Wierman v. Prestige Default Services ( 2022 )

Case: 21-11285 Document: 00516377142 Page: 1 Date Filed: 06/30/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 30, 2022
No. 21-11285 Lyle W. Cayce
Summary Calendar Clerk
David Wierman; Roxane Wierman,
Plaintiffs—Appellants,
versus
Prestige Default Services; U.S. Bank Trust National
Association, as Trustee of Bungalow Series III Trust; SN
Servicing Corporation,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:21-CV-1330
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Appellants David and Roxane Wierman sued Prestige Default
Services (PDS), U.S. Bank Trust National Association (U.S. Bank), and SN
Servicing Corporation (together “Appellees”) in connection with
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-11285
Appellees’ attempted foreclosure sale of Appellant’s property. The district
court dismissed the action, holding that the foreclosure sale of Appellants’
property was proceeding in conformity with Texas law. They now appeal that
dismissal. We AFFIRM.
* * *
Appellants purchased the property in 1998. In 2008, they executed a
promissory note in favor of Bank of America for a home equity loan. They
contemporaneously executed a lien contract and deed of trust that granted a
security interest in the property to the Bank to secure repayment under the
note. The deed of trust included an acceleration clause that would be
triggered if Appellants defaulted on their monthly payments. Bank of
America later assigned the note and deed of trust to U.S. Bank. Years later,
Appellants fell behind on the loan. On January 29, 2020, a notice of default
was sent to Appellants, followed by a notice of acceleration on June 1. On
December 15, 2020, U.S. Bank obtained a final order allowing it to foreclose
on the property. The property was posted for foreclosure sale on June 1, 2021.
In accordance with Tex. Prop. Code §§ 51.002(b) and 51.0075(e), a
Notice of Substitute Trustee Sale was sent to Appellants by Donna Stockman
on behalf of PDS. The Notice identified PDS as the substitute trustee that
would be conducting the sale and listed the following as its “street address”:
“9720 Coit Road, Suite 220-228, Plano, Texas 75025.” This was the address
of a UPS Store where PDS received its mail.
Around the time they received the Notice, Appellants filed this action
in the Dallas County Court at Law, asserting claims for breach of contract, as
well as for violations of the Texas Debt Collections Practices Act and Tex.
Civ. Prac. & Rem. Code § 12.002. All of Appellants’ claims were
premised on their argument that the Notice of Substitute Trustee Sale they
received was inadequate because “PDS (or Donna Stockman) was not
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located at the . . . address” provided in the Notice. In Appellants’ view,
Tex. Prop. Code § 51.0075(e)’s requirement that notices of foreclosure
sales conducted by substitute trustees include “a street address for . . . [the]
substitute trustee[]” is only satisfied if the address provided is that of the
substitute trustee’s physical location. The County Court entered a
temporary restraining order enjoining the foreclosure sale pending
consideration of Appellants’ objections thereto. Appellees then removed the
action to federal district court and moved to dismiss under Federal Rule of
Civil Procedure 12(b)(6), arguing that the address provided in the Notice
satisfied Section 51.0075(e)’s “street address” requirement. The district
court agreed with Appellees and dismissed Appellants’ claims against them.
See Wierman v. Prestige Default Servs., No. 3:21-CV-01330, 2021 WL 6137183,
at *1 (N.D. Tex. Dec. 7, 2021), report and recommendation adopted, 2021 WL
6135485 (N.D. Tex. Dec. 27, 2021). The sole issue raised by Appellants on
appeal is whether this dismissal was erroneous. It was not.
* * *
This issue turns on Texas law. “In applying Texas law, we are bound
by the Texas Supreme Court’s decisions.” Camacho v. Ford Motor Co., 993
F.3d 308, 311 (5th Cir. 2021). Since, however, that Court has apparently “not
considered [the] issue” at hand, our objective is to predict “how it would
rule.” Id. 1 We therefore interpret Tex. Prop. Code § 51.0075(e) using
1
There is also very little caselaw from other courts that speaks to how Tex. Prop.
Code § 51.0075(e) applies to the issue at hand, but what little there is supports our holding
today. For instance, one Texas appellate court held that a notice of foreclosure sale that
“did not specifically identify the street address of the substitute trustee,” but “did include
the street address of both the mortgage servicer and the law firm providing the notice of
substitute trustee’s sale on behalf of the substitute trustee” met Section 51.0075(e)’s
“street address” requirement “[b]ecause sufficient information was available to the
debtor, and to the public, through which the substitute trustee could be contacted.” Veloz
v. Wilmington Sav. Fund Soc’y, FSB as Tr. for Pretium Mortgage Acquisition Tr., No. 07-20-
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“the same methods of statutory interpretation used by the Texas Supreme
Court.” Id. Those methods direct us to “begin with [a statute’s] language,”
with the “primary objective” of “discern[ing] . . . the plain meaning of the
words chosen.” State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). “Our
job is to apply the statutory text as written, not as we would have written it.”
