Abudu Kadiri Alli v. Wachovia Bank, N.A. as Trustee, Successor by Merger to First Union National Bank, as Indenture Trustee, Bayview Loan Servicing, LLC and Interbay Funding, LLC

Opinion issued February 28, 2013

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-11-00800-CV
———————————
ABUDU KADIRI ALLI, Appellant
V.
WACHOVIA BANK, N.A. AS TRUSTEE, SUCCESSOR BY MERGER TO
FIRST UNION NATIONAL BANK, AS INDENTURE TRUSTEE,
BAYVIEW LOAN SERVICING, LLC AND INTERBAY FUNDING, LLC,
Appellees

On Appeal from the 55th District Court
Harris County, Texas
Trial Court Case No. 2008-70936

MEMORANDUM OPINION

Abudu Kadiri Alli appeals from a take-nothing judgment rendered after a

bench trial on his claims against Wachovia Bank, N.A. as Trustee, Successor by
Merger to First Union National Bank, as Indenture Trustee, Bayview Loan

Servicing, LLC, and Interbay Funding, LLC. 1 We affirm the judgment.

Background

Alli owned a parcel of land on South Post Oak Road in Houston. To raise

capital for his automotive business operating on the same property, Alli obtained a

loan from Interbay in late 2001. He executed a promissory note for a principal

amount of $187,200 and a deed of trust pledging the property as collateral. The

deed of trust provides that notices of default and foreclosure should be sent to a

designated address on Ashford Lakes in Sugar Land. Alli subsequently changed

the notice address to the address for the property itself.

Alli made payments on the note through March 2007 but thereafter made no

further payments. A couple of months later, Bayview, which was responsible for

servicing the loan, sent notices of default to the address for the property and to the

address on Ashford Lakes. Around that time, Alli contacted Bayview about the

possibility of obtaining a discounted payoff. Initially, Alli engaged a financial-

workout professional, Roger Dill, to represent him in reaching a payoff agreement.

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The defendants’ amended answer identifies the defendant parties as
“Wachovia Bank, N.A., as Trustee, Successor by Merger to First Union
National Bank, as Indenture Trustee, Bayview Loan Servicing, LLC
formerly Interbay Funding, LLC, (incorrectly sued as Bayview Loan
Servicing, LLC and Interbay Funding, LLC) . . . .” The amended answer also
states that “Bayview Loan Servicing LLC, formerly Interbay Funding LLC,
is the servicer of the Note for the benefit of Wachovia Bank, N.A. successor
by merger with First Union National Bank, as Trustee . . . .”
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Dill corresponded with Bayview and informed Alli that he would prepare a lump

sum payoff offer.

By September, Alli had terminated Dill and engaged a Texas-licensed

attorney, Tekenari (“Tex”) Wariboko. One of Alli’s motivations for engaging

Wariboko was that he was preparing to take an extended trip to Nigeria and wanted

to ensure that someone was handling the payoff matter with Bayview. David

Cortes, a Bayview asset manager assigned to the loan account, required Alli to

transmit an authorization letter indicating Wariboko’s authority. Cortes instructed

how such a letter should be worded. Alli drafted the required authorization letter,

which stated in relevant part:

RELEASE OF INFORMATION

RE: LOAN # 200010471

Dear Mr. Cortes:

I hereby authorize the release of any and all information pertaining to
the above referenced loan to Tex A. Wariboko, Esq., Attorney at Law,
the law firm of Wariboko & Associates, P.C. Mr. Wariboko may be
reached at 713-772-[####] [Fax # (713) 981-[####])].

After receiving the authorization letter, Cortes spoke telephonically with Wariboko

about the possibility of a discounted payoff. Cortes faxed to Wariboko a financial

request letter detailing the information that Bayview needed before considering a

payoff offer.

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 In January 2008, Wariboko called Cortes to inform him that a payoff offer

was forthcoming. He then sent a letter addressed to Cortes proposing a discounted

payoff amount of $50,000. Through further calls with Bayview in February,

Wariboko learned that Cortes was no longer handling the loan account. Neither

Wariboko nor Alli ever received a response from Bayview regarding the payoff

offer.

