Opinion
No. 01-07-00433-CV
Opinion issued April 30, 2009.
On Appeal from the 80th District Court Harris County, Texas, Trial Court Cause No. 2005-37046.
Panel consists of Justices JENNINGS, KEYES, and HIGLEY.
MEMORANDUM OPINION
Appellants, The Houston Omni USA Co., Inc., and Gary B. Wade, Sr. (collectively, "Omni"), sued appellees, SouthTrust Bank Corporation, N.A., and Wachovia, as trustee, its successors and assigns; and Mark Tormey of Tormey Associates, as substitute trustee, for wrongful foreclosure. In addition, Omni sued appellee, Buckeye Retirement Co., L.L.C., for trespass to try title.
SouthTrust and Wachovia moved for summary judgment as to Omni's wrongful foreclosure claim. The 215th District Court granted a no-evidence summary judgment in favor of SouthTrust and denied summary judgment for Wachovia. The trial court denied Omni's motion for summary judgment as to Buckeye's status as a bona fide purchaser.
The case was transferred to the 80th District Court for trial on Omni's wrongful foreclosure claim against Wachovia and Omni's trespass to try title claim against Buckeye. During a pre-trial conference, the 80th District Court reconsidered and granted Wachovia's motion for summary judgment. In addition, the court granted Buckeye's motion for summary judgment as to Omni's trespass to try title claim.
On appeal, Omni presents four issues. In its first and second issues, Omni contends that the trial court erred by granting summary judgment on its wrongful foreclosure claim in favor of SouthTrust and Wachovia because notice of foreclosure failed to comply with Texas Property Code section 51.002. In its third issue, Omni contends that the trial court erred by granting summary judgment on its wrongful foreclosure claim in favor of Wachovia because Wachovia failed to properly challenge the capacity in which it was sued under Texas Rule of Civil Procedure 93. In its fourth issue, Omni contends that the trial court erred by denying its motion for summary judgment as to Buckeye's status as bona fide purchaser.
We affirm.
Summary of Facts and Procedural History
In October 2002, Omni and SouthTrust entered into a construction loan agreement and note, pursuant to which SouthTrust loaned $600,000 to Omni for improvements to Omni's commercial property located at 1909 Scott Street in Houston ("Property"). The note was secured by a deed of trust, which was recorded with the Harris County clerk. Omni's president, Gary Wade, executed a personal guaranty.
Pursuant to the terms of the deed of trust, upon the occurrence of a default by Omni, SouthTrust was authorized to dispose of the Property by non-judicial foreclosure sale. The deed of trust states that SouthTrust was required to give notice to Omni of such proposed sale by certified mail "at least 21 days preceding the date of the sale" and that
[s]ervice of such notice shall be completed upon deposit of the notice, enclosed in a postpaid wrapper, properly addressed to [Omni] . . . at [its] most recent address as shown by the records of [SouthTrust], in a [USPS depository]. . . . [Omni] agrees that no notice of any sale other than as set out in this paragraph need be given by the Trustee, [SouthTrust], or any other person. [Omni] designates as [Omni's] address for the purposes of such notice, the address set out below opposite [Omni's] signature.
The deed of trust reflects that the address "opposite [Omni's] signature" is: "1909 Scott Street, Houston, TX, 77045." The same address is reflected adjacent to Omni's signature in the loan agreement and the note.
In April and July 2003, after delays in construction occurred, Omni and SouthTrust executed modification and extension agreements, and SouthTrust loaned to Omni an addition $78,000. In each extension agreement, Omni again listed its address as 1909 Scott Street, Houston, Texas,77045, and Wade listed his address as 2646 Dawn Star, Missouri City, Texas 77489.
In early 2004, Omni defaulted on its obligation to make payments to SouthTrust on the $678,000 note. On February 3, 2004, the parties executed a "Change in Terms Agreement," extending the interest-only period to April 10, 2004 and then resuming payments on the principal. The agreement states, "All other terms and conditions shall remain the same." The borrower block of the agreement lists Omni's address as 1909 Scott Street, Houston, Texas, 77003.
