Ricardo Vaiz and Maria F. Vaiz v. Federal National Mortgage Association, Aurora Bank, Lehman Brothers Bank FSB, and Nationstar Mortgage LLC

NUMBER 13-17-00437-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RICARDO VAIZ AND
MARIA F. VAIZ, Appellants,
v.
FEDERAL NATIONAL MORTGAGE
ASSOCIATION, AURORA BANK, FSB,
LEHMAN BROTHERS BANK FSB, AND
NATIONSTAR MORTGAGE LLC, Appellees.
On appeal from the 138th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Justice Benavides
Appellants Ricardo and Maria Vaiz challenge the trial court’s summary judgment
in favor of appellees Federal National Mortgage Association, Lehman Brothers Bank FSB,
Nationstar Mortgage LLC, and Aurora Bank, FSB, on the Vaiz’s claims for breach of
contract and wrongful foreclosure. By four issues, that we construe as two, Vaiz
complains that notice was not provided as required by contract or statute, and that the
trial court erred by accepting an insufficient power of attorney. We affirm.
I. BACKGROUND1
Appellants bought the property at issue2 in 2007 and obtained a purchase money
loan in the amount of $414,900 from Lehman Brothers. The promissory note provided:
Unless applicable law requires a different method, any notice that must be
given to me [the mortgage holder] under this Note will be given by delivering
it or mailing it by first class mail to me at the Property Address above or at
a different address if I give the Note Holder a notice of my different address.
The Deed of Trust provided separately:
Any notice to Borrower in connection with this Security Instrument shall be
deemed to have been given to Borrower when mailed by first class mail or
when actually delivered to Borrower’s notice address if sent by other means.
Notice to any one Borrower shall constitute notice to all Borrowers unless
Applicable Law expressly required otherwise. The notice address shall be
the Property Address unless Borrower has designated a substitute notice
address by notice to Lender. . . . There may be only one designated notice
address under this Security Instrument at any one time.
The property address in the Deed of Trust was West Cantu Road, Santa Rosa, Texas
78593 (the property address). The property is a rural single-family residence on ten
acres outside of Harlingen. Lehman Brothers assigned the mortgage servicing obligations
to Aurora Loan Services (Aurora) in September 2007.
On March 17, 2011, Aurora sent a default notice addressed to Maria and Ricardo
1The facts are taken from the exhibits attached to Nationstar’s Motion for Summary Judgment and
Business Records Affidavit, as well as the exhibits to Appellants’ response.
2 The property is described in the Deed of Trust as: “The North 10 acres of the West 20 acres out
of the South 40 acres of Block 10, Cameron County Development Company’s Subdivision, Cameron
County, Texas, according to the map recorded in Volume 4, page 45, Map Records of Cameron County,
Texas.”
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Vaiz at 1601 E. Mile 14 ½ N, Weslaco, Texas 78596-2466 (the Weslaco address) stating
they were in arrears in the amount of $3,623.94 and giving them an opportunity to cure
the default. Aurora sent ten additional default notices to Appellants at the Weslaco
address between April 5, 2011 and May 15, 2012. Aurora sent five additional default
notices not only to the property address but also to the Weslaco address between
November 18, 2011 and May 15, 2012.
On June 15, 2012, American Consumer Advocates Law Group, Inc. (Law Group)
sent a notice to Aurora by fax that stated:
I hereby appoint American Consumer Advocates Law Group, Inc. and
its assignees to discuss all matters concerning my payment assistance
request with my Mortgage Company, named above. American
Consumer Advocates Law Group, Inc. and its assignees is authorized
to work out the terms of a payment agreement with my Mortgage Company,
and to receive and inspect all information regarding my payment assistance
request. I understand that I am solely responsible to review all information
sent by my Mortgage Company to American Consumer Advocates Law
Group, Inc. and it’s [sic] assignees concerning my payment assistance
request. (emphasis in original).
The notice was dated June 15, 2012, and titled, “THIRD PARTY AUTHORIZATION
LETTER” (emphasis in original). The notice also identified the Law Group as the
“DESIGNATED AGENT” and was signed by Appellants. The fax transmittal cover sheet
showed that it was regarding “RICHARD VAIZ, LOA AND CEASE AND DESIST.”
Attached to the notice was a letter of representation from the Law Group which stated:
Re: Attorney Representation
To Whom It May Concern
Allow this letter to serve as the official notification to AURORA that
RICARDO VAIZ has retained our firm for the purpose of Loss Mitigation
negotiation with your organization for the Client’s mortgaged property
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located at WEST CANTU RD, SANTA ROSA, TX 78593. You are hereby
instructed to cease and desist any collection efforts directly involving the
Client. In the exercise of Attorney-Client privilege, from this point until
negotiations are concluded, any further contact regarding the matter of
mortgage loan number 0047490545 should be directed only to the following:
American Consumer Advocates Law Group, Inc.
3001 Executive Drive, Suite 300
Clearwater, FL 33762
Ph. (877) 320-6950
Fx. (888) 252-5043
On behalf of the Client, we thank you in advance for your attention to this
matter. Feel free to contact our firm if you have any questions regarding
this instruction. (emphasis added).
