Trevino v. HSBC Mortg. Servs., Inc. (In re Trevino), CASE NO: 10–70594

CourtUnited States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas
Writing for the CourtMarvin Isgur, UNITED STATES BANKRUPTCY JUDGE
Citation533 B.R. 176
PartiesIn re: Jose Sr. Trevino, Teresa Trevino, Debtor(s) Teresa Trevino, et al, Plaintiff(s) v. HSBC Mortgage Services, Inc., et al, Defendant(s)
Decision Date19 June 2015
Docket NumberADVERSARY NO. 13–07031,CASE NO: 10–70594

533 B.R. 176

In re: Jose Sr. Trevino, Teresa Trevino, Debtor(s)
Teresa Trevino, et al, Plaintiff(s)
HSBC Mortgage Services, Inc., et al, Defendant(s)

CASE NO: 10–70594
ADVERSARY NO. 13–07031

United States Bankruptcy Court, S.D. Texas, McAllen Division.

Signed June 19, 2015

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Karen L. Kellett, Armstrong Kellett Bartholow P.C., Theodore O. Bartholow, Dallas, TX, for Plaintiff.

Robert Bernard Bruner, Norton Rose Fulbright US LLP, Houston, TX, Glenn E. Glover, Bradley Arant Boult Cummings, LLP, Birmingham, AL, Melissa S. Hayward, Franklin Hayward LLP,

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Michael Peter Parmerlee, Franklin Skierski Hayward LLP, Dallas, TX, for Defendant.



Defendants, U.S. Bank Trust, N.A., Caliber Home Loans, Inc., and HSBC Mortgage Services, Inc. have filed motions to dismiss Jose and Teresa Trevino's complaint for failure to state a claim upon which relief may be granted. (Case No. 13–07031; ECF Nos. 79 and 80). The motions are granted in part and denied in part. The following claims are dismissed:

• Count I: Abuse of process claims against HSBC.
• Count IV: Relief pursuant to Fed. R. Bankr.P. 3002.1(i).
• Count V: Claim objection to Proof of Claim No. 21.
• Count VIII: The claims against HSBC pursuant to 15 U.S.C. §§ 1692e(2) and 1692e(1).
• Count IX: The claim against Caliber pursuant to 15 U.S.C. § 1692e(12). No other claims contained in Count IX are dismissed.
• Count X: All claims under the Texas Debt Collection Act.
• Count XI: Unreasonable debt collection claims against all Defendants
• Count XVI: The request for sanctions under 11 U.S.C. § 105(a) against HSBC.
• Count XXI: All negligence claims against HSBC.

The motions to dismiss are denied with respect to all other claims.

Procedural Background

On August 25, 2010, Jose and Teresa Trevino filed a Chapter 13 bankruptcy petition. (Case No. 10–70594, ECF No. 1). On December 30, 2013, the Trevinos initiated this adversary proceeding against Defendants HSBC Mortgage Services, Inc. (“HSBC”), U.S. Bank Trust, N.A. (“U.S.Bank”), and Caliber Home Loans, Inc. (“Caliber”). (Case No. 13–07031, ECF No. 1).

On February 3, 2014, U.S. Bank and Caliber filed a motion to dismiss Plaintiffs' suit. (ECF No. 13). On March 19, 2014, Plaintiffs filed a response to the motion to dismiss. (ECF No. 22). A scheduling conference was held on April 21, 2014. At the hearing, the Court asked the movants to file a brief in support for their argument that a transferee of a loan in bankruptcy can be a holder in due course. (ECF No. 28 at 12–14). The movants submitted a brief on May 5, 2014. (ECF. No. 29). Plaintiffs filed a reply brief on May 19, 2014. (ECF. No. 32). On August 18, 2014, HSBC filed a motion for judgment on the pleadings. (ECF No. 38).

On August 26, 2014, the Court held a hearing on Defendants' motions and allowed the Trevinos until October 15, 2014 to file an amended complaint. After timely filing the amended complaint, the Trevinos filed a motion for leave to file a second amended complaint on November 4, 2014. (ECF No. 59). On February 27, 2015, the Court held a hearing on the motion to amend and ordered that several claims be stricken from the complaint. The Court granted the Trevinos until March 13, 2015 to file a compliant second amended complaint. The Trevinos filed the second amended complaint March 12, 2015. (ECF No. 78). On April 1, 2015, HSBC filed a motion to dismiss. (ECF No. 79). U.S. Bank and Caliber filed a joint motion to dismiss on the same day. (ECF No. 80).

The Trevinos assert the following claims against U.S. Bank and Caliber: (i) a claim objection for a claim for payment of 2010

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real estate taxes; (ii) violations of the Fair Debt Collection Practices Act; (iii) the common law tort of unreasonable debt collection; (iv) violations of the Texas Debt Collection Act; (v) breach of contract; (vi) abuse of process; and (vii) claim objections. (ECF No. 78).