On April 8, 2004, after Omni had defaulted on the interest payments, SouthTrust accelerated the note and appointed Mark Tormey, as substitute trustee, to post the Property for foreclosure sale on May 4, 2004. On April 30, 2004, Omni filed bankruptcy, staying the sale. On September 30, 2004, the bankruptcy court lifted the stay through an agreed order, pursuant to which SouthTrust would be permitted to foreclose on the Property unless Omni fulfilled certain conditions. On November 15, 2004, after Omni had failed to fulfill the conditions, SouthTrust sent notice to Omni at the address listed in the deed of trust, 1909 Scott Street, Houston, Texas, 77045, of its intent to conduct a foreclosure sale on December 7, 2004.
Just prior to the December 7th sale, Omni notified SouthTrust that it had found a lender to refinance the Property. The parties agreed that SouthTrust would pass on the December 7th sale to allow time to assemble the refinance, but would otherwise move forward with posting the Property for a January 2004 foreclosure sale, in the event that the refinancing did not materialize. On December 13, 2004, SouthTrust, through Tormey, again sent to Omni and Wade, by certified mail to the address listed in the deed of trust, 1909 Scott Street, Houston, Texas, 77045, and the guaranty agreement, 2646 Dawn Star, Missouri City, Texas 77489, that the sale was re-posted for foreclosure sale on January 4, 2005.
On January 4, 2005, after the refinancing failed to materialize, the foreclosure sale proceeded, and SouthTrust purchased the Property. On March 3, 2005, SouthTrust notified Omni that it must vacate the Property within 3 days.
SouthTrust and Wachovia merged. On May 13, 2005, Wachovia "successor by merger to SouthTrust" assigned its interest in the Omni note to Buckeye and sold the Property to Buckeye as part of an asset sales agreement.
Omni contends that it did not receive the certified mailing with notice of the January 4, 2005 foreclosure sale, that it was first informed of the completed sale on January 11, 2005, that it received formal notice of the sale on February 25, 2005, and that it received notice to vacate the Property on March 3, 2005.
Omni sued SouthTrust and Wachovia for wrongful foreclosure, breach of contract, and various torts-including fraud, conspiracy, negligence, tortious interference with contract and economic opportunity, violations of the deceptive trade practices act and violations of the federal fair debt collection practices act. Specifically, as to its wrongful foreclosure claim, Omni contended that the notice of foreclosure was defective because it was sent to the wrong address and did not provide the requisite notice. Omni contended that the notice of foreclosure sale was mailed to "1909 Scott Street, Houston, TX, 77045," but that its proper address, "of which appellees were aware, was 1909 Scott Street, Houston, TX, 77003."
In addition, Omni sued Buckeye for trespass to try title. Buckeye counterclaimed for breach of contract, contending that Omni breached the loan agreement and guaranty, seeking damages of $232,511.03, plus back taxes paid on its behalf, and fees and costs.
On April 3, 2006, SouthTrust and Wachovia moved for partial summary judgment on Omni's wrongful foreclosure claim on the basis that Omni had presented no evidence of an irregularity in the foreclosure sale.
On May 1, 2006, in its response to the motion for summary judgment, Omni contended that SouthTrust and Wachovia failed to provide the requisite notice of foreclosure because it was not sent to Omni at its last known address. As its summary judgment evidence, Omni appended, inter alia, the affidavit of Wade, the loan documents, the "Change in Terms Agreement," the December 13, 2004 notice, certified mail receipts, and photographs of envelopes.
On June 15, 2006, Omni filed a cross-motion for partial summary judgment, contending that there was an irregularity in the sale because Omni did not receive the requisite notice by virtue of an incorrect zip code.
The trial court denied both motions for summary judgment.
