James v. Long v. Southwest Funding, L.P. OneWest Bank, FSB IndyMac Mortgage Services And Deutsche Bank National Trust, Co.
03-15-00020-CV
Tex. App.Jun 22, 2015Background
- Appellant James V. Long sued over a foreclosure-related TILA claim; Southwest Funding, L.P. was not an original party to the foreclosure.
- Deutsche Bank defendants moved for summary judgment on November 12, 2013; the trial court granted their motion on January 21, 2014.
- Southwest Funding joined the Deutsche Bank defendants’ motion on December 23, 2013.
- Appellant did not file a response to Southwest Funding’s joinder and did not appear at the hearing on Southwest Funding’s summary-judgment request.
- The trial court granted summary judgment in favor of Southwest Funding on October 9, 2014.
- On appeal, Southwest Funding argues the summary judgment should be affirmed because Long failed to preserve any factual challenges by not responding below, limiting him to legal-sufficiency arguments which he did not make.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in granting summary judgment to Southwest Funding on Long's TILA claim | Long contends the grant of summary judgment was erroneous (asserting factual disputes) | Southwest Funding: Long failed to respond to its joinder; therefore he cannot raise factual disputes on appeal and is limited to legal-sufficiency challenges; summary judgment is proper | Court should affirm: summary judgment upheld because appellant did not raise fact issues below and did not challenge the legal sufficiency of the movant's grounds |
Key Cases Cited
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (summary-judgment review is de novo)
- Carr v. Brasher, 776 S.W.2d 567 (Tex. 1989) (when trial court order does not specify grounds, appellate court may affirm on any meritorious ground)
- Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013) (failure to challenge a ground supporting summary judgment requires affirmance)
- Lockett v. HB Zackry Co., 285 S.W.3d 63 (Tex. App.—Houston [1st Dist.] 2009) (recognizes procedural propriety of adopting or joining a co-party's summary-judgment motion)
- McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337 (Tex. 1993) (non-movant must present issues in a written response to defeat summary judgment)