Bank of New York Mellon v. Soniavou Books, LLC
403 S.W.3d 900
Tex. App.2013Background
- Books sued Bank of New York Mellon and BAC Home Loans Servicing for foreclosure on a Harris County condo, seeking injunctive relief, declaratory relief, and attorney’s fees, but not relief to void or remove the Deed of Trust.
- On filing, Books obtained a temporary restraining order prohibiting foreclosure; the Bank Parties did not answer or appear.
- Books moved for final default judgment requesting a declaration that the Deed of Trust was void and to remove it from title, and sought attorney’s fees but no monetary damages.
- The trial court granted default judgment and declared the Deed of Trust void and removed from title, based on the pleadings and requests as framed by Books.
- The Bank appeals asserting improper service; the Mortgage Servicer appeals arguing no live controversy, lack of pleading support, and attorney’s fees issues.
- This court reverses the default judgment as to both defendants and remands for further proceedings consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was service of citation proper on the Bank? | Books argues service was improper. | Bank asserts improper citation served on its agent or lack thereof. | Service was improper; reversal as to Bank. |
| Does a live controversy exist between Books and the Mortgage Servicer? | Books contends there is a live controversy over ownership and relief. | Mortgage Servicer contends no live controversy as to declaratory relief. | Yes, a live controversy exists. |
| Do the pleadings support the default judgment against the Mortgage Servicer? | Books asserts the pleaded claims support declaratory relief. | Mortgage Servicer argues relief granted was not requested. | No; relief granted was not requested, error. |
| Should the attorney’s fees award against the Mortgage Servicer be sustained? | Books seeks fees under Declaratory Judgments Act. | Mortgage Servicer challenges the fee award given the relief-modification on remand. | Reversed to address fees on remand under DJA. |
Key Cases Cited
- Primate Const., Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994) (no presumption in restricted appeal for validity of service)
- Alexander v. Lynda’s Boutique, 134 S.W.3d 845 (Tex.2004) (live controversy requirement for declaratory judgments)
- Cunningham v. Parkdale Bank, 660 S.W.2d 810 (Tex.1983) (default judgments must be supported by pleadings)
- Stoner v. Thompson, 578 S.W.2d 679 (Tex.1979) (notice and relief must be within pleadings)
- Barshop v. Medina, 925 S.W.2d 618 (Tex.1996) (awarding costs and attorney’s fees under Declaratory Judgments Act)