Acosta v. SERVBANK, SB

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
WILSON ACOSTA,
Plaintiff.
V.
SERVBANK, SB,
Defendant.
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CIVIL ACTION NO. 3:25-cv-00282
OPINION AND ORDER
Pending before me is Defendant Servbank, SB’s Motion to Dismiss Pursuant
to Fed. R. Civ. P. 12(b)(6) and Motion for Summary Judgment Pursuant to Fed. R.
Civ. P. 56.1 Dkt. 15. Having considered the motion, the record, and the applicable
law, I grant the motion for summary judgment.
BACKGROUND
In February 2015, Plaintiff Wilson Acosta and his wife purchased the
property located at 3902 Lupin Bush Lane, Manvel, Texas 77578 (the “Property”).
The Acostas executed a Promissory Note (the “Note”) in the amount of $397,267.
To secure repayment of the Note, the Acostas executed a deed of trust, granting a
security 	interest 	in 	the 	Property. 	Servbank 	is 	the 	current 	Noteholder 	and
beneficiary of the deed of trust.
The Acostas defaulted on the November 1, 2023 payment on the Note, and
have failed to make all subsequent payments.
On January 4, 2024, Servbank sent the Acostas a notice of default and notice
of intent to accelerate, informing the Acostas that their loan was in default in the
amount of $10,376. ServBank explained to the Acostas that failure to cure the
default by February 8, 2024, would result in acceleration of the loan and
1 Although the title of Servbank’s motion suggests that Servbank is seeking dismissal for
failure to state a claim and for summary judgment, the motion focuses on whether
summary judgment is proper.
United States District Court
Southern District of Texas
ENTERED
July 01, 2026
Nathan Ochsner, Clerk
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foreclosure proceedings. The Acostas did not cure the default. On April 3, 2025,
Servbank, through its foreclosure counsel, sent a notice of acceleration and notice
of trustee’s sale to the Acostas. Servbank posted the Property for a May 6, 2025
foreclosure sale.
On May 1, 2025, Acosta filed suit against Servbank in the 412th Judicial
District Court of Brazoria County, Texas. Acosta obtained a temporary restraining
order stopping the scheduled foreclosure sale. In the live pleading, the original
petition filed in state court, Acosta brings the following causes of action: (1) breach
of contract; (2) violations of Texas Debt Collection Act (“TDCA”); (3) breach of
duty of cooperation; and (4) tortious interference with contract. Servbank timely
removed this matter to federal court. Servbank now moves for summary judgment.
LEGAL STANDARD
Summary judgment is proper when “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). “A genuine issue of material fact exists when there is evidence
sufficient for a rational trier of fact to find for the non-moving party.” Schnell v.
State Farm Lloyds, 98 F.4th 150, 156 (5th Cir. 2024) (quotation omitted). “The
movant has the burden of showing that there is no genuine issue of fact.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). If the movant makes such a
showing, “the burden shifts to the non-movant to produce evidence of the existence
of such an issue for trial.” Brandon v. Sage Corp., 808 F.3d 266, 270 (5th Cir.
2015) (quotation omitted). The nonmoving party “must go beyond the pleadings
and come forward with specific facts indicating a genuine issue for trial to avoid
summary judgment.” Id. (quotation omitted). At this stage, I “view all facts, and
the inferences to be drawn from them, in the light most favorable to the
nonmovant.” Id. at 269 (quotation omitted).
Acosta has not responded to the motion for summary judgment. According
to the local rules, failure to respond to a motion is taken as a representation of no
opposition. See S.D. Tex. L.R. 7.4. Notwithstanding Acosta’s failure to respond,
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summary judgment may not be awarded by default, even if failure to respond
violates a local rule. See Hibernia Nat’l Bank v. Administracion Cent. Sociedad
Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985). I must independently determine
whether summary judgment is proper.
ANALYSIS
A. 	BREACH OF CONTRACT
Acosta alleges that Servbank breached the deed of trust “by not sending the
proper notices under the Deed of Trust, refusing to accept payments from [Acosta],
as well as not giving [Acosta] access to the correct financial information as
promised by [Servbank].” Dkt. 1 at 11.
Under Texas law, a plaintiff suing for breach of contract must prove “that
(1) a valid contract exists; (2) the plaintiff performed or tendered performance as
contractually required; (3) the defendant breached the contract by failing to
perform or tender performance as contractually required; and (4) the plaintiff
sustained damages due to the breach.” Pathfinder Oil & Gas, Inc. v. Great W.
Drilling, Ltd., 574 S.W.3d 882, 890 (Tex. 2019). Acosta’s breach of contract claim
fails for several reasons.
First, it is undisputed that Acosta failed to perform as contractually required.
The deed of trust requires Acosta to “pay when due the principal of, and interest
on, the debt evidenced by the Note and any prepayment charges and late charges
due under the Note.” Dkt. 15-2 at 4. Acosta violated this provision by failing to
make timely monthly payments. Under Texas law, “[i]t is a 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) (quotation omitted).
