Dean Wael Dabbasi v. PNC Bank National Association ( 2022 )

Opinion issued August 4, 2022
In The
Court of Appeals
For The
First District of Texas
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NO. 01-20-00857-CV
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DEAN WAEL DABBASI, Appellant
V.
NEWREZ MORTGAGE LLC D/B/A SHELLPOINT MORTGAGE
SERVICING, SUCCESSOR-IN-INTEREST TO PNC BANK, NATIONAL
ASSOCIATION, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Case No. 19-DCV-261678
MEMORANDUM OPINION
NewRez Mortgage LLC d/b/a Shellpoint Mortgage Servicing, as successor-
in-interest to PNC Bank, National Association, brought suit against Dean Wael
Dabbasi for breach of contract and sought judicial foreclosure on a home equity note.
NewRez filed a motion for traditional summary judgment on its claim. After a
hearing, the trial court granted the motion, determined the amount of NewRez’s lien
on the property, and authorized NewRez to commence foreclosure proceedings.
In his sole issue on appeal, Dabbasi argues that the trial court committed
reversible error by basing its summary judgment ruling solely on arguments
presented at the hearing and not on the summary judgment motion itself or on the
evidence. We affirm.
Background
In 2003, Dean Dabbasi executed a home equity note and deed of trust in favor
of National City Mortgage Co., d/b/a Accubanc Mortgage, on a parcel of real
property located in Missouri City, Texas. The deed of trust required Dabbasi to
maintain property insurance and provided that if he did not do so, the lender could
obtain insurance coverage on the property through a “force-placed” policy at
Dabbasi’s expense. Any amounts expended by the lender to obtain force-placed
insurance coverage would become “additional debt” of Dabbasi secured by the deed
of trust.
Dabbasi maintained property insurance for nearly a decade, but in 2012, his
insurance coverage lapsed. Several months later, PNC Bank, as assignee of the deed
of trust, sent Dabbasi a series of letters notifying him of the lapse in coverage and
warning him that if he did not cure the problem, the bank would obtain a force-
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placed insurance policy for the property at Dabbasi’s expense. Dabbasi did not
respond to PNC Bank’s letters. The bank obtained a force-placed insurance policy
and charged the premium to Dabbasi’s escrow account. PNC Bank then recalculated
and increased Dabbasi’s monthly payment to account for the premium expenditure,
and it debited the higher monthly payment from Dabbasi’s bank account. This action
caused Dabbasi to contact PNC Bank and dispute the higher amount.
After PNC Bank renewed the force-placed insurance policy and during the
parties’ ongoing discussions about the monthly payment amount, Dabbasi obtained
insurance coverage in late September 2013. PNC Bank ultimately did not charge
him for the force-placed policy’s renewal premium, but it insisted on a higher
monthly payment amount to cover the premium of the first force-placed policy. For
several months, Dabbasi attempted to pay the monthly payment amount set out in
his initial loan documents, but PNC Bank did not accept these payments because
they were not for the recalculated higher amount. It is undisputed that Dabbasi did
not make or attempt to make any payments after September 2014.
In 2019, PNC Bank accelerated the balance of the note. It then filed suit
against Dabbasi and alleged that he had defaulted on the note by failing to make the
required payments as they came due. PNC Bank asserted a claim for breach of
contract and sought judicial foreclosure. During the course of the litigation, NewRez
Mortgage LLC d/b/a Shellpoint Mortgage Servicing (“NewRez”) became PNC
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Bank’s successor-in-interest, and it is the current holder of the note on Dabbasi’s
property.
NewRez moved for traditional summary judgment on its own claim. It argued
that Dabbasi defaulted on the note by failing to maintain insurance coverage and
then, after a force-placed policy was imposed and the cost of its premium added to
Dabbasi’s monthly payment, he defaulted by failing to pay the recalculated payment
amount. It argued that the note had been in arrears since September 2014, and
Dabbasi owed a total of $193,480.50 on the note, including unpaid principal,
interest, fees, and penalties. As summary judgment evidence, NewRez attached
documents including the note, the deed of trust, the 2013 letters from PNC Bank
concerning insurance coverage, the notice of acceleration, and a loan history
showing charges and missed payments.
Dabbasi responded to the motion for summary judgment and argued that he
did not breach the contract, but if he did, PNC Bank materially breached the contract
first by increasing his monthly payments without authorization. He argued that PNC
Bank refused to provide an explanation for the increase and then refused to accept
his tender of the monthly payments in the amount required in the note and initial
loan documents. In an affidavit, Dabbasi claimed that he never received the letters
that PNC Bank sent in early 2013 concerning the problem with insurance coverage.
