David H. Anderson v. Baxter, Schwartz & Shapiro LLP ( 2012 )

Affirmed and Memorandum Opinion filed January 10, 2012.
In The
Fourteenth Court of Appeals
NO. 14-11-00021-CV
DAVID H. ANDERSON, Appellant
V.
BAXTER, SCHWARTZ & SHAPIRO LLP, Appellee
On Appeal from the 61st District Court
Harris County, Texas
Trial Court Cause No. 2010-11371
MEMORANDUM OPINION
David H. Anderson appeals a summary judgment granted in favor of Baxter,
Schwartz & Shapiro, LLP raising five issues on appeal. We affirm.
Background
Anderson executed a mortgage note and deed of trust on August 4, 2006. AMC
Mortgage Services sent Anderson a notice of intent to foreclose on August 2, 2007,
informing Anderson that he (1) failed to make his mortgage payment on the house in the
amount of $859.54 by July 1, 2007; and (2) must remit $1,847.81 by September 6, 2007
“to cure this default and attempt to bring an end to these foreclosure proceedings.”
Appellee sent a debt collection letter to Anderson on January 20, 2010, informing him
that it “has been retained by American Mortgage Servicing, Inc. (OOM), the Mortgage
Servicer for Deutsche Bank National Trust Company . . . to initiate foreclosure
proceedings because of a breach in payment” of the promissory note. Appellee sent a
notice of acceleration and posting to Anderson on February 4, 2010; the notice included a
notice of trustee‟s sale scheduled for March 2, 2010.
Anderson sued appellee on February 22, 2010 for wrongful foreclosure and
violation of the Fair Debt Collection Practices Act (FDCPA). In his petition, Anderson
alleged that (1) he never received “the first notice of default and intent to accelerate” as
required by Texas Property Code Section 51.002; and (2) appellee “clearly violated at
least [] one of the laws [o]f the United States Code that governs the Fair Debt Collection
Practices Act.” He asked for $1,000,000 in punitive damages, “interest thereon at the
maximum legal rate, both pre-judgment [a]nd post-judgment, that Plaintiff have and
recover costs of Court against Defendant and that Plaintiff have such other relief, general
and specific, both [a]t law and in equity, to which Plaintiff may be justly entitled.”
Anderson filed a motion for temporary restraining order on February 24, 2010 to
prevent appellee from foreclosing on the house. The trustee‟s sale was postponed.
On April 13, 2010, appellee sent another notice of acceleration and posting to
Anderson; the notice also included a notice of trustee‟s sale scheduled for May 4, 2010.
Anderson moved for a temporary restraining order against appellee on April 26, 2010 to
prevent appellee from going forward with the trustee‟s sale; the trial court granted his
motion on May 3, 2010. The trial court also scheduled a temporary injunction hearing
for May 14, 2010. The trial court signed an order denying a temporary injunction to
enjoin appellee from “taking any foreclosure proceedings,” and ordered that a foreclosure
may proceed “with a foreclosure sale date of not earlier than July 6, 2010.”
After an unsuccessful attempt to mediate, appellee filed a combined traditional and
no-evidence motion for summary judgment on November 10, 2010. Under its traditional
2
summary judgment heading, appellee argued that it is entitled to judgment as a matter of
law because (1) appellee is not liable in the capacity in which it has been sued because
appellee owns no interest in the subject property, “merely acted as a law firm conducting
the foreclosure at the instruction and direction of the mortgage servicer,” discharged its
duties in representing its client, and is exempt from liability; (2) there are no wrongful
foreclosure damages because a “foreclosure did not occur;” (3) appellee complied with
the requirements of Texas Property Code Section 51.002 because a notice of default and
intent to foreclose, fair debt letters, and two notices of acceleration and posting were
given to Anderson; and (4) Anderson was sent a notice of breach and intent to accelerate
more than thirty days before acceleration. Under its no-evidence motion for summary
judgment heading, appellee argued that it is entitled to judgment because “Anderson can
provide no evidence in support of any of the elements of his cause of action against
[appellee] for violations of the Fair Debt Collection Practices Act.”
