Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Santiago v. Bank of New York Mellon

Court of Appeals of Texas, Fifth District, Dallas

November 1, 2017

LUIS A. SANTIAGO AND LINDA SANTIAGO, Appellants
v.
THE BANK OF NEW YORK MELLON, AS SUCCESSOR TRUSTEE TO JPMORGANCHASE BANK, AS TRUSTEE FOR NOVASTAR MORTGAGE FUNDING TRUST, SERIES 2004-2, NOVASTAR HOME EQUITY LOAN ASSET-BACKEDCERTIFICATES, SERIES 2004-2, AND OCWEN LOAN SERVICING, LLC, Appellees

         On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-00749-2016

          Before Justices Bridges, Fillmore, and Stoddart

          MEMORANDUM OPINION

          ROBERT M. FILLMORE JUSTICE

         Luis and Linda Santiago[1] defaulted on a home equity loan on their residence located at 5102 Spanish Oaks in Frisco, Texas (the home). The loan was secured by a "Texas Home Equity Security Instrument (First Lien)" (the first lien) on the home, and the Bank of New York Mellon (BONY), as successor trustee to JPMorgan Chase Bank, as trustee for Novastar Mortgage Funding Trust, Series 2004-2, Novastar Home Equity Loan Asset-Backed Certificates, Series 2004-2, the lender, sought to foreclose on the home. After extensive litigation over BONY's right to foreclose on the home, [2] the home was sold to BONY at a foreclosure sale on February 2, 2016.

         The Santiagos subsequently filed this suit against BONY and Ocwen Loan Servicing, LLC (Ocwen), the servicer on the loan, alleging Linda was not served with notice of the foreclosure sale. The Santiagos requested the foreclosure sale and the substitute trustee's foreclosure deed be set aside; asserted claims for trespass to try title, violation of section 51.002(b)(3) of the property code, and breach of contract; and sought an accounting of the proceeds from the foreclosure sale. BONY and Ocwen filed a motion for traditional summary judgment as to all the Santiagos' claims. The trial court granted summary judgment in favor of BONY and Ocwen, and dismissed the Santiagos' claims with prejudice.

         The Santiagos appealed, generally contending in one issue that the trial court erred by granting summary judgment in favor of BONY and Ocwen. The Santiagos also raised, as subpoints, the questions of whether (1) BONY and Ocwen's failure to give Linda notice of the foreclosure sale invalidated the sale and substitute trustee's deed, and created a fact issue on the Santiagos' claims for breach of contract, violation of section 51.002(b)(3) of the property code, and trespass to try title; (2) summary judgment was precluded on BONY and Ocwen's affirmative defenses because they failed "to assert and/or establish any elements"; and (3) the first lien precluded the award of "cost fees" to BONY and Ocwen. We affirm the trial court's summary judgment on the Santiagos' breach of contract claim and request for an accounting. We reverse the trial court's summary judgment on the Santiagos' request that the foreclosure sale and substitute trustee's deed be set aside, and on the Santiagos' claims for trespass to try title and violation of section 51.002(b)(3) of the property code.

         Background

         On May 14, 2004, the Santiagos signed a note in the amount of $999, 999 in favor of Novastar Mortgage, Inc., which was secured by the first lien. The note and first lien were subsequently transferred to BONY. After the Santiagos defaulted on the loan, Ocwen, on behalf of BONY, mailed a Notice of Posting and Sale to the Santiagos' home on January 12, 2016, stating the home would be sold at a foreclosure sale on February 2, 2016. The Notice of Posting and Sale was addressed to Luis. BONY purchased the home at the foreclosure sale.

         The Santiagos sued BONY and Ocwen, requesting the foreclosure sale and substitute trustee's deed conveying the home to BONY be set aside; asserting claims for breach of contract, trespass to try title, and violation of section 51.002(b)(3) of the property code; and seeking an accounting of the funds paid at the foreclosure sale, including a "break out" of principle, interest, attorneys' fees, fees in general, taxes, and any expenses applied to the purchase price. All of the Santiagos' claims were based on the allegations the first lien defined "Borrower" as Luis and Linda, and required "Borrower" be served with notice of the foreclosure sale under "Applicable Law"; section 51.002(b)(3) of the property code falls within the first lien's definition of "Applicable Law"; and the first lien and section 51.002(b)(3) required notice of the foreclosure sale to be addressed to both Luis and Linda.