The Trevinos assert the following claims against HSBC: (i) abuse of process; (ii) violations of the automatic stay; (iii) relief pursuant to Fed. R. Bankr.P. 3001 ; (iv) claim objections; (v) violations of the FDCPA; (vi) violations of the Texas Debt Collection Act; (vii) unreasonable debt collection; (viii) breach of contract; and (ix) negligence and gross negligence.

The Trevinos have requested injunctive relief, declaratory relief, sanctions, and actual and punitive damages.

Factual Background

On February 21, 2005, the Trevinos executed a note, secured by a mortgage against their home, payable to Crevecor Mortgage, Inc. The Trevinos contend the mortgage was transferred to HSBC on July 10, 2009. (ECF No. 78 at 6). HSBC alleges the mortgage was transferred on March 31, 2005. (ECF No. 79–3). The Trevinos filed a chapter 13 petition and a Uniform Plan and Motion for Valuation of Collateral on August 25, 2010. The plan was confirmed on November 18, 2010. (Case No. 10–70594; ECF No. 34). The chapter 13 plan provided that the regular monthly mortgage payment would be paid by the Trustee to HSBC. (ECF No. 78 at 6). The plan also provided that the trustee would pay HSBC the arrearages on the note totaling $14,521.19 throughout the lifetime of the plan. Id.

Notably, the plan did not provide for the payment of real estate taxes. The Edinburg Independent School District, South Texas Independent School District, South Texas College, and Hidalgo County filed various proofs of claim totaling $1,878.76 in unpaid 2010 real estate taxes. Id. at 7. HSBC filed its own proof of claim on December 20, 2010, listing arrearages, fees, and other charges of $19,685.50. Id. The Trevinos allege that HSBC did not provide sufficient documentation of its claim for pre-petition fees and charges.

On January 24, 2011, the Trustee filed her notice of intent to pay the claims. (ECF No. 78–1 at 113). The notice showed that the Trustee would make monthly mortgage payments to HSBC as well as pay the $19,685.50 in arrearages and other charges. Id. The notice also showed that the Trustee would pay the ad valorem tax claims of Edinburg CISD, South Texas ISD, South Texas College, and Hidalgo County.1 Id. at 114. This was an error by the Trustee. The confirmed plan did not provide for payment of the ad valorem tax claims. According to the Trustee's record of payments, the Trustee began paying the tax claims on April 21, 2011. Id. at 126.

On April 13, 2011, the Property Tax Department of HSBC mailed a letter to the Trevinos claiming that their 2010 property taxes to Hidalgo County were severely delinquent and requesting proof of payment. Id. at 173. The letter requested proof of payment in the form of a canceled check, tax payment receipt, or a copy of a confirmed chapter 13 plan. It went on to state:

This is our final request. If we do not receive the above requested proof of payment within 15 days of this letter, we may advance payment on your behalf, pursuant to the terms of your mortgage. The payment will then be added to your
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loan and will be billed after discharge of the Chapter 13 Bankruptcy Plan.


On May 17, 2011, the Trevinos allege that HSBC made a request for permission to pay 2010 property taxes to Hidalgo County in the amount of $2,057.80 and for $641.59 to Edinburg City. HSBC sent the funds to the Hidalgo County Tax Office on June 1, 2011. On June 9, 2011, HSBC sent an almost identical letter to the Trevinos informing them that their Edinburg City property taxes for 2010 were seriously delinquent and requested proof of payment. Id. at 176. Another letter followed on July 13, 2011. Id. at 154. HSBC then advanced an additional $777.01 to Edinburg City on August 10, 2011. As of that date, HSBC had advanced a total of $3,476.40 on behalf of the Trevinos to taxing authorities.

After having learned of HSBC's tax payments, Cindy Boudloche, the chapter 13 Trustee, sent a letter to HSBC informing it that “[s]ome or all, of the past due assessments that you have referenced may have already been scheduled for repayment through the chapter 13 plan. This may preclude you from recovering funds that you intend to advance....” Id. at 153. The letter asked HSBC to carefully review the Trevinos' chapter 13 plan.

Starting in October of 2011, Hidalgo County began refunding to HSBC the property tax payments. As of October 2012, HSBC had been refunded the entire $3,476.40 in 2010 property taxes. Despite having received a full refund for the 2010 taxes, on April 16, 2013, HSBC again requested from the county permission to pay the 2010 taxes. HSBC disbursed $4,450.15 to Hidalgo County on April 22, 2013.2 Hidalgo County then refunded $2,960.66 to HSBC...

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