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White v. Calvache

Court of Appeals of Texas, Fifth District, Dallas

January 24, 2018

DENNIS K. WHITE, Appellant
v.
LUIS CALVACHE AND NORMA CALVACHE, Appellees

         On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 199-00016-2016

          Before Justices Lang-Miers, Fillmore, and Stoddart

          MEMORANDUM OPINION

          ROBERT M. FILLMORE JUSTICE

         Appellees Luis and Norma Calvache agreed to sell a house to Dennis K. White in exchange for a cash payment and White's assumption of the payments on two existing loans on the property. As part of the transaction, White signed a Deed of Trust to Secure Assumption (DOTSA) for each existing loan. The DOTSAs provided that appellees had a right to foreclose on the property if White failed to make all payments required by the existing loans.

         Appellees subsequently notified White that he was in default under the terms of one of the loans, and they intended to sell the property at a foreclosure sale. White filed this lawsuit, seeking damages and a temporary injunction to prevent the foreclosure sale. The trial court did not rule on White's request for injunctive relief, and the property was sold at a foreclosure sale. The trial court subsequently granted appellees' motion for traditional and no-evidence summary judgment, and dismissed White's remaining claims. White, appearing pro se in this appeal, contends the trial court erred by failing to rule on his request for injunctive relief and by granting summary judgment in favor of appellees. We affirm the trial court's judgment.

         Background

         On July 9, 2011, appellees agreed to sell to Kristin Gerst a house located at 700 Riverhead in Wylie, Texas, for consideration in the amount of $170, 825.77, consisting of $3, 500 cash and assumption of the payments on two existing loans on the property. Attached to the contract was a Loan Assumption Addendum that stated the unpaid balance on the first loan was $133, 490.13, the monthly payment of principal and interest on the first loan was $1, 002.98, the unpaid balance on the second loan was $33, 835.64, and the monthly payment of principal and interest on the second loan was $306.89.

         Gerst assigned the contract to purchase the house to White in exchange for $1, 500. The Assignment of Contract for Purchase and Sale signed by White sets out the approximate balance of each loan, as well as the interest rate, the monthly payment for "PI, " and the term on each loan. At the closing on July 30, 2011, White signed a number of documents acknowledging he was purchasing the property subject to the existing loans. The closing documents provided White information about the term of each loan, and the amount of the required monthly payment on each loan. White acknowledged the monthly payments included only principal and interest, and that he was required to pay separately for insurance and taxes assessed on the property. White signed a DOTSA for each loan, giving appellees the right to foreclose on the property if White failed to make payments required by each loan.

         White agreed to pay appellees the amount of the loan payments each month, and appellees agreed to use that money to make the payments on the loans. Immediately after the closing, White and appellees had a dispute over who was required to make the August 2011 loan payments. The payments for insurance and taxes assessed on the property. In November 2015, appellees notified White that they intended to foreclose on the property. White then filed this lawsuit against appellees; Ocwen Loan Servicing, LLC;[1] Horne & Associates, P.C., the law firm that prepared documents relating to the sale of the property; and L. Scott Horne, an attorney with Horne & Associates, [2] seeking to recover damages, and requesting a declaration the DOTSAs were void. White also sought a temporary injunction to prevent appellees from foreclosing on the property.

         The trial court held a hearing on White's request for injunctive relief on February 1, 2016. Following the hearing, the parties filed briefs with the trial court on the issue of whether a new promissory note was required when a purchaser of real property assumes existing loans. Appellees subsequently provided White with information regarding payments made on the two loans and additional charges and fees imposed by Ocwen.

