Ashraf MAHMOUD; Valerie Jackson, Plaintiffs-Appellants v. DE MOSS OWNERS ASSOCIATION, INCORPORATED; Creative Management Company; Frank, Elmore, Lievens, Chesney & Turet, L.L.P.; Kristi A. Slaughter; Khosrow Abtahi, Defendants-Appellees, 865 F.3d 322

EDITH H. JONES, Circuit Judge: This 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. I In 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. Creative 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 itémized 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, El-more, Lievens, Chesney & Turet, L.L.P. (Appellee FELCT).

Slaughter 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. Mahmoud 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. On 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. Slaughter, 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. Mahmoud 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. II This 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)). With 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. Crv. 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. 2008). Ill Mahmoud 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 waived. On 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. IV We 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 canno.t 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)). Mahmoud 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 ByLaws 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 perform-anee.”).

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. V Mahmoud 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. VI Although 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, and (4) the plaintiff suffers pecuniary loss by justifiably relying on the representation.” Fed. Land Bank Ass’n v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991).

Both the Attorney and Condo Defendants sought and obtained

summary judgment on these claims. But, as just noted, it is not clear what representations Mah-moud and Jackson allege were false or misleading, and there is no evidence that Mahmoud and Jackson either entered into or withdrew from any transaction on the basis of any statements made by the Ap-pellees. See McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex. 1999). Again, the district court did not err. VII The most legally plausible arguments asserted by Mahmoud and Jackson concern the

summary judgment awarded in favor of the Attorney Defendants on the Fair Debt Collection Practices Act (FDCPA) claims. Specifically, the Appellants contend that the debt collection notices sent by the Attorney Defendants were defective, 15 U.S.C. § 1692g, and the Attorney Defendants unlawfully threatened to sue to recover a time-barred debt, see generally 15 U.S.C. §§ 1692e and f. The FDCPA, 15 U.S.C. § 1692 et seq., imposes civil liability on “debt collector[s]” for certain prohibited debt collection practices.

The Act regulates interactions between consumer debtors and “debt collector[s],” defined to include any person who “regularly collects ... debts owed or due or asserted to be owed or due another.” §§ 1692a(5),(6). Attorneys qualify as debt collectors for purposes of the FDCPA when they regularly engage in consumer debt collection, including but not limited to litigation on behalf of a creditor client. Heintz v. Jenkins, 514 U.S. 291, 299, 115 S.Ct. 1489, 1493, 131 L.Ed.2d 395 (1995).

There is no serious contention in this case that the Attorney Defendants were not “debt collectors.” Nor is there-any dispute that condominium association fees may qualify as debts regulated by the FDCPA. § 1692a(5) (debt is defined as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money ... [is] primarily for personal, family, or household purposes .... ”); see Newman v.

Boehm, Pearlstein & Bright, Ltd., 119 F.3d 477, 481-82 (7th Cir. 1997) (homeowners’ assessments are debts within FDCPA because they “directly benefit each household in the development”). A.

As an initial matter, the Attorney Defendants maintain an overarching defense that, when they engaged in enforcing the Association’s lien by nonjudicial foreclosure, their actions were exempt from the FDCPA except for § 1692(f)(6), which specifies the circumstances under which a debt collector may take or threaten nonjudicial foreclosures: A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: ...

(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if—(

A) there is no present right to possession of the property claimed as collateral through an enforceable security interest; (

B) there is no present intention to take possession of the property; or (

C) the property is ex- . empt by law from such dispossession or disablement. This broad proposition was, however, rejected by this court in Kaltenbach v. Richards, which held that “a party who satisfies § 1692a(6)’s general definition of a ‘debt collector’ is a debt collector for the purposes of the entire FDCPA even when enforcing security interests.” 464 F.3d 524, 529 (5th Cir. 2006).

This court did not, however, decide “whether ... enforcement of the security interest ... constituted a ‘communication in connection with the collection of any debt’ within the meaning of § 1692g,” Id. at n.5, and we need not address the question in this appeal while addressing each of Mahmoud and Jackson’ claims. B. Addressing first the Appellants’ § 1692g claim, we may assume arguendo that this provision applied to Slaughter’s demand letters.

