OPINION

HARDBERGER, Justice.

This is a Texas Debt Collections Statute case. The lender, Waterfield Mortgage Company, Inc. (Waterfield), was found by the trial court, sitting without a jury, to have violated the statute. The plaintiffs/appellees, the Rodriguezes, (Rodriguez) were awarded $7,402.61 in actual damages, $7,500.00 in attorney's fees, and $15,000.00 in exemplary damages. Waterfield appeals. We affirm.

FACTS AND DISCUSSION

Waterfield made a loan to the parents of the Rodriguez family to buy a house in Seguin. The promissory note was for $26,600.00 dated June 3, 1983 and was secured by a deed of trust on the property. In 1989 the Rodriguez family took over the note and the property was conveyed to them.

Rodriguez was not a model payment-maker. Payments were often late, but Waterfield was always paid eventually. Getting behind in the payments, being reminded of the delinquency, and then bringing the payments to date, with late charges, was the routine. Both parties seemed to accept this as the usual course of business. On July 21, 1993, though, trouble came.

Rodriguez received a letter from Waterfield that the loan was in default for non-payment of three monthly installments. Including late charges, this amounted to $1,159.72. The August payment also loomed large in the near future.

On August 31, 1993, Waterfield received a personal check from Rodriguez for $1,468.00: enough to pay the four past installments, but short the late charges. There is disputed testimony about whether this check would have cleared had it been processed. We'll never know because Waterfield sent it back on September 1, 1993, along with a letter saying Rodriguez now owed $1,537.16, which included the September installment and an additional late charge. This letter is not in evidence and there is some conflict about the exact language. The Rodriguezes testified there were no time limits as to when the $1,537.16 was due. Mrs. Rodriguez testified that she called Waterfield and was told that if she and her husband sent in the $1,537.61 there would be no foreclosure. Waterfield testified they don't have any record of the call.

Rodriguez sent a cashiers check for the requested $1,537.16 to Waterfield by express mail on September 17, 1993. It is the Rodriguezes' position that at that time they had done everything that had been requested of them. But, alas, Waterfield did not share this opinion. Too little, too late was their reaction. So they returned this cashiers check, just as they had the earlier personal check. Waterfield now required $2,823.15 because of foreclosure expenses incurred on September 9, payable by October 5, or they would foreclose. The Rodriguezes didn't receive this new demand, that included their returned cashiers check, until October 6. Their home had been sold in a foreclosure sale the day before.

Waterfield then filed a forcible entry and detainer suit in justice court. They were successful and conveyed the property to the FHA. Rodriguez brought this suit against Waterfield under the Deceptive Trade Practices Act (DTPA) and the Texas Debt Collection Statute, alleging that Waterfield violated both. The DTPA claim was later dismissed.

The trial court's findings of fact found that:

14. For the want of $69.16 and due to the conduct of the Defendant, Defendant wanted the Plaintiffs to lose Plaintiff's residence.

15. Defendant undertook a course of conduct which was callous and a wanton disregard of the rights and plight of the Plaintiffs.

16. The effect of Defendant's conduct was that Plaintiffs were wrongfully misled by Defendant into believing, from September 17th through October 6th, that the Plaintiffs had in fact complied with the requests of Defendant in order to cease foreclosure proceedings.

In its Conclusions of Law, the trial court found:

5. Defendant's conduct violated the Texas Debt Collection Act art. 11.05(g), i.e., misrepresented the character, extent, or amount of a debt against a consumer.

6. Defendant's herein referenced wrongful conduct has caused Plaintiffs loss and legal damages, Said damages include loss of the herein referenced residence, loss of

title/clouding of title/slander of title concerning said residence, and, harm to credit reputation, credit worthiness, and credit history, mental anguish, emotional distress, anxiety, depression, humiliation, with said damages being in the amount of $7,402.61.