         On February 5, 2016, Tina Hill, an attorney with Horne & Associates, sent three letters to White on behalf of appellees. In the first letter, Hill demanded that White obtain homeowner's insurance on the property by February 15, 2016, and informed White that his failure to do so would constitute a default on the first loan. In the second letter, Hill notified White that he was in default on the first loan due to his failure to maintain "proper and current insurance" on the property. Hill indicated that, if White did not provide proof of homeowner's insurance by February 25, 2016, the loan would be accelerated. She further stated that if "the past due installments" were not paid by February 25, 2016, foreclosure proceedings would be instituted. Finally, in the third letter, Hill stated White was in default on the first loan by (1) failing to pay the required installments of principal and interest on the loan, taxes assessed on the property, and charges and late fees; (2) failing to maintain insurance on the property; and (3) allowing a "tax lien loan" to be placed on the property.[3] Hill demanded that White pay $27, 990.68 to cure the default.[4] Hill informed White that if he did not pay that amount by February 25, 2016, the entire balance of the loan would be accelerated and foreclosure proceedings would be instituted.

         On March 15, 2016, Horne sent White a notice of acceleration of the first loan on the property. Horne informed White that, due to his failure to cure the default, all unpaid principal and accrued interest on the first loan was immediately due, and that, as of March 14, 2016, the approximate principal amount due on the first loan was $135, 391.95. Also on March 15, 2016, Horne notified White that appellees had requested the property be posted for foreclosure, and the property would be sold on April 5, 2016.[5] White contends appellees purchased the property at the foreclosure sale.

         As relevant to this appeal, White filed a second amended petition seeking a declaratory judgment that the substitute trustee's deed executed after the foreclosure sale and the DOTSAs were void, seeking an accounting of all payments made on the loans and a refund of escrow account proceeds, and asserting claims based on common law fraud and misrepresentation, statutory fraud, breach of contract, and the filing of false liens in violation of chapter 12 of the civil practice and remedies code.[6] White filed a motion for traditional summary judgment, and appellees filed a combined traditional and no-evidence motion for summary judgment. The trial court granted appellees' motion for summary judgment without specifying its basis for doing so, and dismissed all of White's claims against appellees.[7]

         Failure to Rule on Request for Temporary Injunction

         In his first issue, White complains the trial court erred by failing to rule on his request for a temporary injunction to prevent the foreclosure sale. To preserve this complaint for appellate review, White was required to establish in the record that the trial court refused to rule on his request for injunctive relief, and he objected to that refusal. See Tex. R. App. P. 33.1(a)(2)(B). Nothing in the appellate record demonstrates the trial court refused to rule or that White objected to its failure to rule. Accordingly, White failed to preserve this issue for our review. See Tex. R. App. P. 33.1(a)(2)(B); Booker v. Blow, No. 05-07-00256-CV, 2008 WL 152226, at *1 (Tex. App.-Dallas Jan. 17, 2008, no pet.) (mem. op.) (concluding appellant waived complaint trial court erred by denying request for temporary injunction by failing to secure ruling); Ramirez v. Tex. State Bd. of Med. Examiners, 99 S.W.3d 860, 863 (Tex. App.-Austin 2003, pet. denied). We resolve White's first issue against him.

         Grant of Summary Judgment

         In his second issue, White contends the trial court erred by granting summary judgment because he "identified and provided evidence to [sic] material fact issues that preclude summary judgment on his claims in his response to" appellees' motion for summary judgment.

         Scope of Challenge

         Although we must liberally construe pro se pleadings and briefs, Williams v. Dallas Area Rapid Transit, No. 05-14-01303-CV, 2016 WL 374833, at *2 (Tex. App.-Dallas Feb. 1, 2016, no pet.) (mem. op.), we nevertheless hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Williams, 2016 WL 374833, at *2. Otherwise, pro se litigants would benefit from an unfair advantage over those parties who are represented by counsel. Williams, 2016 WL 374833, at *2; Pajooh v. Miller, No. 01-16-00927-CV, 2017 WL 4896725, at *2 (Tex. App.-Houston [1st Dist.] Oct. 31, 2017, no pet. h.) (mem. op.).

         A general challenge to the grant of summary judgment is sufficient to preserve error and "to allow argument as to all possible grounds upon which summary judgment should have been denied." Plexchem Int'l, Inc. v. Harris Cty. Appraisal Dist., 922 S.W.2d 930, 930-31 (Tex. 1996) (per curiam); see also 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 ...


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