HOUSTON -- An appeals court determined Sept. 26 that foreclosure counsel Buckley Madole PC rightfully foreclosed on a home despite the former owner’s allegations that it was improper.
The Texas First District Court of Appeals affirmed summary judgment for Madole from the Harris Count Circuit Court.
Ann Douglas Aase sued Buckley Madole, Wells Fargo, and the property’s buyer Jelinis, LLC but she only took issue with the lower court granting summary judgment for Buckley Madole, stating that the Fair Debt Collection Practices Act (FDCPA) letter it sent had replaced Well Fargo’s notice of default and intent to accelerate that the bank previously issued to Aase. Therefore, the acceleration and the foreclosure were both improper, according to Aase. The appeals court ruled, “We disagree and affirm the summary judgment for Buckley Madole.”
Texas First District Court of Appeals Justice Julie Countiss
| txcourts.gov
The appeals court added that the heart of the issue is whether Buckley Madole’s FDCPA letter had any legal impact on the notice of default and the acceleration of the foreclosure that Wells Fargo had already issued to Aase.
The court ruled, “We agree with the federal court’s analysis and similarly hold that Buckley Madole’s FDCPA letter to Aase was not a second default letter that ‘undid,’ revoked or replaced Wells Fargo’s notice of default to Aase. Buckley Madole’s FDCPA letter was not a second notice of default. It was, simply put, an initial communication letter [under the FDCPA, which] is not a notice of default.”
Ultimately, Buckley Madole’s notice was indeed timely and proper, and so was the foreclosure, according to the appeals court.
Justice Richard Hightower wrote the opinion. Justices Peter M. Kelly and Julie Countiss concurred.
According to the complaint, Aase bought the house with a loan secured by a deed and trust that was later assigned to Wells Fargo. After she did not make her September 2016 payment, Wells Fargo issued a notice of default and intent to accelerate on Oct. 17, 2016. It also noted Aase’s default amount of $7,435.47, and said she had until Nov. 21, 2016 to cure the debt, which Aase did not.
Buckley Madole then sent Aase the FDCPA letter Jan. 20, 2017 referencing her loan and property. It said that Buckley Madole was operating on behalf of Wells Fargo and that it was asked to continue foreclosure procedures. It gave Aase 30 days to challenge the amount or any factors Buckley Madole included in the letter. It then sent a notice of sale Jan. 30, 2017, informing Aase that the note was accelerated and that foreclosure was scheduled for March 7 2017. Aase was ultimately evicted.
She later sued Wells Fargo, Buckley Madole and Jelinis, alleging declaratory relief that the foreclosure was invalid because it was not properly noticed via the Texas Property Code and the deed of trust. She also sued Wells Fargo and Buckley Madole, alleging of contract and said they violated Chapter 92 of the Texas Finance Code (the Texas Debt Collection Act), “with such violation being a deceptive trade practice under chapter 17 of the Texas Business and Commerce Code,” according to the lawsuit. Buckley Madole subsequently moved for summary judgment, which the lower court granted. Aase appealed, and the appeals court affirmed the lower court decision.