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Perry v. CAM XV Trust

Court of Appeals of Texas, First District

June 18, 2019

DAVID W. PERRY, Appellant
v.
CAM XV TRUST, Appellee

          On Appeal from the 157th District Court Harris County, Texas Trial Court Case No. 2014-61171

          Panel consists of Justices Keyes, Goodman, and Hightower.

          OPINION

          RICHARD HIGHTOWER JUSTICE

         This appeal arises out of a suit for judicial foreclosure. Cam XV Trust sued David W. Perry, alleging that he defaulted on a home-equity loan and that the Trust lawfully accelerated his debt. The Trust successfully moved for summary judgment on its foreclosure claim. Perry appeals on four issues, contending that:

(1) the Trust's foreclosure claim is barred by the statute of limitations;
(2) the Trust's foreclosure claim is barred by the doctrine of res judicata;
(3) the Trust failed to conclusively prove its claim for foreclosure; and
(4) the Trust failed to conclusively disprove Perry's defense asserting that its lien was void and unenforceable due to a constitutional violation.

         We reject Perry's contentions and affirm the trial court's summary judgment.

         BACKGROUND

         The history of the foreclosure dispute between the Trust (and its predecessors-in-interest) and Perry is convoluted. For brevity's sake, we summarize only those details that are material to the appellate issues. Because there is no dispute that the Trust is the successor-in-interest of the original lender, we omit its chain of predecessors-in-interest and refer only to the Trust.

         Perry took out a $140, 800 home-equity loan from the Trust in 2005. To secure repayment, the Trust required Perry to sign a security instrument in addition to the note. The security instrument granted the Trust a first-lien security interest in Perry's home.

         In 2010, Perry and the Trust became embroiled in a payment dispute. On September 3, the Trust notified Perry that the loan was in default because of his failure to make the required payments. It advised Perry that if he did not cure the default by October 3, "the mortgage payments will be accelerated with the full amount remaining accelerated and becoming due and payable in full, and foreclosure proceedings will be initiated at that time." When Perry failed to cure the default, the Trust sent him further notice on October 3 stating that it had "elected to accelerate the maturity" of his debt.

         In March 2012, Perry sued the Trust, alleging that it had made misrepresentations about modifying the loan's terms and thereby violated the Texas Deceptive Trade Practices Act (DTPA). The Trust obtained a final no-evidence summary judgment in its favor in the 2012 suit.

         The Trust filed the present suit for judicial foreclosure on October 20, 2014. Perry filed a general denial. He asserted two affirmative defenses, alleging that the Trust's foreclosure claim was barred by the statute of limitations and that the debt was void because the Trust had violated the Texas Constitution. He asserted counterclaims to remove cloud and quiet title and for declaratory judgment based on these same two grounds. Both parties moved for summary judgment on the Trust's foreclosure claim. Perry's summary-judgment motion was based on the affirmative defenses of limitations and res judicata. The trial court denied Perry's motion, granted the Trust's motion, and rendered a judicial-foreclosure judgment. Perry moved for reconsideration, which the trial court denied.

         DISCUSSION

         We review summary judgments de novo. City of Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 258 (Tex. 2018). Traditional summary judgment is proper when the material facts are not disputed and the moving party is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Oncor, 539 S.W.3d at 258- 59. When both parties move for summary judgment and the trial court grants one motion and denies the other, we decide all questions presented and render the judgment that the trial court should have rendered. Oncor, 539 S.W.3d at 259.

         I. Statute of Limitations

         The Trust filed its foreclosure suit on October 20, 2014. Perry contends that the four-year statute of ...


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