Elizondo v. U.S. Bank

• Decision Date: 28 October 2021
• Docket Number: 13-20-00159-CV
• Parties: ADA ELIZONDO, Appellant, v. U.S. BANK, N.A., Appellee.
• Court: Texas Court of Appeals

ADA ELIZONDO, Appellant, v. U.S. BANK, N.A., Appellee.

No. 13-20-00159-CV

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

October 28, 2021

On appeal from the County Court at Law No. 6 of Hidalgo County Texas.

Before Chief Justice Contreras and Justices Benavides and Silva

MEMORANDUM OPINION

CLARISSA SILVA, JUSTICE

Appellant Ada Elizondo brought a suit against appellee, U.S. Bank, N.A. (U.S. Bank), and Shapiro Schwartz, LLP (Shapiro)^[1] asserting multiple claims and seeking injunctive relief to prevent the foreclosure of her home following her mortgage default. U.S. Bank moved for summary judgment on all of Elizondo's claims. By seven issues, which we have consolidated into one, Elizondo asserts that the trial court erred in granting U.S. Bank's no-evidence and traditional summary judgment motions. We affirm.

I. Background

Elizondo obtained a loan to purchase her home on January 19, 2006, from Argent Mortgage Company, LLC (Argent) in the principal amount of $159, 920.00 and executed a promissory note as well as a deed of trust pledging the subject property as security for the loan. Following a series of assignments, U.S. Bank became the final entity to purchase the promissory note and deed of trust. Nationstar Mortgage LLC (Nationstar) began servicing the loan in 2013 and remains the servicer for the loan.

On July 10, 2017, Nationstar sent Elizondo a letter via certified and regular mail notifying her that she was "past due for the [May 1, 2017] payment and due for all payments from and including that date," and Elizondo was therefore in "default under the terms and conditions of the mortgage loan." Nationstar demanded "a payment of $4, 270.29, which [was] the total amount due and owing as of the date of this letter, including all late payments . . ." by August 9, 2017, to cure the default and to avoid acceleration of the loan.

At some unspecified point, Elizondo paid Nationstar $4, 500.00.^[2] Elizondo asserts that the entire amount was "sufficient to cover approximately [three] periodic payments," and U.S. Bank, through its servicer Nationstar, had "acknowledged and agreed in [a] phone conversation that the monies would be applied as periodic payments."

On September 28, 2017, Shapiro sent Elizondo notice of acceleration and posting by certified mail.^[3] Elizondo was advised that if she intended to "avoid the foreclosure sale of [her] property, all sums due must be paid prior to the date of sale," scheduled for November 7, 2017. The notice contained the time, location, and terms of the sale.

Elizondo filed suit against U.S. Bank and Shapiro on November 3, 2017, alleging wrongful foreclosure, breach of contract, and unfair debt collection practices. Elizondo requested and was granted a temporary restraining order and injunction to stall the scheduled foreclosure proceedings. U.S. Bank filed a timely original answer, and on February 14, 2019, U.S. Bank filed no-evidence and traditional motions for summary judgment. U.S. Bank asserted that Elizondo's three claims failed for the following reasons: (1) Elizondo cannot recover under a claim of wrongful foreclosure where no foreclosure occurred; (2) Elizondo has not shown U.S. Bank breached the loan agreement and cannot prove damages as she remains in possession of the property; and (3) Elizondo has not shown that U.S. Bank "misrepresent[ed] the status of a consumer debt" or took "any action prohibited by law" for purposes of proceeding under her debt collection claim. As evidence, U.S. Bank attached an affidavit from an officer of Nationstar; the note; the deed of trust; prior deed assignments indicating U.S. Bank is the current mortgage owner; a servicing transfer letter; notices of default; and a letter concerning the acceleration, posting, and notice of sale of the subject property.

Elizondo thereafter filed an amended petition on April 29, 2019, raising new complaints for waiver and estoppel^[4] and asserting Deceptive Trade Practices Act (DTPA) violations. U.S. Bank submitted amended motions for summary judgment which addressed Elizondo's new claims. U.S. Bank argued Elizondo was unable to satisfy any element of her DTPA claim, and Elizondo's estoppel and waiver claims failed because (1) she "has not articulated whether she asserts a claim for promissory estoppel or equitable estoppel," and neither theory supports her allegations; and (2) waiver is not an independent cause of action.^[5]

Elizondo filed a response on August 26, 2019, and as evidence, she attached a signed affidavit that reads as follows:

My name is Ada Elizondo. I am fully competent to make and give this Affidavit. [I] have personal knowledge of the facts stated herein, and they are true and correct.