On September 15, 2006, SouthTrust and Wachovia moved for no-evidence and traditional summary judgment as to all of Omni's claims. SouthTrust and Wachovia contended that "there is no dispute that Tormey mailed the notice to Omni at the address given for Notice in the Deed of Trust: 1909 Scott Street 77045, 21 days before the January 4, 2005, foreclosure sale." SouthTrust and Wachovia contended that even if the zip code was in error, "a zip code is not a necessary part of the address," and that it is undisputed that Omni never gave proper notice of an address change. SouthTrust and Wachovia further contended that "Omni has no evidence that it suffered damages as a result of the alleged wrongful foreclosure." SouthTrust and Wachovia appended, as its evidence, the loan documents, extensions, and "Change of Terms Agreement"; the deed of trust; the December 13, 2004 notice of foreclosure sale; the certified mail receipts; post office tracking information; the deposition of Wade; and the affidavit of the trustee, Tormey, and of Kathy Ritchie, a person with knowledge of the facts concerning the mailing of notice.
On October 4, 2006, in its response to the motion for summary judgment, Omni "concede[d]," inter alia, that
• "Omni purchased a commercial property located at 1909 Scott Street, Houston, Harris County, Texas on or about October 11, 2002."
• "The mailing address for [Omni] identified in the ?construction loan agreement' of October 10, 2002, at page 21 was: 1909 Scott Street, Houston Texas 77045."
• On February 3, 2004, the parties executed a change in terms so that the "interest-only period" was moved to April 10, 2004. The mailing address on the document is 1909 Scott Street, Houston, Texas 77003.
• On November 15, 2004, SouthTrust sent Omni a notice of acceleration and posting stating that the property would be sold to the highest bidder on December 7, 2004.
• The December sale was "properly noticed."
• The postmark on the envelope for the January 4, 2005 sale is December 13, 2004.
• The address 1909 Scott Street, Houston, Texas 77045 "is not recognized as a bad address."
• Wade resides at and receives his personal mail at 1909 Scott Street, Houston, Texas 77003.
• At the time Wade entered into the loan agreement with SouthTrust, Wade did not reside at 2646 Dawn Star, Missouri City, Texas 77489.
• Wade sold 2646 Dawn Star, Missouri City, Texas 77489 in September 2002.
Omni contended that it "need only show that [SouthTrust and Wachovia] had on their records ?most [sic] recent address of the debtor and failed to mail a notice by certified mail to that address. . . . The uncontroverted evidence shows this." In addition, Omni contended that "[t]he incorrect zip code constituted an irregularity in law." Omni did not attach any evidence to its response or expressly incorporate evidence by reference.
The trial court granted a no-evidence summary judgment for SouthTrust on Omni's wrongful foreclosure claim. In its order, the trial court stated that SouthTrust had set out a no-evidence motion that complied with 166a(i) and that Omni's response "had no evidence attached to the legal instrument and the response did not refer to any evidence attached thereto, in the Court's file, attached to the defendants' motion or anywhere else that might be found by the Court." The trial court denied summary judgment for Wachovia.
Buckeye moved for summary judgment on Omni's trespass to try title claim, contending that the claim failed as a matter of law because the trial court had "found that the foreclosure was not wrongful" and because Omni lacked superior title to the property by virtue of the foreclosure. Buckeye appended, as its evidence, the documents transferring the Property and SouthTrust's interest in the Omni note from Wachovia to Buckeye.
On December 15, 2006, Wachovia again moved for a no-evidence summary judgment as to its liability on Omni's wrongful foreclosure claim, contending that there was no evidence of an irregularity in SouthTrust's foreclosure or that Omni had suffered damages as a result of a wrongful foreclosure by SouthTrust. In addition, Wachovia asserted that because a no-evidence summary judgment had been granted in favor of SouthTrust, and Omni's claims against Wachovia stemmed from the same allegations, summary judgment should be granted for Wachovia. Further, Wachovia contended that because its only involvement in the lawsuit was as SouthTrust's successor by merger, Omni had no independent claim against Wachovia.
On January 17, 2007, in its response to the motion for summary judgment, Omni re-asserted its defective notice argument and contended that Wachovia could not assert that it was not liable as a successor in interest because it had failed to assert a defect in capacity under Rule of Civil Procedure 93. Omni appended, as its summary judgment evidence, the affidavit of Wade, the loan contract, the change in terms agreement, warranty deed, photographs of envelopes, and USPS zip code information, appraisals, and the quit claim deed to Buckeye.
