisted Freddie 

Mac’s efforts to evict him.

II.

Using this case as a vehicle, Casalicchio continues his resistance. 

Originally, he filed suit in Texas state court, seeking, inter alia, a declaratory 

judgment voiding the foreclosure sale, damages for an alleged breach of the 

deed of trust, and an injunction barring Freddie Mac from pursuing eviction. 

BOKF removed the case to the Southern District of Texas, where, on a motion 

for summary judgment, the district court dismissed all of Casalicchio’s claims.

Noting that the claims were all “base[d] on . . . alleged defects in the 

notice of default,” the court reasoned that “minor defects in an otherwise valid 

foreclosure sale do not void it.” The district court, in other words, held that 

Casalicchio’s claims could not survive summary judgment unless the alleged 

defects in the notice of default produced some quantum of real-world harm. 

Finding that, on the contrary, the alleged defects were “minor, technical 

error[s],” the district court granted summary judgment to the defendants and 

dismissed Casalicchio’s suit with prejudice. Down but not out, Casalicchio 

pursues this appeal.

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III.

At bottom, Casalicchio’s appeal hinges on a single issue.3 He challenges 

the district court’s summary judgment ruling and, in particular, its conclusion 

that “minor, technical” deviations from a deed of trust’s requirements do not 

justify setting aside a foreclosure sale. We review a “grant of summary 

judgment de novo, applying the same legal standards as the district court.” 

Am. Home Assur. Co. v. United Space All., LLC, 378 F.3d 482, 486 (5th Cir. 

2004). Because, in this case, the material facts are either undisputed or 

indisputable, we inquire only whether the district court properly applied Texas 

law. Cf. Fed. Ins. Co. v. Ace Prop. & Cas. Co., 429 F.3d 120, 122 (5th Cir. 2005).

Casalicchio argues that, because the deed of trust entitled him to a “date, 

not less than 30 days from the date the notice [of default was] given,” BOKF’s

failure to provide a deadline thirty days from the day that the notice of default

was mailed triggers the longstanding Texas rule that non-judicial foreclosure 

sales are void when they fail to conform to the terms of a deed of trust.4 See,

e.g., Slaughter v. Qualls, 162 S.W.2d 671, 675 (Tex. 1942).

Although Casalicchio states in conclusory fashion that he was “damaged” 

by BOKF’s non-compliance with the deed of trust, in practice he does little to

contest the district court’s conclusion that any non-compliance was lacking in 

practical effect to him. Nor could he. The record conclusively demonstrates

that the incorrect deadline on the notice of default was devoid of real-world 

3 Casalicchio briefly argues that the district court somehow violated Federal Rule of 

Civil Procedure 56(a) by denying his motion to alter or amend the judgment (under Federal 

Rule of Civil Procedure 59(e)) without stating its reasons. But Rule 56 applies, by its plain 

terms, to motions for summary judgment, not motions to alter or amend. See Fed. R. Civ. P. 

56(a) (“A party may move for summary judgment [and the] court should state on the record 

the reasons for granting or denying the motion.” (emphasis added)).

4 Casalicchio is correct that the mailing date is the relevant benchmark. The deed of 

trust states that “[a]ny notice to [Casalicchio] in connection with [the deed of trust] shall be 

deemed to have been given . . . when mailed by first class mail or when actually delivered to 

[Casalicchio’s] notice address if sent by other means.”

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significance. For example, it is undisputed that BOKF did not accelerate the 

loan on October 5 or October 12. Instead, BOKF waited until the following 

June and, in the interim, offered Casalicchio multiple opportunities to cure his 

default by making reduced monthly payments. Clearly, the deed-of-trust 

provision on which Casalicchio relies was designed to afford him “a lengthy 

notice period in which he may cure.” See Jasper Fed. Sav. & Loan Ass’n v. 

Reddell, 730 S.W.2d 672, 674 (Tex. 1987). Practically speaking, he received 

just that: he was on notice of his default and had an opportunity to cure, not 

for thirty days (as the deed of trust would require), but for roughly nine 

months. 

Moreover, Casalicchio concedes that he did not have the money to make 

missed payments at any point between October 5 and October 12. It follows

that he could hardly have been prejudiced by the computer-generated error on 

the notice of default: that is to say that, even if he had been informed of the 

accurate October 12 deadline, he would have remained in default and suffered

the identical consequences.

Casalicchio’s real argument is that, under Texas law, non-judicial

foreclosure sales must be set aside whenever the lender deviates from the deed 

of trust’s requirements, no matter how harmless or insignificant that deviation 

may be. He contends that a lender who fails to comply with a deed of trust’s 

notice requirements is in the same position as a skydiver who “jump[s] without 

a parachute.” In short, he argues that non-compliance with a deed of trust’s 

provisions is a mistake that cannot be excused or mooted by any later 

developments.

We acknowledge that Casalicchio’s absolute position has a touch of Texas 

support. See Harwath v. Hudson, 654 S.W.2d 851, 854 (Tex. App.—Dallas

1983, writ ref’d n.r.e.) (“[T]he right of a grantor of a deed of trust to have its 

provisions strictly complied with to effect a valid foreclosure sale is absolute.”). 