In February, Bayview sent notices of acceleration and non-judicial

foreclosure to the address on Ashford Lakes (as listed in the deed of trust) and to

the address for the property on South Post Oak Road (as Alli had previously

designated). The notices indicated that the property would be foreclosed upon on

March 4. No notices were sent to Wariboko, and Bayview did not otherwise inform

him of the impending foreclosure. IB Property Holdings, LLC—which has the

same address as Bayview and Interbay—purchased the property at the foreclosure

sale on March 4 and subsequently conveyed title to Wachovia.

Alli sued Wachovia, Bayview, and Interbay for breach of contract,

promissory estoppel, and negligent misrepresentation. In addition to monetary

damages, he requested the imposition of a constructive trust on the property. The

defendants responded with a general denial, affirmative defenses, special

exceptions, and a counterclaim for the deficiency on the loan and other damages.

Alli, as counter-defendant, filed a general denial and other affirmative defenses.

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 During the bench trial, both sides presented evidence concerning Alli’s

claims; the counterclaims, however, were not pursued. The court rendered

judgment that Alli take nothing by his claims. Alli filed a request for findings of

fact and conclusions of law, which the court denied as untimely. He subsequently

filed a motion for new trial, which was overruled by operation of law. Alli timely

filed a notice of appeal.

Standard of Review

In a nonjury trial, when no findings of fact or conclusions of law are filed,

we imply that the trial court made all necessary findings to support its judgment.

Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Lopez v.

Hansen, 947 S.W.2d 587, 589 (Tex. App.—Houston [1st Dist.] 1997, no writ). The

implied findings may be challenged for both legal and factual sufficiency. Whaley

v. Cent. Church of Christ of Pearland, 227 S.W.3d 228, 231 (Tex. App.—Houston

[1st Dist.] 2007, no pet.) (citing BMC Software Belg., N.V. v. Marchand, 83

S.W.3d 789, 795 (Tex. 2002)).

Alli does not specify in his appellate brief whether he challenges the court’s

findings for legal or factual sufficiency. Throughout his brief on each of his issues,

he characterizes the evidence as “undisputed” and facts in his favor as having been

“conclusively established” or “established as a matter of law.” Accordingly, we

construe Alli’s three issues as making legal sufficiency challenges. See Regal Fin.

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Co., Ltd. v. Tex Star Motors, Inc., 355 S.W.3d 595, 603 (Tex. 2010) (noting that

evidence is legally insufficient when it “conclusively establishes the opposite of

the vital fact”) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706,

711 (Tex. 1997)).

“An appellate court will apply the same standard of review to sufficiency

challenges of implied findings as is applied in the review of jury findings.” Ryan v.

Abdel-Salam, 39 S.W.3d 332, 335 (Tex. App.—Houston [1st Dist.] 2001, pet.

denied). In a legal sufficiency review, all the evidence is considered in the light

most favorable to the judgment rendered. Regal Fin. Co., 355 S.W.3d at 603. “For

evidence to conclusively establish the opposite of a vital fact, the evidence must be

the type that could not lead reasonable people to different conclusions.” Id. (citing

City of Keller v. Wilson, 168 S.W.3d 802, 815–16 (Tex. 2005)). “If more than a

scintilla of evidence supports the challenged finding, the no-evidence challenge

fails.” Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005) (per

curiam).

Analysis

Alli raises three issues on appeal. First, he argues that the evidence at trial

conclusively established that Bayview had breached the deed of trust by failing to

provide proper pre-foreclosure notice to his agent, Wariboko. Alli contends that the

authorization letter and the subsequent course of conduct between Wariboko and

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Bayview resulted in a contractual obligation to send such notice to Wariboko.

Second, Alli argues that the evidence at trial conclusively established that Bayview

waived any right to rely on the notice provisions in the deed of trust by

acknowledging and dealing with Wariboko, and therefore the trial court erred in

impliedly denying relief on this basis. Third, Alli argues that the evidence

conclusively established that Bayview was estopped from denying its promise to

deal with Wariboko as Alli’s agent, and therefore the trial court erred in impliedly

denying his claim for promissory estoppel.

For the reasons detailed below, we disagree with Alli’s arguments. The

record does not reflect any evidence that Bayview was obligated or had otherwise

promised to send notices of foreclosure to Wariboko.

