Appeal from the 334th District Court Harris County, Texas
Trial Court Case No. 2012-29600
consists of Justices Lloyd, Kelly, and Hightower.
Richard Hightower Justice.
Shakeel Uddin guaranteed a loan made by Sterling Bank to
Nabeel & Amaan Investments, Inc. NAI used the loan to
purchase real property. Following NAI's loan default and
a superior lienholder's foreclosure on the property,
Sterling filed a claim under the title-insurance policy it
received from Appellee Southern Title Insurance Company.
STIC, as Sterling's subrogee, sued Uddin as guarantor of
the loan. After paying on Sterling's insurance claim and
being assigned the rights under the loan, STIC amended its
petition against Uddin, abandoning its subrogation action and
asserting a direct claim on the guaranty. STIC successfully
moved for summary judgment over Uddin's arguments that
the statute of limitations deprived STIC of standing or
capacity, STIC failed to prove each element of its claim, and
he had raised material issues of fact on his affirmative
defenses. Uddin now appeals, raising the same arguments. We
conclude that the statute of limitations did not implicate
STIC's standing, any defect in STIC's capacity was
cured by the relation-back doctrine, STIC established each
element of its claim, and Uddin contractually waived his
right to assert his other affirmative defenses. We therefore
& Amaan Investments, Inc. obtained a $1, 400, 000 loan
from Sterling Bank on January 10, 2008, to finance its
purchase of real property located at 9112 North Broadway,
Houston. By the terms of the Promissory Note, NAI had five
years to pay off the loan and granted Sterling a first lien
on the property. That same day, NAI's president,
Appellant Shakeel Uddin, signed a Guaranty Agreement,
promising Sterling that he would be responsible for NAI's
obligations under the Note if NAI defaulted.
Southern Title Insurance Company, a Virginia corporation
authorized to do business in Texas, issued an Owner's
Policy to NAI and a Lender's Policy to
Sterling. Under the Owner's Policy, STIC insured
NAI against loss caused by any lien on the sold property.
Under the Lender's Policy, STIC insured Sterling against
loss caused by any lien on the property that was superior to
Sterling's lien. Unknown to STIC and Sterling, a superior
lien existed: JLE Investors, Inc. possessed an unpaid Deed of
Trust on the property that predated Sterling's lien.
NAI's failure to make several payments on the Note,
Sterling sent a letter to NAI and Uddin on February 10, 2011,
demanding full payment on the Note and the Guaranty
Agreement. Neither NAI nor Uddin paid. Twelve days later,
Sterling accelerated the Note. Sometime within the following
month, Sterling discovered that JLE's lien was superior
to its own and notified STIC. Because JLE's lien was
never paid off, JLE foreclosed on the property in October
2011. The property was later sold during a trustee's
sale. By this time, STIC was in serious financial trouble.
State Corporation Commission of Virginia filed an application
with the Circuit Court of the City of Richmond, seeking its
appointment as STIC's receiver. In December 2011, the
Virginia circuit court found that STIC was "in a
hazardous financial condition such that any further
transaction of its business will be hazardous to its
insureds, policyholders, creditors, and the public."
Accordingly, the Commission was appointed as STIC's
receiver and was authorized "to proceed with the
rehabilitation or liquidation of [STIC] and to take whatever
steps . . . reasonably necessary . . . for the protection of
[STIC's] insureds, policyholders, creditors, or the
21, 2012, through its Virginia-appointed receiver, STIC sued
Uddin in Harris County District Court. STIC, being subrogated
to Sterling's rights against third parties by the
Lender's Policy's terms, sought payment from Uddin
for the damages it would incur from its having to pay
Sterling under the policy. After Sterling formally filed its
claim with STIC under the Lender's Policy in September
2012, the trial court granted an agreed plea in abatement
that removed the case from the trial court's docket until
Sterling's claim against STIC was "settled or
resolved such that the exact amount of damages sought by
[STIC could] be confirmed." Sterling eventually received
$710, 000 from STIC on its Lender's Policy claim.
a series of assignments that concluded in June 2016,
Sterling's rights under the Note were assigned to STIC.
And on August 30, 2016, STIC filed an amended petition
against Uddin, abandoning its subrogation action and seeking
full recovery under the terms of the Guaranty Agreement.
During the nearly two years of litigation that followed, STIC
unsuccessfully moved for summary judgment numerous times, and
Uddin repeatedly asserted a number of defenses, including the
statute of limitations and offsets.
STIC's final attempt at summary judgment, it argued,
among other things, that under Paragraph 11 of the Guaranty
Agreement, Uddin waived all defenses, including his
statute-of-limitations and offset defenses. STIC also
contended that, even if Uddin did not waive the
statute-of-limitations defense, its claim under the Note was
still timely. The trial court granted STIC's motion and
ultimately signed a judgment requiring Uddin to pay $1, 656,
269.28, which consisted of the Note's remaining principal
balance, interest, and various fees. Uddin unsuccessfully
moved for a new trial and now appeals.
contends that the trial court improperly granted summary
judgment because the statute of limitations deprived it of
subject-matter jurisdiction; STIC did not cure its lack of
capacity until after the statute of limitations lapsed; STIC
failed to prove each ...