On June 15, 2012, Aurora mailed a letter to Appellants at the Weslaco address
advising them of the transfer of loan servicing to Nationstar Mortgage, LLC (Nationstar)
effective July 1, 2012.
On July 15, 2012, Nationstar mailed Appellants a letter to 3001 Executive Dr., Suite
300, Clearwater, Florida 33762 (the Florida address) which stated the current amount
due of over $13,000 and gave them an opportunity to cure. On that same date,
Nationstar also sent a “Notice of Assignment, Sale, Or Transfer of Servicing Rights” letter
to Richard Vaiz at the Florida address. On October 15, 2012, counsel for Nationstar sent
a “Notice of Acceleration Enclosing Notice of Substitute Trustee’s Sale” addressed to
Ricardo Vaiz by first class and certified mail at the Florida address advising him that
Nationstar accelerated the note and the Substitute Trustee’s sale would be conducted on
November 6, 2012, between 1:00 and 4:00 o’clock in the afternoon at the Cameron
County Commissioner’s Court.
Connie Medley, the substitute trustee appointed by Nationstar, issued a Substitute
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Trustee’s Deed that that set out the date of sale and certified compliance with the notice
provisions of section 51.002 of the property code. TEX. PROP. CODE ANN. § 51.002 (West,
Westlaw 2017 through 1st C.S.). The property was sold to Federal National Mortgage
Association for $412,382.45. Janice Vessella3 provided an affidavit that was attached
to Medley’s Substitute Trustee’s Deed in which Vessella swore
the undersigned caused written notice of the proposed sale of the real
property encumbered by said Deed of Trust scheduled for the 6th day of
November 2012, to be mailed certified mail return receipt requested on each
debtor obligated to pay the indebtedness secured by said Deed of Trust
according to the records of such holder or agent at least twenty-one (21)
days preceding the date of the scheduled sale.
Appellants filed suit in April 2013 in Cameron County seeking to set aside the
foreclosure sale on the grounds that Nationstar failed to provide proper notices of default,
opportunity to cure, acceleration, and foreclosure. Appellants asserted claims for breach
of contract and wrongful foreclosure. Nationstar answered by general denial, asserted
affirmative defenses, and sought attorneys’ fees and costs.
In August 2014, Nationstar filed a no-evidence motion for summary judgment to
which Appellants responded. The trial court denied the motion in March 2015.
In February 2016, Nationstar filed a traditional motion for summary judgment.
Appellants responded with two pieces of evidence, a 2010 notice from Aurora recognizing
their Weslaco address and Ricardo Vaiz’s affidavit stating neither he nor his wife received
proper notice. The trial court granted Nationstar’s motion for summary judgment by
order dated August 29, 2016.
3The record does not reflect Vessella’s employer or identify her position or affiliation in these
proceedings.
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Nationstar filed a motion for entry of final judgment on December 22, 2016.
Appellants responded, and the trial court granted Nationstar’s motion for entry of final
judgment on June 2, 2017.4 Appellants filed this appeal.
II. SUMMARY JUDGMENT
By issues one and three, Appellants challenge the trial court’s grant of summary
judgment on the grounds that they did not receive notice of acceleration and foreclosure
and that Nationstar’s notice did not comply with Chapter 51 of the Texas Property Code
because Maria Vaiz was not given notice. In response, Nationstar argued Appellants
failed to challenge all possible grounds that supported the trial court’s general grant of
summary judgment. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). Nationstar
further argues that notice was proper.
A. Standard of Review
We review the trial court’s granting of a motion for summary judgment de novo.
Cantey Hanger, LLP v. Boyd, 467 S.W.3d 477, 481 (Tex. 2015); Provident Life & Accident
Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). When reviewing a traditional
summary judgment, we must determine whether the movant met its burden to establish
that no genuine issue of material fact exists and that the movant is entitled to judgment
as a matter of law. TEX. R. CIV. P. 166a(c); Cantey Hanger, LLP, 467 S.W.3d at 481.
The movant bears the burden of proof, and all doubts about the existence of a genuine
issue of material fact are resolved against the movant. See Nalle Plastics Fam. Ltd.
P’ship v. Porter, Rogers, Dahlman & Gordon, P.C., 406 S.W.3d 186, 200 (Tex. App.—
4Although the judgment reflects a date of June 2, 2016, the court’s file stamp reflects the correct
year, 2017.
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Corpus Christi 2013, pet. denied). In reviewing the grant of summary judgment, we must
credit evidence favoring the nonmovant, indulging every reasonable inference and
resolving all doubts in his or her favor. Cantey Hanger, LLP, 467 S.W.3d at 481;
Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).
When a trial court’s order granting summary judgment does not specify the ground
or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of
the theories advanced are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242
(Tex. 2001); Carr, 776 S.W.2d at 569; Garcia v. Tex. Cable Partners, L.P., 114 S.W.3d
561, 567 (Tex. App.—Corpus Christi 2003, no pet.). The non-movant must expressly
present to the trial court in a written answer or response to the motion any reason for
avoiding the movant’s entitlement to summary judgment. TEX. R. CIV. P. 166a(c); TEX.
