Court of Appeals of Texas, Second District, Fort Worth
On
Appeal from the 342nd District Court Tarrant County, Texas
Trial Court No. 342-298779-18
Before
Kerr, Birdwell, and Bassel, JJ.
MEMORANDUM OPINION
Dabney
Bassel, Justice
I.
Introduction
This
case concerns a residential mortgage-loan dispute that was
resolved by summary judgment when the trial court dismissed
Appellant Brent Meyerhoff's claims with prejudice and
granted Appellee Pacific Union Financial, LLC's
counterclaim for foreclosure. Meyerhoff alleges three points
on appeal: (1) the trial court prematurely granted
Appellee's motion for summary judgment, (2) fact issues
precluded summary judgment on Meyerhoff's claims, and (3)
the summary judgment was improper on Appellee's
counterclaim because it was not properly pleaded or supported
by evidence. We also identify one issue that neither party
has brought to our attention: summary judgment was rendered
against a party who was never joined and who never entered an
appearance in the trial court proceedings, Rhonda Barr. Barr
is the wife of Meyerhoff. Though Barr was listed in the
notice of appeal, we acquire jurisdiction only over those
parties who were parties to the trial court's judgment.
We therefore vacate the trial court's judgment as to Barr
and affirm the trial court's judgment as to Meyerhoff.
II.
Background
Meyerhoff
signed a note (Note) on May 29, 2015, payable to Loan Simple,
Inc. The Note provided a thirty-year term with monthly
payments due on the first day of every month. The Note
contained an allonge, also dated May 29, 2015, which stated,
"PAY TO THE ORDER OF: WITHOUT RECOURSE
LOAN SIMPLE, INC. and its successors and assign[s]." The
allonge was signed by Loan Simple's CEO.
Also on
May 29, 2015, Meyerhoff and Barr[1] signed a Deed of Trust to
secure the repayment of the Note and their performance under
the Deed of Trust and the Note. The Deed of Trust granted
Loan Simple a lien and power of sale on certain real property
and improvements (Property). The Deed of Trust named Mortgage
Electronic Registration Systems, Inc. (MERS) as beneficiary
"solely as nominee for [Loan Simple]." The Deed of
Trust was recorded on June 3, 2015, in Tarrant County.
The
record reflects that on October 12, 2017, MERS transferred
and assigned the Deed of Trust to Appellee. The assignment
was recorded in Tarrant County. The record contains an
affidavit in which Appellee's "limited assistant
vice president," Donald Edwards, averred that Appellee
is the "current legal owner and holder of the
Note." In his affidavit, Edwards also stated that
Meyerhoff had failed to make his June 1, 2017 payment and all
subsequent payments. Meyerhoff did not dispute that he had
failed to make the June 1, 2017 payment and all subsequent
monthly payments.
In an
August 2, 2017 certified letter, Appellee notified Meyerhoff
that he was in default for missing the prior three months of
payments ($9, 848.01); that he owed late charges ($1,
210.86); and that he owed an escrow advance ($9, 311.82),
minus an unapplied balance ($2, 404.44), for a total amount
of $17, 966.25 due to cure the default. The notice gave
Meyerhoff until September 6, 2017, to cure the default or the
maturity of the Note would be accelerated and the Property
would be sold under the Deed of Trust. Meyerhoff presented no
evidence that he had cured or had attempted to cure the
default.
In an
October 5, 2017 certified letter, Appellee's counsel sent
Meyerhoff and Barr notices of acceleration, stating that the
entire balance ($290, 251.16) on the Note was then due. In a
November 13, 2017 certified letter, Appellee's counsel
sent Meyerhoff and Barr notices of a foreclosure sale,
stating that the trustee or a substitute trustee would be
conducting a foreclosure sale at the Tarrant County
Courthouse on Tuesday, December 5, 2017, at 10:00 a.m.
The
morning that the foreclosure sale was scheduled to take
place, Meyerhoff filed a Chapter 13 bankruptcy petition,
which stayed the foreclosure sale. The bankruptcy case was
dismissed on December 27, 2017, because Meyerhoff had failed
to file required documents, including certain property
schedules, a statement of financial affairs, and a bankruptcy
plan or summary. New notices of foreclosure sale, dated
January 25, 2018, were sent to Meyerhoff and Barr. The
notices stated that the foreclosure sale would take place on
April 3, 2018, at 10:00 a.m., at the Tarrant County
Courthouse.