The FDCPA requires debt collectors to provide notice that unless the consumer, with thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid, § 1692g(a)(3), and no collection activities and communication during the 30-day period may overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt, § 1692g(b). Courts evaluate any potential deception in debt-related communications under an “unsophisticated” or “least sophisticated” consumer standard. Taylor v.

Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1236 (5th Cir. 1997). “That is, in determining whether the defendant’s actions are deceptive under the FDCPA we must assume that the plaintiff-debtor is neither shrewd nor experienced in dealing with creditors.” Goswami v. Am. Collections Enter., Inc., 377 F.3d 488, 495 (5th Cir. 2004). A fair

interpretation of Slaughter’s demand letter dated October 8, 2012, pursuant to this stringent standard demonstrates there is no violation of the 30-day rule. “Courts have generally found contradiction or apparent contradiction of the printed § 1692g notice where payment is demanded in a concrete period shorter than the 30-day statutory contest period.” McMurray v. ProCollect, Inc., 687 F.3d 665, 670 (5th Cir. 2012) (quoting Peter v. GC Servs. L.P., 310 F.3d 344, 348 (5th Cir. 2002)). We must read the notice in its entirety and then determine if there is a concrete period shorter than is required.

Here, the letter stated once on page one that Mahmoud and Jackson needed to pay “on or before the expiration of thirty (30) days from and after the date hereof’ or nonjudicial foreclosure would occur. But three times on page two, the letter repeated that “[UJNLESS 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.” This notice does not demand a concrete action period shorter than 30-days from receipt of the letter when read by the least sophisticated consumer. Reinforcing our conclusion, other circuits have clearly held that if “any confusion created by the ambiguity on the front of the letter dissipates when read in conjunction with the language on the back,” then there is no violation. Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 93 (2d Cir. 2008) (quoting McStay v. I.C. Sys., Inc., 308 F.3d 188, 191 (2d Cir.2002)).

The district court did not err in determining that the notice did not violate § 1692g. C. The second set of FDCPA issues raised by Mahmoud and Jackson is that the Attorney Defendants’ efforts to collect on allegedly partially time-barred debt violated § 1692e and § 1692f.

Concerning § 1692e, they allege violations through “the false representation of’ “the character, amount, or legal status of any debt,” “[t]he threat to take any action that cannot legally be taken or that is not intended to be taken,” and “[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.” 15 U.S.C. § 1692e(2)(A), (5), (10).

They claim the Attorney Defendants violated § 1692f by “[t]he collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” 15 U.S.C. § 1692f(l). Notably, Mahmoud and Jackson did not take advantage of the verification periods they were offered to challenge any portion of the debt, yet in their lawsuit they contend that any attempt to foreclose based on $541.80 of the original $2,171.80 balance was time-barred.

The Texas Property Code clearly states that an association’s hen against a unit owner may include: “regular and special assessments, dues, fees, charges, interest, late fees, fines, collection costs, attorney’s fees, and any other amount due to the association by the unit owner or levied against the unit by the association.” Tex. Prop. Code § 82.113(a).

The Declaration declared that assessments against condo owners are “covenants running with the land.” Therefore, it is appropriate to examine the whole debt—repairs, monthly assessments, late fees, collection fees, and attorneys’ fees—within the context of the Association’s lien. The threshold question is whether any of the debt is time-barred, specifically the portion that originated with two repairs in 2006 and 2007. Formal, itemized demand notices on the overall obligation for condo fees were sent to the owners beginning in August 2012.

The parties do not dispute that Mahmoud and Jackson were in default for their condo payments from and after about mid-2012, and as to those there is no question of limitation. There is, however, no Texas case law identifying the statute of limitations that applies to nonjudicial foreclosure of liens on real property created to ensure the payment of condominium association fees and assessments. We do not rule on this novel issue of Texas law but will assume arguendo that limitations barred recovery of this small portion of the debt.