JCB, Inc. v. Horsburgh & Scott Co., 597 S.W.3d 481, 490 (Tex. 2019).
Applying these principles to the provision in question, the result is
clear. The statute requires that a notice of a foreclosure sale that will be
conducted by a substitute trustee include “[t]he name and a street address
for . . . [the] substitute trustee[].” Tex. Prop. Code § 51.0075(e). Here,
it is undisputed that the Notice sent to Appellants properly identified PDS
as the substitute trustee. It is also undisputed that the Notice listed the
following as an address for PDS: “9720 Coit Road, Suite 220-228, Plano,
Texas 75025.” That is obviously “a street address.” Indeed, Appellants
concede as much in their briefing, repeatedly referring to the address
provided in the Notice as a “street address.” That being so, Appellants’
argument that the Notice they were sent was defective is simply untenable.
The Notice provided “a street address” for PDS, thus satisfying the relevant
requirement of Tex. Prop. Code § 51.0075(e). Contrary to Appellants’
assertions, nothing in the statute demands—either explicitly or implicitly—
00017-CV, 2021 WL 5299584, at *3 (Tex. App.—Amarillo Nov. 15, 2021, no pet.). The
same is true of the UPS-Store address of PDS that was listed in the Notice of foreclosure
sale in this case. Similarly, a Texas federal court rejected some debtors’ argument that the
notice they received of a foreclosure sale was deficient under Section 51.0075(e) because it
“provid[ed] only a business address for the business employing one of the substitute
trustees,” reasoning that the statute “simply specifies a street address must be
provided. . . . [I]t is unlikely the intent of the statute was to require the substitute trustee to
provide his or her home address.” Berg v. Bank of Am., N.A., No. A-12-CV-433 LY, 2012
WL 12886433, at *7 (W.D. Tex. Sept. 19, 2012), report and recommendation adopted, No. A-
12-CV-433-LY, 2012 WL 12886597 (W.D. Tex. Nov. 1, 2012).
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that the substitute trustee physically “occupy the street address given in the
[n]otice.” The “street address” of a UPS Store at which PDS receives mail
is no less a “street address” simply because PDS is headquartered
elsewhere.
Appellants counter by speculating that the Texas Legislature’s
purpose in enacting Section 51.0075 was “to provide the bidding public with
as much information as possible in advance of a sale,” and so the provision
should be interpreted to require that the “street address” be the substitute
trustee’s physical location so that “the bidding public” can meet with the
substitute trustee and “discuss any conditions that the [substitute] trustee
had set.” But this fanciful theory regarding the Legislature’s imagined
objectives has no basis in statutory text. “We must rely on the words of the
statute, rather than rewrite those words to achieve an unstated purpose.”
BankDirect Capital Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 87 (Tex.
2017) (quoting Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 571 (Tex. 2014)
(plurality opinion)).
Finally, we must comment on Appellants’ misguided concern that
“[t]he decision of the district court findings that a P.O. Box number is
sufficient . . . would have the effect of abrogating the statute.” We do not
understand the district court to have held any such thing, nor do we hold any
such thing in our decision today. The address listed for PDS in the Notice
sent to Appellants was for a private mailbox at a UPS Store; a P.O. Box, by
contrast, is operated by U.S. Postal Service. These are not the same, see, e.g.,
Sweeting v. Murat, 164 Cal. Rptr. 3d 383, 388 (Cal. Ct. App. 2013), as
Appellants themselves seem to recognize when they use the terms in
contradistinction in their opening brief (“Arguably, a post office box, or as in
this case, an office with nothing more than a U.P.S. drop box, is measurable
compliance with the Texas Property Code. However, neither a measure of
compliance, nor substantial compliance, is enough.”). And while some legal
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authorities hold that P.O. Box numbers do not qualify as “street addresses,”
see, e.g., Midway Oil Corp. v. Guess, 714 P.2d 339, 342 (Wyo. 1986); Tex.
Fin. Code § 392.304(6), (7) (using “street address” and “post office box”
in contradistinction), this logic does not compel the same conclusion
regarding addresses of UPS-Store or other private mailboxes—which, unlike
P.O. Box addresses, see U.S. Postal Serv., Publication 28—
Postal Addressing Standards app. J3 (June 2020),
https://pe.usps.com/text/pub28/28apj_004.htm, generally require a street
name and mailbox number, see id. § 231. For that reason, our holding today
that the address of PDS’ UPS-Store mailbox qualifies as a “street address”
does not necessarily imply that a P.O. Box number would so qualify. We
express no view on that issue.
* * *
For these reasons, the district court’s judgment is AFFIRMED.
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