The trial court, as earlier stated, also awarded attorneys fees of $7,500.00 and $15,000.00 exemplary damages.

POINTS OF ERROR

Waterfield brings five points of error. Four of the five points are no evidence or insufficient evidence points related to the court's basic findings and the awarding of damages, both actual and exemplary. Point five is that Waterfield has a meritorious defense of bona fide error as a matter of law. No attack is made on the award of attorney's fees. For ease of discussion, this court will break the opinion down to the trial court's finding of a violation of the Texas Debt Collection Statute and the actual damages that result. Then we will discuss the exemplary damages points of error.

THE TEXAS DEBT COLLECTION STATUTE AND ACTUAL DAMAGES

The trial court made a specific conclusion of law that Waterfield's conduct violated the Texas Debt Collection Act art. 11.05(g). This statute states:

No debt collector may collect or attempt to collect debts or obtain information concerning a consumer by any fraudulent, deceptive, or misleading representations which employ the following practices:

(g) misrepresenting the character, extent, or amount of a debt against a consumer, or misrepresenting its status in any judicial or governmental proceedings;

TEX.REV.CIV.STAT.ANN.art. 5069-11.05(g) (Vernon 1987).

The trial court made a number of findings to support the conclusions of law summarized above in the discussion of the case. It is to be noted that the trial court in this case sat as the trier of fact, and was in a position to judge the credibility of the witnesses and the weight of the evidence. We apply the same standards to a challenge for sufficiency of evidence as in a jury trial. Southern States Transp., Inc. v. Texas, 774 S.W.2d 639, 640 (Tex. 1989). In considering a "no evidence" or legal sufficiency point, we consider only the evidence favorable to the decision of the trier of fact and disregard all evidence and inferences to the contrary. Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). If the evidence offered on a fact is more than a scintilla we will overrule the point of error. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). In considering a factual sufficiency point, we assess all the evidence and reverse for a new trial only if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

It is undisputed that Rodriguez made at least two efforts to bring his payments current. In each case, Waterfield would simply up the demand and return the check. When Rodriguez sent the personal check on August 31 in the amount of $1,468.00 for four monthly installments, he was current except for the late charges. It is not entirely clear why Waterfield did not accept this check and add the late charges onto the next payment. We recognize that Waterfield testified, without contradiction, that they telephoned the drawee bank and were told the check would not clear for want of sufficient funds. On the other hand, Mrs. Rodriguez testified they intended to put enough funds in the bank to cover the check. Whether this would have been done or not was never tested by sending the check to the bank. The reason given for not accepting the check at the time was not that it would bounce, but that it was insufficient by $69.16 for the late charges. The newly demanded sum of $1,537.16, made on September l, was met fully on September 17 by cashiers check. There is no question this check was good and met the last demand completely. A week later, however, Waterfield also rejected this check and raised their demand to $2,823.15 because of posting and reinstatement fees. Rodriguez testified he would have even paid this, but he never was given the chance because the foreclosure sale occurred before he received the notice. Thus, a home that had been in the Rodriguez family for ten years was irrevocably lost even though the Rodriguezes were desperately trying to meet the escalating demands. We recognize the testimony of Waterfield that they tried to get in touch with Rodriguez to tell him he owed more money and that foreclosure was imminent, but could not because the phone was disconnected. Accepting that though, the haste in pushing through foreclosure, then forcible entry and detainer, and selling the family home while the owner is offering the money that would essentially bring him current, is ample evidence to support the trial court's findings and conclusions of law in the area of actual damages and violation of the Texas Debt Collection Statute.