The trial court denied Wachovia's motion for summary judgment, and the case was transferred to the 80th District Court for trial on Omni's wrongful foreclosure claim against Wachovia and Omni's trespass to try title claim against Buckeye.
At a pre-trial conference, the 80th District Court reconsidered and granted Wachovia's motion for summary judgment on Omni's wrongful foreclosure claim. In addition, the trial court granted partial summary judgment for Buckeye, ordering that Omni and Wade take nothing by their claims against Buckeye on their trespass to try title claim.
On April 19, 2007, the trial court granted partial summary judgment for Buckeye on its counterclaims against Omni and Wade, ordering that Buckeye recover from Omni and Wade, jointly and severally, $195,886.38 in damages, back taxes paid, and attorney's fees and costs. The trial court's order states that it thereby disposed of all parties and all claims in the suit, which resulted in a final judgment.
Summary Judgment
In its first and second issues, Omni contends that the trial court erred by granting summary judgment on its wrongful foreclosure claim in favor of SouthTrust and Wachovia because notice of foreclosure failed to comply with Texas Property Code section 51.002. In its third issue, Omni contends that the trial court erred by granting summary judgment on its wrongful foreclosure claim in favor of Wachovia because Wachovia failed to properly challenge the capacity in which it was sued under Texas Rule of Civil Procedure 93. In its fourth issue, Omni contends that the trial court erred by denying its motion for summary judgment as to Buckeye's status as bona fide purchaser.
A. Standard of Review
After an adequate time for discovery, the party without the burden of proof may move for summary judgment, with or without presenting evidence, on the basis that there is no evidence to support an essential element of the non-moving party's claim. TEX. R. CIV. P. 166a(i). Once the movant specifies the element as to which there is no evidence, the burden shifts to the non-movant to raise a fact issue on the challenged element. Id.; Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). "The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact." TEX. R. CIV. P. 166a(i). If the non-movant brings forward more than a scintilla of evidence that raises a genuine issue of material fact, then summary judgment is not proper. Flameout Design Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App. 1999, no pet.). More than a scintilla exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).
A no-evidence motion for summary judgment is essentially a motion for a pre-trial directed verdict. Tamez, 206 S.W.3d at 581-82. Once the motion is filed, the burden shifts to the nonmoving party to present evidence raising a genuine issue of material fact as to the elements specified in the motion. Id. at 582. "We review the evidence presented by the motion and response in the light most favorable to the party against whom summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Id.
B. Wrongful Foreclosure
In its first and second issues, Omni contends that the trial court erred by granting summary judgment on its wrongful foreclosure claim in favor of SouthTrust and Wachovia because notice of foreclosure failed to comply with Texas Property Code section 51.002. TEX. PROP. CODE ANN. § 51.002 (Vernon Supp. 2008). Specifically, the notice was sent to an incorrect zip code.
A plaintiff seeking damages for wrongful foreclosure must show that (1) an irregularity in the foreclosure sale (2) caused the plaintiff damages. Univ. Savings, Ass'n v. Springwoods Shopping Ctr., 644 S.W.2d 705, 706 (Tex. 1982).
First, to lawfully foreclose on the Property, a mortgagee or trustee is required to comply with the notice requirements set forth in the deed of trust and those prescribed by law. See id.; Nat'l Commerce Bank v. Stiehl, 866 S.W.2d 706, 708 (Tex.App. 1993, no writ).
Here, paragraph 3.4 of the deed of trust provides that SouthTrust was required to give notice to Omni of a proposed sale by certified mail "at least 21 days preceding the date of the sale" and that
[s]ervice of such notice shall be completed upon deposit of the notice, enclosed in a postpaid wrapper, properly addressed to [Omni] . . . at [its] most recent address as shown by the records of [SouthTrust], in a [USPS depository]. . . . [Omni] agrees that no notice of any sale other than as set out in this paragraph need by given by the Trustee, [SouthTrust], or any other person. [Omni] designates as [Omni's] address for the purposes of such notice, the address set out below opposite [Omni's] signature.