But this preliminary assumption hardly carries the day for Mahmoud and Jackson, as they and the dissent would contend. No Fifth Circuit authority compels the holding that a nonjudicial foreclosure on a partially time-barred debt can violate FDCPA Sections 1692e or f. In Castro v. Collecto, Inc., 684 F.3d 779, 783 (5th Cir. 2011), this court went only so far as to say that “threatening to sue on time-barred debt may well constitute a violation of the FDCPA.” Id. (emphasis added). This court’s more recent decision in Daugherty v.

Convergent Outsourcing, Inc., 836 F.3d 507 (5th Cir. 2016) extended Castro to the extent it overturned a dismissal on the pleadings and held that “a collection letter that is silent on litigation, but which offers to ‘settle’ a time-barred debt without acknowledging that such debt is judicially unenforceable, can be sufficiently deceptive or misleading to violate the FDCPA.” Id. (emphasis added). The court holds merely that seeking collection “can be” violative, which is a far cry from implying, especially in the face of the

summary judgment materials before us, that every attempt to collect such a debt infringes FDCPA-created rights. Daugherty, moreover, is factually distinguishable for three significant reasons. First, there was no dispute that plaintiffs credit card debt had aged “over the course of many years;” the debt had been sold to a collection agency. Id. at 509. Here, less than 25% of the debt is allegedly time-barred.

Second, Daugherty was premised on the undisputed assertion that limitations had run as to the entire debt, whereas the application of limitations as a bar to nonjudicial foreclosure here (whether on the whole debt or only the allegedly time-barred portion) is uncertain. Third, Daugherty remarks that the debt collector’s offer of a discounted “settlement” that invited partial payment, without disclosing pitfalls like the potential renewal of the entire obligation, could be misleading to the unsophisticated consumer. Id. at 512-13.

Here, Mahmoud and Jackson were not misled about the amounts they owed, three quarters of which were not time-barred, nor were they misled about the potential consequence of nonpayment: nonjudicial foreclosure on their condo. That they were not misled is confirmed by the subsequent course of events: the purchaser at foreclosure paid for the condo in an amount fully burdened with the overdue fees and assessments, those amounts were deducted from the purchase price, and a rebate was paid to Mahmoud and Jackson.

For reasons similar to the factual background in Daugherty, the other circuits’ cases on which the appellants (and dissent) rely exhibit dubious exercises of collection activity on indisputably and wholly time-barred debt. Buchanan v. Northland Grp., Inc., 776 F.3d 393, 397 (6th Cir. 2015); McMahon v. LVNV Funding, LLC, 744 F.3d 1010, 1020 (7th Cir. 2014). But see Huertas v.

Galaxy Asset Mgmt., 641 F.3d 28, 33 (“[i]n the absence of a threat of litigation or actual litigation, no violation of the FDCPA has occurred when a debt collector attempts to collect on a potentially time-barred debt that is otherwise valid,” (quoting Freyermuth v. Credit Bureau Svces., Inc., 248 F.3d 767 (8th Cir. 2001))). Additionally, both cases were decided in appeals from dismissal on the pleadings, and in each one the courts qualified their holdings.

Thus, McMahon states: “We do not hold that it is automatically improper for a debt collector to seek re-payment of time-barred debts; some people might consider Ml debt re-payment a moral obligation, even though the legal remedy for the debt has been extinguished.” 744 F.3d at 1020. The majority in Buchanan concede “[n]or does a ‘settlement offer’ with respect to a time-barred debt by itself amount to a threat of litigation,” 776 F.3d at 397, but “consumers might still be confused about the enforceability of a debt or the pitfalls of partial payment.” Id. at 400.

