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Thompson v. Bank of America National Association

United States Court of Appeals, Fifth Circuit

April 21, 2015

DAVID THOMPSON; TONI THOMPSON, Plaintiffs--Appellants,
v.
BANK OF AMERICA NATIONAL ASSOCIATION, as Successor by Merger to BAC Home Loans Servicing, L.P., Formerly Known as Countrywide Home Loans; U.S. BANK, N.A., as Trustee for the Certificateholders of the LXS 2006-16N Trust Fund, Defendants--Appellees

Page 1023

Appeal from the United States District Court for the Northern District of Texas.

For David Thompson, Toni Thompson, Plaintiffs - Appellants: Jack B. Peacock Jr., David M. Vereeke, Gagnon, Peacock & Vereeke, P.C., Dallas, TX.

For BANK OF AMERICA NATIONAL ASSOCIATION, as successor of BAC Home Loans Servicing, L.P., formerly known as: Countrywide Home Loans, U.S. BANK, N.A., as Trustee for the Certificateholders of the LXS 2006-16N Trust Fund, Defendants - Appellees: Richard Dwayne Danner, Litigation Counsel, Tatiana Alexander, Esq., Nathan Templeton Anderson, Attorney, McGlinchey Stafford, P.L.L.C., Dallas, TX.

Before REAVLEY, SMITH, and GRAVES, Circuit Judges. GRAVES, Circuit Judge, concurring.

OPINION

Page 1024

JERRY E. SMITH, Circuit Judge:

David and Toni Thompson appeal a summary judgment dismissing their state-law claims against Bank of America (" BOA" ) and U.S. Bank, N.A. (" U.S. Bank" ), arising from of the foreclosure on their home. They also appeal the exclusion of particular exhibits from the summary-judgment evidence. Because BOA did not waive its right to foreclose and made no actionable misrepresentations, we affirm.

I.

The Thompsons purchased the property in 2006 with a loan from Countrywide Home Loans, BOA's predecessor in interest. They executed a promissory note (" Note" ) and deed of trust (" DOT" ), securing the Note with the property. The Note and DOT were assigned to U.S. Bank, with BOA acting as the loan servicer. In 2009, the Thompsons contacted BOA to try to negotiate a loan modification but were informed that they did not qualify for the Home Affordable Modification Program because they were not delinquent in their payments. Although they were also told not to stop making monthly payments, they later did so, then hired Impact Consulting Group (" Impact" ) to assist in negotiating a modification.

Over the course of three years, the Thompsons, through Impact, engaged with BOA in a drawn-out process to assess their eligibility for a modification. They submitted multiple rounds of paperwork, and their application passed through numerous reviews. But because they had stopped paying, they also received several letters notifying them of their default, giving them notice of foreclosure, and informing them that BOA was accelerating their payments under the loan's terms. They did not resume payments or bring their account current; instead they requested postponements, and BOA agreed several times to delay the foreclosure sale while

Page 1025

the modification application was under review.

In December 2012, BOA denied the loan-modification application, then foreclosed. The Thompsons filed a number of state-law claims against BOA and U.S. Bank, which they removed to federal court on diversity jurisdiction. The banks then moved for summary judgment on all claims, which the ...


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