Anderson filed a response to appellee‟s summary judgment motion arguing that
appellee is not entitled to summary judgment because (1) an attorney is not protected
“from liability claims out of representation of a client” when the attorney participates in
fraudulent activities and, here, appellee used an “invalid letter of intent to foreclose of 3
years ago, and a fraudulent assignment in conducting this foreclosure;” (2) a foreclosure
is complete when a notice of the trustee‟s sale is posted for the first time and, in this case,
the foreclosure occurred when appellee posted Anderson‟s “house for sale on March 2,
2010;” and (3) there is no evidence that the August 2, 2007 notice of intent to foreclose
was to be carried forward so that the “foreclosure attempt” required a new notice of
intent. Anderson also argued that appellee is not entitled to a no-evidence summary
judgment because there is evidence of “the following violations of the FDCPA”: (1) “15
U.S.C. [1692](f) . . . taking or threatening to take any non-judicial action to repossess
property if there is no present right to possession of the collateral;” and (2) “15 U.S.C.
1691(g) — sending a collection letter with language that overshadows other language in
the letter giving notice of the 1691(g) validation rights.”
3
The trial court signed an order granting summary judgment in favor of appellee on
December 13, 2010. Anderson timely filed his notice of appeal.
Analysis
Anderson raises five issues on appeal. Anderson contends that the trial court
erroneously granted summary judgment in favor of appellee because (1) appellee is liable
in the capacity in which it has been sued after having participated in “fraudulent
activities” and “violated numerous state and federal laws, among which was a felony;”
(2) appellee‟s “intentional wrongful foreclosure attempts led to intentional emotional
distress” which constitutes “a valid claim for damages” and appellee‟s “intentional filing
of invalid and fraudulent documents” led to Anderson‟s “sudden medical problems;” (3)
appellee did not strictly adhere to the notice requirements set out in Texas Property
Section 51.002 to “perform a non-judicial foreclosure in Texas;” (4) the “2010 non-
judicial foreclosure attempts required a new notice of intent” and “future foreclosure
sales cannot be predicated on earlier notices” like the August 2, 2007 notice of intent; and
(5) the affidavit of Joyce Justice attached as evidence to the summary judgment motion is
“totally invalid and unacceptable according to the law” because Justice swore she has
“knowledge” and not “personal knowledge of the contents of that affidavit.”
We review a trial court‟s summary judgment de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott,
128 S.W.3d 211, 215 (Tex. 2003). We must affirm a summary judgment if any ground in
the motion that would support the judgment is meritorious. Progressive Cnty. Mut. Ins.
Co. v. Kelley, 284 S.W.3d 805, 806 (Tex. 2009).
A traditional summary judgment may be granted if the motion and summary
judgment evidence establish there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A defendant
who conclusively negates at least one essential element of a cause of action is entitled to
summary judgment on that claim. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v.
Mason, 143 S.W.3d 794, 798 (Tex. 2004). In reviewing a traditional summary judgment,
4
we examine the entire record in the light most favorable to the nonmovant, indulging
every reasonable inference and resolving any doubts against the movant. Yancy v. United
Surgical Partners Int’l, Inc., 236 S.W.3d 778, 782 (Tex. 2007); City of Keller v. Wilson,
168 S.W.3d 802, 824-25 (Tex. 2005).
A no-evidence motion for summary judgment under Rule 166a(i) must be granted
if (1) the moving party asserts that there is no evidence of one or more specified elements
of a claim or defense on which the adverse party would have the burden of proof at trial;
and (2) the respondent produces no summary judgment evidence raising a genuine issue
of material fact on those elements. Duerr v. Brown, 262 S.W.3d 63, 69 (Tex. App.—
Houston [14th Dist.] 2008, no pet.). In reviewing a no-evidence motion for summary
judgment, we view all of the summary judgment evidence in the light most favorable to
the non-movant, “crediting evidence favorable to that party if reasonable jurors could,
and disregarding contrary evidence unless reasonable jurors could not.” Id. (quoting
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). The non-moving party is
not obligated to marshal its proof, but it is required to present evidence that raises a
genuine fact issue on the challenged element. Id. (citing Sw. Elec. Power Co. v. Grant,
73 S.W.3d 211, 215 (Tex. 2002)).
The elements of a wrongful foreclosure claim are: (1) a defect in the foreclosure
sale proceedings; (2) a grossly inadequate selling price; and (3) a causal connection
between the defect and the grossly inadequate selling price. Sauceda v. GMAC Mortg.
