from the United States District Court for the Southern
District of Texas
JONES, CLEMENT, and HIGGINSON, Circuit Judges.
H. JONES, Circuit Judge:
appeal arises from the 2013 foreclosure sale of appellants
Ashraf Mahmoud and Valerie Jackson's condominium unit in
Houston, Texas. In 2013, Mahmoud and Jackson filed suit
against the condo owners association, the company that
manages the day-to-day affairs of the complex, the law firm
hired to collect on delinquent homeowner accounts, and the
attorney responsible for their account. Appellants alleged
common law claims for breach of contract, wrongful
foreclosure, negligent misrepresentation, and breach of
fiduciary duty, and violations of the Federal Debt Collection
Practices Act, Texas Fair Debt Collection Practices Act, and
Texas Deceptive Trade Practices Act. 15 U.S.C. §§
1692c, e, and f; Tex. Fin. Code Ann. § 392; Tex. Bus.
& Com. Code Ann. § 17. The district court granted
summary judgment on all claims. We affirm.
2001, Mahmoud and Jackson purchased condominium unit 806
located at 6606 De Moss Drive, Houston, Texas. The condo is
part of De Moss Condominiums, which is run by the De Moss
Owners Association (the Association) and governed by the
Condominium Declaration (the Declaration) filed in Harris
County, Texas in 1981. Paragraph 5.1 of the Declaration
requires all owners to pay monthly assessments and grants the
Association the power to assess late fees of $5.00 for each
late payment, a late fee that was subsequently increased to
$25.00. Common assessments include assessments based on
non-recurring costs for repairs and improvements to the
common areas of the premises. Paragraph 5.9 grants the
Association a lien to secure payment of these assessments.
Finally, paragraph 3.10 allows the Association to charge
individual owners for repairs to common elements willfully or
negligently damaged by an owner or his or her guests.
Management Company (Creative) managed the day-to-day
operations of the condo complex. By letter dated August 24,
2012, Creative notified Jackson and Mahmoud that their
account was delinquent by $1611.80 and gave them one month to
make payment. The letter listed dated and itemized charges,
including: a repair from May 2006, a repair from April 2007,
a repair from February 2010, maintenance fees from July and
August 2012, and an August 2012 late penalty. 
The letter allowed Jackson and Mahmoud 30 days from receipt
to challenge the validity of the debt or the account would be
turned over to an agent or an attorney to initiate
foreclosure proceedings or to file a lawsuit to recover the
total amount due. The Association then turned the collection
over to Appellee Kristi Slaughter of Frank, Elmore, Lievens,
Chesney & Turet, L.L.P. (Appellee FELCT).
sent Mahmoud and Jackson a letter dated October 8, 2012,
identifying the balance on the "Resident Transaction
Report" maintained by Creative as $2, 171.80, and
informing Mahmoud and Jackson that the debt was secured by a
continuing lien against their condo and failure to pay the
total amount within 30 days would result in a nonjudicial
foreclosure on the lien. Page one of the letter stated that
the balance was secured by a continuing lien against their
condominium and that failure to pay the total amount "on
or before the expiration of thirty (30) days from and after
the date hereof" would result in nonjudicial
foreclosure. Page two contained a notice, in all-caps, which
included the following warning three times: "UNLESS YOU
DISPUTE THE VALIDITY OF THIS DEBT OR ANY PORTION THEREOF
WITHIN THIRTY (30) DAYS AFTER RECEIVING THIS LETTER, WE WILL
ASSUME THE DEBT IS VALID." Mahmoud and Jackson never
disputed the validity of the debt before filing this lawsuit.
and Jackson sent in three checks covering the three most
recent monthly assessments ($750), but not the full amount of
the debt owed ($2, 171.80). Slaughter responded with two
separate letters dated November 12, 2012, advising the owners
that their unit would be put up for foreclosure sale and
returning the checks. The charging of attorneys' fees and
assessments had increased the balance due to $2, 796.80. The
property was posted for nonjudicial foreclosure on December
4, 2012. Both letters gave Mahmoud and Jackson until December
3 to pay the full amount or submit an Association-approved
payment plan proposal.
November 17, Mahmoud and Jackson sent a letter again
including three checks for the most recent monthly
assessments and requesting a breakdown of all outstanding
fees to set up a payment plan. On November 20, 2012,
Slaughter responded with the Resident Transaction Report
which included all charges dating back to January 2006,
returned the partial payment, and reminded them that they
needed to establish an approved payment plan with the
Association prior to the foreclosure date. A similar set of
letters was exchanged a week later-Mahmoud and Jackson
sending partial payment on November 27, 2012 and Slaughter
returning it on November 28, 2012. Mahmoud acknowledged
receiving Slaughter's November 28 letter and admitted
that he did not contact the Association, Creative, or the
Association's lawyers about its contents.
with the Association's permission, elected to delay the
foreclosure sale and gave Mahmoud and Jackson more time to
work out a payment plan. Her letter of December 10 confirms
this forbearance until January 10, 2013 to make full payment
(now increased to $3, 321.80) or work out a payment plan.
Once again, Mahmoud and Jackson sent an incomplete payment
($240), which was rejected, and no payment plan was
forthcoming. A properly noticed foreclosure sale occurred on
February 5, 2013. The amount owed to the Association ($4,
861.80) was deducted from the sale price ($18, 500) and the
remainder deposited in the FELCT trust account ($13, 638.20).
Slaughter held the funds until receipt of a signed release.
