Zeller v. University Sav. Ass'n

• Decision Date: 18 April 1979
• Docket Number: No. B2043,B2043
• Parties: Charles R. ZELLER et ux., Appellants, v. UNIVERSITY SAVINGS ASSOCIATION et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 658

580 S.W.2d 658

Charles R. ZELLER et ux., Appellants, v. UNIVERSITY SAVINGS ASSOCIATION et al., Appellees.

No. B2043.

Court of Civil Appeals of Texas, Houston (14th Dist.).

April 18, 1979.

Newton B. Schwartz, Houston, for appellants.

John Teed, Teed, Glassman, Barrow & Serafin, Will G. Dickey, Little & Dickey, Houston, for appellees.

Before J. CURTISS BROWN, C. J., and COULSON and CIRE, JJ.

J. CURTISS BROWN, Chief Justice.

Summary judgment was rendered against plaintiffs in their suit to set aside the foreclosure sale of their residence.

The property in question was owned by Charles Zeller and wife (appellants) subject to a purchase money mortgage and lien. On July 22, 1976, appellants, to secure a loan for home improvements by University Savings Association (Association), executed three promissory notes and subjected the residence to a second-lien deed of trust. Appellants made payments on the notes for seventeen months during which time the Association accepted numerous payments that were from one week to a month late. In March 1978, when neither the February nor March 1978 payments had been paid, Henry Serafin, II (Serafin), as substitute trustee, was instructed by the Association to accelerate the notes and to institute foreclosure proceedings under the deed of trust. On March 27, 1978, appellants received notice by certified mail of foreclosure sale proceedings to be held on April 4, 1978. Appellants filed for a temporary injunction to halt the sale, but subsequently withdrew that suit and entered into the following agreement in open court:

With respect to a foreclosure duly posted for sale on property of Mr. Zeller, the plaintiff . . . has agreed to take a non-suit and withdraw . . . the petition for injunction . . . But in the event the sale is held today and University Savings becomes purchaser, that it will between now and the next date of sale under the statute . . . reconvey its interest . . . subject to the first lien. . . .

The substitute trustee held the sale as scheduled and the property was conveyed by Serafin to David Lawson (Lawson) subject to the first lien. Appellants then filed suit against the Association, Serafin, and Lawson to set aside the sale, alleging as grounds improper notice and posting; conspiracy among the defendants; that the Association had waived prompt payment by acceptance of late payments; and that labor and materials were furnished before the contracts for the improvements were executed. When the defendants' motions for summary judgment were granted, appellants brought this appeal.

The standard to be applied in reviewing summary judgment cases is well established. The controlling question is whether appellees, as the parties moving for summary judgment, established that there were no genuine issues of material fact and that they were entitled to judgment as a matter of law. Pachter v. Woodman, 547 S.W.2d 954, 957 (Tex.1977); National Founders Corp. v. Central National Bank, 521 S.W.2d 92, 97 (Tex.Civ.App. Houston (14th Dist.) 1975, writ ref'd n. r. e.). Further,

(a)ll conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. (Citations omitted.) Evidence which favors the movant's position is not considered unless it is uncontradicted. If such uncontradicted evidence is from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach such testimony.

E. g., Pachter, supra.

Appellants urge that there is a question of fact with respect to the timeliness of the mailing of the notice of sale. The applicable statute requires that

the holder of the debt to which the power is related shall at least 21 days preceding the date of sale Serve written notice of the proposed sale by certified mail on each debtor obligated to pay such debt according to the records of such holder. Service of such notice shall be completed upon deposit of the notice, enclosed in a postpaid wrapper, properly addressed to such debtor at the most recent address as shown by the records of the holder of the debt, in a post office or official depository under the care and custody of the United States Postal Service. The affidavit of any person having knowledge of the facts to the effect that such service was completed shall be prima facie evidence of the fact of service.

Tex.Rev.Civ.Stat.Ann. art. 3810 (Supp.1978) (emphasis added). In his affidavit, Serafin, the substitute trustee, stated that "(n)otice of the sale was timely and properly sent to plaintiffs as reflected by the notice letter and certified mail receipt. . . ." The notice letter is dated March 13, 1978, which would be "at least twenty-one days preceding the date of sale . . . ." However, the certified mail receipt does not bear the date of deposit of the notice "in a post office or official depository" but does reflect the date of delivery and postmark to be March 27, 1978, only nine days preceding the sale date. Neither the affidavit nor the incorporated notice letter and mail receipt complies with the statutory requirement of ...