Gerald Joseph Bauder v. Sara Alegria
480 S.W.3d 92
| Tex. App. | 2015Background
- Sara Alegria bought property at 1825 Neuman St. in 2010; deed of trust listed her mailing address as 704 Roosevelt St. and named Sara and her brother Manuel as makers of the note.
- Gerald Bauder (note holder) authorized his son Robert to collect payments; Robert collected payments at both addresses and exchanged text messages with Sara about her residence.
- In May–June 2013 the trustee (Gerald’s counsel) mailed a Notice to Cure and a foreclosure notice by certified mail to 704 Roosevelt; no notices were mailed to 1825 Neuman.
- Sara sued to set aside the foreclosure sale, alleging improper notice; the trial court set aside the sale but denied Sara attorney’s fees.
- On appeal, Gerald challenged the notice finding, the sufficiency of evidence about a change-of-address notice to the servicer, and the trial court’s refusal to require Sara to tender payment; Sara cross-appealed the denial of attorney’s fees.
Issues
| Issue | Plaintiff's Argument (Alegria) | Defendant's Argument (Bauder) | Held |
|---|---|---|---|
| Whether notices were sent to debtor’s last known address under Tex. Prop. Code §51.002/§51.0001 | Notices went to wrong address because servicer (Robert) had notice Sara lived at Neuman St.; servicer’s records showed Neuman as last known address | Deed listed Roosevelt as residence; Sara was required to provide written change of address to make Neuman her last known address | Court found evidence sufficient that Robert’s records showed Neuman as Sara’s last known address; notices were mailed to the wrong address and notice requirement was not satisfied |
| Whether Sara gave reasonable notice of address change to the mortgage servicer | Text messages and payment interactions put Robert on notice that Sara resided at Neuman; no written notice was required under the Property Code for debtor’s residence | Servicer argues residence at the time of deed execution controls and written notice was required for change | Court held evidence legally and factually sufficient that Sara gave Robert reasonable notice of the change of address; written notice not required under applicable provisions |
| Whether trial court erred by setting aside foreclosure without requiring tender of full debt | Sara was current on payments and had insured the property; setting aside was equitable without full tender | Bauder argued equity required Sara to tender full balance before recovery of title | Court affirmed: record showed Sara current; trial court did not err in rescinding sale without full-balance tender |
| Whether trial court abused discretion by denying attorney’s fees under the Declaratory Judgments Act | Sara (prevailing party) sought reasonable attorney’s fees as equitable relief | Bauder and trustee opposed fee award; trial court declined to award fees | Court held trial court did not abuse its discretion in denying attorney’s fees under the Declaratory Judgments Act |
Key Cases Cited
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standards for legal sufficiency review)
- Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (Tex. 1998) (standards for factual sufficiency review)
- GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599 (Tex. App.—Houston [14th Dist.] 2001) (factfinder is sole judge of witness credibility)
- Fillion v. David Silvers Co., 709 S.W.2d 240 (Tex. App.—Houston [14th Dist.] 1986) (tender as condition precedent in certain void-foreclosure recoveries)
- Lido Intern., Inc. v. Lambeth, 611 S.W.2d 622 (Tex. 1981) (equitable considerations supporting relief)
- Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998) (abuse of discretion standard for attorney’s fees under statutes)
- Kaldis v. Aurora Loan Services, 424 S.W.3d 729 (Tex. App.—Houston [14th Dist.] 2014) (address-change and servicer-records issues under Property Code)
- Saravia v. Benson, 433 S.W.3d 658 (Tex. App.—Houston [1st Dist.] 2014) (interpretation of mortgage-servicer notice provisions)