Travis Connally v. Countrywide Home Loans, Inc., and Fannie Mae, A/K/A Federal National Mortgage Association ( 2010 )

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-09-00055-CV

                                                ______________________________

                                      TRAVIS CONNALLY, Appellant

                                                                V.

                          COUNTRYWIDE HOME LOANS, INC., AND

FANNIE MAE, A/K/A FEDERAL NATIONAL

MORTGAGE ASSOCIATION, Appellees

                                       On Appeal from the 62nd Judicial District Court

                                                           Franklin County, Texas

                                                            Trial Court No. 10,569

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                            Memorandum Opinion by Justice Moseley

                                                     MEMORANDUM OPINION

            Travis Connally secured a loan owed to America’s Wholesale Lender^[1] with real estate situated in Franklin County, Texas, granting a deed of trust against the property.  Although the record does not reflect how this occurred, Connally’s appellate brief admits that the underlying debt and lien came to be acquired by Countrywide Home Loans, Inc.  On Connally’s failure to comply with the terms of the debt, Countrywide foreclosed its lien through a substitute trustee’s sale conducted May 1, 2007.  Fannie Mae, also known as Federal National Mortgage Association (FNMA), was the purchaser at that sale.

            After the trustee’s sale, FNMA moved to gain possession of the foreclosed realty and, in doing so, filed a forcible detainer action in a Franklin County justice court.  After a ruling in the justice court in favor of Connally, FNMA appealed. 

            Connally filed a separate action in district court against Countrywide and FNMA which, styled as an action in declaratory judgment, sought to determine that the foreclosure (for unspecified reasons) was invalid, to set aside the substitute trustee’s deed and reinstate the ownership to Connally, to reinstate the loan in good stead, and to remove any negative credit consequences resulting from the foreclosure.  The appeal from justice court and the declaratory judgment action were consolidated into one suit.^[2]

            FNMA filed two separate traditional motions for summary judgment, one to determine that it was entitled (pursuant to the forcible detainer action) to possession of the foreclosed property and the other to dispose of Connally’s declaratory judgment claims that the foreclosure had been somehow defective.

            In the motion for summary judgment regarding the forcible detainer action, FNMA attached a business records affidavit which incorporated the following as summary judgment proof:  (1) an instrument (mostly illegible) which purports to be a copy of a warranty deed of the realty in question to Connally; (2) a copy of a deed of trust executed by Connally to Tommy Bastian as trustee for the benefit of America’s Wholesale Lender, the mortgagee, placing a lien upon a tract of land in Mt. Vernon, Franklin County, Texas, which is called to contain 0.223 acres of land; (3) a copy of a substitute trustee’s deed executed by Shannah Walker, substitute trustee, reflecting Countrywide Home Loans, Inc., as the holder of the mortgage which had directed the sale of the mortgaged premises and which purported to convey the same 0.223-acre tract described in the deed of trust to FNMA (attached to this trustee’s deed is an affidavit by Jose Trevino stating that the affidavit related to a lien given by Connally to Mortgage Electronic Registration Systems, Inc., as nominee and that in relation thereto, notice of acceleration and trustee’s sale were filed with the county clerk and posted and were sent to the debtors and that to his “best knowledge and belief,” proper notice of default was served prior to acceleration of the secured indebtedness and the mortgagor was not in the armed services); and (4) notices to “Travis P. Connally” to quit the premises located at 107 Yates Street, Mt. Vernon, Texas.  Not mentioned but attached were copies of envelopes addressed to Connally which were returned unserved by certified mail.  There was also a plea for attorney’s fees and an affidavit for attorney’s fees. 

            In response, Connally filed an answer that somewhat recounted the burden the movant in such a motion bears and stated simply and without elucidation that “[t]here exists a question of material fact in that the non-judicial foreclosure did not meet the requirements of the Texas Property Code and therefore Movant has no legal claim to the property at this time.” The only affidavit presented in contravention was the affidavit of Connally’s attorney that every statement in the response was true and correct.  There was no contravening evidence presented and there was no specification listed as to any particular deficiency in the summary judgment proof. A summary judgment disposing of the issue of forcible detainer only was granted to FNMA by the trial court.