1. Neither the authorization letter nor the communications between
Wariboko and Bayview conclusively established a contractual
obligation
Alli, as the plaintiff, has the burden to prove that the defendants breached a

contractual obligation to provide notice to Wariboko. See SLT Dealer Group, Ltd.

v. AmeriCredit Fin. Servs., Inc., 336 S.W.3d 822, 828 (Tex. App.—Houston [1st

Dist.] 2011, no pet.). The key pieces of evidence for Alli’s breach of contract claim

are the authorization letter and the course of conduct between Wariboko and

Bayview. According to Alli, these facts conclusively demonstrate Bayview’s

recognition of Wariboko’s agency. However, we conclude that these facts do not

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conclusively establish a contractual duty to provide notice of foreclosure to

Wariboko.

A. Authorization letter

The operative language in the authorization letter states that Alli

“authorize[s] the release of any and all information pertaining to the above

referenced loan to Tex A. Wariboko . . . .” 2 Alli contends that the authorization

letter represents a modification of the deed of trust’s notice provision. However,

even if the authorization letter was intended to modify the deed of trust, we

conclude that it fails as a contractual modification for want of consideration. “A

modification must satisfy the elements of a contract: a meeting of the minds

supported by consideration.” Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 228

(Tex. 1986); see also Walden v. Affiliated Computer Servs., Inc., 97 S.W.3d 303,

314 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). Consideration is defined

as “either a benefit to the promisor or a loss or detriment to the promisee.” N.

Natural Gas Co. v. Conoco, Inc., 986 S.W.2d 603, 607 (Tex. 1998) (quoting

Receiver for Citizen’s Nat’l Assurance Co. v. Hatley, 852 S.W.2d 68, 71 (Tex.

2
Although Alli does not argue otherwise, we note that this document plainly
does not meet the requirements of an integrated contract. “In order to be
legally binding, a contract must be sufficiently definite in its terms so that a
court can understand what the promisor undertook.” T.O. Stanley Boot Co.,
Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). The lack of terms
in the authorization letter makes it impossible to determine what obligations,
if any, the parties undertook, and thus it fails as a contract.
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App.—Austin 1993, no writ)). Alli has not identified, and the record does not

reflect, the consideration exchanged with respect to the authorization letter.

Accordingly, the authorization letter fails as a modification of the deed of trust.

B. Course of conduct between Wariboko and Bayview

Alli contends that “Bayview was aware of and acknowledged the agency

relationship between Mr. Alli and Mr. Wariboko and dealt repeatedly with Mr.

Wariboko in his capacity as Mr. Alli’s agent, including accepting correspondence

from him, sending him confidential information about the Note, requesting

financial information from him, and sending him a proposed payoff amount for the

loan.” Alli characterizes these circumstances as an “agreement to deal with Mr.

Wariboko” that Bayview breached.

The record is replete with testimony that Cortes, as Bayview’s agent,

discussed the possibility of a discounted payoff with Wariboko. That said, there is

no testimony or other evidence indicating that Bayview stated to or agreed with

anyone that it would provide notice of foreclosure to Wariboko. Cortes testified

that the topic of his communications with Wariboko was the discounted payoff, not

foreclosure proceedings. He specifically testified that neither Alli nor Wariboko

ever requested that notices of foreclosure be sent to Wariboko. Although Wariboko

testified that he was hired in part to receive notices of foreclosure, that testimony

only addresses his understanding with his client, Alli, not an agreement with

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Bayview. Wariboko also testified that “it was clear to [Cortes] that everything was

going to be sent to me,” but he did not testify as to any specific agreement by

Bayview that notices of foreclosure would be sent to him. Without any such

evidence, Alli did not conclusively prove that Bayview had a contractual

obligation to provide notice of foreclosure to Wariboko.

In summary, the trial court might have impliedly found that Alli failed to

prove that the defendants were under a contractual obligation to provide notice of

foreclosure to Wariboko. Alli, having the burden of proof on this question, did not

produce evidence at trial conclusively demonstrating such an obligation. Therefore,

we overrule Alli’s first issue.

2. The evidence did not conclusively establish waiver of the deed of trust’s
notice provisions
Alli argues that “[t]he evidence that supported [his] claim for breach of

contract also conclusively established that Bayview waived any right to rely

strictly on the Deed of Trust and Note for its notice requirements by accepting and

dealing with Mr. Wariboko as Alli’s agent.” We interpret this argument to mean

that Bayview waived the deed of trust’s strictures concerning how a change of

address should be effectuated and how to provide proper notice of foreclosure. We

disagree with this argument because, in the same way that the evidence did not

conclusively establish a contractual obligation to convey notices of foreclosure to

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Wariboko, the evidence did not conclusively establish Bayview’s waiver of the

notice provisions.

