David Kerr and Gail Kerr v. the Bank of New York Mellon Trust Company, N.A. as Trustee on Behalf of CWABS Asset-Backed Certificates Trust 2007-12 and Carrington Mortgage Services, LLC

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00179-CV
___________________________
DAVID KERR AND GAIL KERR, Appellants
V.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. AS TRUSTEE
ON BEHALF OF CWABS ASSET-BACKED CERTIFICATES TRUST 2007-12
AND CARRINGTON MORTGAGE SERVICES, LLC, Appellees
On Appeal from the 141st District Court
Tarrant County, Texas
Trial Court No. 141-301419-18
Before Birdwell, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Appellants David and Gail1 Kerr (Kerrs)2 appeal the trial court’s judgment
ordering that they take nothing on their claims against Appellees The Bank of New
York Mellon Trust Company, N.A. as trustee on behalf of CWABS, Inc., Asset-
Backed Certificates Trust 2007-12 (BoNYM trust company) and Carrington Mortgage
Services, LLC (Carrington) and granting Carrington’s counterclaim for declaratory
relief.3 In two points, the Kerrs argue that the trial court erred (1) by granting
Carrington’s counterclaim and (2) by granting judgment in BoNYM trust company
and Carrington’s favor. We affirm.
II. BACKGROUND
David Kerr executed a Texas home equity note on June 22, 2007, promising to
repay an original principal amount of $75,400, plus interest, beginning on August 1,
1
On December 24, 2020, the Kerrs’ counsel filed a suggestion of death
indicating that Appellant Gail Kerr died on December 6, 2020. However, pursuant to
Rule 7.1(a)(1) of the Texas Rules of Appellate Procedure, we “proceed to adjudicate
the appeal as if all parties were alive.” Tex. R. App. P. 7.1(a)(1).
2
When necessary, we will refer to each individual Appellant by the names David
Kerr or Gail Kerr. Also when necessary, we will refer to BoNYM trust company and
Carrington collectively as Appellees.
3
Even though not parties to this appeal, CWABS, Inc., Asset-Backed
Certificates, Series 2007-12 trust (CWABS) is the owner of the loan at issue in this
case, and The Bank of New York Mellon (BoNYM state bank) is the trustee of the
certificate holders of CWABS.
2
2007, and maturing on July 1, 2037, at the rate of $684.08 monthly. To secure
repayment of the loan, David and Gail Kerr executed a Texas home equity security
instrument on June 29, 2007, granting a lien against their property located in Bedford.
The Kerrs filed this suit on August 6, 2018, against BoNYM trust company and
Carrington to stay a foreclosure sale scheduled the next day. The Kerrs argued that
BoNYM state bank noticed the foreclosure sale but never obtained a court order to
do so. The Kerrs asserted claims for breach of contract and violations of the Texas
Property Code and the Texas Debt Collection Act (TDCA). Carrington, as mortgage
servicing agent for BoNYM state bank, asserted a counterclaim against the Kerrs for a
declaration that it was entitled to foreclose the security instrument and sell the
property due to the default.4
On January 30, 2020, the trial court heard the Kerrs’ claims and Carrington’s
counterclaim. At trial, copies of the relevant note, security instrument, assignment
instrument, servicing transfer notice, and two April 1, 2019 notices of default were
admitted into evidence.
While the Kerrs offered no exhibits into evidence, David Kerr testified that,
after obtaining the loan, he began to immediately have difficulty making payments on
it. According to him, some of the problems he experienced were due to the original
4
The Kerrs amended their petition to name BoNYM state bank as an additional
defendant but later nonsuited BoNYM state bank on the record at the beginning of
the bench trial.
3
lender going out of business, and he did not know where to make his payments or to
whom to make them. He also testified that there had been two prior attempts by
BoNYM state bank5 to foreclose on the security instrument and sell the property. By
David Kerr’s account, he last made a payment on the loan shortly after having taken it
out, and he had not made any payments for almost twelve years. He said he believed
that the payments were “around 700” but that he was not sure because it had “been a
while” since he had made a payment. He also admitted that he had not been paying
taxes on the property, that the taxes had “been taken care of,” and that he did not
have the funds to repay the roughly $60,000 that he had not paid in mortgage
payments or taxes over the last twelve years.