            FNMA’s other traditional motion for summary judgment was in its posture as the defendant to Connally’s claim in the declaratory judgment action.  This motion included:  (1) a copy of the same deed of trust mentioned above; (2) a business records affidavit by Lorena Diaz as the custodian of the records of Countrywide Home Loans, Inc., which incorporated notices of intention to accelerate the loan with certified mail envelopes reflecting attempted service of the same; (3) a business records affidavit by Jacki Fuller which, although not identifying herself as the custodian of the records of Barrett Daffin Frappier & Engle, indicates that she had reviewed its records and concluded that notices of acceleration and notices of sale (copies of which were incorporated by reference, along with copies of envelopes showing unsuccessful attempts to deliver these by certified mail to Connally) were sent by Barrett Daffin Frappier & Engle to Connally at the address last known by Countrywide and that the property was sold at a substitute trustee’s sale (incorporating what is purported to be a true and correct copy of the substitute trustee’s deed).

            In his response to this second motion for summary judgment, Connally alleged that he “could not reasonably have been expected to receive 30 days notice prior to the sale,” that he did not receive notice of default pursuant to Section 51.002(d) of the Texas Property Code, and that Countrywide “failed to comply with all applicable statutes in accordance with the Texas Property Code and in accordance with the terms of the Security Instrument.”  Connally neither identified any particular deficiency in the steps to foreclosure, challenged the form or sufficiency of the summary judgment evidence which had been included in FNMA’s motion, nor provided any contravening summary judgment evidence (other than the same kind of affidavit by his attorney attached to the previous response).

            A final summary judgment disposing of Connally’s claim in declaratory judgment (which also incorporated the partial summary judgment in behalf of FNMA’s claim for forcible detainer) was entered January 29, 2009.

            On appeal, however, Connally points out for the first time what he alleges are deficiencies in the summary judgment proof. He now asserts (1) that the summary judgment proof failed to include a notice containing language which unequivocally gives a notice of sale (stating that it only expressed an intention to sell), (2) that the copy of the notice of sale as tendered for summary judgment proof was not signed, and (3) that the date shown on the notice of sale offered as summary judgment proof was some eleven days later than the date on which it was alleged to have been sent.  He then concludes that a genuine issue of fact exists as to whether Connally received proper notice of sale and alleges that the lack of signature on the copy of the notice of sale and discrepancies in the date shown on it “raises a question of authenticity” as to the summary judgment proof.

            In its reply brief, FNMA first emphasizes that the trial court had twice determined that there was sufficient evidence to grant both summary judgments and that Connally had presented no contravening evidence at the trial level.  Hence, FNMA seems to argue, we should not question the ruling of the trial court as to whether an unresolved question of fact remains.  To adopt this position, we would be forced to ignore the standard of review for summary judgments.

We review a summary judgment de novo.  Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).  We review the evidence presented in the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.  See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002).  The party moving for traditional summary judgment bears the burden of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); see also Knott, 128 S.W.3d at 216.

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

            As a second major point, FNMA urges that Connally’s appellate brief is inadequate and should be rejected, citing Rule 38.1(h) and (i) of the Texas Rules of Appellate Procedure.  Tex. R. App. P. 38.1(h), (i).

            The argument portion of the brief filed by Connally contains only one and a quarter pages; the entire brief cites only one authority, that being Section 51.002(a) and (b) of the Texas Property Code.  The brief cites no caselaw at all.  Rule 38.1(i) of the Texas Rules of Appellate Procedure requires that a brief contain “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”  Tex. R. App. P. 38.1(i).  Bare assertions of error, without argument or authority, waive error.  Bufkin v. Bufkin, 259 S.W.3d 343, 354 (Tex. App.––Dallas 2008, pet. denied); Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 486 (Tex. App.––Dallas 1995, writ denied); see Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994) (discussing “long-standing rule” that point may be waived due to inadequate briefing).

            Although Connally’s submission is so extraordinarily sparse and lacking that we could easily refuse to consider his points as being inadequately briefed, in the interest of justice, we will not dispose of it in its entirety on the basis of inadequate briefing.  On the other hand, we will only examine the omissions which we determine that Connally has specifically raised, considering that any points of error not specifically addressed in his brief have been waived.

            At trial, Connally opted to complain generally in each summary judgment response that the evidence was insufficient to support a summary judgment.  We point out that for the purposes of appeal, since FNMA’s motions for summary judgment were both traditional motions rather than “no evidence” motions pursued under Rule 166a(i) of the Texas Rules of Civil Procedure, it was not necessary for Connally to respond at the trial level in order to raise the issue of the sufficiency of the evidence in the grant of a summary judgment on appeal.  Tex. R. Civ. P. 166a(i).  “Summary judgments must stand on their own merits.  Accordingly, the nonmovant need not respond to the motion to contend on appeal that the movant’s summary judgment proof is insufficient as a matter of law to support summary judgment.”  M. D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000).  As the Texas Supreme Court stated in City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979):

            While it would be prudent and helpful to the trial court for the non-movant always to file an answer or response, the non-movant needs no answer or response to the motion to contend on appeal that the grounds expressly presented to the trial court by the movant’s motion are insufficient as a matter of law to support summary judgment.