On
April 2, 2018, Meyerhoff filed his original petition and
application for temporary restraining order, bringing various
claims, including for violations of the Texas Debt Collection
Practices Act (TDCPA), for violations of the Texas Property
Code, and alternatively for breach of contract. On the same
day, the trial court signed a temporary restraining order,
enjoining Appellee from conducting the foreclosure sale.
On
April 20, 2018, Appellee answered Meyerhoff's claims and
raised a counterclaim for foreclosure against Meyerhoff and
Barr. In its single cause of action labeled "Suit for
Foreclosure," Appellee stated as follows:
18. Defendant seeks a judgment for judicial foreclosure
allowing it to enforce its lien against the Property in
accordance with the Security Instrument and Texas Property
Code section 51.002.
19. Alternatively, Defendant seeks a judgment for foreclosure
together with an order of sale issued to the Tarrant County
sheriff or constable, directing the sheriff or constable to
seize and sell the Property in satisfaction of the Loan
Agreement debt, pursuant to Texas Rule of Civil Procedure
309.
On July
10, 2018, Appellee filed a motion for summary judgment,
asserting traditional summary-judgment grounds on each of
Meyerhoff's claims and on its counterclaim. Appellee also
included a no-evidence challenge to Meyerhoff's
breach-of-contract claim, arguing that Meyerhoff had produced
no evidence of the second, third, and fourth elements of such
a claim. Meyerhoff filed a response but attached no
summary-judgment evidence. Meyerhoff claimed that one of the
parties in the chain of title lacked "capacity"
because it did not exist at the time of the loan origination.
Further, Meyerhoff claimed that Appellee was making an
improper use of deemed admissions. Meyerhoff also challenged
Edwards's affidavit as containing inadmissible,
conclusory statements.
On
August 31, 2018, the trial court signed a final summary
judgment, ordering that Meyerhoff take nothing on his claims,
reciting that Appellee was the current holder of the Note and
assignee of the Deed of Trust, that a default had occurred on
the Note, that the current outstanding balance due on the
Note was $315, 522.77, and that Appellee could enforce the
Note through nonjudicial foreclosure as provided in the Deed
of Trust and Section 51.002 of the Property Code. The final
summary judgment did not contain rulings on any of
Meyerhoff's evidentiary objections.
With
respect to Barr's presence in the trial-court
proceedings, the record reflects that the parties
periodically treated her as a party but that there is no
indication that she was ever served with process on
Appellee's counterclaim or that she had ever entered an
appearance before the trial court rendered judgment. The
original petition in this matter was filed by Meyerhoff, and
the caption and the body of the petition listed only him as
the plaintiff. The TRO issued by the trial court granted only
the relief requested by Meyerhoff, but the confusion begins
in the TRO because its caption includes Barr.
Next,
Appellee filed a counterclaim that joined Barr and stated,
"Plaintiffs/Counter-Defendants Brent Meyerhoff and
Rhonda Jane Barr ('Plaintiffs') have previously
appeared herein and may be served through their counsel of
record via ECF notification." The caption of this
pleading also listed Barr. But Barr never appeared.
Appellee
then filed its motion for summary judgment against both
Meyerhoff and Barr, and the caption of this pleading included
Barr as a plaintiff. An answer to the counterclaim and a
response to the motion for summary judgment were filed, but
both of those documents were filed on behalf of only
Meyerhoff, and their captions listed only Meyerhoff as the
plaintiff. Appellee then filed a reply in support of its
summary-judgment motion with a caption that again included
Barr as a plaintiff.
The
trial court's summary judgment listed both Meyerhoff and
Barr as parties and rendered judgment against them. A motion
to vacate was subsequently filed, but that motion's
caption also listed only Meyerhoff as the plaintiff; the
motion sought relief only on behalf of "Plaintiff and
Counter-Defendant" (both singular in form) and never
mentioned Barr. That motion was overruled by operation of
law. See Tex. R. Civ. P. 329b(c).
Meyerhoff
filed a notice of appeal. Barr is listed as a party to the
notice of appeal and is also listed on the Appellants'
brief. Barr does not raise any issue in the ...