FELCT paid the $13, 638.20 to Mahmoud and Jackson in February
2014. The new owner conveyed the unit back to Mahmoud and
Jackson on June 17, 2014 via warranty deed. Ultimately,
Mahmoud and Jackson were never dispossessed of the condo.
and Jackson filed suit on multiple common law and statutory
claims and sought partial summary judgment as to liability
(not damages) in January 2015. In March and April 2015, the
Appellees sought summary judgment as to the claims against
them. In September 2015, after hearing oral arguments, the
district court issued a 23-page Memorandum Opinion and Order
and entered judgment in favor of the Appellees. Mahmoud and
Jackson timely appealed.
court must "review the trial court's evidentiary
rulings under an abuse of discretion standard."
Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 667
(5th Cir. 1999). Evidentiary rulings, however, are also
subject to harmless error review, "so even if a district
court has abused its discretion, we will not reverse unless
the error affected 'the substantial rights of the
parties.'" Heinsohn v. Carabin & Shaw,
P.C., 832 F.3d 224, 233 (5th Cir. 2016) (quoting Nunez v.
Allstate Ins. Co., 604 F.3d 840, 844 (5th Cir. 2010)).
the record properly defined, this court then reviews a
summary judgment de novo. Wilcox v. Wild Well
Control, Inc., 794 F.3d 531, 535 (5th Cir.
2015). Summary judgment is required "if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). This court may affirm the district
court's grant of summary judgment on any ground supported
by the record and presented to the district court.
Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir.
and Jackson's evidentiary objection was that the
Certificate of Corporate Resolution regarding the increased
late fees was hearsay, conclusory, and lacked foundation.
They moved to strike the exhibit. In their motion for summary
judgment, Mahmoud and Jackson additionally raised five new
objections, all based on lack of foundation. Appellees argued
successfully to the district court that the objections were
appeal, Mahmoud and Jackson contend that the district court
did not identify any authority holding that objections to
summary judgment evidence not made the first time the
evidence is presented to the court are waived. Regardless
whether the district court abused its discretion, however,
any error was harmless. The issue whether the late fee
increase was properly adopted by the Association is not
dispositive of any claims, so it did not affect the outcome
of the litigation and did not affect their substantial
rights. See Heinsohn, 832 F.3d at 233.
consider separately each of the claims asserted by Mahmoud
and Jackson. First, they argue that the district court erred
in granting summary judgment for three different alleged
breaches of the Declaration: that the Condo Defendants
charged and demanded excessive late fees, wrongfully included
time-barred debt in the assessment lien, and charged and
ultimately foreclosed upon repair assessments without giving
them notice and an opportunity to be heard. Under Texas law,
it is a "strict" and "well established
rule" that "a party to a contract who is himself in
default cannot maintain a suit for its breach."
Dobbins v. Redden, 785 S.W.2d 377, 378 (Tex. 1990)
(quoting Gulf Pipe Line Co. v. Nearen, 135 Tex. 50,
138 S.W.2d 1065, 1068 (Tex. Comm'n App. 1940)).
and Jackson were indisputably in default under the contract.
Paragraph 3.11. of the Declaration states: "Each Owner
shall comply strictly with the provisions of this
Declaration, the By-Laws and the decisions and resolutions of
the Association adopted pursuant thereto." Paragraph 5.9
provides that "[a]ll sums assessed but unpaid by a Unit
Owner for its share of Common Expenses chargeable to its
respective Condominium Unit . . . shall constitute a lien on
such Unit" and expressly gives the Association the right
to foreclose on such a lien. Mahmoud and Jackson's
failure to pay their balance and to make timely payments on
their monthly assessments was a material breach of the
Declaration. See E. Friedman & Assoc., Inc. v. ABC
Hotel & Rest. Supply, Inc., 412 S.W.3d 561, 565
(Tex. App. 2013) ("One of the considerations in
determining whether a breach is material is the extent to
which the nonbreaching party will be deprived of the benefit
that it could have reasonably anticipated from full
performance."). Mahmoud and Jackson's argument that
the Association waived the right to timely payment is
incorrect; the Association's election to receive untimely
payments, for which a late fee was charged, in no way
compromised its contractual rights. Likewise, their
performance was not prevented or excused by the
Association's allegedly erroneous statements about their
balance due; this argument, as the Association points out,
conflates performance with cure. Summary judgment on this
claim was proper.
and Jackson next assert that because of material disputed
fact issues, their wrongful foreclosure claim should have
gone to trial. "A wrongful-foreclosure claim under Texas
law has three elements: (i) a defect in the foreclosure sale
proceedings; (ii) a grossly inadequate selling price; and
(iii) a causal connection between the defect and the grossly
inadequate selling price." Villarreal v. Wells Fargo
Bank, N.A., 814 F.3d 763, 767-68 (5th Cir. 2016)
(quoting Miller v. BAC Home Loans Servicing, L.P.,
726 F.3d 717, 726 (5th Cir. 2013). Appellants offer no
authority-and we have found none-to support the conclusion
that an inaccurate balance included in a default notice
constitutes a defect in the foreclosure proceedings, they do
not allege that the sale price was grossly inadequate, and
they never allege any causal connection between the defect
and the sale price. Therefore, the district court did not err
on this ground for granting summary judgment.
they challenge the adverse summary judgment on their claim
for negligent misrepresentation, Mahmoud and Jackson failed
to cite specific misrepresentations by the Appellees. A cause
of action for negligent misrepresentation in Texas requires:
"(1) the representation is made by a defendant in the
course of his business, or in a transaction in which he has a
pecuniary interest; (2) the defendant supplies 'false
information' for the guidance of others in their
business, (3) the defendant did not exercise reasonable care
or competence in obtaining or communicating the information,