Kenneth P. Gross and Betsy L. Gross v. First Texoma National Bank ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00104-CV
KENNETH P. GROSS AND BETSY APPELLANTS
L. GROSS
V.
FIRST TEXOMA NATIONAL BANK APPELLEE
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FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Introduction
Appellants Kenneth P. Gross and Betsy L. Gross appeal the trial court’s
order granting summary judgment in favor of First Texoma National Bank
(Texoma). We affirm.
1
See Tex. R. App. P. 47.4.
Background Facts
On May 23, 2007, Kenneth P. Gross and Betsy L. Gross executed a
promissory note for $600,000 payable to Texoma and a deed of trust for the
property to secure the debt. On November 22, 2008, Texoma sent the Grosses
a “Change in Terms Agreement,” which modified the note’s maturity date, the
payment terms, and the interest rate. Texoma sent a second change agreement
in February 2009, which changed the maturity date and the payment terms. At
some point in 2009, the Grosses notified Texoma of a change of their address.
The Grosses defaulted on the loan, and Texoma foreclosed on the
property. In June 2011, Texoma sent the Grosses a letter stating that the
Grosses owed $52,978.31 under the note, plus post-maturity interest. After the
Grosses failed to make payment, Texoma sued them for a deficiency judgment.
Texoma then moved for summary judgment. The Grosses responded, claiming
that there were genuine issues of material fact regarding the validity of the
Trustee’s Deed, whether Texoma provided proper notice, and the value of the
property at the time of the foreclosure. The Grosses claim that they never
received notice of Texoma’s intent to foreclose or of the foreclosure sale because
the notices were sent to the Grosses’ old address. The trial court granted
summary judgment in favor of Texoma for the principal balance due of
$52,978.31, $3,108.28 in past interest due, post-judgment interest, and
attorney’s fees. The Grosses then filed this appeal.
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Standard of Review
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A plaintiff is entitled to
summary judgment on a cause of action if it conclusively proves all essential
elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710
S.W.2d 59, 60 (Tex. 1986).
Discussion
In their sole issue on appeal, the Grosses argue that summary judgment
was improper because Texoma did not provide them with proper notice of its
intent to accelerate their loan. The right to notice of intent to accelerate and a
notice of acceleration are separate rights. Shumway v. Horizon Credit Corp., 801
S.W.2d 890, 894 (Tex. 1991). Both of those notices are also distinct from a
notice of foreclosure. The Grosses’ issue on appeal lacks much needed clarity
because they seem to apply these terms interchangeably and it is difficult to
discern which arguments they make regarding which type of notice. To further
complicate matters, the notice of acceleration and the notice of foreclosure in this
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case were combined into one document titled “Notice of Acceleration and
Foreclosure.” Texoma argues that in the trial court, the Grosses only complained
that they did not receive notice of Texoma’s intent to foreclose, and thus, the
Grosses waived any complaint regarding notice of intent to accelerate and notice
of foreclosure.
In response to Texoma’s motion for summary judgment, the Grosses
complained that they “never received notice of [Texoma’s] intent to foreclose and
foreclosure sale.” In their motion for new trial, they again complained that
Texoma had sent “all notices of the foreclosure sale to an old address.”
However, in their response to the motion for summary judgment, in a paragraph
regarding the sale price of the house at the foreclosure sale, the Grosses also
argued that notice of intent to accelerate “was not given in accordance with
applicable law and according to the terms of the Note and Deed of Trust.” On
appeal, they explain that the notices they received were deficient because they
were not postmarked and were mailed to the wrong address. Although the
Grosses did not clearly or artfully raise the issue of the notice of intent to
accelerate to the trial court, we will address the Grosses’ arguments regarding all
three notices.
Proper notice is served when a letter is sent by certified mail to a debtor
who is obligated to pay. Tex. Prop. Code Ann. § 51.002(b)(3) (West Supp.
2012); see Stanley v. CitiFinancial Mortg. Co., Inc., 121 S.W.3d 811, 817 (Tex.
