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. | Apr 21, 2015Background
- James V. Long owns homestead at 608 Cutlass, Lakeway, TX; suit arises from a 2010 home-equity foreclosure and related loan irregularities.
- Deutsche Bank obtained a 2010 foreclosure order that was later set aside; Long sued pro se in Sept. 2010 for wrongful foreclosure and loan defects.
- Deutsche Bank counterclaimed for declaratory relief (to confirm sale) and alternative foreclosure; in May 2013 Deutsche Bank filed a Travis County record stating its 2010 foreclosure deed was void and that conditions precedent were not met.
- Defendants (OneWest, IndyMac, Deutsche Bank, and Southwest Funding LP) moved for traditional and no-evidence summary judgment; the court granted summary judgment for defendants (except Long concedes the no-evidence ruling on common-law fraud is not appealed).
- Appellant challenges the traditional summary judgments, arguing the summary-evidence affidavits/record were legally deficient, and that genuine fact issues exist (e.g., holder of the note, lender licensing, and constitutional home-equity valuation limits).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of defendants' traditional summary-judgment evidence (affidavit/authentication) | Long: affidavits fail Tex. R. Civ. P. 166a(f); corporate signature not proper affidavit; exhibits lack proper authentication | Defendants: moved and prevailed below relying on submitted affidavits/exhibits | Court granted summary judgment for defendants (Long appeals, arguing affidavit/authentication defects) |
| Effect of Deutsche Bank's public record admitting the 2010 foreclosure was void | Long: admission renders Deutsche Bank's declaratory-judgment claim moot and raises genuine issues | Defendants: sought declaratory relief to confirm foreclosure authority and proceed with sale | Court granted declaratory relief below; Long argues this ruling was erroneous given the admission |
| Whether Deutsche Bank was holder of the note and entitled to foreclose | Long: raises fact question—note allegedly not produced; bank representatives said note could not be located | Defendants: asserted ownership/standing to foreclose | Court granted summary judgment for defendants; Long contends factual disputes remain |
| Compliance with Tex. Const. art. XVI, §50(6) (home-equity limits/licensing) | Long: loan exceeded 80% FMV cap and lender (Southwest Funding) lacked required licensing; remedy includes forfeiture of principal/interest | Defendants: relied on loan documents and foreclosure authority to justify relief | Court granted summary judgment for defendants; Long contends constitutionality and valuation issues create fact questions |
Key Cases Cited
- Espalin v. Children's Med. Ctr. of Dallas, 27 S.W.3d 675 (Tex. App.-Dallas 2000) (summary-judgment procedural principles)
- Humphreys v. Caldwell, 888 S.W.2d 469 (Tex. 1994) (affidavit/personal-knowledge requirements)
- McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337 (Tex. 1993) (motion must expressly present grounds and stand on those grounds)
- Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (summary-judgment standards and inferences for nonmovant)
- Ryland Group v. Hood, 924 S.W.2d 120 (Tex. 1996) (affidavit personal-knowledge standards)
- Rowland v. California Men's Colony, Unit II Mens Advisory Council, 506 U.S. 194 (1992) (limitations on corporations executing affidavits in personal-capacity form)
- Valenzuela v. State & Cnty. Mut. Fire Ins. Co., 317 S.W.3d 550 (Tex. App.-Houston [14th Dist.] 2010) (affidavit must show basis for affiant's knowledge)
- Powell v. Vavro, McDonald, & Assoc., L.L.C., 136 S.W.3d 762 (Tex. App.-Dallas 2004) (records of third parties require a witness qualified to authenticate)
- Rivera v. Countrywide Home Loans, Inc., 262 S.W.3d 834 (Tex. App.-Dallas 2008) (home-equity 80% FMV cap and forfeiture remedy)