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The trial court held a hearing on the motion in September 2020. At the
beginning of the hearing, the court stated, “You want summary judgment. Tell me
why.” NewRez’s counsel then summarized the arguments in its summary judgment
motion, pointed to specific exhibits that supported its arguments, and addressed
arguments that Dabbasi had made in his response. Counsel stated that NewRez’s
records showed that Dabbasi had not made any payments after 2014 and the note
was “now six years behind.” Dabbasi argued that he raised a fact issue on whether
he had received the 2013 letters from PNC Bank, and he was unaware of the
insurance coverage issue before PNC Bank increased his monthly payments.
At the close of the hearing, the trial court stated, “I’m going to grant the
motion for summary judgment. I think it’s well founded.” To Dabbasi’s counsel, the
court stated, “I can’t believe that your client has not made a payment in all that time
and would like more time—would like us to wait for a jury trial, a trial that may not
happen in this—in these courts for over a year.”
The court signed a final judgment granting NewRez’s summary judgment
motion. The judgment stated:
After consideration of the Traditional Motion for Final Summary
Judgment of NewRez Mortgage LLC d/b/a Shellpoint Mortgage
Servicing, successor-in-interest to PNC Bank, National Association,
(“Plaintiff”), against Dean Wael Dabbasi, the response, argument of
counsel, pleadings, evidence, admissions, affidavits, stipulations of the
parties, authenticated or certified public records, if any, on file at the
time of the hearing, the Court finds that the Motion should be
GRANTED.
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The court ordered that NewRez is the holder of the note, it holds a valid security
interest in the property, and Dabbasi defaulted under the note. The court ordered that
the amount of the lien held by NewRez is $193,480.50, and it awarded NewRez trial-
level and conditional appellate-level attorney’s fees. The court also authorized
NewRez to engage in foreclosure proceedings.
Dabbasi filed a motion “for new hearing” on NewRez’s summary judgment
motion. This motion was overruled by operation of law, and this appeal followed.
Permissible Considerations in Granting Summary Judgment
In his sole issue on appeal, Dabbasi argues that the trial court erred by granting
NewRez’s summary judgment motion based on the arguments that counsel presented
at the hearing and not on the motion itself and the summary judgment evidence. He
argues that the court “made no indication that it had reviewed the pleadings or the
evidence and instead indicated that the ruling was made by argument.”
A. Standard of Review
We review a trial court’s summary judgment ruling de novo. Odyssey 2020
Acad., Inc. v. Galveston Cent. Appraisal Dist., 624 S.W.3d 535, 540 (Tex. 2021). In
a traditional summary judgment motion, the movant bears the burden to establish
that no genuine issue of material fact exists and it is entitled to judgment as a matter
of law. TEX. R. CIV. P. 166a(c). When a plaintiff moves for summary judgment on
its own cause of action, it must conclusively prove all essential elements of his claim
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as a matter of law. Leonard v. Knight, 551 S.W.3d 905, 909 (Tex. App.—Houston
[14th Dist.] 2018, no pet.). If the summary judgment movant establishes his
entitlement to judgment, the burden shifts to the nonmovant to present evidence
sufficient to raise a genuine issue of material fact. Id.; see Lujan v. Navistar, Inc.,
555 S.W.3d 79, 84 (Tex. 2018).
Summary judgment is improper if the nonmovant brings forth more than a
scintilla of probative evidence to raise a fact issue. King Ranch, Inc. v. Chapman,
118 S.W.3d 742, 751 (Tex. 2003). More than a scintilla of evidence exists when the
evidence rises to a level that would enable reasonable and fair-minded people to
differ in their conclusions. Id. When reviewing a summary judgment ruling, we take
as true all evidence favorable to the nonmovant, and we indulge every reasonable
inference and resolve any doubts in the nonmovant’s favor. Hillis v. McCall, 602
S.W.3d 436, 440 (Tex. 2020) (quoting Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005)).
B. Analysis
A motion for summary judgment shall state the specific grounds for the ruling.
TEX. R. CIV. P. 166a(c). The trial court shall render the judgment sought by the
movant if:
(i) the deposition transcripts, interrogatory answers, and other
discovery responses referenced or set forth in the motion or response,
and (ii) the pleadings, admissions, affidavits, stipulations of the parties,
and authenticated or certified public records, if any, on file at the time
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of the hearing, or filed thereafter and before judgment with permission
of the court, show that, except as to the amount of damages, there is no
genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law on the issues expressly set out in the motion
or in an answer or any other response.
Id. A trial court’s decision in a summary judgment proceeding must be based on the
written motion, response, and attached proof. See id.; Hollywood Park Humane
Soc’y v. Town of Hollywood Park, 261 S.W.3d 135, 139 n.2 (Tex. App.—San
Antonio 2008, no pet.).