Corp., 268 S.W.3d 135, 139 (Tex. App.—Corpus Christi 2008, no pet.) (citing Charter
Nat’l Bank–Houston v. Stevens, 781 S.W.2d 368, 371 (Tex. App.—Houston [14th Dist.]
1989, writ denied); Young v. Tex. First Bank, No. 01-08-00835-CV, 2010 WL 1492296,
at *8 (Tex. App.—Houston [1st Dist.] Apr. 15, 2010, pet. denied) (mem. op.). Therefore,
to recover on a wrongful foreclosure claim, the property in question must have been sold
at a foreclosure sale. See id.
As Anderson acknowledges, no foreclosure sale has occurred in this case. Thus,
Anderson cannot recover on his claim for wrongful foreclosure as a matter of law, and
5
the trial court correctly granted summary judgment with regard to this claim.
Additionally, each of Anderson‟s five issues on appeal depend on the assumption that a
wrongful foreclosure occurred. However, because it is undisputed that no foreclosure
sale occurred in this case, there can be no wrongful foreclosure and Anderson‟s issues are
without merit.
In his first issue, Anderson argues that appellee is “liable in the capacity in which
[it had] been sued” because it participated in “fraudulent activities” and “violated
numerous state and federal laws, among which was a felony.” Anderson sued appellee
for wrongful foreclosure; however, because there was no foreclosure sale in this case,
Anderson cannot recover on his claim for wrongful foreclosure. Therefore, the capacity
in which Anderson sued appellee is irrelevant.
In his second issue, Anderson contends that, contrary to appellee‟s assertion in the
trial court “that there were no Wrongful Foreclosure damages,” appellee‟s “intentional
wrongful foreclosure attempts led to intentional emotional distress” which constitutes “a
valid claim for damages.” Anderson did not assert a claim for attempted wrongful
foreclosure in the trial court. Anderson stated as follows in his summary judgment
response: “[Appellee] stated that „Attempted wrongful Foreclosure‟ is not a recognized
cause of action in Texas, and I believe that that is correct.” Further, Anderson cannot
recover for damages allegedly caused by an attempted wrongful disclosure because such
a cause of action is not recognized. See Port City State Bank v. Leyco Constr. Co., 561
S.W.2d 546, 547 (Tex. Civ. App.—Beaumont 1977, no writ).
In his third issue, Anderson asserts that appellee failed to strictly adhere to the
notice requirements set out in Texas Property Code Section 51.002. In his fourth issue,
Anderson claims appellee was required to send him a new notice of intent to foreclose
because “future sales cannot be predicated on earlier notices” of intent. As stated above,
Anderson cannot recover on his claim for wrongful foreclosure as a matter of law
because there was no foreclosure sale in this case. Therefore, it is irrelevant whether
appellee indeed followed all notice requirements and provided a proper notice of intent.
6
In his fifth issue, Anderson contends that Joyce Justice‟s sworn affidavit is “totally
invalid and unacceptable according to the law” because Joyce swore she had
“knowledge” and not “personal knowledge of the contents of that affidavit.” Again,
because it is undisputed that no foreclosure sale occurred in this case, it is irrelevant
whether Justice swore she had “knowledge” rather than “personal knowledge.”
Accordingly, we overrule Anderson‟s five issues on appeal.1
Conclusion
We affirm the trial court‟s judgment.
/s/ William J. Boyce
Justice
Panel consists of Justices Brown, Boyce, and Christopher.
1
Anderson does not challenge on appeal the trial court‟s summary judgment with respect to his
asserted claim for violations of the Fair Debt Collection Practices Act.
7