R. APP. P. 33.1(a)(1) (requiring that the record show that a claim was raised in the trial
court in order to present it for appellate review); see also D.R. Horton–Tex., Ltd. v. Market
Int’l Ins. Co., 300 S.W.3d 740, 743 (Tex. 2009) (nonmovant “must present its objections
to a summary judgment motion expressly by written answer or other written response to
the motion in the trial court or that objection is waived”).
B. Breach of Contract
Nationstar’s summary judgment motion argued that the affidavits by the substitute
trustee and Vessella provided prima facie evidence that the foreclosure was conducted
pursuant to the requirements of the property code. In addition, Nationstar argued that
Appellants’ breach of contract claim failed because they did not establish that they were
not in breach themselves.
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1. Elements of Breach of Contract
The elements of a breach-of-contract action are (1) the existence of a valid
contract, (2) performance or tendered performance by the plaintiff, (3) breach of the
contract by the defendant, and (4) damages sustained by the plaintiff as a result of the
breach. Frost Nat’l Bank v. Burge, 29 S.W.3d 580, 593 (Tex. App.—Houston [14th Dist.]
2000, no pet.). A breach occurs when a party fails or refuses to do something he has
promised to do. See Townewest Homeowners Ass’n v. Warner Comm’n Inc., 826
S.W.2d 638, 640 (Tex. App.—Houston [14th Dist.] 1992, no writ); see also Coffman v.
Coffman, No. 13-12-00303-CV, 2014 WL 7465596 at *5 (Tex. App.—Corpus Christi Jan.
26, 2015, no pet.) (Mem. Op.).
2. Breach by Nonpayment
Appellants’ original petition and motion to set aside sale of trustee alleged breach
of contract based upon Nationstar’s foreclosure without the required notice to Appellants.
Nationstar’s motion for summary judgment negated elements of Appellants’ contract
claim: 1) Appellants’ prior breach by failing to make their mortgage payments which they
admitted, and 2) by establishing that Nationstar’s notice was proper. Appellants’
response attached evidence that addressed only the notice issue. Neither Appellants’
response nor the attached evidence addressed their prior breach.
We do not know whether the trial court granted summary judgment based upon
Appellants’ prior breach or on some other ground. Because Appellants did not challenge
prior breach either in their written response or by their evidence, they have waived it as a
basis for appeal. See D.R. Horton–Tex., Ltd., 300 S.W.3d at 743. Accordingly, we
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overrule in part Appellants’ first and third issues as to their breach of contract claim. TEX.
R. APP. P. 33.1(a).
C. Wrongful Foreclosure
The elements of wrongful foreclosure are: 1) a defect in the foreclosure sale
proceeding, 2) a grossly inadequate selling price, and 3) a causal connection between
the defect and the grossly inadequate selling price. See Sauceda v. GMAC Mtg. Corp.,
268 S.W.3d 135, 139 (Tex. App.—Corpus Christi 2008, no pet.); Terra XXI, Ltd. v.
Harmon, 279 S.W.3d 781, 787–88 (Tex. App.—Amarillo 2007, pet. denied).
Appellants’ home was sold for $412,382.45. The property appraised at $498,000
in 2007 when the loan was made. In Terra XXI, the court cited Richardson v. Kent for
the proposition that a price that exceeds 50% of the fair market value is not grossly
inadequate as a matter of law. 279 S.W.3d at 787–88; Richardson, 47 S.W.2d 420, 425
(Tex. Civ. App.—Dallas 1932, no writ). The sale here recovered roughly 82% of the
appraised value of the property which is not “grossly inadequate.” Terra XXI, 279
S.W.3d at 788; Citizens Nat’l Bank of Lubbock v. Maxey, 461 S.W.2d 138, 143 (Tex. Civ.
App.—Amarillo 1970, writ ref’d n.r.e.) (holding that sale of stocks for over 60% of market
value was not grossly inadequate despite contrary jury finding); see also Richardson v.
Wells Fargo Bank, N.A., 873 F. Supp. 800, 813 (N.D. Tex. 2012) (finding summary
judgment on the wrongful foreclosure was proper when the sale recovered over eighty
percent of property’s value).
Because Nationstar’s summary judgment evidence negated an element of
Appellants’ wrongful foreclosure claim and Appellants did not provide evidence that raised
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an issue of material fact on that element, the trial court properly granted summary
judgment. TEX. R. CIV. P. 166a(c). We overrule Appellants’ first and third issues in part
as to their wrongful foreclosure claim.
III. POWER OF ATTORNEY
By issues two and four, Appellants contend that the trial court improperly construed
the letter from their attorney as a power of attorney. Because we affirm the summary
judgment on breach of contract claim based upon Appellants’ failure to challenge all of
the grounds of Nationstar’s motion for summary judgment, we need not address
Appellants’ power of attorney argument. Furthermore, this argument was not raised in
the trial court and is therefore not preserved for review on appeal. See TEX. R. CIV. P.
166a(c); D.R. Horton–Texas, Ltd., 300 S.W.3d at 743.
IV. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES,
Justice
Delivered and filed the
7th day of March, 2019.
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