[l] filed suit after Defendant moved to foreclose on my home. I had submitted a $4, 500.00 payment to Defendant for my mortgage. On a phone conversation which the Defendant said was recorded, the Defendant said it would accept my payments to apply as monthly payments. It was agreed with Defendant's phone representative that the payment would not simply reduce my principal balance payment. If it would have, then I would have held the money and just made the monthly payments as they became due. I was very surprised to learn that, despite what the Defendant had agreed to, the $4, 500.00 payment was just applied to reduce my principal balance. This put me in default the very next month, as I did not have the money to pay the next payment. This then snowballed and resulted in my home being filed for foreclosure as my note balance was accelerated. When Defendant failed to apply the payment as I instructed and as they agreed to[, ] this caused the problems with my mortgage payments being late[] because I could not afford the next payments.

[I] have requested a payment history for exact dates through my lawyer, but [U.S.] Bank has not provided it to date.

U.S. Bank moved to strike Elizondo's affidavit, arguing it was hearsay and conclusory. The trial court granted U.S. Bank's traditional and no-evidence motions for summary judgment but made no ruling on U.S. Bank's written motion to strike Elizondo's evidence. Elizondo filed a motion for new trial, which was denied by operation of law. This appeal followed.

II. Discussion

A. Standard of Review and Applicable Law

Our review of a summary judgment is de novo. Eagle Oil &Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 705 (Tex. 2021). We take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Bush v. Lone Oak Club, LLC, 601 S.W.3d 639, 646 (Tex. 2020). "When a party moves for both traditional and no-evidence summary judgments, we first consider the no-evidence motion." First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017). Under Rule 166a(i), a party may move for a no-evidence motion for summary judgment "on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial." TEX. R. CIV. P. 166a(i). "To defeat a no-evidence motion, the non-movant must produce evidence raising a genuine issue of material fact as to the challenged elements." Parker, 514 S.W.3d at 220. "If the non-movant fails to meet its burden under the no-evidence motion, there is no need to address the challenge to the traditional motion as it necessarily fails." Id. at 219.

To be entitled to traditional summary judgment, a movant must establish there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130 (Tex. 2018). A defendant who conclusively negates a single essential element of a cause of action or conclusively establishes an affirmative defense is entitled to summary judgment on that claim. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018) (citing Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)). "If the movant carries this burden, the burden shifts to the non-movant to raise a genuine issue of material fact precluding summary judgment." Siegler, 899 S.W.2d at 197. Evidence is conclusive only if reasonable people could not differ in their conclusions. Cmty. Health Sys. Prof' Servs. Corp. v. Hansen, 525 S.W.3d 671, 681 (Tex. 2017); City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

Where, as here, "the trial court's order does not specify the grounds for its summary judgment, we must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious." Provident Life &Acc. Ins. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); see Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 587 (Tex. 2015). We address each of Elizondo's claims against U.S. Bank in turn.

B. Wrongful Foreclosure

Elizondo sued U.S. Bank for wrongful foreclosure. "Under Texas law, a cause of action for wrongful foreclosure has three elements: '(1) a defect in the foreclosure sale proceedings; (2) a grossly inadequate selling price; and (3) a causal connection between the defect and the grossly inadequate selling price.'" Houle v. Casillas, 594 S.W.3d 524, 540 (Tex. App.-El Paso 2019, no pet.) (quoting Sauceda v. GMAC Mortg. Corp., 268 S.W.3d 135, 139 (Tex. App.-Corpus Christi-Edinburg 2008, no pet.)); see also Pineda REO, LLC v. Lomix Ltd. P'ship, No. 13-17-00277-CV, 2019 WL 5799990, at *5 (Tex. App.-Corpus Christi-Edinburg Nov. 7, 2019, pet. denied) (mem. op.). "The purpose of a wrongful foreclosure action is to protect mortgagors against those sales where, through mistake, fraud, or unfairness, the sale results in an inequitably low price." Casillas, 594 S.W.3d at 540 ...