AFFIRM; and Opinion Filed June 30, 2014.
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-12-01634-CV
PETER & NATALYA SHIN, Appellant
V.
CHASE HOME FINANCE, LLC, Appellee
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-01309-2010
MEMORANDUM OPINION
Before Justices O’Neill, Lang-Miers, and Evans
Opinion by Justice O'Neill
Appellants Peter and Natalya Shin appeal a summary judgment granted in favor of Chase
Home Finance, LLC (Chase). In three issues, appellants assert the trial court erred in granting
appellee’s motion for summary judgment. For the following reasons, we affirm the trial court’s
judgment.
In 2005, appellants purchased a home in McKinney, Texas. Chase 1 loaned appellants the
money for the purchase. Appellants signed a promissory note and executed a deed of trust to
secure the note. Appellants signed a “Waiver of Escrow Account” in which Chase agreed to
waive its right to establish an escrow account and collect monthly escrow payments to pay real
estate taxes and insurance premiums and appellants agreed to timely pay all real estate taxes and
1
JPMorgan Chase Bank, N.A. was the lender and executed the loan documents. Chase Home Finance, LLC subsequently serviced the
loan. JP Morgan Chase Bank then became the successor by merger to Chase Home Finance. In this appeal, appellee refers to both entities
simply as “Chase.” We will do likewise.
insurance premiums when due. If appellants did not do so, the agreement allowed Chase to
establish an escrow account and collect monthly payments for the escrow account to pay for
taxes and insurance.
Appellants failed to timely pay their 2008 property taxes when they were due on January
21, 2009. Six months later, on July 27, 2009, Chase paid the past due amount on behalf of the
appellants. Chase also set up an escrow account and increased appellants monthly payments to
recover the taxes Chase had paid and to collect for future tax payments. A few days after Chase
paid the property taxes, appellants also paid them, resulting in an overpayment to the tax
assessor.
When appellants were notified Chase was increasing their monthly mortgage payment,
they discovered the double payment. On Chase’s request, appellants sent Chase a receipt
showing their July 2009 tax payment. Appellants also instructed Chase they would only pay the
principal and interest due on the mortgage. Chase subsequently sent a letter to the tax assessor
requesting the overpayment be refunded to it. When the 2009 taxes on the property became due,
appellants timely paid them. However, Chase had also paid the 2009 property taxes because it
had rescinded the escrow agreement. Thus, the taxes were again paid twice. Meanwhile,
appellants continued to pay their initial mortgage payment of principal and interest, but not the
increased payments Chase had required for the escrow account.
In early January 2010, Chase referred the note to its foreclosure attorney, and refused to
accept appellants’ January mortgage payment. On January 15, 2010, Chase notified appellants
that their property was scheduled for foreclosure on March 2, 2010. Appellants immediately
contacted Chase informing them they had paid both their monthly payments and tax payments.
On January 27, 2010, Chase sent appellants a letter informing them it was investigating the
matter. In early February, appellants called Chase again and Chase informed them it would “fix
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the problem.” On February 8, 2010, Chase sent appellants a letter notifying them they had
“updated” their account and that Chase would no longer be collecting for escrow payments, but
the letter also told appellants they had a “negative” escrow balance of $28,440.20 that was due.
According to Chase, the $28,440.20 represented payments Chase had made to taxing authorities
on behalf of appellants. The record is unclear as to the date Chase was refunded for the taxes it
had paid on behalf of appellants. According to appellants, Chase was refunded the money before
it instituted the foreclosure proceedings. Regardless, on February 9, 2010, Chase acknowledged
the taxes had been refunded and credited the funds to appellant’s account. On February 20,
2010, Chase notified appellants the foreclosure was rescinded, the loan was being reinstated, and
that it had converted the loan back to non-escrow.
Appellants sued Chase asserting, among other things, it violated the Texas Debt
Collections Practices Act (TDCPA) and had engaged in “unreasonable collection efforts.” Chase
filed a traditional and no-evidence motion for summary judgment on appellants’ claims. In its
no-evidence motion, it asserted appellants had no evidence Chase committed an act that violated
the TDCPA and no evidence appellants were injured as a result of any violation of the Act.
Chase also asserted appellants had no evidence it engaged in unreasonable collections efforts.
The trial court granted Chase’s motion without specifying its reasons. This appeal followed.
The standards for reviewing summary judgment are well established. See TEX. R. CIV. P.