BoNYM trust company and Carrington called Demetrius Dansby, a litigation
case manager for Carrington, to testify. Dansby said that his duties included
reviewing collateral files and system records and serving as a corporate witness in
court proceedings, including trials, depositions, and mediations. Dansby stated that
David Kerr had signed a Texas Home Equity note on June 22, 2007, for the amount
of $75,400. The loan was a thirty-year mortgage and the maturity date would have
been July 1, 2037. Under the terms of the note, David Kerr was to make regular
monthly payments of principal and interest in the amount of $684.08 beginning
August 1, 2007, and continuing on the first day of each month until the loan matured.
5
BoNYM state bank was formerly known as The Bank of New York.
4
If David Kerr failed to make payments in the time and manner required by the loan,
the lender had the right to obtain an order authorizing it to foreclose the security
instrument and sell the property as provided in the note’s power-of-sale provision.
Dansby also explained that the Kerrs had signed a security instrument that
granted a lien against the Kerrs’ residence in Bedford, Texas. Further, Dansby
testified that there was an “Assignment of Deed of Trust” that assigned the security
instrument to BoNYM state bank and named Carrington as the loan servicer. He also
said that CWABS is the owner of the loan, and BoNYM state bank is its trustee.
By Dansby’s account, the Kerrs only made three payments on the loan in
August, September, and October 2007. Dansby said that Carrington had sent the
Kerrs two notices of default on April 1, 2019. By the term of the notices, the Kerrs
had thirty days from the time of the notice to cure the default or the Bedford property
would be scheduled for foreclosure. Dansby averred that the Kerrs did not cure the
default. Moreover, Dansby stated that the outstanding principal on the loan was in
excess of $75,000, that there was an outstanding unpaid interest balance of roughly
$97,000, and that Carrington or its predecessors had spent almost $70,000 for the
payment of property taxes and insurance. According to Dansby, when adding
associated late charges, the total amount owed on the loan was in excess of $220,000.
Dansby also testified regarding two prior Rule 736 proceedings. See generally
Tex. R. Civ. P. 736.1 et seq. Dansby said that although an incorrect “entity” had
obtained a Rule 736 order in 2014, the Kerrs filed a lawsuit that stayed foreclosure of
5
the property for 569 days. Dansby also averred that this current lawsuit filed by the
Kerrs was in response to a second Rule 736 order that had been issued. At the
conclusion of the evidence, the trial court took the matter under advisement and
requested proposed final orders.
On February 7, 2020, the trial court entered its final judgment ordering the
Kerrs to take nothing on their claims against BoNYM trust company and Carrington.
The trial court also granted Carrington judgment on its counterclaim declaring its
right to foreclose the security instrument and sell the property at a nonjudicial
foreclosure sale pursuant to the Texas Property Code. See Tex. Prop. Code Ann.
§§ 51.002(b), 51.0025(2).
After the Kerrs requested findings of fact and conclusions of law and then filed
a notice of past-due findings of fact and conclusions of law, the trial court entered its
findings of fact and conclusions of law. The Kerrs filed a motion to vacate judgment,
which was overruled by operation of law. This appeal followed.
III. DISCUSSION
A. Carrington’s Counterclaim
In their first point, the Kerrs argue that the trial court erred by granting
Carrington’s counterclaim. Specifically, the Kerrs contend that Carrington’s
counterclaim “was impermissible in a suit brought by home equity loan debtors in
response to an order granted in a prior proceeding under” Texas Rule of Civil
Procedure 736. Appellees respond that “Carrington was not barred from bringing a
6
counterclaim pursuant to [Rule 736] and neither it nor BoNY trust company lacked
standing or capacity to sue or be sued in this action.” We agree with Appellees.