The deed of trust reflects that the address "opposite [Omni's] signature" is "1909 Scott Street, Houston, TX, 77045."
Property Code section 51.002, which governs a sale of real property under a power of sale conferred by a deed of trust, provides, in relevant part, as follows:
(b) . . . [N]otice of the sale, which must include a statement of the earliest time at which the sale will begin, must be given at least 21 days before the date of the sale by: . . . (3) serving written notice of the sale by certified mail on each debtor who, according to the records of the mortgage servicer of the debt, is obligated to pay the debt.
. . . .
(d) Notwithstanding any agreement to the contrary, the mortgage servicer of the debt shall serve a debtor in default under a deed of trust or other contract lien on real property used as the debtor's residence with written notice by certified mail stating that the debtor is in default under the deed of trust or other contract lien and giving the debtor at least 20 days to cure the default before notice of sale can be given under Subsection (b). The entire calendar day on which the notice required by this subsection is given, regardless of the time of day at which the notice is given, is included in computing the 20-day notice period required by this subsection, and the entire calendar day on which notice of sale is given under Subsection (b) is excluded in computing the 20-day period.
(e) Service of a notice under this section by certified mail is complete when the notice is deposited in the United States mail, postage prepaid and addressed to the debtor at the debtor's last known address. The affidavit of a person knowledgeable of the facts to the effect that service was completed is prima facie evidence of service.
. . . .
(g) The entire calendar day on which the notice of sale is given, regardless of the time of day at which the notice is given, is included in computing the 21-day period required by Subsection (b), and the entire day of the foreclosure sale is excluded.
TEX. PROP. CODE ANN. § 51.002 (Vernon Supp. 2008).
The term "debtor's last known address" means:
the debtor's last known address as shown by the records of the mortgage servicer of the security instrument unless the debtor provided the current mortgage servicer a written change of address before the date the mortgage servicer mailed a notice required by Section 51.002.
Id. § 51.0001. Pursuant to section 51.0021, "Notice of Change of Address Required": "A debtor shall inform the mortgage servicer of the debt in a reasonable manner of any change of address of the debtor for purposes of providing notice to the debtor under Section 51.002." TEX. PROP. CODE ANN. § 51.0021 (Vernon 2007). Because the purpose of the statute is to provide a minimum level of protection for the debtor, only constructive notice of foreclosure is required. Onwuteaka v. Cohen, 846 S.W.2d 889, 892 (Tex.App. 1995, writ denied).
Second, the measure of damages for wrongful foreclosure is lost equity, that is, the difference between the value of the property in question at the date of foreclosure and the remaining balance due on the indebtedness. Farrell v. Hunt, 714 S.W.2d 298, 299 (Tex. 1986); C K Invs. v. Fiesta Group, Inc., 248 S.W.3d 234, 254 (Tex.App.-Houston [1st Dist.] 2007, no pet.).
1. Summary Judgment in Favor of SouthTrust
In its motion for no-evidence summary judgment as to Omni's wrongful foreclosure claim, SouthTrust contended that "there is no dispute that Tormey mailed the notice to Omni at the address given for Notice in the Deed of Trust: 1909 Scott Street 77045, 21 days before the January 4, 2005, foreclosure sale" and that it is undisputed that Omni never gave proper notice of an address change. SouthTrust contended that there was no evidence of an irregularity in the foreclosure sale or that Omni suffered damages as a result of a wrongful foreclosure.
Once SouthTrust specified the elements as to which there was no evidence, the burden shifted to Omni to present evidence raising a genuine issue of material fact as to the challenged elements. See TEX. R. CIV. P. 166a(i); Tamez, 206 S.W.3d at 582.
In its response, Omni contended that it "need only show that [SouthTrust] had on their records ?most [sic] recent address of the debtor and failed to mail a notice by certified mail to that address" and that "[t]he uncontroverted evidence shows this." Omni asserted that the Change in Terms Agreement shows a zip code of 77003. Omni did not attach evidence to its motion or expressly incorporate evidence by reference.
