Crowell v. Bexar County
2011 Tex. App. LEXIS 6005
| Tex. App. | 2011Background
- In February 2007, Priscilla Garibay-Crowell executed a promissory note to CIT secured by a Home Equity Deed of Trust with MERS as nominee on the Crowells' homestead in Bexar County.
- Taxes became delinquent; Bexar County, the City of San Antonio, and Northeast Independent School District obtained a judgment for taxes in April 2009 and foreclosed the property in August 2009 for more than owed.
- Excess tax sale proceeds totaling $106,741.76 were deposited with the court; Crowells petitioned in 2009 for release of excess proceeds to themselves under Texas Tax Code § 34.04.
- Assignments occurred: MERS assigned the deed of trust to CitiMortgage, Inc. on Nov. 17, 2009, and CitiMortgage assigned to Bayview on Nov. 17, 2009, with both filings recorded Nov. 18, 2009; Bayview asserted an interest in the excess proceeds.
- The trial court initially ordered the excess proceeds to Crowells; after hearings, it later ruled Bayview had priority and was entitled to the proceeds, prompting Crowell's appeal.
- The appellate court addresses (1) whether Bayview has a proper claim to the excess proceeds and (2) the effect of the retroactive assignment dates on Bayview's rights under § 34.04.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Bayview a proper claimant to the excess proceeds? | Crowells: lien extinguished by foreclosure; Bayview lacks a valid lien to excess proceeds. | Bayview: assignment gave it the lien rights and priority to excess proceeds as assignee in privity with the original lienholder. | Bayview properly claimant; assigns the lien rights to excess proceeds and has priority. |
| Do retroactive assignment dates defeat third-party rights? | Crowells: retroactive dates unallowable to disadvantage third parties. | Bayview: assignments merely transferred existing rights, not create new defenses; retroactivity does not harm third parties here. | Assignments valid; retroactive dates do not defeat Bayview's rights. |
| Did Bayview comply with § 34.04(f)–(h) and (j) regarding assignments to excess proceeds? | Crowells: the assignment terms improperly applied; failure to attach/produce documents or observe restrictions. | Bayview was not bound by Crowells; assignments did not require Crowells' agreement; limitations did not apply as Bayview was the assignee of the lien. | No error in applying § 34.04; issues not raised below are not reviewed; Bayview's rights sustained. |
| Did the court err in determining priority among liens and owners of the excess proceeds? | Crowells: Crowells as former owners should prevail absent valid liens. | Bayview, as assignee of the lien, has priority over Crowells under § 34.04(c). | Assignment valid; Bayview has priority over Crowells. |
Key Cases Cited
- Vernor v. Southwest Fed. Land Bank Ass'n, 77 S.W.3d 364 (Tex.App.-San Antonio 2002) (assignment generally transferable; no prohibited restrictions in deed)
- 718 Assocs., Ltd. v. Sunwest N.O.P., Inc., 1 S.W.3d 355 (Tex.App.-Waco 1999) (privity between assignor and assignee; assignee stands in shoes of assignor)
- CLS Assocs., Ltd. v. A B , 762 S.W.2d 221 (Tex.App.-Dallas 1988) (privity evidence by assignment document; assignee may pursue claim)
- In re FH Partners, L.L.C., 335 S.W.3d 752 (Tex.App.-Austin 2011) (assignment doctrine; personal trust exception does not bar creditor assignments)
- Tittizer v. Union Gas Corp., 171 S.W.3d 857 (Tex. 2005) (oil and gas lease pooling depends on recordation date; assignments may have retroactive effect)
- Strauss v. Belt, 322 S.W.3d 707 (Tex.App.-Austin 2010) (assignment provisions protect former property owners)