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Albrecht v. Bank of New York Mellon

Court of Appeals of Texas, Fifth District, Dallas

February 21, 2018

NEIL ALBRECHT AND SHELIA ALBRECHT, Appellants
v.
THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, ASTRUSTEE FOR CWABS, INC., ASSET-BACKED CERTIFICATES, SERIES 2005-17, Appellee

         On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-04096

          Before Justices Lang, Fillmore, and Schenck.

          MEMORANDUM OPINION

          ROBERT M. FILLMORE JUSTICE

         Alleging Neil and Shelia Albrecht had defaulted on their home equity loan, the Bank of New York Mellon f/k/a Bank of New York (BONY), as Trustee for CWABS, Inc., Asset-Backed Certificates, Series 2005-17, obtained an order pursuant to rule of civil procedure 736 authorizing it to foreclose on the loan. The Albrechts filed this separate, original proceeding to stay and dismiss the foreclosure order. See Tex. R. Civ. P. 736.11. BONY filed a counterclaim for breach of contract and requested an order authorizing it to foreclose on the loan. The trial court granted BONY's motion for summary judgment, found the Albrechts had defaulted on the home equity loan and were indebted to BONY in the amount of $284, 786.09, and authorized BONY to sell the real property encumbered by a lien securing the Albrechts' home equity loan at a foreclosure sale in satisfaction of the judgment.

         The Albrechts appealed, contending in their first two issues that the trial court's judgment is either void or voidable because the trial court "accept[ed] the case" after it had lost plenary power over the parties and the subject matter of the dispute. In their third issue, the Albrechts assert the trial court erred by granting BONY's motion for summary judgment three days before the case was scheduled to go to trial, and the timing of the judgment was "so late, as to be unreasonable and harsh and in violation of Amendments #14 and # 5 of the United States Constitution."

         We conclude the trial court had jurisdiction over the case and signed the judgment while having plenary power to do so, and that, by failing to comply with the briefing requirements of our appellate rules after receiving notice of the deficiency and an opportunity to cure, the Albrechts waived any complaint about the trial court's granting BONY's motion for summary judgment shortly before the scheduled trial date. We affirm the trial court's judgment.

         Background[1]

         On October 26, 2005, the Albrechts obtained a home equity loan from Countrywide Home Loans, Inc., and executed a home equity note in the principal amount of $188, 000. The note was secured by a Texas Home Equity Security Instrument (First Lien) encumbering the Albrechts' home at 10535 Pagewood Drive, Dallas, Texas (the Property). Ultimately, BONY became the owner and holder of the home equity note and assignee of rights under the security instrument.

         The Albrechts defaulted on the note, and on January 1, 2013, BONY filed an application under rule of civil procedure 736, [2] seeking an expedited foreclosure of the home equity loan (the first proceeding). The first proceeding, Cause Number DC-13-00023, was filed in the 134th Judicial District Court. On April 16, 2014, the trial court dismissed the first proceeding for want of prosecution.

         On December 23, 2014, BONY filed a second application under rule of civil procedure 736 seeking to foreclose on the home equity loan (the second proceeding). The second proceeding, Cause Number DC-14-14867, was filed in the 68th Judicial District Court, and was also dismissed for want of prosecution.

         BONY filed a third application under rule of civil procedure 736 on October 16, 2016, seeking to foreclose on the home equity loan (the third proceeding). The third proceeding, Cause Number DC-15-12699, was filed in the 44th Judicial District Court. The 44th Judicial District Court declined to accept the case, and the third proceeding was transferred to the 134th Judicial District Court.[3] On April 1, 2016, the trial court signed a "Home Equity Foreclosure Order, " authorizing BONY to sell the Property at a foreclosure sale.

         The Albrechts filed this case under rule of civil procedure 736.11, seeking to stay and dismiss the foreclosure order rendered in the third proceeding. The Albrechts asserted the trial court did not have jurisdiction to hear the third proceeding because it had lost plenary power over the first proceeding. The Albrechts also asserted BONY was made whole after being "bailed out" under the Emergency Economic Act of 2008, and due to this accord and satisfaction, BONY should take nothing from the Albrechts. BONY answered, asserted a counterclaim for breach of contract, and requested a judgment allowing the Property to be sold at a foreclosure sale. On May 16, 2016, the trial court notified the parties the case was set for trial on February 13, 2017.

         On December 9, 2016, BONY moved for summary judgment on both its counterclaim and the Albrechts' claim BONY should take nothing based on an accord and satisfaction on grounds the trial court had jurisdiction over the foreclosure proceedings, "accord and satisfaction" was an affirmative defense to a breach of contract claim and not an independent cause of action, and the summary judgment evidence established as a matter of law that BONY was entitled to judgment on its breach of contract claim. After hearing BONY's motion on January 10, 2017, the trial court allowed the parties an additional thirty days in which to file supplemental briefing. On February 10, 2017, the trial court signed a "Judicial Foreclosure Judgment" in which it granted BONY's motion for summary judgment, found the Albrechts had defaulted on the home equity loan and were indebted to BONY in the amount of $284, 786.09, and authorized BONY to sell the Property at a foreclosure sale in satisfaction of the judgment.

         The Albrechts appealed the trial court's judgment. On October 23, 2017, this Court sent written notice to the Albrechts that their brief did not satisfy the minimum requirements of the Texas Rules of Appellate Procedure. That notice specifically advised the Albrechts their brief was deficient because:

(1) the table of contents did not indicate the subject matter of each issue or point, or group of issues or points;
(2) it did not contain an index of authorities arranged alphabetically and indicating the pages of the brief where ...

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