DAVID W. PERRY, Appellant
CAM XV TRUST, Appellee
Appeal from the 157th District Court Harris County, Texas
Trial Court Case No. 2014-61171
consists of Justices Keyes, Goodman, and Hightower.
RICHARD HIGHTOWER JUSTICE
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,
(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
(4) the Trust failed to conclusively disprove Perry's
defense asserting that its lien was void and unenforceable
due to a constitutional violation.
reject Perry's contentions and affirm the trial
court's summary judgment.
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.
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.
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.
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.
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.
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.
Statute of Limitations
Trust filed its foreclosure suit on October 20, 2014. Perry
contends that the four-year statute of ...