Angel B. Calegon v. 2009 SWE, LLC
01-16-00596-CV
Tex. App.Sep 28, 2017Background
- In 2011 Calegon bought property from 2009 SWE, secured by a promissory note and deed of trust that allowed 2009 SWE to accelerate the loan and foreclose on default.
- 2009 SWE mailed a notice of trustee’s sale and accompanying letter postmarked November 10, 2014, scheduling foreclosure for December 2, 2014; the letter demanded payment by 9:00 a.m. on the sale date in certified funds.
- Calegon testified she did not receive the mailing at her home until November 28, 2014; she was told by an account rep on November 20 she needed $3,386.39 to cure the default and later was told of an increased payoff.
- On the morning of the sale Calegon attempted to pay partial and then full amounts but was told it was too late; the property was sold at the foreclosure sale for a low price, prompting her wrongful-foreclosure suit.
- 2009 SWE moved for summary judgment, submitting a certified-mail receipt/postmark and affidavits from employees asserting the notice and payoff communications were sent; the trial court granted partial and then final summary judgment for 2009 SWE.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the notice and accompanying correspondence were inadmissible hearsay | Calegon: documents are hearsay and unauthenticated; Martinez did not state he deposited the notice in the mail | 2009 SWE: documents offered to prove mailing/notice (not truth of contents); affidavit and postmark authenticate mailing | Court: Evidence admissible — offered to prove notice, not truth; hearsay objection properly overruled |
| Whether 2009 SWE failed to provide timely 21‑day notice of sale | Calegon: conflicting dates and affidavit language (“forwarded”) create fact issue about actual mailing date and delivery | 2009 SWE: certified‑mail postmark and affidavit constitute prima facie proof of mailing to last known address under Property Code | Court: No fact issue — postmark plus affidavit establish prima facie timely mailing; nonreceipt is not dispositive under §51.002(e) |
| Whether 2009 SWE failed to inform Calegon of the amount required to cure the default | Calegon: not timely informed of accurate payoff before sale | 2009 SWE: account rep told Calegon the cure amount on Nov 20 and updated Nov 28; Calegon admitted being told $3,386.39 on Nov 20 | Court: No fact issue — summary evidence shows Calegon was informed of amount to cure |
| Whether the sale price was grossly inadequate and caused by a defect in proceedings | Calegon: sale price grossly inadequate; defects (notice/payoff) caused the low price | 2009 SWE: even if price low, plaintiff must prove defect + causal link; no defect established | Court: Plaintiff failed to prove a defect in proceedings; wrongful‑foreclosure claim fails as a matter of law |
Key Cases Cited
- KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746 (Tex. 1999) (summary‑judgment standard)
- Cathey v. Booth, 900 S.W.2d 339 (Tex. 1995) (defendant summary judgment may disprove an element or establish an affirmative defense)
- Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195 (Tex. 1995) (summary‑judgment burdens when defendant moves)
- Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex. 2007) (what raises a genuine fact issue on summary judgment)
- McCraw v. Maris, 828 S.W.2d 756 (Tex. 1992) (out‑of‑court statements not hearsay when offered to show notice)
- City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (Tex. App.—Dallas 1992) (statements showing notice admissible for that purpose)
- Lofton v. Allstate Ins. Co., 895 S.W.2d 693 (Tex. 1995) (postmark as prima facie evidence of mailing date)
- Univ. Savings Ass’n v. Springwoods Shopping Ctr., 644 S.W.2d 705 (Tex. 1982) (mortgagee/trustee must comply with deed and statutory notice requirements for foreclosure)
- Zeller v. Univ. Savings Ass’n, 580 S.W.2d 658 (Tex. App.—Houston [14th Dist.] 1979) (affidavit must show affiant’s knowledge to create fact issue about mailing)