McLemore v. Pacific Southwest Bank, FSB, 06-93-00034-CV
| Decision Date | 29 March 1994 |
| Docket Number | No. 06-93-00034-CV,06-93-00034-CV |
| Citation | 872 S.W.2d 286 |
| Parties | B. Reagan McLEMORE, III, Appellant, v. PACIFIC SOUTHWEST BANK, FSB, Appellee. |
| Court | Texas Court of Appeals |
Gregory P. Grajczyk, Harbour, Kenley, Boyland, Smith, Longview, for appellant.
Robert J. Fuller, Hopkins & Sutter, Dallas, for appellee.
Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.
B. Reagan McLemore, III appeals from a summary judgment granted to Pacific Southwest Bank, FSB, in a suit brought by the Bank to recover the deficiency on a foreclosed installment note. McLemore contends that the trial court erred in granting the Bank's motion for summary judgment because the motion and supporting evidence were insufficient to establish all necessary elements of the Bank's cause of action as a matter of law, because there was a material fact issue as to whether the note was accelerated, and when, because the Bank's suit for deficiency on the note was barred by the statute of limitations, and because the summary judgment was in violation of McLemore's due process rights.
On July 17, 1978, McLemore and three other principals executed a real estate lien note payable to Charter Savings & Loan Association's predecessor in interest, First Federal Savings & Loan Association of Marshall, Texas, in the amount of $300,000. As security for the note, the makers executed a deed of trust covering certain real property in Gregg County. McLemore and the other principals eventually defaulted on the note, and Charter thereafter gave notice of the default and of its intention to accelerate payment under the terms of the deed of trust. The principals of the note other than McLemore have been discharged in bankruptcy.
Charter foreclosed the deed of trust and sold the property on July 5, 1988, to the highest bidder for $73,500. These proceeds were applied to the amount due Charter by McLemore. Charter sued McLemore for the deficiency on the promissory note on November 18, 1988. This suit was later dismissed for want of prosecution.
When Charter was declared insolvent by the Federal Home Loan Bank Board in December 1988, the Federal Savings & Loan Insurance Corporation (FSLIC) was appointed as receiver. The FSLIC thus succeeded to Charter's interest in the note and deed of trust. The FSLIC transferred virtually all of Charter's assets to the appellee, Pacific Southwest Bank, which continues as the current owner and holder of the note.
The Bank sued McLemore for the amount of the deficiency plus interest and attorney's fees. McLemore entered a general denial and asserted the affirmative defenses of statute of limitations and accord and satisfaction. The Bank filed a motion for summary judgment, to which there was attached proof in the form of an affidavit from Jay M. Dalbey, asset manager for the Bank.
In his affidavit, Dalbey swore that he managed certain assets for the Bank, including the promissory note in question in the original principal amount of $300,000; that the note was secured as shown by a properly recorded deed of trust; that the terms of the deed of trust provided that McLemore conveyed the real property in question to a trustee for the ultimate benefit of Charter to secure payment of the note; that the Bank is the owner and holder of the note and is entitled to enforce payment, pursuant to assignment and transfer of rights to the Bank by the receiver for Charter, the FSLIC; that the note was not paid when due; that Charter so notified McLemore and demanded payment, advising him that if the default was not cured by June 3, 1988, Charter would foreclose its deed of trust lien and sell the property; and that on July 5, 1988, the real property was sold at auction to the highest bidder for $73,500.
The affidavit also included the following language:
As of October 23, 1992, the amount owing under the Note is $379,210.13, consisting of a principal balance and interest accrued as of foreclosure of $287,173.86, minus the bid price of $73,500.00, plus interest accrued on the deficiency of $105.37 per diem from July 5, 1988 until October 23, 1992 of $165,536.27, for a deficiency as of October 23, 1992 of $379,210.13. In addition, interest continues to accrue since October 23, 1992 at the rate of $105.37 per diem.
In McLemore's response to the Bank's motion for summary judgment, he contended in relevant part that there were factual issues as to whether proper notice was given of the foreclosure and whether limitations had run (thereby barring the Bank's suit for the deficiency on the note).
On December 7, 1992, McLemore filed a motion for summary judgment on the basis of the affirmative defenses of limitations, collateral estoppel, and res judicata. We have been unable to locate in the transcript any action by the court on this motion, but footnote six on page ten of the Bank's brief indicates that the court denied McLemore's motion.
On the Bank's motion, the trial court granted a "Final Summary Judgment" on December 10, 1992, finding that the sum of $379,210.13 was due on the note as of October 23, 1992, plus interest of $105.37 per diem from October 23, 1992, until judgment. The court also awarded attorney's fees in the amount of $37,921.00 and postjudgment interest at the rate of eighteen percent.
