Swoboda v. Wilshire Credit Corp.

• Decision Date: 20 August 1998
• Docket Number: No. 13-97-415-CV,13-97-415-CV
• Citation: 975 S.W.2d 770
• Parties: Gordon M. SWOBODA and Margaret Swoboda, Appellants, v. WILSHIRE CREDIT CORPORATION and Charles A. Brown, Appellees.
• Court: Texas Court of Appeals

Page 770

975 S.W.2d 770

Gordon M. SWOBODA and Margaret Swoboda, Appellants, v. WILSHIRE CREDIT CORPORATION and Charles A. Brown, Appellees.

No. 13-97-415-CV.

Court of Appeals of Texas,

Corpus Christi.

Aug. 20, 1998.

Rehearing Overruled Oct. 1, 1998.

George W. Vie III, Mills, Shirley, Eckel & Bassett, Galveston, for Appellant.

Samuel A. Houston, Michael F. Hord, Jr., Cruse, Scott, Henderson & Allen, Houston, for Appellee.

Before DORSEY, HINOJOSA, and RODRIGUEZ, JJ.

OPINION

HINOJOSA, Justice.

This is an appeal from the grant of a summary judgment in favor of appellees, Wilshire Credit Corporation and Charles A. Brown. Appellants, Gordon M. Swoboda and Margaret Swoboda, present three issues complaining that the trial court erred by denying their motion for summary judgment, by granting appellees' motion for summary judgment, and by awarding appellees their attorney's fees and expenses. We affirm.

Background

In February 1987, the Swobodas executed a $200,000 promissory note payable to Columbia Savings Association. The note was secured by a deed of trust on real property located in Galveston County, Texas. The Swobodas defaulted on their payments in 1989.

In April 1989, Columbia Savings sent the Swobodas a letter demanding payment and threatening foreclosure if the note was not paid or brought current. Notice was given of a non-judicial foreclosure sale scheduled for May 2, but the sale was never conducted. The Resolution Trust Corporation ("RTC") was appointed conservator of Columbia Savings on December 21, 1989.

On June 5, 1990, Gordon Swoboda filed for Chapter 11 bankruptcy in federal court. The Swobodas made post-petition payments on the note to the RTC totaling $39,396. In May 1993, Gordon Swoboda and the RTC presented an agreed order to the bankruptcy court. The agreed order allowed the RTC a secured claim in the Galveston property and noted that the payments made to the RTC had been applied to taxes, insurance, accrued interest owed up to the date Swoboda filed bankruptcy, and the principal balance on the promissory note. The agreed order was signed by the bankruptcy court on May 17, 1993. Swoboda's bankruptcy petition was dismissed with prejudice on September 30, 1994.

On June 27, 1995, the RTC assigned the note and deed of trust to Wilshire Credit. On November 22, 1995, Wilshire Credit sent the Swobodas a notice of default and declared its intention to accelerate the note if the default was not cured. The Swobodas responded in writing on December 11, 1995, apparently disputing the amount due on the note.

On May 11, 1996, Wilshire Credit again notified the Swobodas of its intent to accelerate the note and foreclose on the Galveston property if the default was not cured. The Swobodas replied on May 20, disputing the amount of the debt. Wilshire Credit provided information and figures on the amount owed by Gordon Swoboda on May 24.

On June 3, 1996, Wilshire Credit appointed Charles A. Brown as substitute trustee. On June 10, 1996, Brown sent Notices of Foreclosure and Posting to the Swobodas, informing them that the Galveston property was posted for foreclosure on July 2, 1996. On or about June 17, 1996, Gordon Swoboda telephoned Wilshire Credit and again asked for information concerning the debt, including reinstatement and payoff figures, plus a payment history. Following another telephone conversation on June 26, 1996, Wilshire Credit agreed to cancel the July 2 sale in order to allow the Swobodas time to obtain the funds needed to avoid foreclosure, and again provided reinstatement and payoff figures. The letter was mailed, certified, return receipt requested, to the address provided by Gordon Swoboda. Because the Swobodas failed to claim the letter, it was returned to Wilshire Credit on July 13, 1996.

Wilshire Credit then notified the Swobodas that the note had been accelerated, and the Galveston property was posted for foreclosure on the afternoon of September 3, 1996. On the morning of September 3, Gordon Swoboda filed for Chapter 13 bankruptcy in federal court. On November 26, 1996, his petition was dismissed with prejudice to refiling for 180 days.

On December 16, 1996, Wilshire Credit notified the Swobodas for the third time that their note was accelerated and the Galveston property was posted for foreclosure on January 7, 1997. The foreclosure sale was canceled on January 3, 1997, when the Swobodas were granted a temporary restraining order. On January 22, 1997, the trial court granted a temporary injunction against Wilshire Credit, but only ordered the street address of the Galveston property omitted from the next posting for foreclosure.