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However, in this diversity case, we must “look to the final decisions of [Texas’s] 

highest court.” FinServ Cas. Corp. v. Symetra Life Ins. Co., 941 F.3d 795, 798 

(5th Cir. 2019) (quotation omitted). Since the 1980s, the Texas Supreme Court 

has repeatedly moderated its rule that the “terms of a deed of trust must be 

strictly followed,” clarifying recently that harmless mistakes do not void 

otherwise-valid foreclosure sales. See Hemyari v. Stephens, 355 S.W.3d 623, 

628 (Tex. 2011).

In the first of these cases, University Savings Association v. Springwoods

Shopping Center, a property was sold at a foreclosure sale by a substitute 

trustee with “no authority to sell the property.” 644 S.W.2d at 706. Under the 

deed of trust, the substitute trustee’s power of sale was contingent on the 

lender recording a notice of appointment with the county clerk’s office. Id. The 

lender, however, did not record a notice of appointment until two days after 

the trustee’s sale. Id. The Texas Supreme Court was thus asked to decide 

whether, under the circumstances, an action for wrongful foreclosure may lie,

even though the debtor had actual notice of the substitute trustee’s 

appointment and even though “no prejudice or harm resulted from the failure 

to comply with the recordation provision in the deed of trust.”5 Id. The Court 

held “that the notice received by [the debtor] is a bar to an action for wrongful 

foreclosure,” reasoning that in the light of “the notice given, [the] failure to 

record an otherwise valid appointment of a substitute trustee does not affect 

the legality or fairness of the trustee’s sale.” Id. (quotation omitted).

Five years later, in another wrongful foreclosure case, the Texas 

Supreme Court applied Springwoods to circumstances that mirror our 

5 “Wrongful foreclosure” is a term of art in Texas. It signifies a cause of action in 

which the plaintiff must prove: “(1) a defect in the foreclosure sale proceedings; (2) a grossly 

inadequate selling price; and (3) a causal connection between the defect and the grossly 

inadequate selling price.” Collins v. Bayview Loan Servicing, LLC, 416 S.W.3d 682, 687 n.7 

(Tex. App.—Houston [14th Dist.] 2013, no pet.).

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situation. Indeed, in Jasper Federal Savings & Loan Association v. Reddell, 

the Court examined an acceleration clause more or less identical to the clause 

at issue in this case. 730 S.W.2d at 673. The lender had failed to comply with 

the provision requiring that the notice of default “inform [the debtors] of [their]

right to reinstate after acceleration and [their] right to bring a court action to 

assert [their] defense[s] to acceleration and sale.” Id. Once again, however, 

the Texas Supreme Court held that the debtors could not prevail in a suit for

wrongful foreclosure. Id. at 674–75. The Court explained that the debtors 

“had actual knowledge of their rights by virtue of their prior consultation with 

. . . legal counsel” and that “notice of the right to reinstate and to bring a court 

action are not notices required by law.” Id. at 674. The Court thus held that,

because “non-statutory foreclosure prerequisites . . . affect[] only the 

relationship between the debtor and the creditor,” actual notice can preclude 

wrongful foreclosure liability when a lender fails to provide notice required by 

a deed of trust but not otherwise required by law. Id. at 674–75.

After Jasper, it had become clear that the rule requiring “strict” 

observance of deed-of-trust provisions is not absolute, at least in the wrongful 

foreclosure context and at least where the deed of trust’s requirements do not 

mimic the requirements of a Texas statute. Dicta in Springwoods had 

indicated that greater “strictness” may be required outside the wrongful 

foreclosure context, particularly with respect to “cause[s] of action to set aside 

. . . trustee’s deed[s].” See 644 S.W.2d at 706. But, in 2011, the Texas Supreme 

Court decided Hemyari v. Stephens, which expanded the scope of decisions like 

Springwoods and Jasper and clarified that harmlessly failing to comply with a 

deed of trust’s requirements does not void an otherwise-valid foreclosure sale. 

Hemyari, 355 S.W.3d at 626–28. 

In Hemyari, two debtors argued that “defects in the . . . foreclosure sale 

process . . . render the sale defective and void.” 355 S.W.3d at 627–28. 

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Specifically, the debtors, two limited partnerships, complained that the lender 

had omitted the partnerships’ names from the “signature line of the deed of 

trust and from the substitute trustee’s deed,” instead erroneously naming each 

partnership’s general partner. Id. at 627. Drawing from Springwoods, the

Court rejected the debtors’ argument. The Court noted that the mistake was 

“so obvious from the face of the deed as to be harmless.” Id. at 628. In so 

noting, the Court articulated a general principle, which is of clear relevance 

here: “minor defects in an otherwise valid foreclosure sale do not void it.” Id.

Thus, in the final summation, Casalicchio cannot successfully 

distinguish Hemyari. We conclude that, under Texas law, a lender who

harmlessly fails to comply with a deed-of-trust provision is saved from the fate 

of one who “jump[s] [from a plane] without a parachute.” Although BOKF 

failed to provide a “date, not less than 30 days from the date the notice [of 

default was] given,” the record establishes that proper notice would have made 

no difference to the outcome for Casalicchio; he still would not have had funds

necessary to remediate his delinquency. Accordingly, BOKF’s omission of the 

correct, October 12 deadline was but a “minor defect,” insufficiently prejudicial

to justify setting aside an otherwise valid foreclosure sale. 

The district court’s grant of summary judgment to BOKF and Freddie 

Mac is in all respects thus

AFFIRMED.

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