“The elements of waiver include (1) an existing right, benefit, or advantage

held by a party; (2) the party’s actual knowledge of its existence; and (3) the

party’s actual intent to relinquish the right, or intentional conduct inconsistent with

the right.” Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 778 (Tex. 2008).

“Waiver is ordinarily a question of fact.” Tenneco Inc. v. Enter. Prods. Co., 925

S.W.2d 640, 643 (Tex. 1996). “Where the facts and circumstances are admitted or

clearly established, however, the question becomes one of law.” Id.

There was no evidence presented at trial that Bayview actually intended to

waive the notice provisions. See Ulico, 262 S.W.3d at 778. As to whether Bayview

undertook “intentional conduct inconsistent with” the notice provisions, see id., the

fact that Bayview communicated with and released some information to Wariboko

in connection with payoff discussions is not inconsistent with the strictures of the

notice of foreclosure provisions. Cf. Enchilada’s Nw., Inc. v. L & S Rental Props.,

320 S.W.3d 359, 364 (Tex. App.—El Paso 2010, no pet.) (concluding that lessor’s

heated remark to lessee that he should move out was not inconsistent with lease’s

notice provision requiring 180 days’ notice before termination). Accordingly, the

evidence did not conclusively establish any waiver, and we overrule Alli’s second

issue.

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3. The evidence did not conclusively establish a promise to provide notice
of foreclosure to Wariboko
Alli argues that the “undisputed evidence” established promissory estoppel

because Bayview promised to deal with Wariboko regarding Alli’s account. He

contends that Bayview “agreed to provide any and all information to Mr.

Wariboko, and then communicated with Mr. Wariboko about the Note, provided

him with confidential information including a payoff amount, and subsequently

notified him that the foreclosure sale had occurred.” The record, however, does not

conclusively establish that Bayview promised to send notices of foreclosure to

Wariboko.

The elements of promissory estoppel are (1) a promise, (2) foreseeability of

reliance thereon by the promisor, and (3) substantial reliance by the promisee to his

detriment. English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983); Beverick v. Koch

Power, Inc., 186 S.W.3d 145, 152 (Tex. App.—Houston [1st Dist.] 2005, pet.

denied). “Promissory estoppel does not apply to a promise covered by a valid

contract between the parties; it does apply, however, to a promise outside the

contract.” Barnett v. Coppell N. Tex. Court, Ltd., 123 S.W.3d 804, 825 (Tex.

App.—Dallas 2003, pet. denied); see also Subaru of Am., Inc. v. David McDavid

Nissan, Inc., 84 S.W.3d 212, 226 (Tex. 2002) (noting that “the promissory-

estoppel doctrine presumes no contract exists”). The promise must be one “which

the promisor should reasonably expect to induce action or forbearance of a definite

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and substantial character on the part of the promisee.” CRSS Inc. v. Runion, 992

S.W.2d 1, 6 (Tex. App.—Houston [1st Dist.] 1995, pet. denied) (quoting “Moore”

Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 937 (Tex. 1972) (quoting

RESTATEMENT OF CONTRACTS § 90 (1932))). As a corollary, the promise “must be

more than mere speculation concerning future events, a statement of hope, or an

expression of opinion, expectation, or assumption.” Comiskey v. FH Partners,

LLC, 373 S.W.3d 620, 635 (Tex. App.—Houston [14th Dist.] 2012, pet. denied).

There is no testimony or other evidence in the record that anyone promised

to Alli or Wariboko that notice of foreclosure would be sent to Wariboko. The

authorization letter is no proof because, first, it contains no promise and, second, it

represents the words of the alleged promisee rather than those of the alleged

promisor. Moreover, no one at trial testified as to any promise made concerning

notices of foreclosure that could be “reasonably expect[ed] to induce action or

forbearance of a definite and substantial character.” CRSS, 992 S.W.2d at 6.

Consequently, we overrule Alli’s third issue.

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 Conclusion

We affirm the court’s judgment.

Harvey Brown
Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

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