The Swobodas received Wilshire Credit's fourth notice of acceleration and foreclosure on February 10, 1997, informing them the property was to be sold on March 4, 1997. On February 13, Gordon Swoboda requested reinstatement figures on the debt, which Wilshire Credit furnished him on February 19. The foreclosure sale was canceled when Margaret Swoboda obtained a temporary restraining order on March 3, 1997.

On March 21, 1997, the Swobodas filed this suit requesting the trial court to permanently enjoin appellees from foreclosing on the Galveston property and filing suit to collect on the debt on the grounds that the debt and lien were time barred. Appellees did not file a counterclaim, but asked the trial court to deny the Swobodas' requests. Both sides filed motions for summary judgment. On May 16, 1997, the trial court denied the Swobodas' request for a permanent injunction and denied their motion for summary judgment. The trial court granted appellees' motion for summary judgment and ordered the Swobodas to pay $2500 "for delays due to the two Temporary Restraining Orders and fees and expenses incurred in defending [against the Swobodas'] requests for Temporary Injunctions and claims in said lawsuits."

Standard of Review

When both parties move for summary judgment and one motion is granted and the other is overruled, the appellate court should consider all questions presented to the trial court, including whether the losing party's motion should have been overruled. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). Each party must carry its own burden as the movant and, in response to the other party's motion, as the non-movant. James v. Hitchcock Indep. Sch. Dist., 742 S.W.2d 701, 703 (Tex.App.--Houston [1st Dist.] 1987, writ denied). To prevail, each party bears the burden of establishing that it is entitled to judgment as a matter of law. Guynes v. Galveston County, 861 S.W.2d 861, 862 (Tex.1993). When both parties move for summary judgment, this court has the authority to: (1) affirm the judgment, (2) reverse the judgment and render the judgment that the trial court should have rendered, or (3) reverse the judgment and remand the case to the trial court for further proceedings. Members Mut. Ins. Co. v. Hermann Hosp., 664 S.W.2d 325, 328 (Tex.1984).

In order to sustain a summary judgment, we must determine that the pleadings and summary judgment evidence establish that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. McFadden v. American United Life Ins. Co., 658 S.W.2d 147, 148 (Tex.1983). We accept all evidence favorable to the non-movant as true, indulge the non-movant with every reasonable inference, and resolve any doubt in the non-movant's favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex.1985). When a party moves for summary judgment on several theories and the trial court enters summary judgment without specifying the ground relied upon, we affirm the summary judgment if any one of the theories advanced is meritorious. Martinez v. Corpus Christi Area Teachers Credit Union, 758 S.W.2d 946, 950 (Tex.App.--Corpus Christi 1988, writ denied).

Acceleration of the Debt

The first issue presented by the Swobodas is whether Columbia Savings' exercise of its option to accelerate the maturity of the note began the statute of limitations running, even though there was no foreclosure. The Swobodas contend Columbia Savings' cause of action accrued in April 1989, when they defaulted on payments on the note, and that the April 10, 1989 notice of acceleration and notice of foreclosure they received began the running of limitations.

Although the statute of limitations is normally four years, TEX. CIV. PRAC. & REM.CODE ANN. § 16.035 (Vernon 1986 & Supp.1998), the Swobodas acknowledge the RTC was appointed conservator of Columbia Savings on December 21, 1989, and that the applicable statute of limitations is six years. Under 12 U.S.C. § 1821(d)(14), if a cause of action has already accrued, the six-year federal statute of limitations will begin running as of the date the conservator is appointed. A successor in interest is entitled to the benefit of the six-year statute of limitations. Jackson v. Thweatt, 883 S.W.2d 171, 174 (Tex.1994). The Swobodas contend the limitations, which began running on April 10, 1989, were restarted on December 21, 1989, and expired on December 22, 1995.

A party moving for summary judgment on the basis of limitations must conclusively establish the bar of limitations. Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex.1996). It makes no difference whether the opposing party fails to address the issue. Oram v. General Am. Oil Co. of Tex., 513 S.W.2d 533, 534 (Tex.1974) (non-movant has no burden in response to a summary judgment motion unless the movant has conclusively established his defense).

The question of when a cause of action accrues is a matter of law for the court to decide. Moreno v. Sterling Drug, 787 S.W.2d 348, 351 (Tex.1990). In applying the statute of limitations, a cause of action is said to accrue when a set of facts come into existence which give a claimant a right to seek a remedy in the courts. Robinson v. Weaver, 550 S.W.2d 18, 19 (Tex.1977). If demand is an integral part of a cause of action or a condition precedent to...