“Longstanding case law only permits the appellate court to look to the trial
court’s formal summary-judgment order to determine the trial court’s grounds, if
any, for its ruling.” Gonzales v. Thorndale Coop. Gin & Grain Co., 578 S.W.3d 655,
657 (Tex. App.—Houston [14th Dist.] 2019, no pet.); Mattox v. Cnty. Comm’rs Ct.,
389 S.W.3d 464, 469 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (“The
trial court’s rulings are contained in the summary-judgment orders signed by the trial
court.”). Additionally, we presume the regularity of judgments, absent controverting
evidence in the record. State Off. of Risk Mgmt. v. Berdan, 335 S.W.3d 421, 424
(Tex. App.—Corpus Christi–Edinburg 2011, pet. denied); S. Ins. Co. v. Brewster,
249 S.W.3d 6, 13 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (“Well-settled
law compels that we presume that proceedings in the trial court, as well as its
judgment, are regular and correct.”). The presumption of validity is rebuttable, but
the burden to rebut the presumption is upon the party challenging the judgment.
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Garza v. Tex. Alcoholic Beverage Comm’n, 83 S.W.3d 161, 166 (Tex. App.—El
Paso 2000), aff’d, 89 S.W.3d 1 (Tex. 2002).
In the related context of determining whether a trial court has considered late-
filed summary judgment evidence in making its ruling, appellate courts look to
whether an “affirmative indication” of consideration of this evidence appears in the
record. See, e.g., Auten v. DJ Clark, Inc., 209 S.W.3d 695, 702 (Tex. App.—Houston
[14th Dist.] 2006, no pet.). An example of such an “affirmative indication” includes
a recital in the summary judgment order that the court considered “the evidence”
without any qualification. See, e.g., B.C. v. Steak N Shake Operations, Inc., 598
S.W.3d 256, 262 (Tex. 2020) (per curiam) (“Because the trial court recited that it
had considered ‘the pleadings, evidence, and arguments of counsel,’ the court of
appeals should have considered that evidence as well in its review of the trial court’s
summary judgment.”); Stavron v. SureTec Ins. Co., No. 02-19-00125-CV, 2019 WL
6768125, at *6 (Tex. App.—Fort Worth Dec. 12, 2019, no pet.) (mem. op.) (stating
that summary judgment order “makes clear” that trial court considered supplemental
evidence attached to reply when order stated that court considered motion, response,
and replies).
Here, Dabbasi acknowledges that the trial court recited in the final judgment
that it considered NewRez’s summary judgment motion and the supporting
evidence. Indeed, the final judgment stated that the court considered the motion for
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summary judgment, “the response, argument of counsel, pleadings, evidence,
admissions, affidavits, stipulations of the parties, authenticated or certified public
records, if any, on file at the time of the hearing, [and] the Court finds that the Motion
should be GRANTED.”
Dabbasi argues, however, that at the summary judgment hearing, the trial
court gave no indication that it had read the motion, reviewed the evidence, or made
its decision based on the evidence, and instead the record reflected the contrary.
Specifically, Dabbasi points to the court’s statement, made to NewRez’s counsel at
the beginning of the hearing, that “[y]ou want summary judgment. Tell me why.”
He also points to the court’s statement, after hearing argument from both parties,
that it was “going to grant the motion for summary judgment” and that it believed
the motion was “well founded.” The court further addressed Dabbasi’s counsel and
stated, “I can’t believe that your client has not made a payment in all that time and
would like more time—would like us to wait for a jury trial, a trial that may not
happen in this—in these courts for over a year.”
We do not agree that these statements made during the hearing are indications
that the trial court failed to review the summary judgment motion or the attached
evidence. Rather, the court’s statements during the hearing are consistent with
simply requesting that NewRez begin the hearing by summarizing its arguments
stated in the motion for why it believed it was entitled to summary judgment. The
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court also asked questions during the hearing that were consistent with points
contained in the written motion and response, as well as during oral arguments.1
Furthermore, the written final judgment recites that the trial court considered,
among other things, NewRez’s summary judgment motion, Dabbasi’s response,
arguments of counsel, and evidence in determining that the summary judgment
motion should be granted. Dabbasi points to nothing in the appellate record that
contradicts this recital. See Garza, 83 S.W.3d at 166 (stating that presumption of
regularity of judgments is rebuttable, but party challenging judgment bears burden
to rebut presumption). We therefore conclude that Dabbasi has not demonstrated that
the trial court committed reversible error in granting NewRez’s motion for summary
judgment. See TEX. R. CIV. P. 166a(c).
We overrule Dabbasi’s sole issue.
1
For example, the trial court asked NewRez’s counsel what Dabbasi’s monthly
payments were on the loan and the address to which PNC Bank sent the 2013 letters
concerning the insurance coverage issue.
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Conclusion
We affirm the judgment of the trial court.
April L. Farris
Justice
Panel consists of Chief Justice Radack and Justices Countiss and Farris.
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