166a(c), 166a(i); McCoy v. Tex. Instruments, Inc., 183 S.W.3d 548, 553 (Tex. App.—Dallas
2006, no pet.). When a defendant moves for a no-evidence summary judgment, the burden is on
the plaintiff to present evidence to raise a genuine issue of material fact on each of the
challenged elements. TEX. R. CIV. P. 166a(i); Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12
S.W.3d 827, 832 (Tex. App.—Dallas 2000, no pet.). Evidence that is “so weak as to do no more
than create a mere surmise or suspicion” does not raise a fact issue. See McCoy, 183 S.W.3d at
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554. To raise a fact issue the evidence must rise “to a level that would enable reasonable and
fair-minded people to differ in their conclusions.” McCoy, 183 S.W.3d at 554. Any doubts
about the existence of a genuine issue of material fact are resolved against the movant, and all
evidence and any reasonable inferences must be viewed in the light most favorable to the
nonmovant. Id. at 553.
When a trial court’s order granting summary judgment does not specify the ground or
grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the
theories advanced are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
Because summary judgment is a question of law, we review a trial court’s summary judgment de
novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
In their first issue, appellants assert the trial court erred in granting Chase’s motion for
summary judgment on their claims under the TDCPA. They first assert they presented evidence
showing Chase violated section 392.304(a)(8) of the TDCPA, which prohibits a debt collector
from misrepresenting the character, extent, or amount of a consumer debt. See TEX. FIN. CODE
ANN. § 392.304(a)(8) (West 2006). They rely on evidence that Chase posted their property for
foreclosure after Chase had been refunded the tax payments Chase had paid on their behalf, yet
claimed remained due. Specifically, according to appellants, Chase received the tax refund on
December 30, 2009, fifteen days before posting the property for foreclosure. The only summary
judgment evidence they direct us to support this claim is a December 30, 2009 “Original
Receipt” from the tax assessor showing $11,777.79 was tendered. After reviewing the receipt,
we cannot agree it shows Chase was refunded the tax overpayment on that date. Instead, we
conclude the receipt shows the $11,777.79 was tendered and treated as an overpayment. We also
note in his affidavit, appellant Peter Shin stated that he and his wife had received a letter from
“the City of McKinney” stating “the City” had refunded the tax payment to Chase. This letter is
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not in the summary judgment record. Further, Shin does not state in his affidavit the date he
received this letter or the date Chase was refunded the tax payment. Because appellant’s
contention that Chase misrepresented the character or extent of their debt is premised on its
contention that Chase had been refunded the tax payment before posting the property for
foreclosure, and there is no evidence to support that contention, we conclude they failed to raise
a fact issue showing Chase violated Section 392.304(a)(8) of the TDCPA.
Appellants next assert Chase violated section 392.303(a)(2) of the TDCPA, which
provides a debt collector may not “collect or attempt to collect” interest or a charge, fee, or
expense incidental to the obligation unless the interest or incidental charge, fee, or expense is
expressly authorized by the agreement or is legally chargeable to the consumer.” See TEX. FIN.
CODE ANN. § 392.303(a)(2) (West 2006). To show Chase attempted to collect unauthorized fees,
appellants rely on fees Chase applied to their loan in association with the foreclosure
proceedings. Appellants assert Chase was not authorized to charge these fees because “they
were not in default of the contractual obligations.” To show they were not in default, appellants
rely on evidence that they ultimately paid their taxes, were current on their homeowners
insurance, and made all their monthly payments of principal and interest on the note.
The waiver of escrow agreement required appellants make their tax payments timely and
before any penalties were assessed. If appellants failed to do so, Chase was permitted to set up
an escrow account. It is undisputed that appellants did not pay the taxes when due and were
assessed penalties for their failure to do so. It is also undisputed that Chase paid appellants’
taxes and the penalties assessed. After it did so, appellants refused to pay the increased monthly
payment to cover the escrow for taxes. Appellants have made no effort to show Chase’s action
in creating the escrow account, thereby increasing their monthly payments, was not authorized
under the specific terms of the applicable agreements. Nor have appellants made any effort to
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show the foreclosure proceedings were otherwise unlawful. This Court has “no duty—or even
right—to perform an independent review of the record and applicable law to determine whether
there was error.” Bullock v. Am. Heart Ass'n, 360 S.W.3d 661, 665 (Tex. App.—Dallas 2012,
pet. denied). We conclude appellants have failed to show they raised a fact issue showing the
complained-of charges were unlawful.
We also conclude appellants failed to raise a fact issue that Chase ever collected or
attempted to collect the complained-of fees. To raise a fact issue, appellants rely on the
“transaction history” of the note showing that a “Misc. Foreclosure and Bankruptcy Expense” of
$14 was twice applied to their account. According to appellants’, the transaction history raises a
fact issue because when a fee is “applied” to an account, the creditor is “expecting” payment and
is therefore “attempting” to collect the fee. However, there is no evidence Chase ever requested
payment for the complained-of fees. Further, appellants admit Chase ultimately “corrected” their
account. We conclude there is no evidence Chase attempted to collect the fees from appellants.
