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Aase v. Buckley Madole, P.C.

Court of Appeals of Texas, First District

September 26, 2019

ANN DOUGLAS AASE, Appellant
v.
BUCKLEY MADOLE, P.C., Appellee

          On Appeal from the 127th District Court Harris County, Texas Trial Court Case No. 2017-33659-A

          Panel consists of Justices Kelly, Hightower, and Countiss.

          MEMORANDUM OPINION

          Richard Hightower Justice

         Appellant Ann Aase defaulted on her residential mortgage that was secured by a deed of trust. Wells Fargo Bank, N.A., the assignee of the deed of trust, sent Aase a notice of default and intent to accelerate. After Aase failed to timely cure the default, Wells Fargo pursued foreclosure and retained appellee Buckley Madole, P.C., as foreclosure counsel. Buckley Madole sent Aase a notice letter under the Fair Debt Collection Practices Act (FDCPA), and ten days later, Buckley Madole sent her a notice of acceleration of the loan and a notice of foreclosure sale. The property was then sold at foreclosure to Jelinis, LLC.

         Aase sued Wells Fargo, Buckley Madole, and Jelinis (which was never served). The trial court granted the summary judgment motions of Wells Fargo and Buckley Madole and severed Aase's claims against them. Aase appeals only the summary judgment in favor of Buckley Madole, asserting that its FDCPA letter revoked or replaced Wells Fargo's notice of default and intent to accelerate and that the acceleration and foreclosure was therefore improper and should be rescinded. We disagree and affirm the summary judgment for Buckley Madole.

         Background

         Ann Aase purchased real property (a house) with a loan secured by a deed of trust that was later assigned to Wells Fargo. Aase failed to make her September 2016 monthly payment, and Wells Fargo sent her a notice of default and intent to accelerate (the Notice of Default) dated October 17, 2016. There is no dispute that Aase was in default. The Notice of Default included Aase's delinquency amount ($7, 435.47) and set a November 21, 2016 deadline for her to cure the default. The Notice of Default's timeliness and content are not in dispute. The deadline expired without Aase curing the default.

         Buckley Madole, then a Dallas law firm, sent Aase a January 20, 2017 letter (the FDCPA Letter) with reference to Aase's loan and her property with the following caption: "FAIR DEBT COLLECTION PRACTICES ACT NOTIFICATION."[1] The text of the FDCPA Letter states that Buckley Madole represents Wells Fargo and that it has been requested to pursue foreclosure in accordance with Aase's note, deed of trust, and applicable law. The letter then states the following information in four numbered paragraphs: (1) the total amounts to cure the default and to pay off the debt as of January 13, 2017; (2) the mailing address for Buckley Madole and that the amounts to cure may vary and be greater should Aase choose to pay either amount, in which case Aase will be notified of the adjusted amount; (3) that unless Aase disputed the validity of the debt within thirty days of her receipt of the notice, Buckley Madole would assume the debt to be valid; and (4) that if Aase disputed the validity of the debt within thirty days of her receipt of the notice, Buckley Madole would obtain and mail her verification of the debt, and that if, within thirty days of her receipt of the notice, Aase requested the name and address of the original creditor, if different from the current creditor, Buckley Madole would provide her with the name and address of the original creditor.

         Buckley Madole next sent Aase a January 30, 2017 letter (the Notice of Sale) notifying her that the note had been accelerated and that foreclosure of the property was scheduled for March 7, 2017. The Notice of Sale included a notice of acceleration and notice of trustee's sale. The foreclosure took place as noticed, and Aase was eventually evicted.

         Aase sued Wells Fargo, Buckley Madole, and Jelinis, seeking declaratory relief that the foreclosure was void and should be rescinded because it was not properly noticed under the Texas Property Code and the deed of trust. She also asserted causes of action against Wells Fargo and Buckley Madole for breach of contract and for violating chapter 92 of the Texas Finance Code (the Texas Debt Collection Act), with such violation being a deceptive trade practice under chapter 17 of the Texas Business and Commerce Code. All of Aase's claims are premised on her assertions that Buckley Madole's FDCPA Letter revoked or replaced Wells Fargo's Notice of Default and that the FDCPA Letter was legally inadequate in timing and content to serve as a default letter to support the Notice of Sale that was sent ten days after the FDCPA Letter.

         Buckley Madole moved for summary judgment on the ground that its FDCPA Letter was not a notice of default under the deed of trust and Texas law as a matter of law and that it was entitled to summary judgment on all Aase's claims, which were all based on her allegation that the FDCPA Letter was a notice of default that revoked or replaced Wells Fargo's Notice of Default. The trial court granted Buckley Madole's summary judgment motion. Aase appeals, continuing to assert that Buckley Madole's FDCPA Letter "undid the notice of intent to accelerate that was in the Wells Fargo default letter."

         Analysis

         We review summary judgments de novo. City of Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 258 (Tex. 2018). Summary judgment is proper when the material facts are not disputed and the moving party is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Oncor Elec, 539 S.W.3d at 258-59.

         "If a note or deed of trust secured by real property contains an optional acceleration clause, " "[effective acceleration" of the debt "requires two acts: (1) notice of intent to accelerate, and (2) notice of acceleration." Holy Cross Church of God in Christ v. Wolf44 S.W.3d 562, 566 (Tex. 2001); see EMC Mortg. Corp. v. Window Box Ass'n, Inc.,264 S.W.3d 331, 335-36 (Tex.App.- Waco 2008, no pet.). "Both notices must be 'clear and unequivocal.'" Holy Cross Church, 44 S.W.3d at 566 (quoting Shumway v. Horizon Credit Corp., 801 S.W.2d 890, 893 (Tex. 1991)); EMC Mortg., 264 S.W.3d at 336. The notice of intent to accelerate must demand payment of the past-due amount and provide an opportunity for the mortgagor to cure the default. Shumway, 801 S.W.2d at 893 (citing Ogden v. Gibraltar Sav. Ass'n, 640 S.W.2d 232, 233–34 (Tex. 1982)); see also Stoerner v. Wells Fargo Bank, N.A., No. H-18-3631, 2019 WL 3553912, at ...


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