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
- Long defaulted on a March 2007 home equity loan secured by his Lakeway, TX property; loan originated by Southwest Funding and later serviced by OneWest for Deutsche Bank.
- Note and Security Instrument were assigned to Deutsche Bank National Trust Co. as Trustee, with MERS as nominal holder; Deutsche Bank became holder/beneficiary and in possession.
- Notice of default and acceleration were issued in 2009-2010; a Rule 736 home equity foreclosure was ordered after a June–July 2010 hearing.
- Foreclosure sale occurred September 7, 2010, but Deutsche Bank did not accept delivery of the Substitute Trustee’s Deed; title remained with Long.
- Long filed suit September 28, 2010 seeking fraud, rescission, wrongful foreclosure, and declaratory relief; Deutsche Bank asserted a counterclaim for judicial foreclosure; trial court granted summary judgment against Long on claims and for Deutsche Bank on the counterclaim.
- Evidence showed Long was in default and Deutsche Bank complied with the terms of the Security Instrument and applicable law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TILA claims were properly resolved on summary judgment | Long argues genuine issues on TILA violations. | Deutsche Bank Defendants contend TILA claims barred by statute of limitations and lack of fact support. | Yes; TILA claims barred by statute of limitations and unsupported by evidence. |
| Whether Long showed a genuine issue of material fact on wrongful foreclosure | Long asserts defects in the foreclosure process and possible loss of rights. | No material injury or disruption; sale not voidable; title remained with Long. | Yes; no compensable injury or improper disturbance shown; court upheld summary judgment. |
| Whether Deutsche Bank’s counterclaim for judicial foreclosure was proper | Long disputes Deutsche Bank’s status and prior conditions for foreclosure. | Deutsche Bank valid as holder/beneficiary; MERS assignment; Rule 735/736 distinction irrelevant to counterclaim. | Yes; counterclaim properly granted; Deutsche Bank entitled to judicial foreclosure. |
| Whether Boyle Affidavit constitutes legally sufficient summary judgment evidence | Long challenged personal-knowledge basis and business-record authentication. | Affidavit shows personal knowledge, proper business-record authentication, and reliance by OneWest. | Yes; Boyle Affidavit sufficient and objections waived or unpersuasive. |
Key Cases Cited
- Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013) (summary judgment de novo review; grounds must be challenged on appeal)
- Wells Fargo Bank, N.A. v. Robinson, 391 S.W.3d 590 (Tex. App.—Dallas 2012) (foreclosure properly limited when no injury shown)
- First State Bank v. Keilman, 851 S.W.2d 914 (Tex. App.—Austin 1993) (recourse for improper foreclosure; limits damages when possession remains with borrower)
- John Hancock Mut. Life Ins. Co. v. Howard, 85 S.W.2d 986 (Tex. Civ. App.—Waco 1935) (early authority on findings and documentary evidence)
- Dodeka v. Campos, 377 S.W.3d 726 (Tex. App.—San Antonio 2012) (business records and incorporation into third-party records; trustworthiness)