EXEMPLARY DAMAGES

Punitive damages have been awarded in a number of cases involving the Texas Debt Collection Statute. E.g. Marlow v. Medlin, 558 S.W.2d 933, 938 (Tex.Civ.App. — Waco 1977, no writ); Bank of North America v. Bell, 493 S.W.2d 633, 636 (Tex.Civ.App. — Houston [14th Dist.] 1973, no writ); cf. Brown v. Oaklawn Bank, 718 S.W.2d 678, 680 (Tex. 1986). The statute itself is silent on any specific language involving exemplary or punitive damages. See TEX.REV.CIV.STAT.ANN.arts. 5069-11.01 — 11.11 (Vernon 1987). However all common law remedies are preserved by the statute:

None of the provisions of this Act shall affect or alter any remedies at law or in equity otherwise available to debtors, creditors, governmental entities, or any other legal entity.

TEX.REV.CIV.STAT.ANN.art. 5069-11.11(b) (Vernon 1987).

The legislature recently codified much of the law relating to exemplary damages. TEX.CIV.PRAC. REM. CODE ANN.Chap. 41 (Vernon Supp. 1996). However, the Chapter specifically excludes the Texas Debt Collection Statute. TEX.CIV.PRAC. REM. CODE ANN. § 41.002(b)(6) (Vernon Supp. 1996). Therefore, in this case, we are simply dealing with the evidence necessary to support a finding of punitive damages under the common law.

Waterfield argues that this requires a finding of malice, either actual or implied, on the part of the wrongdoer. They further say there is no evidence of malice on the part of Waterfield and therefore the exemplary damages must be reversed. We cannot agree that a finding of malice is the only foundation of exemplary damages in a Texas Debt Collections Act case. It is this court's opinion that malice can be the foundation of exemplary damages, but that it is not the only foundation. However, even if malice is necessary, there was evidence in this case to support such a finding.

The common law definition of exemplary damages in more modern times, and the one used by the Pattern Jury Charge comes from Carnation Co. v. Borner, 610 S.W.2d 450, 454 (Tex. 1980).

"Exemplary damages" means an amount that you may in your discretion award as an example to others and as a penalty or by way of punishment.

4 STATE BAR OF TEXAS, TEXAS PATTERN JURY CHARGES PJC 110.22 (1993).

The instructions for factors to consider are derived from Lunsford v. Morris, 746 S.W.2d 471 (Tex. 1988); Hofer v. Lavender, 679 S.W.2d 470, 474 (Tex. 1984); and Alamo Nat'l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981). They include:

a. the nature of the wrong,

b. the character of the conduct involved,

c. the degree of culpability of the wrongdoer,

d. the situation and sensibilities of the parties concerned,

e. the extent to which such conduct offends a public sense of justice and properiety,

f. the net worth of the wrongdoer, and

g. compensation for inconvenience and attorney's fees.

4 STATE BAR OF TEXAS, TEXAS PATTERN JURY CHARGES PJC 110.22 (1993).

Waterfield cites the case of Ware v. Paxton, 359 S.W.2d 897 (Tex. 1962) as an important case that defines the misconduct of a lending institution to support, or in that case, not to support exemplary damages. The Paxtons were charged usurious interest, and also, according to them, they were the victims of unreasonable collection methods. Id. at 901. The jury was given a definition of malice to support the giving of punitive damages and damages were awarded. Id. at 898-99. The Supreme Court, after reviewing the facts, disagreed and reversed. Id. at 902. The evidence included several dunning telephone calls and one unwelcomed personal visit by the lender over a two-year period. The court said this did not prove malice. However, the case never says that malice must always be the touchstone. Rather, the court dealt with the instruction and finding by the jury and found insufficient evidence to support the finding. Id.

Waterfield also cites the case of Ledisco Fin. Serv., Inc. v. Viracola, 533 S.W.2d 951 (Tex.Civ.App. — Texarkana 1976, no writ). Here, too, exemplary damages were awarded for unreasonable collection efforts and were later reversed. There were several telephone calls of an abusive nature and an employee of Ledisco went to the Viracola's home and hit Viracola in the chest with his clip board. Id. at 954. The case was reversed because there was no finding that the malicious acts of the employee were authorized, adopted or ratified by the corporation and therefore the corporation was not bound by the acts of the employee. Id. at 958.

