Most people never think about what happens to a mortgage when the borrower dies. The house sits there. The payments stop. And someone—usually a grieving family member who has just been named executor—has to figure out what comes next. For anyone with an informal arrangement tied to that mortgage, the uncertainty can feel like a second loss stacked on top of the first.
So what does an executor actually owe to someone outside the family who had a financial stake in the decedent’s property? And if a mortgage servicer fails to send proper foreclosure notices to a person who signed the loan documents, is that negligence—or is it just a contract dispute dressed up as a tort?
A recent Texas case answers both questions. In Collins v. Robinson, No. 14-24-00341-CV (Tex. App.—Houston [14th Dist.] Jan. 13, 2026), a woman who lost her home to foreclosure sued the executor of her late benefactor’s estate and the bank that held the note. The court had to decide who an executor’s fiduciary duty runs to, and whether a foreclosure-notice complaint can survive as a tort claim. The answers show how narrowly Texas law draws these duties.
Facts & Procedural History
Franklin D. Wesley, Jr., was a Houston man who stepped in to help his neighbor, Kimberly Collins, when she faced foreclosure on her home on Calumet Street in 2010. Collins treated Wesley like a father figure, and rather than let the bank take the property, Wesley refinanced it in his own name. He signed a note for $145,319.00 payable to Ascent Home Loans Inc., at 5.375% interest, and executed a Deed of Trust on the property at the same time. The loan documents obligated Wesley to make the principal and interest payments as they came due.
The loan changed hands over the years. In 2015, Ascent’s nominee assigned it to JPMorgan Chase Bank. In May 2018, Wesley and Collins jointly signed a Loan Modification Agreement with JPMorgan. The modification kept the original loan terms in place except as changed, and it said that anyone signing as a non-borrower co-owner was doing so only to subordinate their interest to the loan. Collins, though, signed as a borrower. In March 2019, JPMorgan assigned the loan to MidFirst Bank, which became the holder of the note and the beneficiary under the Deed of Trust.
Wesley died on June 6, 2020. The mortgage payments stopped. In September 2020, Wesley’s daughter, Erica Robinson, applied to probate her father’s will, and in January 2021 the court admitted the will and appointed her independent executor. The will named Robinson and her twin brother as the estate’s only beneficiaries. Robinson listed the property in the estate inventory, reported no jointly owned assets and no claims against the estate, and the court approved the inventory in April 2021.
In May 2021, MidFirst Bank sent a notice of default addressed to Wesley’s estate, warning that failure to cure would trigger acceleration. No payments came in. The court entered a Drop Order in July 2021, taking the case off its probate docket. MidFirst accelerated the debt in January 2022 and mailed notice of acceleration by certified mail to the property address.
Collins then filed a petition to reopen the probate, claiming she held a contract to repurchase the home and asking the court to force Robinson to convey it and pay off the note. When MidFirst set a foreclosure sale for March 7, 2023, Collins filed a lis pendens and amended her petition to add claims for breach of fiduciary duty and negligence. The court granted a temporary injunction and stopped the sale. Robinson and MidFirst then jointly moved for summary judgment, and in April 2024 the court granted it, dismissed Collins’ claims with prejudice, denied her injunction request, and entered final judgment for the bank and the executor. Collins, representing herself, appealed.
Who Does an Executor Actually Owe a Duty To?
To understand why Collins lost, you first have to understand where an executor’s duties come from and, just as important, who those duties protect. An independent executor in Texas carries both statutory and fiduciary obligations. But those obligations do not run to everyone with a financial interest in estate property. They run to a defined group, and that group is the key to this case.
Texas Estates Code Section 351.101 sets the baseline. It says an executor or administrator “shall take care of estate property as a prudent person would take of that person’s own property,” and must keep any buildings in good repair. That is a duty of care owed as to the estate’s property. It is not a promise to protect every outsider who happens to have money riding on that property. Collins read the statute as if it required the executor to make sure her mortgage got paid. It says no such thing.
The reason the duty is so contained comes from where it originates. An executor’s fiduciary duty grows out of the executor’s role as trustee of the estate’s property. As the Fourteenth Court of Appeals put it in FCLT Loans, L.P. v. Estate of Bracher, 93 S.W.3d 469, 480 (Tex. App.—Houston [14th Dist.] 2002, no pet.), the executor “holds the estate in trust for the benefit of those who have acquired a vested right to the decedent’s property under the will.” That trust relationship is what creates the fiduciary duty—and it runs to the people who take under the will, not to the public.
That rule has a blunt corollary: if you are not a beneficiary under the will, the executor owes you no fiduciary duty. The court said as much in Mohseni v. Hartman, 363 S.W.3d 652, 657 (Tex. App.—Houston [1st Dist.] 2011, no pet.), holding that a personal representative owes no fiduciary duty to a creditor of the estate—let alone to a third party asserting some informal claim to estate property. Collins was not named in Wesley’s will. Whatever their relationship was in life, and it was clearly a meaningful one, it never became the kind of vested legal interest that triggers an executor’s fiduciary obligations. Robinson’s duty to manage the estate prudently was owed to the beneficiaries: Wesley’s two children.
