concurring and dissenting.
I cannot agree either with the majority’s characterization of the facts or with its judgment affirming the award of exemplary damages. Accordingly, I file this concurring and dissenting opinion.
Facts
On April 16, 1993, the Rodriguezes made their January, February, March, and April 1993 mortgage payments by a personal cheek drawn on their dance hall’s account in the amount of $1512.04. They made no payments in May, June, or July. On July 21, Waterfield sent a letter advising the Rodri-gúezes that because of their poor payment history they would in the future be required to make their payments with certified funds.
In August 1993, the Rodriguezes sent Wa-terfield a personal check for $1468.00. At the time she sent the check, Doris Rodriguez knew she was required to and was not sending certified funds; she knew the check was for less than the amount due since it did not include the accrued late charges; and she knew there were insufficient funds in the account to cover the check, although she expected to make a deposit before the cheek was processed. When Waterfield received this check, it also noticed that it was a personal, rather than certified, check, and was for less than the amount due. Nonetheless, according to Viola Patterson, the Waterfield vice president in charge of the foreclosure department, Waterfield would have processed the check (and added the accrued but unpaid late charges to the Rodriguezes’ next payment) if there were sufficient funds to cover it. However, when Waterfield called the bank, it learned that there were not sufficient funds in the account. Accordingly, Waterfield returned the cheek to the Rodri-guezes on September 1. Neither Waterfield nor the Rodriguezes maintained a copy of the cover letter accompanying the check. According to Mrs. Rodriguez, the letter stated that the check was returned only because it was for less than the amount due.
On September 8, Waterfield referred the Rodriguezes’ account to the foreclosure de*648partment which, on September 9, referred the account to its attorney. On September 18, 1993, Waterfield’s attorney sent out a notice of acceleration. This notice, which stated that the Rodriguezes should contact Sandy Richardson at 219/434-8285 to determine “[t]he exact amount necessary ... to cure the existing defaults and prevent this foreclosure sale,” was received by Daniel Rodriguez on September 15. Mrs. Rodriguez received her copy of the notice the following day and it was on that day, she testified, that she called not Sandy Richardson but Waterfield’s toll-free number and got approval from “Sue” to overnight a cashier’s cheek for $1537.16 to Waterfield on September 17. Although Waterfield makes computer entries documenting every customer call, its records do not reflect the call to which Doris testified. Nor does its file reflect that it sent its customary letter documenting the amount required to prevent foreclosure — an amount that could only be calculated after Waterfield determined the amount of attorney’s fees thus far incurred in the foreclosure process.
On September 17, Mrs. Rodriguez sent a cashier’s cheek to Waterfield for $1537.16. This check was received by Waterfield on September 20. On September 24, Waterfield returned the check with the following cover letter:
Enclosed please find cashier’s check # 117833 for $1,537.16. We received this in our office on September 20, 1993. This loan had foreclosure proceedings initiated on September 9,1993. We can only accept the total amount due to reinstate the loan.
I have tried to reach you by phone, but the number we have listed for your residence has been disconnected. I have enclosed reinstatement figures to bring the loan current. The foreclosure sale is set for October 5, 1993. We must have the reinstatement amount by October 4,1993.
If you need instructions on where to send the money or how to use Western Union or have any other questions, please contact our office at 219-434-8309.
Doris received this letter on October 12, after the foreclosure sale had already occurred. According to Doris, her mail was sometimes delayed.
After the foreclosure sale, Waterfield filed a forcible entry and detainer action. In response, the Rodriguezes filed this suit, seeking actual and exemplary damages as well as a temporary restraining order to prevent eviction from their home. The trial court granted the temporary restraining order, giving the Rodriguezes sixty days to make the required payment and avoid eviction. However, when Mrs. Rodriguez tendered the amount due into the registry of the court on the last possible day, the district clerk refused the payment. The Rodriguezes did not request an extension of the TRO because they did not have the $1000 their attorney demanded to perform this service.
Discussion
Actual Damages, Attorney’s Fees, and Interest
Viewed in the light most favorable to the trial court’s finding, Doris’ testimony regarding her call to Waterfield on September 16 is some evidence and, in the circumstances, marginally sufficient evidence of a misrepresentation to support the trial court’s finding and conclusion of a violation of the Texas Debt Collection Act. Accordingly, I concur in the majority’s judgment affirming the award of actual damages, attorney’s fees, and pre- and postjudgment interest.
Exemplary Damages
The majority holds that malice is not required to recover exemplary damages for a violation of the Texas Debt Collection Act or, if it is, there is sufficient evidence to support the requisite malice finding. I disagree with both holdings.
In my view, malice — “ill will or bad or evil motive or such gross indifference of the rights of another as will amount to a willful or wanton act done intentionally and without just cause or excuse ” — is required to support an award of exemplary damages for violation of the Texas Debt Collection Act. See Ware v. Paxton, 359 S.W.2d 897, 898 (Tex.1962) (emphasis added); Ledisco Fin. Serv., Inc. v. Viracola, 533 S.W.2d 951, 957-58 (Tex.Civ.App.—Texarkana 1976, no writ). *649And if malice is required, there is simply no evidence of it in this record — whether in the form of a “campaign of harassment and intimidation,” abusive language, threats, or an attempt to blacklist the Rodriguezes with their family, friends, or other creditors. See Ware, 359 S.W.2d at 899-902.
Moreover, even under a common law gross negligence standard, the Rodriguezes were required to prove:
(1) viewed objectively from the standpoint of the actor, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others.
Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex.1994); see also id. at 20 (statute merely codified common law definition of gross negligence). And there is no evidence in this record that Waterfield acted with “conscious indifference” of the Rodri-guezes’ rights, nor is there any evidence to support the trial court’s finding that Water-field “wanted” the Rodriguezes to lose their home. To the contrary, the record is replete with instances in which Waterfield bent over backwards to avoid foreclosure. At best, Mrs. Rodriguez’s testimony regarding her September 16 call demonstrates an isolated mistake by one employee as to the amount required to prevent the foreclosure.
Conclusion
A mistake, even if unlawful, does not establish malice or gross negligence, and it does not justify an award of exemplary damages under either Ware or Moriel. Nor does pursuing one’s legal rights, as Waterfield did in its forcible entry and detainer action. Accordingly, I dissent from the majority’s judgment insofar as it affirms the trial court’s exemplary damage award.