Eleftherios Kaldis AKA Ted Kaldis and Monica Kaldis v. Aurora Loan Services, 424 S.W.3d 729

Background

Eleftherios and Monica Kaldis owned property secured by a 2007 deed of trust and defaulted on the loan; Aurora Loan Services (servicer) initiated foreclosure and set a trustee sale for November 4, 2008.
Aurora recorded a substitute trustee deed after a nonjudicial foreclosure and later obtained a forcible-entry-and-detainer judgment when the Kaldises refused to vacate.
The Kaldises sued Aurora asserting wrongful foreclosure, wrongful eviction, breach of contract, fraud, and usury; Aurora moved for traditional and no-evidence summary judgment on all claims.
Central legal dispute: whether Aurora complied with Tex. Prop. Code § 51.002(b) by serving written notice of the trustee’s sale by certified mail at least 21 days before the sale (i.e., mailed on or before October 13, 2008).
Summary-judgment record: business-record letters dated October 13, 2008 and prepared certified-mail forms (PS Forms 3800/3811) but no receipt/return cards or affidavit that a specific mailing occurred on that date; affidavits from the Kaldises denying receipt and an affidavit describing the law firm’s customary mailing practices (but lacking corroboration that the routine was followed for these notices).
Trial court granted summary judgment in Aurora’s favor dismissing all claims with prejudice; the appellate court reversed and remanded as to the wrongful-foreclosure and related declaratory-relief claims and affirmed the remainder.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether written notice of the foreclosure sale was mailed under Tex. Prop. Code § 51.002(b)	Kaldises: genuine fact issue exists — no proof notices were mailed and they did not receive them	Aurora: business records, dated letters, prepared certified-mail forms, and custom/practice affidavit show notices were mailed	Held: Reversed & remanded on wrongful-foreclosure — genuine fact issue because no direct or corroborated circumstantial evidence that notices were deposited in mail on/ before Oct. 13, 2008
Whether trial court properly granted no-evidence summary judgment on breach, fraud, and usury claims	Kaldises: discovery and evidence create fact issues	Aurora: no evidence of essential elements	Held: Kaldises’ challenge to these claims overruled on appeal (no reversible error shown)
Whether summary judgment should have been stayed because motion to compel and discovery were pending	Kaldises: summary judgment premature while discovery ongoing and motion to compel unresolved	Aurora: summary judgment proper; Kaldises did not seek continuance or file verified motion/affidavit showing need for more discovery	Held: Overruled — Kaldises failed to preserve complaint by not filing affidavit or verified motion for continuance
Whether inclusion of dismissal-with-prejudice and denial of supersedeas bond relief were erroneous	Kaldises: trial court erred including prejudice language and denying emergency supersedeas relief	Aurora: judgment was final and did not award money; no basis for bond or stay; dismissal language not raised below	Held: Overruled — complaints not preserved or without merit; county forcible-detainer judgment enforcement not stayed by district court remedy here

Key Cases Cited

M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22 (Tex. 2000) (burden shift in traditional summary-judgment practice)
Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193 (Tex. 2002) (no-evidence summary-judgment review)
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006) (de novo review and evidence-viewing standard favoring nonmovant)
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex. 2007) (standard for determining genuine fact issues)
Wembley Inv. Co. v. Herrera, 11 S.W.3d 924 (Tex. 1999) (circumstantial proof of mailing via business routine requires corroboration)
Tex. Emp. Ins. Ass'n v. Wermske, 349 S.W.2d 90 (Tex. 1961) (corroboration required when proving mailing by routine practice)