App.—Beaumont 2003, pet. denied); Lambert v. First Nat’l Bank of Bowie, 993
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S.W.2d 833, 835 (Tex. App.—Fort Worth 1999, pet. denied). Service of notice by
certified mail is complete when the notice is deposited in the United States mail
and addressed to the debtor at the debtor’s last known address. Tex. Prop.
Code Ann. § 51.002(e); see Stanley, 121 S.W.3d at 817; Lambert, 993 S.W.2d at
835. A party who accomplishes service under this rule establishes a rebuttable
presumption of service. See Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex.
2005) (quoting Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987)).
Here, Texoma sent notice of acceleration and the foreclosure sale by
certified mail with return receipts, which Kenneth Gross signed. The return
receipts are sufficient proof that the Grosses received actual notice of the
acceleration and foreclosure. Contrary to the Grosses’ proposition, nothing in the
property code requires the receipts to bear a postmark. See Tex. Prop. Code
Ann. § 51.002. That the receipts do not bear a postmark is relevant as to
whether a presumption of service existed. Because the Grosses received actual
notice, no presumption was necessary. See Ne. Tex. Staffing v. Ray, 330
S.W.3d 1, 4 (Tex. App.—Texarkana 2010, no pet.) (noting that when attempted
service achieves actual timely delivery to the proper party in a manner that
accomplishes the objective of the rule, and no harm is shown, courts have found
adequate service) (quoting Spiegel v. Strother, 262 S.W.3d 481, 483–84 (Tex.
App.—Beaumont 2008, no pet.)); Goforth v. Bradshaw, 296 S.W.3d 849, 854
(Tex. App.—Texarkana 2009, no pet.) (“The rule’s purpose is to achieve actual
notice.”); Childers v. Childers, No. 14-03-01266-CV, 2004 WL 3557381, at *1 n.3
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(Tex. App.—Houston [14th Dist.] 2004, no pet.) (mem. op.) (noting that the court
“ha[d] no need” for a presumption of service because there was actual proof of
service). The address to which Texoma mailed the notice is also irrelevant to our
analysis, even though it was not the address listed on the deed of trust, because
the record conclusively establishes that the Grosses received actual notice at the
address to which Texoma mailed the notices. See Goforth, 296 S.W.3d at 854.
For these reasons, we hold that it is unnecessary to determine if Texoma met its
burden to prove a rebuttable presumption of service because the Grosses
received actual notice. 2
As to the notice of intent to accelerate, the Grosses argue that the notice
was not sent according to the terms of the deed of trust. The deed of trust
states,
Any notice required to be given under this Deed of Trust,
including without limitation any notice of default and any notice of
sale shall be given in writing, and shall be effective . . . if mailed,
when deposited in the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses shown
near the beginning of this Deed of Trust.
The Grosses argue that the notices they received were sent to a different
address than the one on the deed of trust. The paragraph cited above, however,
expressly applies only to notices required to be given. The promissory note
2
The Grosses’ reliance on Zeller v. Univ. Sav. Assoc., 580 S.W.2d 658
(Tex. Civ. App.—Houston [14th Dist.] 1979, no writ), is misplaced. The Grosses
claim that the certified mail receipt in Zeller was not postmarked. However,
Zeller clearly states that the receipt “reflect[ed] the date of delivery and
postmark.” Id. at 660.
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contains the following waiver: “I and any other person who signs, guarantees[,]
or endorses this Note, to the extent allowed by law, waive presentment, demand
for payment, notice of dishonor, notice of intent to accelerate the maturity of this
note, and notice of acceleration on the maturity of the Note.” The two
subsequent change-in-terms agreements contain almost identical provisions.
Such clear and unequivocal language is effective to waive the right to notice of
intent to accelerate. See Shumway, 801 S.W.2d at 892. Because the Grosses
waived their right of notice of intent to accelerate, such notice was not required
under the deed of trust. Accordingly, we overrule the Grosses’ issue.
Conclusion
Having overruled the Grosses’ sole issue on appeal, we affirm the trial
court’s judgment.
LEE GABRIEL
JUSTICE
PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.
DELIVERED: July 11, 2013
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