McLemore filed a motion for new trial, pointing out that, although the note in question provides that matured unpaid principal and interest shall bear interest at the rate of ten percent per annum from date of maturity until paid, the calculations set forth in Dalbey's affidavit show the interest rate used by the Bank to determine the deficiency on the note was eighteen percent. He contended that this discrepancy created a fact question barring a summary judgment.
McLemore's motion for new trial also raised a question regarding whether the statute of limitations had run, i.e., whether or not the Bank had ever established that it had accelerated the payments on the note and, if so, when. He pointed out that Charter's default notice of October 21, 1987, advised him that "if you fail to pay the amount due on or before November 6, 1987, Charter Savings and Loan Association will accelerate the entire balance on your loan due and payable without further demand...." McLemore argued that the quoted language raised a fact issue whether the loan was accelerated on November 6, 1987.
In its answer to McLemore's motion for new trial, the Bank conceded that it had erroneously used an eighteen percent rate to calculate interest on the amount due and owing on the note. On February 4, 1993, the court, timely exercising its plenary power over its judgment, granted the Bank's motion to reform the judgment by using a ten percent rate to recalculate the amount due and owing and issued an "Amended Final Summary Judgment." The amended final summary judgment provided, among other things, for a ten percent interest rate on the amount due and owing and stated a daily interest amount of $105.37.
On February 10, 1993, following the rendition of the amended final summary judgment, McLemore filed an amended motion for new trial in which he contended that the Bank had again miscalculated the proper per diem interest under the note by setting forth a per diem interest of $105.37. Once again, the Bank did not dispute the miscalculation. On February 17, 1993, the trial court entered a "Corrected Amended Final Summary Judgment" against McLemore and in favor of the Bank. This judgment included among its terms the following:
a. The sum of $308,801.36 due under the Note as of October 23, 1992, plus interest of $58.54 per diem from October 23, 1992 until judgment;
b. Attorneys' fees in the amount of $30,880.13;
c. Postjudgment interest at the rate of 10%; and
d. All costs of court.
This was the third and final summary judgment entered by the court in this cause.
On March 16, 1993, McLemore filed a "Second Amended Motion for New Trial" which was denied by the trial court.
In this case, both parties moved for summary judgment. The court granted the motion filed by the Bank and overruled the motion filed by McLemore. In general, an order granting a summary judgment may be appealed, but an order denying a summary judgment may not. Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980). However, an exception to this rule exists when both parties file motions for summary judgment and the court grants one and overrules the other. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958). On appeal, the proper disposition is for the appellate court to render judgment for the party whose motion should have been granted. Members Mutual Ins. Co. v. Hermann Hospital, 664 S.W.2d 325, 328 (Tex.1984). In reviewing the summary judgment record before us, it is our duty to apply the following rules:
1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
2. In deciding whether or not there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true.
3. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor.
Wilcox v. St. Mary's University of San Antonio, 531 S.W.2d 589 (Tex.1975). The trial court may not consider evidence favorable to the movant's position unless it is uncontroverted. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).
In subpoint of error one, McLemore argues that the trial court erred in granting summary judgment for the Bank because the Bank's motion for summary judgment and supporting evidence was insufficient to establish all necessary elements of the Bank's...
To continue reading
Request your trial
-
Investment Co. of the Southwest v. Reese
...2415(a) are Jon Luce Builder, Inc. v. First Gibraltar Bank, F.S.B., 849 S.W.2d 451 (Tex.Ct.App.1993); McLemore v. Pacific Southwest Bank, F.S.B., 872 S.W.2d 286 (Tex.Ct.App.1994), error denied, (Tex. Mar. 9, 1994); Cadle Co. v. Matheson, 870 S.W.2d 548 (Tex.Ct.App.1994). Only one Section 24......
-
Swoboda v. Wilshire Credit Corp.
...took any responsive action, or in any way changed their position as a result of the notice. The Swobodas cite McLemore v. Pacific S.W. Bank, FSB, 872 S.W.2d 286, 291 (Tex.App.--Texarkana 1994, writ dism'd by agreem't), for the proposition that "a notice of intent to accelerate followed by a......
-
4518 S. 256th, LLC v. Gibbon
...Dunlap & Co., 193 Ga. 462, 466, 18 S.E.2d 837 (1942) ; Redwine v. Frizzell, 184 Ga. 230, 190 S.E. 789 (1937) ; McLemore v. Pac. Sw. Bank, 872 S.W.2d 286, 292 (Tex. App. 1994) ; Meadowbrook Gardens, Ltd. v. WMFMT Real Estate Ltd. P'ship, 980 S.W.2d 916, 918–19 (Tex. App.—Fort Worth 1993) ).2......
-
Holy Cross Church of God in Christ v. Wolf
...be made not later than four years after the day the cause of action accrues. Tex. Civ. Prac. & Rem. Code 16.035(b); McLemore v. Pacific Southwest Bank, 872 S.W.2d 286, 292 (Tex. App.-Texarkana 1994, writ dism'd by agr.). When this four-year period expires, the real-property lien and the pow......