         BONY and Ocwen filed a traditional motion for summary judgment on all the Santiagos' claims on grounds the Santiagos (1) had actual or constructive knowledge of the foreclosure sale, (2) could not rebut the presumption the foreclosure sale complied with all necessary prerequisites, and (3) were not entitled to rescind the foreclosure sale and gain back title because they had failed to tender the full amount owing on the note. In addition, BONY and Ocwen sought summary judgment (1) on the Santiagos' breach of contract claim on grounds the Santiagos suffered no harm from any breach of the first lien and failed to comply with their contractual obligations to pay the mortgage on the home, and (2) on the Santiagos' request for an accounting on the ground it was a remedy, rather than a cause of action.

         As summary judgment evidence, BONY and Ocwen relied on the declaration of Brandon Wolf, the record custodian of the law firm that represented BONY and Ocwen in the foreclosure proceedings. Attached to Wolf's declaration was the January 12, 2016 Notice of Posting and Sale addressed to Luis. Wolf affirmed the notice was sent to Luis at his last known address via certified mail. The Santiagos responded to the motion for summary judgment and, as relevant to this appeal, relied on (1) Linda's affidavit, in which she stated she had no knowledge of the foreclosure sale and did not receive notice of the sale; (2) the first lien; and (3) the January 12, 2106 Notice of Posting and Sale addressed to Luis. The Santiagos argued these documents created a genuine issue of material fact on whether BONY and Ocwen complied with the first lien and with section 51.002(b)(3) of the property code. The trial court granted BONY and Ocwen's motion for summary judgment without specifying the ground or grounds for the ruling, and dismissed the Santiagos' claims with prejudice.

         Standard of Review and Applicable Law

         We review a trial court's grant of summary judgment de novo. Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017). To prevail on a traditional motion for summary judgment, the moving party must prove there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). When reviewing a summary judgment, we consider the evidence presented in the light most favorable to the non-movant, crediting evidence favorable to the non-movant if reasonable jurors could, and disregarding evidence contrary to the non-movant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any doubts in the non-movant's favor. Hansen, 525 S.W.3d at 680. Where, as here, the trial court's order granting summary judgment does not specify the ground or grounds for its ruling, we must affirm the summary judgment if any of the summary judgment grounds are meritorious. Id.

         Breach of Contract

         BONY and Ocwen moved for summary judgment on the Santiagos' breach of contract claim on grounds Linda received sufficient notice of the foreclosure sale; the Santiagos were not entitled to the relief sought; and the Santiagos suffered no harm from any breach of the first lien and failed to comply with their contractual obligations to pay the mortgage on the home. As to the last asserted ground for summary judgment, BONY and Ocwen relied on cases standing for the proposition that individuals who remain in possession of real property following a foreclosure do not sustain any damages.[3] BONY and Ocwen asserted the Santiagos had "enjoyed continuous and uninterrupted use" of the home since they first purchased it, "failed to perform their contractual duties, without excuse, " and suffered no injury as a result of BONY and Ocwen's alleged breach.

         A general challenge to the grant of summary judgment is sufficient to preserve all possible grounds on which summary judgment could have been denied, Plexchem Int'l, Inc. v. Harris Cty. Appraisal Dist., 922 S.W.2d 930, 930-31 (Tex. 1996) (per curiam), and "to allow argument as to all the possible grounds upon which summary judgment should have been denied, " Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). However, an appellant asserting in a general appellate issue that the summary judgment was erroneous, "must also support that issue with argument challenging all possible grounds on which the summary judgment could have been granted or a reviewing court will affirm the summary judgment." Ganter v. Indep. Bank, No. 05-15-00413-CV, 2016 WL 4376284, at *7 (Tex. App.-Dallas Aug. 16, 2016, pet. denied) (mem. op.).

         In their appellate brief, the Santiagos argue only that the trial court erred by granting summary judgment on their breach of contract claim because there is a genuine issue of material fact regarding whether BONY and Ocwen breached the first lien by failing to provide notice of the foreclosure sale to Linda. The Santiagos do not contend the trial court erred by granting summary judgment on the grounds they suffered no harm from any breach of the first lien and failed to comply with their contractual obligations to pay the mortgage on the home.[4] Because the Santiagos failed to challenge all possible bases on which the trial court could have granted summary judgment on the breach of contract claim, we must affirm the judgment on the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.