1. Permissibility of Counterclaim
“A suit to foreclose on real property . . . is a legal proceeding seeking the
satisfaction of a debt through foreclosure of [a] lien on real property.” Mark v.
Household Fin. Corp. III, 296 S.W.3d 838, 839 (Tex. App.—Fort Worth 2009, no pet.).
“The basis of such an action is a promissory note secured by a deed of trust or
mortgage on real property.” Id. (emphasis added). “A lien securing repayment of a
home-equity note may only be foreclosed upon by a court order.” Grady v. Nationstar
Mortg., LLC, No. 02-16-00481-CV, 2017 WL 5618690, at *1 n.2 (Tex. App.—Fort
Worth Nov. 22, 2017, pet. denied) (mem. op.) (citing Tex. Const. art. XVI,
§ 50(a)(6)(D)); see Wells Fargo Bank, N.A. v. Robinson, 391 S.W.3d 590, 593 (Tex.
App.—Dallas 2012, no pet.).
When, as here, the security instrument as part of a home-equity loan contains a
power-of-sale provision, the lender may file a claim for judicial foreclosure or use
Texas Rule of Civil Procedure 736 to obtain an order allowing it to proceed with
nonjudicial foreclosure.6 See Steptoe v. JPMorgan Chase Bank, N.A., 464 S.W.3d 429,
6
In the case of a nonjudicial foreclosure, Chapter 51 of the Property Code
supplies the statutory requirements, in addition to those in the deed of trust, that must
be followed to effectuate a valid sale. See Tex. Prop. Code Ann. § 51.002 (“Sale of
Real Property Under Contract Lien”); Morrison v. Christie, 266 S.W.3d 89, 92 (Tex.
App.—Fort Worth 2008, no pet.) (“Section 51.002 regulates nonjudicial foreclosures,
7
432–33 (Tex. App.—Houston [1st Dist.] 2015, no pet.); see also Tex. R. Civ. P. 735.1(a)
(stating that Rule 736 provides the procedure for obtaining a court order to allow
foreclosure of a home-equity loan containing a power of sale in the security
instrument); Tex. R. Civ. P. 735.3 (stating that a Rule 736 order is not a substitute for
a judgment for judicial foreclosure); 27 Genevieve Hebert Fajardo & Ramona L.
Lampley, Texas Practice Series: Consumer Rights & Remedies § 7.14 (3d ed. 2020) (stating
that a party seeking to foreclose a home-equity loan “may file suit seeking judicial
foreclosure, file a suit or counterclaim seeking a final judgment which includes an
order allowing foreclosure under [Section 51.002 of] the Texas Property Code, or file
an application under Rule 736” (footnotes omitted)).
Specifically regarding Rule 736, the rule provides a special procedure for
obtaining a court order to foreclose a home equity lien. Steptoe, 464 S.W.3d at 433
(citing Tex. R. Civ. P. 735.1). “Rule 736 provides a faster, more streamlined
alternative to judicial foreclosure,” with special rules and procedures inapplicable to
conventional suits. Tex. R. Civ. P. 736; Steptoe, 464 S.W.3d at 433 (citing Huston v.
U.S. Bank Nat’l Ass’n, 359 S.W.3d 679, 682 (Tex. App.—Houston [1st Dist.] 2011, no
pet.)). Any challenge to a Rule 736 order must be made in “a suit filed in a separate,
independent, original proceeding in a court of competent jurisdiction.” Tex. R. Civ.
that is, the sale of real property after default by the debtor under a power of sale
conferred by deed of trust or other contract lien.”).
8
P. 736.8(c). If such a suit is filed, a proceeding or order under Rule 736 is
automatically stayed. Tex. R. Civ. P. 736.11(a).