To repeat once more, this case is unlike the cases that allowed FDCPA claims to proceed because of (1) its

summary judgment posture; (2) the fact that only a small portion of the debt may have been time-barred; and (3) the parties’ hot dispute over whether in fact even that small portion was both time-barred and could not be enforced by nonjudicial foreclosure. Without compelling authority, we decline to extend potential FDCPA liability to these circumstances. It is also important to note that nonjudicial foreclosures on real property are an area traditionally dominated and closely regulated by state law, and federalism concerns are heightened in fields “which the states have traditionally occupied.” Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). “When one

interpretation of an ambiguous federal statute would create a conflict with state foreclosure law and another plausible

interpretation would not, we must adopt the latter

interpretation.” Ho, 840 F.3d at 626. In Ho, the Ninth Circuit, quoting the Supreme Court, declined to “ ‘construe federal law in a manner that interferes with [California’s] arrangements for conducting’ non-judicial foreclosures.” Id. (quoting Sheriff, 136 S.Ct. at 1602). To construe §§ 1692e and f the way Mahmoud and Jackson request would interfere with Texas’s carefully articulated arrangements for conducting nonjudicial real property foreclosures by creating causes of action where state law finds no wrongful foreclosure.

Moreover, applying these provisions to the debts owed by Mahmoud and Jackson makes no sense, inasmuch as the couple received repeated notices, in compliance with § 1692g as well as state law, and had multiple opportunities short of nonjudicial foreclosure in which to challenge the allegedly time-barred portion. We do not hold that nonjudicial real property foreclosures in Texas are wholly exempt from the FDCPA; under the facts of this case, however,

summary judgment was properly granted on Appellants’ §§ 1692e and f claims based on the contention that part of the debts they owed were time-barred. VIII Mahmoud and Jackson argue that the district court erred in granting

summary judgment to the Attorney Defendants on their claim under the Texas Debt Collection Act (TDCA), Tex. Fin. Code Ann. § 392.304(a)(8), asserting that “the

summary judgment proof shows Slaughter’s demands and threat of foreclosure were based in part on time-barred debt.” They do not identify—nor have we found— any authority that supports the position that attempts to collect time-barred debt violate the TDCA. This argument is therefore forfeited for lack of sufficient briefing. See Fed. R. App. P. 28(a)(8)(A). The Texas Deceptive Trade Practices Act (DTPA) provides that “a consumer” may bring an action for a variety of deceptive business practices listed under the Act. Tex. Bus. & Com. Code Ann. § 17.50(a).

The district court held that “[t]he payment of monthly maintenance fees to a condominium association does not constitute a ‘purchase’ under the DTPA, such that a unit owner, like the plaintiff, would qualify as a consumer.” On appeal, despite the Texas Supreme Court’s clear and consistent holdings that “[o]nly a ‘consumer’ can maintain a cause of action directly under the DTPA,” Mahmoud and Jackson do not contend that they are consumers within the statute’s meaning. Crown Life Insurance v. Casteel, 22 S.W.3d 378, 386 (Tex. 2000); Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 822 (Tex. 2012); Melody Home Mfg.

Co. v. Barnes, 741 S.W.2d 349 (Tex. 1987); Flenniken v. Longview Bank and Trust Co., 661 S.W.2d 705, 706 (Tex. 1983). Therefore, the district court did not err. IX Mahmoud and Jackson argue that the district court erred in granting

summary judgment on their claim that the Attorney Defendants breached their fiduciary duty when they refused to deliver the excess foreclosure sale proceeds without a release. This claim is meritless. The existence of a fiduciary relationship between the plaintiffs and defendants is a prerequisite to finding a breach of duty. Jones v. Blume, 196 S.W.3d 440, 447 (Tex. App.—Dallas 2006, pet. denied). Mahmoud and Jackson cannot establish that the Attorney Defendants owed them a fiduciary duty.

Indeed, this court has specifically observed that foreclosure trustees do not owe the party subject to the foreclosure sale a fiduciary duty. Stephenson v. LeBoeuf, 16 S.W.3d 829, 837 (Tex. App. 14th 2000). X Finally, Mahmoud and Jackson sought declaratory relief “to determine their rights and true obligations under the agreements and statutes governing their ownership of the Property.” They make assertions about the obligations created by the Declaration, but there is neither supporting argument nor case law authority. This argument is forfeited for lack of sufficient briefing. See Fed. R. App. P. 28(a)(8).