“With this basic principle in mind, federal courts routinely dismiss breach of
contract actions brought by borrowers in default.” Daigle v. AmeriHome Mortg.
Co., 	No. 	3:22-cv-00133, 	2023 	WL 	8373179, 	at 	*3 	(S.D. 	Tex. 	Dec. 	4,
2023) (collecting cases). As such, Acosta’s “own default [of the deed of trust]
precludes him from asserting a cause of action for breach of contract against
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[Servbank].” Bush 	v. 	Wells 	Fargo 	Bank, 	N.A., 	No. 	SA:13-cv-530, 	2014 	WL
12496571, at *6 (W.D. Tex. Apr. 24, 2014).
Second, the undisputed record shows that Servbank has not breached the
deed of trust. Although Acosta claims that Servbank failed to send him proper
notices as required by the deed of trust, the summary judgment evidence
establishes that Servbank served Acosta with all required notices. Servbank made
a demand for payment, gave the Acostas an opportunity to cure the default, gave
clear and unequivocal notice of the intent to accelerate, and, after the Acostas failed
to timely cure, gave them clear and unequivocal notice that Servbank had
accelerated the debt. See Dkt. 16 at 2. Servbank “satisfied its burden of proof by
presenting evidence of mailing the notice and an affidavit to that effect. There is
no requirement that [Acosta] receive the notice.” Martins v. BAC Home Loans
Servicing, L.P., 722 F.3d 249, 256 (5th Cir. 2013).
As for Acosta’s claim that Servbank breached the deed of trust by refusing to
accept payments, there is no genuine issue of material fact. The summary
judgment record establishes that Acosta did not make any partial payments. See
Dkt. 16 at 2. Moreover, the deed of trust allows Servbank to accept, or not accept,
partial payments, when a partial payment is insufficient to bring the loan current.
See Dkt. 15-2 at 4.
Similarly, there is no genuine issue of material fact concerning Acosta’s
allegation that Servbank failed to give him “access to the correct financial
information.” Dkt. 1 at 11. The notices that Servbank sent Acosta clearly and
unequivocally explain that he has failed to make his required payments under the
Note, and provide the amount needed to pay off the Note. Thus, Servbank is
entitled to summary judgment on Acosta’s breach of contract claim.
B. 	TDCA
Acosta 	contends 	that 	Servbank 	violated 	the 	TDCA 	by 	making
misrepresentations “about the status of the loan[,] . . . information in the Loan, the
incorrect amount owed on the Loan, and [Acosta]’s ability to reinstate the Loan.”
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Id. at 13. Servbank argues that summary judgment is appropriate on Acosta’s
TDCA claim because he does not point to “an alleged misrepresentation.” Dkt. 15
at 10. “To violate the TDCA using a misrepresentation, the debt collector must have
made an affirmative statement that was false or misleading.” Thompson v. Bank
of Am. Nat. Ass’n, 783 F.3d 1022, 1026 (5th Cir. 2015) (quotation omitted).
“[W]hen the nonmovant has the burden of proof at trial, the moving party
may make a proper summary judgment motion, thereby shifting the summary
judgment burden to the nonmovant, with an allegation that the nonmovant has
failed to establish an element essential to that party’s case.” Austin v. Kroger
Texas, L.P., 864 F.3d 326, 335 (5th Cir. 2017). “[W]hile it is true that a movant
cannot support a motion for summary judgment with a conclusory assertion that
the nonmovant has no evidence to support his case, a movant may support a
motion for summary judgment by pointing out that there is no evidence to support
a specific element of the nonmovant’s claim.” Id. at 335 n. 10.
Although Acosta cursorily asserts that Servbank made “misrepresentations,”
he does not identify any affirmative statement made by Servbank that was false or
misleading. Dkt. 1 at 13. Simply put, Acosta has failed to produce any evidence to
support an essential element of his TDCA claim. Without evidence of a specific
alleged misrepresentation, Acosta’s TDCA claim cannot stand. For this reason,
Servbank is entitled to judgment as a matter of law on Acosta’s TDCA claim.
C. 	BREACH OF D UTY OF COOPERATION
In Texas, “[a] duty to cooperate is implied in every contract in which
cooperation is necessary for performance of the contract.” Case Corp. v. Hi-Class
Bus. Sys. of Am., Inc., 184 S.W.3d 760, 770 (Tex. App.–Dallas 2005, pet. denied).
“The duty to cooperate is a ‘promise that a party will not do anything to prevent or
delay the other party from performing the contract.’” Dick v. Colo. Hous. Enters.,
L.L.C., 780 F. App’x 121, 124 (5th Cir. 2019) (quoting Tex. Nat’l Bank v. Sandia
Mortg. Corp., 872 F.2d 692, 698 (5th Cir. 1989)).
