542 S.W.3d 50
Tex. App.2017Background
- Wells Fargo sued guarantor Gerald Godoy for a deficiency after Wells Fargo's predecessor foreclosed in 2011 and purchased the property for less than the loan balance; the suit was filed in 2015.
- Godoy moved for summary judgment arguing the claim was time-barred by the Property Code's 2-year deficiency statute (Tex. Prop. Code §51.003(a)).
- Wells Fargo moved for (partial) summary judgment asserting Godoy contractually waived any statute-of-limitations and other anti-deficiency defenses in the guaranty.
- The guaranty contained broad waiver language: waiving “any and all rights or defenses,” including anti-deficiency laws and “any statute of limitations” subject to a savings clause making waivers effective only to the extent allowed by law or public policy.
- Trial court denied Godoy’s summary judgment, granted Wells Fargo’s motions, and entered final judgment for the bank; Godoy appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a general guaranty waiver of “any and all defenses” covers the 2‑year statute of limitations in Tex. Prop. Code §51.003(a) | Moayedi and related authority permit waiver of all defenses under §51.003, so the guaranty’s broad language waives the 2‑year rule | A statute‑of‑limitations waiver must be specific and time‑limited; a general, perpetual waiver is void as against public policy | The court held the broad guaranty waiver includes the §51.003(a) two‑year limitations defense and thus Godoy waived that defense |
| Whether the public‑policy line of cases (prohibiting complete advance waivers of limitations) invalidates the guaranty waiver | Waiver is enforceable under Moayedi and related appellate authority; at minimum §51.003 defenses may be waived | Complete advance waiver of a limitations period violates long‑standing public policy (Simpson) and is void | The majority declined to decide the facial public‑policy question because Godoy did not plead that affirmative defense under Tex. R. Civ. P. 94; it therefore affirmed enforcement of the waiver |
| Whether Godoy preserved the public‑policy challenge by pleading it or trying it | Wells Fargo alleged the guaranty waived limitations in its petition; Godoy raised public‑policy argument in summary‑judgment response | Godoy failed to affirmatively plead that the waiver is void, so he waived the defense | The court held Godoy failed to plead the avoidance/affirmative‑defense required by Rule 94, so the public‑policy argument was waived for purposes of the appeal |
| Whether the court should assess alternative statutes (e.g., general 4‑year debt limitations) | N/A (Wells Fargo relied on the guaranty waiver of the 2‑year rule) | Godoy argued the 2‑year bar applies; did not conclusively establish the 4‑year bar in summary judgment evidence | The court did not decide applicability/enforceability of the 4‑year limitations (Tex. Civ. Prac. & Rem. Code §16.004) because Godoy did not carry burden to establish it |
Key Cases Cited
- Moayedi v. Interstate 35/Chisam Road, L.P., 438 S.W.3d 1 (Tex. 2014) (general guaranty waivers that reference “any,” “each,” and “every” defense effect a broad waiver of §51.003 defenses)
- PlainsCapital Bank v. Martin, 459 S.W.3d 550 (Tex. 2015) (referring to §51.003 offset as an affirmative defense)
- Simpson v. McDonald, 179 S.W.2d 239 (Tex. 1944) (longstanding precedent that an agreement to completely waive a statute of limitations in advance is void as against public policy)
- Phillips v. Phillips, 820 S.W.2d 785 (Tex. 1991) (exception to pleading rule: a party need not plead an affirmative defense that is apparent on the face of the petition and established as a matter of law)
- Grace Interest, LLC v. Wallis State Bank, 431 S.W.3d 110 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (upholding waiver of §51.003 defenses and holding such waiver not void as against public policy)
- LaSalle Bank Nat’l Ass’n v. Sleutel, 289 F.3d 837 (5th Cir. 2002) (treating waiver of §51.003(c) offset as permissible where statute does not prohibit waiver)