For the foregoing reasons, we AFFIRM the district court’s judgment. . The letter included a breakdown of the balance: 05/10/2006 09/05 REPAIR 195.00 04/09/2007 PLUMBING REPAIR 346.80 02/16/2010 ROYAL INVESTMENT SVC 575.00 07/01/2012 MAINTENANCE FEES 220.00 08/01/2016 MAINTENANCE FEES 250.00 08/16/2012 LATE PENALTY 25.00 1,611.80 . The linchpin of the dissent is the superficial conclusion that under Texas law, a suit may not be filed to collect a "debt” that accrued more than four years before the instigation of litigation. Tex. Civ. Prac. & Rem. Code Ann. Sec. 16.004(a)(3).

Because a lien at common law is "simply an incident of, and inseparable from the debt which it secures,” it has been held that "if limitations prevent collection of the debt, the lien becomes unenforceable.” Hoarel Sign Co. v. Dominion Equity Corp., 910 S.W.2d 140, 144 (Tex. App. 1995), writ denied (May 10, 1996). But the dissent’s wading into this uncharted territory is imprudent and inconclusive. First, the intermingling of the obligations to pay ongoing fees and assessments with the continuing lien makes this an unique case under Texas law.

Condominium association fees and assessments are governed by a specific

section of the Texas Property Code, Sec. 82.113, which prescribes enforcement by nonjudicial foreclosure according to the procedures prescribed for real property liens, Tex. Prop. Code Ch. 52. A four-year statute of limitations governs foreclosures of "real property liens”, but the cause of action for foreclosure does not accrue on an installment obligation “until the maturity date of the last note, obligation, or installment.” Tex. Civ. Prac. & Rem. Code Ann. Sec. 16.035(b), (e). It is true that Sec. 16.035(g)'s definition of "real property lien” does not appear to cover condominium association fees.

The obligation to pay such fees, however, has been described by the Texas Supreme Court as a covenant running with the land and as creating a contractual lien on the real property. But cf. Hoarel Sign Co., 910 S.W.2d at 144 (applying common law limitations because the material-men’s lien there derived from improvements "that d[id] not become part of the real estate.)” It is possible that a lacuna exists in Texas’s limitations statutes for these types of assessments and fees. Cf. Tex.Civ. Prac. & Rem. Code Sec. 16.051 (residual limitations statute excludes actions for foreclose real property).

Second, even if a four-year statute applies, exactly when and how limitations began to run on Mahmoud and Jackson's obligations is unclear. For instance, it has been held that no limitations bar prevents suit by a party to an open account where the defendant did not prescribe and the court accordingly presumes that any payments received should have been applied to the oldest outstanding obligation. Watson v. Cargill, Inc., Nutrena Div., 573 S.W.2d 35 (Tex. Civ. App—Waco, 1978); Prowell v. Berry-Barnett Gro. Co., 462 S.W.2d 53 (Tex. Civ. App.—Waco, 1970) (writ refused).

It has also been held, in a suit for partition, where a cotenant makes improvements to or pays expenses for jointly owned property, which benefit the common ownership, the cotenant may recover them irrespective of statutes of limitations so long as the cotenan-cy continued. Tapp v. Tapp, 134 S.W.2d 683 (Tex. Civ. App.—Texarkana 1939).

Finally, it has been held that where a deed of trust authorized the trustee to pay taxes and insurance, i.e. ongoing costs, on mortgaged property, “the mere fact that the debt was barred [by limitations] does not ... make against the deed of trust lien securing the taxes and insurance subsequently paid.” Burke v. Guilford Mtg. Co., 161 S.W.2d 574, 582 (Tex. Civ. App.—Dallas 1942). . We are bound by Daugherty, but I agree with the broader principles expressed in Huertas, Freyermuth, and in Judge Kethledge’s dissent in Buchanan Grp., 776 F.3d at 400-02.

In nearly every state, the fact that a debt is time-barred from collection by a lawsuit does not extinguish the obligation. And particularly where a collection letter threatens no legal action, even an unsophisticated debtor knows enough to throw it away. Using moral suasion in these matters is not abusive or overbearing.