Collins tried a fallback—that even if she was not a beneficiary, she was at least a creditor. That argument fails too. The Texas Supreme Court settled it in Austin Trust Co. v. Houren, 664 S.W.3d 35, 46–47 (Tex. 2023), holding that an independent executor does not owe a fiduciary duty to the estate’s creditors. Bracher reached the same conclusion: an independent executor has statutory duties about approving and paying valid claims, but nothing in those provisions makes the executor a trustee for the benefit of creditors. There is a practical reason for the line. An executor who owed fiduciary duties to every creditor would be trapped in constant conflict, because the interests of creditors and beneficiaries pull in opposite directions—especially when the estate cannot cover everything. Texas keeps the executor’s loyalty with the beneficiaries and gives creditors a separate set of tools: the statutory claims process. Collins was not even a secured creditor entitled to notice under Texas Estates Code Section 308.053. In the end, there was no legal relationship between Collins and the executor that could support a fiduciary duty claim, and the court affirmed summary judgment on that issue.
Does a Lender Owe a Fiduciary Duty—and Can a Notice Complaint Be a Tort?
Collins also sued MidFirst Bank for breach of fiduciary duty, arguing the bank failed to send proper foreclosure notices. That claim runs into another settled rule: the relationship between a borrower and a lender does not, by itself, create a fiduciary duty in Texas. As the Fourteenth Court explained in Wakefield v. Bank of America, N.A., 2018 WL 456721, at *5 (Tex. App.—Houston [14th Dist.] Jan. 18, 2018, no pet.), the mortgagor-mortgagee relationship is often described in trust-like terms but does not technically rise to a fiduciary one. The dynamic is arm’s-length—the lender wants repayment, the borrower wants flexibility—which is the opposite of the self-subordinating loyalty a fiduciary owes. Texas courts recognize narrow exceptions, but only where there are extra facts like a lender exercising unusual control over the borrower’s affairs. Bank One, Tex., N.A. v. Stewart, 967 S.W.2d 419, 442 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). Ordinary lending and servicing, including sending or not sending default notices, does not clear that bar, and Collins alleged nothing like it. No relationship, no breach.
Her negligence claim against MidFirst posed a different problem: the economic loss rule. That rule bars a tort recovery when the plaintiff’s only harm is an economic loss flowing from a failure to perform under a contract. The Texas Supreme Court set the test in Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41, 45 (Tex. 1998): courts look at both the source of the defendant’s duty and the nature of the remedy sought. If the duty came only from the contract, and the loss is purely economic, the claim sounds in contract alone. In Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986), the court told judges to look at the substance of the claim, not how it is labeled: “When the injury is only the economic loss to the subject of a contract itself, the action sounds in contract alone.” To keep a separate tort claim alive, a plaintiff must show an injury that is “distinct, separate, and independent” from the contract losses. Sterling Chemicals, Inc. v. Texaco Inc., 259 S.W.3d 793, 797 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).
Collins could not make that showing. The notice duty she relied on came straight from the deed of trust and loan documents. Texas Property Code Section 51.002 does require written notice of a foreclosure sale, served by certified mail on each debtor obligated on the debt at least twenty-one days before the sale—but the source of that duty, as she framed it, was the contract, not some free-floating common-law obligation. Courts hit the same conclusion whenever a borrower repackages a notice complaint as negligence. In UMLIC VP LLC v. T & M Sales & Environmental Systems, Inc., 176 S.W.3d 595, 615 (Tex. App.—Corpus Christi–Edinburg 2005, pet. denied), the economic loss rule barred a negligence claim against a mortgage servicer where the duty came from the deed of trust, and a federal court reached the same result under Texas law in Bingham v. Nationstar Mortgage LLC, 2015 WL 12532480, at *5 (S.D. Tex. Oct. 9, 2015). Collins’ alleged injury—losing the chance to stop the foreclosure—was exactly the economic loss tied to her rights under the loan. She pleaded no personal injury and no harm independent of the mortgage. Because her injury was “only the economic loss to the subject of a contract itself,” the negligence claim could not stand, and the court affirmed the judgment for Robinson and MidFirst.
The Takeaway
Collins v. Robinson is a reminder that an informal relationship, however genuine in life, does not create enforceable legal duties in probate. An executor’s fiduciary loyalty runs to the estate’s beneficiaries, full stop—not to creditors, and not to outsiders who feel they had a stake in estate property. Creditors are not powerless; they have the statutory claims process under the Texas Estates Code. But those are procedural tools, not fiduciary rights an executor can be sued for breaching. The same discipline applies on the lender side: a servicer’s duty to send foreclosure notices comes from the contract, so when the only harm is the economic fallout of a missed notice, the economic loss rule shuts the tort door. If you are an heir, an executor, or someone who helped a loved one keep their home, the practical lesson is to get the arrangement in writing and understand which relationships actually carry legal weight—before a death forces the question. If you are dealing with probate administration and a secured debt on estate property, that is the moment to talk to a probate attorney.
Do you need help with a probate matter in El Paso or the surrounding area? We are El Paso probate attorneys. We help clients navigate the probate process. Call today for a free confidential consultation, (915) 292-4400.
Our El Paso Probate Attorneys provide a full range of probate services to our clients, including helping with executor duties and fiduciary obligations during estate administration. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience that we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.
Disclaimer
The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.
