Mulvey v. U.S. Bank Nat'l Ass'n

• Decision Date: 19 December 2018
• Docket Number: No. 08-17-00186-CV,08-17-00186-CV
• Citation: 570 S.W.3d 355
• Parties: Patrick King MULVEY, Jr., Appellant, v. U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR SASCO MORTGAGE LOAN TRUST 2006-WF2, Appellee.
• Court: Texas Court of Appeals

570 S.W.3d 355

Patrick King MULVEY, Jr., Appellant,

v.U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR SASCO MORTGAGE LOAN TRUST 2006-WF2, Appellee.

No. 08-17-00186-CV

Court of Appeals of Texas, El Paso.

December 19, 2018

ATTORNEY FOR APPELLANT: Hon. Anthony C. Aguilar, 11405 North Loop, El Paso, TX 79927-9523.

ATTORNEY FOR APPELLEE: Hon. Mark D. Hopkins, Hopkins Law, PLLC, 3809 Juniper Trace, Suite 101, Austin, TX 78738.

Before McClure, C.J., Rodriguez, and Palafox, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice

In this appeal, we review a summary judgment in favor of a lender that foreclosed on property securing a home equity loan. The question before us is whether the homeowner presented some evidence supporting one or more of his asserted affirmative defenses. We conclude that he did not, and we affirm the judgment below.

BACKGROUND

The relevant facts, all derived from the summary judgment record, are easily stated. On April 6, 2006, Patrick King Mulvey, Jr. (Mulvey) borrowed $126,400.00 from Wells Fargo Bank, N.A. (Wells Fargo) through a Texas home equity loan. Mulvey promised to repay the note in monthly installments. In conjunction with the note, Mulvey executed a Texas Home Equity Security Instrument ("deed of trust") that granted a security interest in the real property located at 11260 Signal Ridge Drive in El Paso, Texas. The note and deed of trust were assigned to Appellee U.S. Bank National Association, as Trustee for SASCO Mortgage Loan Trust 2006-WF2 (hereinafter "U.S. Bank").

At some point, Mulvey fell behind on payments, and on November 21, 2008, Wells Fargo entered into a Loan Modification Agreement with Mulvey. That modification agreement adjusted the monthly payments and set a new payment schedule. The modification agreement also capitalized $9,983.47 of interest into the loan, making the new principal balance $132,413.36.

In 2009, Mulvey again fell behind on his monthly payments. Wells Fargo, acting as the mortgage servicer, hired a law firm to initiate foreclosure proceedings on behalf of U.S. Bank. In a notice letter dated October 20, 2010, the law firm gave Mulvey written notice of a default and intent to accelerate. On November 22, 2010, the law firm sent Mulvey a notice of acceleration. Under the bank’s records, Mulvey did not make the July 1, 2009 payment, nor any payment thereafter.

U.S. Bank filed suit in November 2014 seeking title, possession, and foreclosure of the property under the deed of trust. U.S. Bank claimed that right as the mortgagee, and holder of the note and deed of trust on the property. It did not seek any amount due under the note. Mulvey responded to the suit by filing a general denial.

In June 2015, U.S. Bank filed a traditional motion for summary judgment. It attached the note, the deed of trust, the 2011 notice of default/intent to accelerate and the notice of acceleration, as well as various payment ledgers which purport to show the unpaid installments. The motion was also supported by the affidavit of Rodney Young, Vice President for Loan Documentation at Well Fargo, who attested to the authenticity of the attached loan documents, notices, and records. He also swore to default and the amount due.

In response, Mulvey filed an "Amended Answer" to the summary judgment. Germane to this appeal, it contains Mulvey’s affidavit which in relevant part claims:

In April 2006 I obtained a home equity loan through Wells Fargo. In December 2008 I entered into a modification agreement with Wells Fargo concerning my home equity loan. Wells Fargo advanced additional monies to me with the modification.

I made several payments to Wells Fargo after the loan modification. I tried to make a payment at the Wells Fargo Bank around July or August, 2009 but they refused the payment stating, ‘I was in Active Foreclosure’ and that I had to contact the servicing department at Wells Fargo. When I did contact them I was informed that I no longer qualified for the mortgage and that was all I was told. Any delinquency on my part was due to Wells Fargo not accepting the payments and\or telling me what to do next except that I needed to complete additional paper work.

After several years of trying to work with Wells Fargo, I was told they had me sign an Illegal Document with Illegal terms associated with that document in the State of Texas, at the time. This Illegal document is why I ‘did not qualify’ for the loan modification. On many occasions while talking with the various Wells Fargo’s personnel, they requested that I complete a form for another Loan Modification. I did not complete the forms knowing that they were Illegal.

The trial court granted U.S. Bank’s motion for summary judgment. The court’s judgment orders that Mulvey pay the entire sum owed under the note within thirty days, or failing that, the property is to be sold and the proceeds, less the fee for conducting the sale, is to be applied to the balance owed on the note. Mulvey was not responsible, however, for any deficiency following the sale.