The trial court granted a no-evidence summary judgment for SouthTrust, stating in its order that Omni's response "had no evidence attached to the legal instrument and the response did not refer to any evidence attached thereto, in the Court's file, attached to the defendants' motion [sic] or anywhere else that might be found by the Court."
The record shows that Omni did not attach any evidence to its response to SouthTrust's motion for no-evidence summary judgment that is the subject of the trial court's order and did not expressly incorporate evidence in the Court's file or attached to SouthTrust's motion. Because Omni did not meet its burden to produce any summary judgment evidence to raise a genuine issue of material fact, the trial court was required to grant SouthTrust's motion for no-evidence summary judgment. See TEX. R. CIV. P. 166a(i) ("The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.").
2. Summary Judgment in Favor of Wachovia
Subsequent to the trial court's granting of summary judgment in favor of SouthTrust on Omni's wrongful foreclosure claim, Wachovia again moved for summary judgment as to Omni's wrongful foreclosure claim. Wachovia asserted that there was no evidence of an irregularity in the foreclosure sale conducted by SouthTrust or of damages caused by a wrongful foreclosure by SouthTrust, and that no liability existed as to Wachovia by virtue of the no-evidence summary judgment rendered in favor of SouthTrust. The trial court did not, in its order granting summary judgment in favor of Wachovia, state its basis.
In its response, Omni contended that Wachovia "failed to comply with the statutory terms by sending notice to the wrong address" and that the loan documents of Wachovia "evidence that, pursuant to the statute, the debt holder's records contained the last known address of" Omni and Wade. Omni appended to its motion, as its summary judgment evidence relevant to this claim, the affidavit of Wade, the loan contract, the change in terms agreement, warranty deed, photographs of envelopes, and USPS zip code information, and appraisals.
Hence, Omni challenges the summary judgment granted in favor of Wachovia on the basis that Wachovia failed to comply with Property Code section 51.002. Section 51.002 governs mortgage services, mortgagees, and trustees who conduct a sale of real property under a contract lien. See TEX. PROP. CODE ANN. § 51.002(a). Omni does not point to any evidence that Wachovia was the mortgage servicer or the mortgagee at the time of the January 4, 2005 foreclosure sale or that Wachovia conducted the foreclosure sale. Hence, summary judgment in favor of Wachovia was proper. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000) (affirming summary judgment if any ground is meritorious when summary judgment order does not specify the ground or grounds on which the trial court relied for its ruling).
Accordingly, we overrule Omni's first and second issues.
Bona Fide Purchaser Status
In its fourth issue, Omni contends that the trial court erred by denying its motion for summary judgment. Omni sought summary judgment that Buckeye was not a bona fide purchaser.
Generally, appellate courts do not have jurisdiction to hear the denial of a motion for summary judgment on appeal. Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966). An exception applies when the trial court has denied one motion and has granted the other. See Comm' rs Court v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). This rule only applies, however, when both parties seek final judgment relief in their motions. CU Lloyd's of Tex. v. Feldman, 977 S.W.2d 568, 569 (Tex. 1998).
Here, Omni sought summary judgment that, as a matter of law, Buckeye did not enjoy bona fide purchaser status. The record shows that Omni did not, by its motion for summary judgment, seek a final judgment on its trespass to try title claim. Hence, we do not have jurisdiction to consider the denial of its motion for summary judgment on this point.
Rule of Civil Procedure 93
In its third issue, Omni contends that the trial court erred by granting summary judgment on its wrongful foreclosure claim because Wachovia failed to properly challenge "the capacity in which [it was] sued," under Texas Rule of Civil Procedure 93. Having concluded that summary judgment was properly granted in favor of Wachovia on Omni's wrongful foreclosure claim, we do not reach this issue. See FM Props. Operating Co., 22 S.W.3d at 872-73.
Conclusion
We affirm the judgment of the trial court.