5th Circuit: BAC Home Loans May Be Sued For Lying To Homeowners About Postponing Foreclosure, Considering Loan Modification

Posted on Aug 16, 2013

In an opinion filed August 13, 2013, the 5th Circuit Court of Appeals ruled on Motions to Dismiss filed by the Defendants in Miller v. BAC Home Loans Servicing, L.P. and National Default Exchange, Case No. 12-41273, 5th Cir. 2013.

The plaintiff homeowners had sued BAC and NDE over the foreclosure sale of the property at 810 Corey Drive in Whitehouse, Texas. The plaintiffs had alleged several theories of recovery, based on their claims that after their property was posted for foreclosure, a representative of BAC had told them that the foreclosure sale would be postponed, and that a loan modification application that the plaintiffs had submitted would be considered. The foreclosure occurred anyway, and the plaintiffs lost and later vacated the property.

The plaintiffs later sued BAC and NDE for several causes of action, including claims under the Fair Debt Collection Practices Act (FDCPA), the Texas Debt Collection Act, the Texas Deceptive Trade Practices Act, and Texas common law. The trial court dismissed all of the plaintiff's claims.

On appeal to the 5th Circuit, the court affirmed the dismissal of all of the causes of action except it reversed on one count, saying that the case could go forward against BAC for one violation of the Texas Debt Collection Act, where the Millers had alleged that BAC may have misrepresented the status or nature of the services it rendered.

The Millers had alleged that BAC "informed Mr. Miller that the terms of his loan could be modified to cure the default and avoid foreclosure if he qualified." Allegedly BAC also told the Millers that they did not have to make further payments, as the delinquent payments could be included in the modified loan.

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