Another case cited by Waterfield is Bank of North America v. Bell, 493 S.W.2d 633 (Tex.Civ.App-Houston [14th Dist.] 1973, no writ). This was also an unreasonable collection methods case in which the bank accelerated the loan and demanded full payment even before the first note was due. Id. at 635. In addition there were many abusive phone calls both to the debtor and his fiancee. Finally the bank also threatened criminal charges. Id. A jury finding of malice was upheld, but the exemplary damages were cut from $50,000 to $15,000 by remittitur. Id. at 637.

In cutting the exemplary damages, the court in Bell stated:

In accordance with our best judgment this amount is the highest that could reasonably be allowed to stand taking into account the public policy of deterring the Bank and others from similar misconduct and considering those elements of damages that are permissible here but which would be too remote or intangible to be allowed as actual damages. In our view each case should stand on its own base. No case is exactly like another.

Id. The case also emphasizes ". . . we should respect the verdict of the finder of fact who had the opportunity to see and hear the parties and witnesses." Id. at 636.

Keeping in mind the above admonition, we turn to the trial court's findings, sitting as the fact-finder. The court found that the Rodriguezes made two unsuccessful attempts to meet their obligations. The first was only missed by $69.16 caused by late charges. The second was in the amount demanded by the defendants, but failed because the defendants decided by the time they received it that still more money was owed. The court found that by September 20, 1993, the Plaintiffs in good faith reasonably believed that they had satisfied the financial obligations requested by the Defendants. The court also found the Rodriguezes had not been given a specific date to have their money in, and before they found out that Waterfield had changed its demand, their house had been foreclosed on without their knowledge.

The court found this foreclosure unlawful and the Rodriguezes were evicted from their home before the trial court had an opportunity to decide whether the foreclosure should be set aside. By the time the trial court had an opportunity to rule, the home had already been sold, so the foreclosure could not be set aside as the damage was already done and irrevocable. The trial court also found that Waterfield had willfully proceeded with the justice of the peace foreclosure and eviction even though they knew of the Rodriguezes' claim in the trial court. The trial court was of the opinion that Waterfield's conduct was "egregious" and "wrongful."

After a careful review of the record, we find sufficient evidence to support each of the trial court's findings of fact. We believe that there was sufficient evidence to support the finding that the Rodriguezes were entitled to exemplary damages. Waterfield's cited cases where punitive damages have been awarded show personal abuse to the debtor of threats, phone calls and other actions meant to embarrass or intimidate. Waterfield points out that none of that was present in this case. We agree that these more common types of harassment were not present. But we also think that taking someone's home away from them when they are making good faith attempts to pay ever-escalating demands is worse than insulting or threatening them. Better harassed than homeless.

The trial court awarded exemplary damages that were double the actual damages, a two to one ratio. We find this reasonable and justified by the evidence and law. We affirm the exemplary damages.

BONA FIDE ERROR

Waterfield's fifth and last point of error is that they are entitled to the defense of bona fide error under the Debt Collection Act. This provision states:

No person shall be guilty of a violation of this Act if the action complained of resulted from a bona fide error notwithstanding the use of reasonable procedures adopted to avoid such error.

TEX.REV.CIV.STAT.ANN.art. 5069-11.08 (Vernon 1987).

We are unable to agree with this point of error. It was never raised before the trial court at any time and therefore is waived. TEX.R.APP.P. 52(a). We also do not see any evidence that would have supported this defense even if it had been raised. We acknowledge, of course, that issues may be tried by implied consent, even if the pleadings don't raise it. Sage St. Assoc. v. Northdale Constr. Co., 863 S.W.2d 438, 444 (Tex. 1993). However, we have not only a pleading omission, but an evidentiary omission as well. As the defense was neither raised by the pleadings or the evidence we overrule it.

The judgment of the trial court is affirmed.