William A. Kutner and Tara G. Kutner v. Wells Fargo Bank, N.A., Mortgage Electronic Registration Systems, Inc., and Pulaski Mortgage Company ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00238-CV
WILLIAM A. KUTNER AND TARA G. APPELLANTS
KUTNER
V.
WELLS FARGO BANK, N.A., APPELLEES
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
AND PULASKI MORTGAGE
COMPANY
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FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 67-267844-13
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MEMORANDUM OPINION1
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After they lost their home to foreclosure, appellants William A. Kutner and
Tara G. Kutner sued appellees Wells Fargo Bank, N.A. and Mortgage Electronic
1
See Tex. R. App. P. 47.4.
Registration Systems, Inc.2 for filing a fraudulent lien instrument, violating the
Texas Debt Collection Act and the property code, and breaching a contract.
They also sought injunctive relief.
On March 26, 2014, appellees moved for a traditional and no-evidence
summary judgment on all of the Kutners’ claims. At 9:32 a.m. on May 2, 2014—
the day of the summary judgment hearing—the Kutners filed their response to
the motion.3 Cf. Tex. R. Civ. P. 166a(c) (stating that except on leave of court,
opposing affidavits or other written response should be filed “not later than seven
days prior to the day of hearing”).
The Kutners attached no evidence to their late-filed response, but instead
asked for a 10-day extension of time “to file a more complete response” and
alternatively for the response to be deemed timely filed. Later that day, they also
filed a motion to extend time to reply to the summary judgment motion.4 The trial
court granted appellees’ oral motion to strike the untimely response and granted
a general summary judgment in appellees’ favor.
2
The Kutners attempted to sue Pulaski Mortgage Company but stated in
their original petition that it was “apparently defunct” and that they were trying to
sue “whichever entity or entities may be found as successor(s) to Pulaski.” It
does not appear that any such entity was ever made a party to the case.
3
According to “Defendants’ Response in Opposition to Plaintiffs’ Motion to
Vacate Judgment,” the appellees’ summary judgment motion was set for hearing
at 11:00 a.m. on May 2.
4
“Plaintiffs’ Motion to Extend Time for Reply to Motion for Summary
Judgment of Defendants Wells Fargo and MERS” was filed at 3:18 p.m. on May
2.
2
The Kutners appeal the summary judgment but not the trial court’s ruling
on appellees’ motion to strike and its corresponding implied denial of their
requests for extension to file the late summary judgment response. Cf.
Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 688 (Tex. 2002) (op.
on reh’g) (setting out when a trial court should grant a motion for leave to file a
late summary-judgment response). Nor do the Kutners object to any procedural
defects in the motion itself. See Fieldtech Avionics & Instruments, Inc. v.
Component Control.com, Inc., 262 S.W.3d 813, 824 (Tex. App.—Fort Worth
2008, no pet.) (holding that “rule 166a(i) does not authorize conclusory motions
or general no-evidence challenges to an opponent’s case” and the failure to state
specific elements “is fundamentally defective and insufficient to support summary
judgment as a matter of law”).
Appellees’ motion included at least one no-evidence ground on each of the
Kutners’ claims. Unless a procedural defect precludes the granting of a no-
evidence motion for summary judgment, the trial court must5 grant the no-
evidence portion of a summary judgment motion unless the nonmovant produces
summary judgment evidence raising a genuine issue of material fact and points
out such evidence to the trial court. See Correa v. Citimortgage, No. 02-13-
00019-CV, 2014 WL 3696101, at *2–3 (Tex. App.—Fort Worth July 24, 2014, no
5
Cf. Tex. R. Civ. P. 166a(i) cmt. (West 2014) (“The denial of a motion
under paragraph (i) is no more reviewable by appeal or mandamus than the
denial of a motion under paragraph (c).”).
3
pet.) (mem. op.) (quoting Dyer v. Accredited Home Lenders, Inc., No. 02-11-
00046-CV, 2012 WL 335858, at *3–5 (Tex. App.—Fort Worth Feb. 2, 2012, pet.
denied) (mem. op.)). The Kutners did neither.
Therefore, we affirm the trial court’s judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PANEL: WALKER, GABRIEL, and SUDDERTH, JJ.
DELIVERED: June 4, 2015
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