Ada Elizondo v. U.S. Bank, N.A.

Summary

The Thirteenth Court of Appeals of Texas reviewed a summary judgment favoring U.S. Bank in Ada Elizondo’s claims arising from attempted foreclosure of her home. The court addressed wrongful foreclosure, breach of contract, unfair debt collection under the Texas Finance Code, DTPA violations, and promissory estoppel. The opinion affirms the trial court’s judgment, concluding that Elizondo failed to raise a genuine issue of material fact on the challenged claims.

Holdings

1. A wrongful-foreclosure claim requires evidence of an actual foreclosure sale; Texas law does not recognize a cause of action for attempted wrongful foreclosure. Because no foreclosure occurred, Elizondo failed to produce evidence of an essential element and summary judgment was proper.
2. Summary judgment was proper on Elizondo's breach-of-contract claim because she produced no evidence that U.S. Bank breached the note or deed of trust's notice requirements, the breach alleged in her pleadings.
3. Elizondo failed to produce evidence of a violation of Texas Finance Code section 392.304(a)(8). The statute's prohibition on misrepresenting a consumer debt's status applies to a misrepresentation of that status in a judicial or governmental proceeding, and the alleged telephone conversation was not shown to have occurred in such a proceeding.
4. A plaintiff asserting a stand-alone DTPA claim under section 17.46(b)(12) must establish consumer status. Elizondo conceded that she was not a consumer, so she lacked evidence of an essential element and summary judgment was proper.
5. Promissory estoppel is unavailable when an express contract governs the subject matter of the alleged promise. Because the note and deed of trust expressly governed application of payments, Elizondo's promissory-estoppel claim was barred as a matter of law.

Questions Presented

1. Whether the trial court properly granted no-evidence summary judgment on Elizondo's wrongful-foreclosure claim when no foreclosure sale had occurred.
2. Whether Elizondo produced evidence of a breach of the note or deed of trust's notice requirements or resulting damages.
3. Whether Elizondo produced evidence that U.S. Bank violated Texas Finance Code section 392.304(a)(8) by misrepresenting the character, extent, amount, or status of her consumer debt in a judicial or governmental proceeding.
4. Whether Elizondo had standing as a consumer to bring her stand-alone DTPA claim under section 17.46(b)(12).
5. Whether promissory estoppel was available where the alleged promise concerned payment application governed by an express written contract.

Disposition

affirmed