Citing Reddick v. Deutsche Bank National Trust Company, the Kerrs argue that a
counterclaim for judicial foreclosure in a borrower’s suit against the lender is
impermissible. No. 3:16-CV-1997-D, 2017 WL 6343542, at *3 (N.D. Tex. Dec. 12,
2017). The Kerrs specifically point to a statement made in Reddick where the court
stated, “Deutsche Bank could not exercise this right by bringing a Rule 736
proceeding or a counterclaim in a borrower’s suit against the lender.” Id. But the
Reddick court was specifically discussing proceedings under Rule 736 when making
this statement. Id. Indeed, the Reddick court cited Steptoe. Id. A review of Steptoe
reveals that what is impermissible is a Rule 736 proceeding being “brought as a
counterclaim in a borrower’s suit against the lender.” 464 S.W.3d at 433. Thus, we
conclude that the Kerrs’ reliance on Reddick is misplaced.
Further, we agree with Appellees that the answer to the question of whether a
counterclaim seeking a declaratory judgment authorizing judicial foreclosure can be
brought in a borrower’s suit against a lender can be found in Wilder v. Caliber Home
Loans, Inc., No. 3:18-CV-3010-N-BN, 2019 WL 652462, at *1 (N.D. Tex. Feb. 15,
2019). In Wilder, the lender brought a counterclaim seeking a declaratory judgment
authorizing foreclosure in the borrower’s suit involving a claim that Rule 736 was
unconstitutional. Id. After reviewing both Reddick and Steptoe, the Wilder court
concluded that
9
while Texas courts have held that a lender may not assert a Rule 736
counterclaim in a borrower’s suit against it—and, conversely, a borrower
may not assert a counterclaim in a lender’s Rule 736 proceeding—that
authority does not seem to support Wilder’s argument that Caliber’s
proposed counterclaim may not be added . . . .
Id. at *3.
Even though very few cases address this argument directly for procedural
reasons, it is not uncommon to find cases where a lender has brought a counterclaim
seeking a declaratory judgment authorizing foreclosure in the borrower’s suit. Gaber v.
U.S. Bank Nat’l Ass’n, No. 02-19-00243-CV, 2020 WL 5242419, at *2 (Tex. App.—
Fort Worth Sept. 3, 2020, pet. denied) (mem. op.) (holding that borrower had failed to
preserve argument that lender was barred from bringing foreclosure counterclaim in
borrower’s suit against lender); De La Garza v. Bank of N.Y. Mellon, No. 02-17-00427-
CV, 2018 WL 5725250, at *10 (Tex. App.—Fort Worth Nov. 1, 2018, no pet.) (mem.
op.) (holding that lender had failed to meet its traditional summary judgment burden
regarding its counterclaim for foreclosure and remanding to trial court for further
proceedings); see also Koncak v. Deutsche Bank Nat’l Tr. Co., No. 3:19-CV-00071-B-BT,
2020 WL 5219558, at *4 (N.D. Tex. Aug. 17, 2020), report and recommendation
adopted, No. 3:19-CV-00071-B-BT, 2020 WL 5215128 (N.D. Tex. Sept. 1, 2020)
(“As . . . Plaintiffs do not otherwise argue that Defendants have failed to state a
[counter]claim for judicial foreclosure, Plaintiffs’ Rule 12(c) Motion [to dismiss
Defendants’ counterclaim for judicial foreclosure] should be denied.”). We hold that
10
a lender may bring a counterclaim for judicial foreclosure in a borrower’s suit against
the lender.
2. Carrington’s Authority to Bring its Counterclaim
The Kerrs also argue that Carrington did not have the authority, as the loan
servicer, to bring a claim for declaration that it was entitled to foreclose the security
instrument and sell the property due to default. Without citing any authority, the
Kerrs claim that a “party bringing a permissible counterclaim would need to own the
loan and lien which are in dispute.” We conclude that the Kerrs have waived this
argument for our review, but even if the Kerrs had preserved this argument, it is
without merit.
To present an issue for appellate review, “[t]he brief must contain a clear and
concise argument for the contentions made, with appropriate citations to authorities
and to the record.” Tex. R. App. P. 38.1(h). This requirement is not satisfied by
merely uttering brief conclusory statements unsupported by legal citations. Valadez v.
Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). Failure to cite legal
authority or provide substantive analysis of the legal issue presented results in waiver
of the complaint. Id.; Sister Initiative, LLC v. Broughton Maint. Ass’n, No. 02-19-00102-
CV, 2020 WL 726785, at *25 (Tex. App.—Fort Worth Feb. 13, 2020, pet. denied)
(mem. op.).
But even assuming that the Kerrs preserved this portion of their first point for
our review, we conclude that Carrington had the authority to bring its counterclaim
11
on behalf of BoNYM state bank. An agent may sue on behalf of its principal if it is
authorized to do so and asserts it is doing so in its pleadings. Rodarte v. Investeco Grp.,
L.L.C., 299 S.W.3d 400, 407 (Tex. App.—Houston [14th Dist.] 2009, no pet.)
(reasoning that agent may bring claims on behalf of principal if authorized to do so);
AVCO Corp. v. Interstate Sw., Ltd., 251 S.W.3d 632, 653 (Tex. App.—Houston [14th
Dist.] 2007, pet. denied) (reasoning that pleadings must show agent bringing claim on
behalf of principal).
Here, the trial court found in its findings of fact that Carrington began
servicing the loan on August 16, 2017, on behalf of BoNYM state bank by written
agreement granting it the authority to service the loan. This is consistent with
Carrington’s pleadings and the evidence presented at trial. Thus, Carrington properly
pleaded it was counterclaiming on behalf of BoNYM state bank, and the evidence and
applicable law establishes it had the authority to do so. See Rodarte, 299 S.W.3d at 407.
We overrule this portion of the Kerrs’ first point.
3. Statute of Limitations
Again citing Reddick, 2017 WL 6343543, at *4, and also Pettit v. U.S. Bank
National Association, No. 4:17-CV-00274-O-BP, 2018 WL 4076512, at *4 (N.D. Tex.
June 28, 2018), the Kerrs argue that allowing Carrington to bring its counterclaim in
this suit is contrary to the tolling principles regarding the statute of limitations
discussed in those cases. It appears that the Kerrs are suggesting that because they
initiated this suit after a Rule 736 proceeding had been brought, then all actions except
12
for their filing of this suit are impermissible, including Carrington’s counterclaim. The
Kerrs seem to argue that to allow Carrington to bring its counterclaim in this suit
would effectively end the tolling of the statute of limitations. We disagree.
Although both Reddick and Pettit discuss that when a borrower brings suit after
the initiation of a Rule 736 proceeding, then the filing of the borrower’s suit tolls the
statute of limitations while the suit is pending, these cases do not stand for the
proposition that tolling ceases if a lender brings a counterclaim in a suit brought by
the borrower. Reddick, 2017 WL 6343543, at *4; Pettit, 2018 WL 4076512, at *4. As
Reddick and Pettit explained, the statute of limitations is tolled and “prevents
foreclosure under Texas Rule of Civil Procedure 736” while the borrower’s suit is
being prosecuted. Reddick, 2017 WL 6343543, at *4; Pettit, 2018 WL 4076512, at *4.
These cases simply say nothing about the effect of a lender’s bringing a counterclaim
in a borrower’s suit and the impact that would have on tolling the statute of
limitations. No matter what claims are involved in the borrower’s suit, limitations
would still be tolled until the case and all claims have been resolved. See Lehmann v.
Har–Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) (concluding that judgment is not final
unless it disposes of all claims against all parties). We conclude that the Kerrs’
limitations argument is unpersuasive, and we overrule it and the Kerrs’ first point
entirely.
13
B. Registration Requirements and the Texas Debt Collection Act
In their second point, the Kerrs argue that the trial court “erred in granting
judgment for Appellees, because the evidence established that there was an absence of
standing and/or that there were outstanding fact issues on at least one element of
each outstanding claim, including the counterclaim.”7 We disagree.