Mulvey filed a motion for new trial that re-urged two of his affirmative defenses: (1) he was not in default because Wells Fargo refused to accept his monthly payments; and (2) Wells Fargo insisted on Mulvey entering into an illegal agreement. U.S. Bank filed a response to the motion for new trial, that attached a new affidavit from Ashely Dellinger, Vice President of Loan Documentation for Wells Fargo. She recounts all the same facts as Rodney Young’s earlier affidavit. Her affidavit also adds, however, additional history of the loan, including that another "Notice of Default and Intent to Accelerate" was sent around June 7, 2009, as well as a Notice of Acceleration dated July 27, 2009. Her affidavit references some seventeen attachments, none of which are included in the appellate record. The motion for new trial was overruled by operation of law.

This appeal follows. In a single issue, Mulvey contends that he raised some evidence in support of several affirmative defenses to any default under the note, and U.S. Bank did not conclusively disprove those defenses.

STANDARD OF REVIEW

We review a trial court’s decision to grant summary judgment de novo. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010).

U.S. Bank asserted a traditional summary judgment under TEX.R.CIV.P. 166a(c). Under a traditional motion, the moving party carries 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. Diversicare General Partner, Inc. v. Rubio , 185 S.W.3d 842, 846 (Tex. 2005) ; Nixon v. Mr. Property Mgmt. Co., Inc. , 690 S.W.2d 546, 548 (Tex. 1985). Evidence favorable to the non-movant is taken as true in deciding whether there is a disputed issue of material fact. Fort Worth Osteopathic Hospital, Inc. v. Reese , 148 S.W.3d 94, 99 (Tex. 2004) ; Tranter v. Duemling , 129 S.W.3d 257, 260 (Tex.App.--El Paso 2004, no pet.). All reasonable inferences, including any doubts, must be resolved in favor of the non-movant. Fort Worth Osteopathic Hospital, Inc. , 148 S.W.3d at 99. Once the movant establishes its right to summary judgment, the burden then shifts to the non-movant to present evidence that raises a genuine issue of material fact, thereby precluding summary judgment. See City of Houston v. Clear Creek Basin Authority , 589 S.W.2d 671, 678 (Tex. 1979).

In general, a moving plaintiff is not under any obligation to negate a defendant’s pleaded affirmative defenses. Woodside v. Woodside , 154 S.W.3d 688, 691-92 (Tex.App.--El Paso 2004, no pet.) ; Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc. , 106 S.W.3d 118, 124 (Tex.App.--Houston [1st Dist.] 2002, pet. denied). Rather, an affirmative defense only prevents the granting of summary judgment if each element of the affirmative defense is supported by summary judgment evidence. Woodside, 154 S.W.3d at 691-92. At several junctures in the briefing, both parties state that the non-movant carries the burden to conclusively prove an affirmative defense. Here, that might be true if Mulvey had moved for summary judgment on his affirmative defenses. See American Tobacco Co., Inc. v. Grinnell , 951 S.W.2d 420, 425 (Tex. 1997) (defendant carried burden of conclusively proving pre-emption defense in its summary judgment motion). But when Mulvey only seeks to stave off U.S. Bank’s summary judgment based on an affirmative defense, he needed to do no more than raise a fact issue as to each element of the defense. "Moore" Burger, Inc. v. Phillips Petroleum Co. , 492 S.W.2d 934, 936-37 (Tex. 1972) ; Woodside , 154 S.W.3d at 691-92.

Mulvey’s original answer asserted only a general denial. He appears to have combined into a single pleading an "amended answer" and response to the motion for summary judgment, a practice we neither condone nor encourage. But even assuming that Mulvey did not amend his answer to assert affirmative defenses, U.S. Bank had two options: it could object that the affirmative defenses had not been properly pled, or it could respond on the merits and try the issue by consent. Via Net v. TIG Ins. Co. , 211 S.W.3d 310, 313 (Tex. 2006) ; see also Roberts v. Wells Fargo Bank, N.A. , 406 S.W.3d 702, 707 (Tex.App.--El Paso 2013, no pet.) (noting the movant’s same two choices); Nicholson v. Mem'l Hosp. Sys. , 722 S.W.2d 746, 749 (Tex.App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.) ("If the affirmative defense is not specifically pled, but competent summary judgment evidence establishes a genuine issue of material fact with regard to that affirmative defense, summary judgment is improper."). We find no indication that U.S. Bank raised any pleading deficiency below. We therefore turn to the merits.

DISCUSSION

Did U.S. Bank Prove its Entitlement to Summary Judgment

U.S. Bank sought to judicially foreclose on property that secured a Texas home equity loan. To sustain that claim, U.S. Bank needed to prove that it held a valid deed of trust on the real property securing the note, and Mulvey...