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In seeking summary judgment on the duty to cooperate claim, Servbank
notes that Acosta has offered “no credible evidence that [Servbank] did anything
to prevent or delay [Acosta]’s performance on the Note.” Dkt. 15 at 11. At summary
judgment, the burden is on Acosta to provide evidence creating a genuine issue of
material fact that Servbank breached its duty to cooperate. Acosta offers nothing.
Servbank is entitled to summary judgment on Acosta’s duty of cooperation claim.
D. 	TORTIOUS I NTERFERENCE WITH CONTRACT
Acosta’s final cause of action is for tortious interference with contract.
Acosta asserts that he entered a contract to sell the Property and that Servbank’s
foreclosure efforts prevented him from “completing the sale and paying off
[Servbank] in full.” Dkt. 1 at 14.
To prevail on a tortious interference with contract claim under Texas law,
Acosta must demonstrate: “(1) an existing contract subject to interference, (2) a
willful and intentional act of interference with the contract, (3) that proximately
caused the plaintiff’s injury, and (4) caused actual damages or loss.” Prudential
Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). Even if I
assume, for the sake of argument, that Acosta can establish each element of this
cause of action, his claim still fails. Servbank is entitled to summary judgment on
Acosta’s tortious interference with contract claim because the summary judgment
evidence conclusively establishes that Servbank was justified in posting the
Property for foreclosure.
“Justification 	is 	an 	affirmative 	defense 	to 	tortious 	interference 	with
contract.” Id. at 80. “[T]he justification defense can be based on the exercise of
either (1) one’s own legal rights or (2) a good-faith claim to a colorable legal right,
even though that claim ultimately proves to be mistaken.” Id. Both federal and
Texas state courts regularly hold that lenders are permitted to legally exercise
contractual rights under agreements with borrowers without incurring liability for
tortious interference. See Rodriguez v. Ocwen Loan Servicing, Inc., No. CIV.A. H-
07-4546, 2008 WL 239652, at *6 (S.D. Tex. Jan. 29, 2008) (Because “Ocwen was
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well within its rights to foreclose on the property . . . , Rodriguez’s tortious
interference with contract claim must be dismissed.”), aff’d sub nom. Rodriguez v.
Ocwen Loan Servicing, LLC, 306 F. App’x. 854 (5th Cir. 2009); Abraham v.
Ryland 	Mortg. 	Co., 	995 	S.W.2d 	890, 	895 	(Tex. 	App.—El 	Paso 	1999, 	no
pet.) (Because the mortgagee “established that the note secured by the deed of trust
was in default, and that the deed of trust gave [the mortgagee] the right to foreclose
on [the property] in the event of default[,]” the mortgagee has a complete defense
to tortious interference with contract.); Comerica Bank-Tex. v. Hamilton, No. 05-
93-01804-CV, 1997 WL 421214, at *8 (Tex. App.—Dallas July 28, 1997, no
writ) (Because bank “had a contractual right to post the property for foreclosure,
and to foreclose, if the note was in default[,] . . . it is therefore privileged from a
claim of tortious interference.”).
Because Servbank exercised its legal right to pursue foreclosure, Servbank
has established its affirmative defense of justification as a matter of law and is
entitled to summary judgment on Acosta's claim for tortious interference with an
existing contract.
SERVBANK’S REQUEST FOR ATTORNEYS’ FEES
There is one final matter I must address. Servbank contends that it is entitled
to $6,394.40 in attorneys’ fees incurred in defending this lawsuit. “Federal and
Texas law both recognize that although the prevailing litigant is ordinarily not
entitled to collect a reasonable attorneys’ fee from the loser, such recovery is
permissible 	if 	explicitly 	provided 	for 	by 	statute 	or 	an 	enforceable
contract.” Rodriguez v. Quicken Loans, Inc., 257 F. Supp. 3d 840, 845 (S.D. Tex.
2017) (cleaned up). Here, Section 9 of the deed of trust provides that the lender
may charge Acosta attorneys’ fees and expenses incurred in protecting the lender’s
interest in the Property. See Dkt. 15-2 at 7. The deed of trust further provides that
expenses, including attorneys’ fees, incurred by the lender in protecting its rights
in the Property “become additional debt” of the borrower. Id. at 8.
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In support of its request for attorneys’ fees, Servbank attaches to its
summary judgment briefing the affidavit of one its attorneys, Branch M. Sheppard,
and billing statements from Sheppard’s law firm. See Dkt. 15-8. Sheppard attests
that Servbank has reasonably incurred attorneys’ fees in the amount of $6,394.40
through the summary judgment proceedings. See id. at 1. After reviewing the
uncontroverted evidence before me, I find that Servbank is entitled to recover
$6,394.40 in attorneys’ fees as authorized by the deed of trust.
CONCLUSION
For the reasons discussed above, I grant Servbank’s motion for summary
judgment. I also find that Servbank is entitled to recover $6,394.40 in attorneys’
fees from Acosta. I will issue a final judgment separately.
SIGNED this __ day of July 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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