1. The Texas Estates Code and Business Organizations Code
In part of their second point, the Kerrs claim that BoNYM trust company and
BoNYM state bank were barred from taking any action related to the security
instrument, including defending or prosecuting claims in the trial court, because
BoNYM trust company and BoNYM state bank failed to comply with the registration
requirements of Texas Estates Code Section 505.004 and Texas Business
7
Even though the Kerrs’ second point claims that there are fact issues “on at
least one element of each outstanding claim,” the Kerrs have not asserted in their
brief that there is an outstanding fact issue on any element of their breach-of-contract
claim.
14
Organizations Code Section 9.001(a); thus, they lacked standing8 to defend this suit
and bring Carrington’s counterclaim.9
Chapter 505 of the Texas Estates Code governs service of process on foreign
corporate fiduciaries. See U.S. Bank Nat’l Ass’n v. TFHSP LLC Series 6481,
487 S.W.3d 715, 716, 719–21 (Tex. App.—Fort Worth 2016, no pet.). Before a
foreign corporate fiduciary may qualify or serve as a fiduciary in Texas, Chapter 505
requires it to file certain documents with the Texas Secretary of State. Id. at 718–19.
Here, the Kerrs allege that BoNYM trust company and BoNYM state bank failed to
comply with these registration requirements and therefore are “barred from
defending, or from prosecuting claims in, the Prior Suit (a Rule 736 Proceeding) and
in the instant suit.” But even assuming BoNYM trust company or BoNYM state
8
While the Kerrs refer to this as an issue of standing, they are actually
complaining about BoNYM trust company’s and BoNYM state bank’s capacity. See,
e.g., Austin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005) (explaining
that standing focuses on whether a party has a sufficient relationship with the lawsuit
so as to have a “justiciable interest” in its outcome while the issue of capacity “is
conceived of as a procedural issue dealing with the personal qualifications of a party
to litigate”).
9
The Kerrs did file a plea in abatement in the trial court identifying these
alleged defects. However, as Appellees point out, the Kerrs never presented any
evidence in support of their plea, they did not set it for hearing, nor did they ever
request a ruling. Thus, it is arguable that the Kerrs have waived this complaint. See In
re Truck Ins. Exch., No. 12-12-00183-CV, 2013 WL 1760793, at *2 (Tex. App.—Tyler
Apr. 24, 2013, orig. proceeding) (mem. op.) (“A defendant who merely presents its
plea in abatement without offering evidence to prove the grounds urged waives the
plea unless it can demonstrate that the plaintiff’s petition establishes the grounds
urged in the plea.”). We will assume without deciding that the Kerrs have preserved
this argument for our review.
15
bank were required to register with the Texas Secretary of State under Texas Estates
Code Chapter 505, the Kerrs failed to present any evidence in the trial court that they
had not done so. See Caballero v. Rushmore Loan Mgmt. Servs. LLC, No. 05-19-00298-
CV, 2020 WL 1685418, at *6 (Tex. App.—Dallas Apr. 7, 2020, no pet.) (mem. op.)
(“Even if U.S. Bank and Wilmington were required to register with the Secretary of
State, no evidence shows they have not done so.”). Thus, the Kerrs did not prove
their Chapter 505 argument in the trial court, and their code-based argument fails on
appeal. See Grady v. Nationstar Mortg., LLC, No. 02-19-00006-CV, 2020 WL 5242418,
at *7 (Tex. App.––Fort Worth Sep. 3, 2020, pet. denied) (mem. op.) (overruling
argument on appeal that bank was required to register with the Secretary of State
under Chapter 505 because appellant did not present evidence at trial of bank’s
alleged failure to register).
Like Chapter 505 of the Texas Estates Code, Texas Business Organizations
Code Chapter 9 requires “a foreign entity” transacting business in Texas to file certain
documents. Tex. Bus. Orgs. Code Ann. § 9.001(a). The Kerrs contend that BoNYM
trust company and BoNYM state bank failed to comply with these registration
requirements as well and thus lacked the authority to seek foreclosure on the Bedford
property. But this court has held that the failure to comply with the registration
requirements in Business Organizations Code Section 9.001 does not prevent holders
in due course from filing suit or enforcing the terms of a negotiable instrument, nor
do they prohibit a mortgagee from enforcing a mortgage lien. Grady, 2020 WL
165242418, at *7. Therefore, this code-based argument fails as well because even if
BoNYM trust company or BoNYM state bank failed to file documents in accordance
with Chapter 9, such a failure would not prevent them from filing suit to enforce the
terms of the security instrument in this case. See id. We overrule this portion of the
Kerr’s second point.
