David Savage and Linda Savage v. Texstar Bank, Branch of First National Bank of Monahans ( 2009 )

NO. 07-08-0384-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
SEPTEMBER 25, 2009
______________________________
DAVID SAVAGE and LYNDA J. SAVAGE,
Appellants
v.
TEXSTAR BANK, BRANCH OF FIRST NATIONAL
BANK OF MONAHANS,
Appellee
_________________________________
FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2007-541,311; HON. RUBEN REYES, PRESIDING
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Memorandum Opinion
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Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
David and Lynda Savage appeal from a summary judgment granted in favor of
TexStar Bank. TexStar sued the Savages to recover a deficiency on a note once the realty
securing the instrument’s payment was sold at foreclosure. The Savages assert various
grounds on appeal all of which are premised on their purported affirmative defense of
mitigation and the presence of a material question of fact regarding that defense. We
affirm the judgment.
A creditor attempting to collect upon a note secured by a deed of trust has no duty
to mitigate his damages under Texas law. Cocke v. Meridian Sav. Assoc., 778 S.W.2d
516, 520 (Tex. App.–Corpus Christi 1989, no writ) (stating there is no duty to mitigate in
property law). Thus, there can be no material issue of fact relating to the Savages’
mitigation defense since their purported defense is inapplicable here as a matter of law.
Accordingly, the judgment is affirmed.
Brian Quinn
Chief Justice
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