Appeal from the 127th District Court Harris County, Texas
Trial Court Case No. 2017-33659-A
consists of Justices Kelly, Hightower, and Countiss.
Richard Hightower Justice
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.
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rescinded.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
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
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." 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.
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.
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.
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."
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.
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 ...