2. The Texas Debt Collection Act and Damages
In the remainder of their second point, the Kerrs argue that there is no
evidence that BoNYM state bank owned their loan; thus, the Kerrs argue that the trial
court erred by dismissing their TDCA claim and granting Carrington’s counterclaim.
Specifically, the Kerrs argue that any attempt by BoNYM trust company was an
attempt to collect a debt not owed to it and therefore a threat to take an action that
was a per se violation of Section 392.301(a)(8) of the TDCA. The Kerrs’ argument is
predicated on their contention that the prior Rule 736 filings were brought by
someone other than BoNYM trust company.
Appellees respond that the Kerrs’ argument fails for two reasons: (1) The Kerrs
never sued BoNYM trust company or Carrington for violating Section 392.301(a)(8),
and (2) there is no such thing as a per se violation of the TDCA—the Kerrs were
required, but failed, to show they suffered damages as a result of any alleged TDCA
violation. We agree with Appellees that the Kerrs were required but failed to plead
and prove that they suffered damages under the TDCA.
17
The TDCA is the statutory embodiment of common law concerning
unreasonable collection practices and prohibits use of deceptive means, making
misrepresentations, harassment, and threats in the course of collecting a consumer
debt. See Tex. Fin. Code Ann. §§ 392.301(a)(8), 392.302(4), 392.303(a)(2),
392.304(a)(8), (a)(19). To state a claim under the TDCA, a plaintiff must allege that:
(1) the debt at issue is a consumer debt; (2) the defendant is a “debt collector” within
the meaning of the TDCA; (3) the defendant committed a wrongful act in violation of
the TDCA; (4) the wrongful act was committed against the plaintiff; and (5) the
plaintiff was injured as a result of the defendant’s wrongful act. See id. § 392.001 et seq.
To maintain an action for damages under the TDCA, a plaintiff must plead and
prove actual damages. See Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 31 (Tex.
App.—Tyler 2000, pet. denied) (“Because [the plaintiff] did not prove that any actual
damages were caused by [the defendant]’s debt collection practices, she did not
successfully maintain an action under the Act.”); see also Lopez-Garcia v. Deutsche Bank
Nat’l Trust Co. for Argent Sec. Inc., No. 5:16-CV-00217 (RCL), 2017 WL 2869430, at *4
(W.D. Tex. July 5, 2017) (granting summary judgment on the plaintiff’s TDCA claim
because “plaintiff . . . has presented no evidence of the actual damages upon which
recovery under the TDCA must be based”); Wood v. CitiMortgage, Inc., No. 4:11-CV-
139, 2012 WL 642791, at *4 (E.D. Tex. Feb. 28, 2012) (granting defendants’ motion
for summary judgment on plaintiffs’ TDCA claims where “there is no evidence of any
damages or that they were caused by any violation of these statutes”); Naranjo v.
18
Universal Sur. of Am., 679 F. Supp. 2d 787, 801 (S.D. Tex. 2010) (“Texas courts have
stated that a plaintiff who cannot prove actual damages cannot ‘successfully maintain
an action under the [TDCA].’” (quoting Jackson Law Office, 37 S.W.3d at 30–31)).
Because the Kerrs did not plead or prove that any actual damages were caused by the
prior Rule 736 proceedings, they did not successfully maintain their action under the
TDCA. See Jackson Law Office, 37 S.W.3d at 15. We overrule the Kerrs’ second point
entirely.
IV. CONCLUSION
Having overruled both of the Kerrs’ points on appeal, we affirm the trial
court’s judgment.
/s/ Dana Womack
Dana Womack
Justice
Delivered: April 15, 2021
19