Appellants next assert Chase violated Section 392.301(a)(8) of the TDCPA which
provides a debt collector may not “threaten” an action “prohibited by law” in collecting a debt.
According to appellants, Chase threatened an action that violated a federal statute. Specifically,
appellants assert Chase threatened violation of the Mortgage Reform and Anti-Predatory
Lending Act of 2010 by (1) “forcing” appellants to obtain force-placed hazard insurance, and (2)
failing to take “timely” action to respond to a borrowers request to correct errors and to avoid
foreclosure. See 12 U.S.C.A. § 2605(k). We have reviewed appellants’ petition carefully and,
even giving it the most liberal construction, we conclude they did not allege any claims based on
these violations of the federal statute. Indeed, the provisions appellants assert were violated were
not even in effect when they filed their petition. The Mortgage Reform and Anti-Predatory
Lending Act is part of the Dodd-Frank Act. The general effective date of the Dodd-Frank Act
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was July 22, 2010. See Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010,
PL 111-203, July 21, 2010, 124 Stat 1376. The particular provisions of the act appellants assert
were violated were created in Title XIV of the act which only went into effect the earlier of
January 21, 2013 or on the date of a final regulation implementing its provisions. See Houston v.
U.S. Bank Home Mortg. Wis. Servicing, 505 Fed. Appx. 543, 547 (6th Cir. 2012). Regardless,
the very earliest date these provisions could have been effective was after the complained-of
actions. See Hummel v. Hall, 868 F. Supp. 2d 543, 549-50 (W.D. Va. 2012) (explaining
effective date provisions of the Dodd-Frank and Mortgage Reform Acts); see also Smith v.
JPMorgan Chase Bank, N.A., 519 Fed. Appx. 861, 864 n.1 (5th Cir. 2013) (RESPA amendments
did not bind Bank’s actions that occurred before effective date of amendment). We conclude
appellants have failed to raise a fact issue showing Chase threated a violation of federal law. We
resolve the first issue against appellants.
In their second issue, appellants contend the trial court erred in granting Chase’s motion
for summary judgment on its claim for unfair collection efforts. Unreasonable collection is an
intentional tort. EMC Mortgage Corp. v. Jones, 252 S.W.3d 857, 868–69 (Tex. App.—Dallas
2008, no pet.). Although the elements of the tort have not been clearly defined, in EMC
Mortgage Co. v. Jones, we stated that “[o]ne of the more precise legal descriptions delineates the
conduct giving rise to the tort as ‘efforts that amount to a course of harassment that was willful,
wanton, malicious, and intended to inflict mental anguish and bodily harm.’” 2 EMC Mort. Corp,
252 S.W.3d at 869.
2
According to appellants, we rejected this definition in EMC Mortgage because we refused to apply it to the plaintiff’s claims in that
case. Appellants misconstrue our holding. We did not reject the definition, but we refused to apply “the correct legal standard” in assessing the
evidence to support a jury verdict because the jury was not provided that definition in the charge and there was no properly preserved or
presented charge error. EMC Mort. Corp, 252 S.W.3d at 869.
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To raise a fact issue showing Chase’s collection efforts were “willful, wanton, or
malicious,” they rely on evidence that Chase improperly posted their property for foreclosure
when they were not in default and after Chase had received the tax refund. We have previously
concluded the summary judgment evidence does not support these contentions. Nor is there any
summary judgment evidence that Chase had the intent to inflict bodily harm or mental anguish
on appellants. Although appellants presented summary judgment evidence that appellant
Natalya Shin suffered emotional and physical injuries from the stress of the foreclosure
proceedings, we cannot agree the evidence, even viewed in the light most favorable to
appellants, gives rise to a reasonable inference that it was Chase’s intent to cause her such
injuries. We conclude appellants’ failed to raise a fact issue to support their claim of
unreasonable collection efforts. We resolve the second issue against appellants. Because of our
disposition of these issues, we need not reach appellants’ third issue.
We affirm the trial court’s judgment.
/Michael J. O'Neill/
MICHAEL J. O'NEILL
JUSTICE
121634F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
PETER & NATALYA SHIN, Appellant On Appeal from the 416th Judicial District
Court, Collin County, Texas
No. 05-12-01634-CV V. Trial Court Cause No. 416-01309-2010.
Opinion delivered by Justice O'Neill.
CHASE HOME FINANCE, LLC, Appellee Justices Lang-Miers and Evans participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee CHASE HOME FINANCE, LLC recover its costs of this
appeal from appellant PETER & NATALYA SHIN.
Judgment entered this 30th day of June, 2014.
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