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Emmert v. Wilmington Savings Fund Society

Court of Appeals of Texas, Second District, Fort Worth

February 22, 2018

RICK EMMERT APPELLANT
v.
WILMINGTON SAVINGS FUND SOCIETY, FSB, D/B/A CHRISTIANA TRUST, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS INDENTURE TRUSTEE FOR ARLP SECURITIZATION TRUST, SERIES 2015-1 APPELLEE

         FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 236-272430-14

          PANEL: KERR, PITTMAN, and BIRDWELL, JJ.

          MEMORANDUM OPINION [1]

          MARK T. PITTMAN JUSTICE

         Appellant Rick Emmert appeals from the trial court's judgment of foreclosure. After Emmert defaulted on a note secured by a deed of trust on his home, the noteholder, Appellee Wilmington Savings Fund Society, FSB, D/B/A Christiana Trust (Wilmington), Not in Its Individual Capacity but Solely as Indenture Trustee for ARLP Securitization Trust, Series 2015-1 (ARLP), [2] brought an action for judicial foreclosure. The trial court granted summary judgment for the Lender and rendered a judgment of foreclosure. In two issues, Emmert argues that the trial court erred by granting judgment for the Lender because the action was barred by limitations and because the Lender failed to accelerate the note. We affirm.

         I. Background Facts

         In 2008, Emmert borrowed $600, 000 from the Lender under a home equity loan. See Tex. Const. art. XVI, § 50(a)(6). The note was secured by a deed of trust.

         On September 14, 2010, a law firm representing the Lender sent Emmert a notice of default and intent to accelerate. Then, on February 24, 2011, the law firm sent Emmert a notice that the Lender had accelerated the maturity of the debt.

         The Lender filed this action for judicial foreclosure on June 4, 2014. It subsequently filed a motion for summary judgment, to which it attached as evidence the note, the deed of trust, the September 14, 2010 notice of default and intent to accelerate, and the February 24, 2011 notice of acceleration, along with a business records affidavit from the Lender's mortgage servicer.

         Emmert filed a response asserting the defense of limitations. Emmert argued that there was, at the least, a fact issue about whether the true acceleration notice for limitation purposes was the February 24, 2011 notice of acceleration relied on by the Lender or a previous, February 12, 2010 notice of acceleration.

         The trial court granted summary judgment for the Lender. However, the deed of trust had been assigned during the pendency of the suit, and the trial court vacated the judgment at the Lender's request so that it could substitute the correct noteholder plaintiff. The trial court granted the Lender's motion to substitute the plaintiff, and the Lender filed an amended motion for summary judgment relying on the same evidence. The trial court again granted the motion and signed an order of judicial foreclosure. Emmert now appeals.

         II. Standard of Review

         We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant 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 nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment on that claim. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010), cert. denied, 562 U.S. 1180 (2011); see Tex. R. Civ. P. 166a(b), (c).

         III. Analysis

         Emmert raises two issues challenging the summary judgment for the Lender. His first issue argues that the Lender's suit is barred by the statute of limitations applicable to foreclosure actions. His second issue argues that the ...


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