Id. at 678 (emphasis added).

            This same latitude does not, however, extend to objections to specific tenders of summary judgment evidence.  Connally now complains on appeal that the copy of the notice of sale as tendered for summary judgment proof was not a signed copy and that it bore a date which would not comport with the date the notice was alleged to have been sent.  Yet, Connally made no complaint concerning these deficiencies in the proffered proof at the trial level in his responses to the motions for summary judgment.  Rule 166a(f) of the Texas Rules of Civil Procedure specifically states in part that “[d]efects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.”  Tex. R. Civ. P. 166a(f).  Because Connally failed to complain of the form of the proffered proof (i.e., that it was not a signed copy) included as summary judgment proof, we will not entertain a reversal of the summary judgment on that account.  We point out further that although Section 51.002 of the Texas Property Code requires that certain notices be sent in the foreclosure procedure, the statute does not contain a requirement that these notices bear a signature.  Tex. Prop. Code Ann. § 51.002 (Vernon Supp. 2009).  Further, there does not appear to be a requirement that any of these notices must bear the date that they are prepared; the statute concentrates on the dates the notices are sent, not the dates the notices bear. 

            General Texas law requires clear notice of intent to exercise acceleration rights, followed (if the debtor continues in default) by notice of actual acceleration.  See Ogden v. Gibraltar Sav. Ass’n, 640 S.W.2d 232, 233–34 (Tex. 1982); Burns v. Stanton, 286 S.W.3d 657, 661–62 (Tex. App.––Texarkana 2009, pet. filed).  Connally further claims that although both motions for summary judgment contain copies of notices of acceleration, only the second of such motions (the one dealing with the action for declaratory judgment) contains a copy of the notice of sale as required by Section 51.002(b) of the Texas Property Code to be posted and sent to the debtor.  Although this is correct, a copy of the notice of acceleration was required only in the action for declaratory judgment, not (as explained below) in the action for forcible detainer.

            An action in forcible detainer is intended to be a speedy and inexpensive means for resolving the question of who is entitled to immediate possession of property without resorting to an action upon title.  Falcon v. Ensignia, 976 S.W.2d 336, 338 (Tex. App.––Corpus Christi 1998, no pet.) (citing Cuellar v. Martinez, 625 S.W.2d 3, 5 (Tex. Civ. App.––San Antonio 1981, no writ)).  The sole issue to be addressed by the trial court is who has the right of immediate possession.  Harrell v. Citizens Bank & Trust Co., 296 S.W.3d 321, 326 (Tex. App.––Texarkana 2009, pet. dism’d); Villalon v. Bank One, 176 S.W.3d 66, 70 (Tex. App.––Houston [1st Dist.] 2004, pet. denied).

            FNMA presented evidence of the deed of trust signed by Connally which granted the power of nonjudicial foreclosure; that deed of trust specifically provided that if the property is sold through foreclosure of the lien, the “Borrower shall immediately surrender possession of the Property to the purchaser at that sale.  If possession is not surrendered, Borrower . . . shall be a tenant at sufferance.”  FNMA also presented evidence of the substitute trustee’s deed.  A person (including an occupant at the time of foreclosure of a lien) who refuses to surrender possession of real property on demand commits a forcible detainer.  Tex. Prop. Code Ann. § 24.002(a)(2) (Vernon 2000).

            Connally’s sole challenge in the forcible detainer action regards the sufficiency of the notices which were predicate to the foreclosure sale and the granting of the substitute trustee’s deed which divested him of title. Connally’s sole challenge goes to the issue of title of the property (i.e., the validity of the trustee’s deed), not to the right of possession.  Rule 746 of the Texas Rules of Civil Procedure highlights the limited purpose of a forcible detainer action, in stating that the “only issue” in a forcible detainer action is “the right to actual possession; and the merits of the title shall not be adjudicated.”  Tex. R. Civ. P. 746. 

            We find the summary judgment evidence in both the action in forcible detainer and in defense of the action for declaratory judgment were sufficient to sustain the judgments against the complaints raised by Connally on appeal.

            We affirm the judgment of the trial court.

                                                                        Bailey C. Moseley

                                                                        Justice

Date Submitted:          February 18, 2010

Date Decided:             March 5, 2010

---

^[1]Mortgage Electronic Registration System, Inc., is shown as an additional beneficiary.

^[2]Because Countrywide and FNMA assumed an identical role in this consolidated suit, references to them are hereafter made collectively in the singular as FNMA.