For the third time in 2013, the Fifth Circuit has reversed, at least in part, the dismissal of foreclosure-related claims under Rule 12 – this time in a published opinion. Miller v. BAC Home Loans Servicing LP, No. 12-41273 (August 13, 2013). The Court began by reminding that the Texas fair debt collection statute is broader than the federal one, and can encompass a servicer. Here, the borrower stated a cognizable claim about the servicer misrepresenting its services (the status of a foreclosure), while failing to do so on several other misrepresentation claims based on other statutory provisions. The Court rejected a DTPA claim because the allegations related to a loan modification — an entirely financial transaction that did not involve a “good” or “service” — and the plaintiffs thus lacked standing. In so doing, the Court distinguished authority finding consumer status as to an original home loan transaction, where the goal can be called obtaining a house. The Court also found that the defendant properly raised the Statute of Frauds as a defense as a Rule 12 ground in opposition to the plaintiff’s promissory estoppel claims.
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