Johnathon Dean v. Aurora Bank, FSB F/K/A Lehman Brothers Bank, FSB, and Nationstar Mortgage, LLC
01-15-00827-CV
| Tex. App. | Dec 20, 2016Background
- Dean bought the property in 2005, executed a promissory note and deed of trust to Lehman Brothers Bank, FSB (later Aurora); the deed of trust was later assigned to Nationstar, which began servicing July 1, 2012.
- Nationstar sent a notice of default in April 2013; a substitute trustee appointed by Nationstar conducted a nonjudicial foreclosure sale on August 6, 2013, and Nationstar purchased the property.
- Dean sued (Sept. 2013) asserting wrongful foreclosure, lack of standing by Nationstar/Lehman/Aurora, breach of contract, declaratory relief, and demanded an accounting and injunction; temporary injunction briefly issued and expired.
- Appellees moved for traditional and no-evidence summary judgment; trial court initially granted summary judgment as to the accounting claim and later granted summary judgment dismissing all of Dean’s remaining claims with prejudice after Dean’s late-filed response.
- On appeal Dean contested standing, conditions precedent, wrongful foreclosure, breach of contract, declaratory relief, and argued prejudice from a hybrid summary-judgment motion and loss of counsel; the court affirmed because Dean’s response/evidence were untimely and appellees’ no-evidence grounds were sufficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose / wrongful foreclosure | Dean argued Nationstar (and Lehman/Aurora) lacked standing to foreclose and this defect made the sale wrongful | Appellees showed no evidence of lack of standing or procedural defect and sought no-evidence dismissal | Court upheld summary judgment for appellees; Dean’s late response was not considered and appellees’ motion sufficiently challenged elements of wrongful-foreclosure claim |
| Conditions precedent / compliance with deed/note | Dean contended appellees failed to satisfy conditions precedent and therefore could not foreclose | Appellees argued there was no evidence Dean complied with note obligations, no breach by appellees, and no damages from any alleged breach | Court affirmed no-evidence summary judgment for appellees; Dean failed to timely produce evidence creating fact issues |
| Breach of contract / declaratory relief | Dean sought declarations he did not breach and asked for other relief tied to alleged procedural failures | Appellees argued no evidence supports breach or a justiciable controversy warranting declaratory relief | Court affirmed dismissal of these claims; appellees’ motion properly targeted essential elements and Dean’s reply was untimely and inadequately briefed |
| Procedural fairness / hybrid summary-judgment motion & counsel withdrawal | Dean argued hybrid motion and his pro se status (and prior counsel withdrawal) prejudiced him | Appellees asserted hybrid motions are permissible and pro se litigants are held to same procedural rules | Court rejected Dean’s claim of prejudice; hybrid motion allowed and pro se litigant held to procedural standards; issues inadequately briefed |
Key Cases Cited
- Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) (standard for reviewing summary judgment when trial court does not specify grounds)
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (de novo review of summary judgments)
- Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) (summary-judgment standards)
- Beverick v. Koch Power, Inc., 186 S.W.3d 145 (Tex. App.—Houston [1st Dist.] 2005) (upholding judgment if any asserted grounds are meritorious)
- Hahn v. Love, 321 S.W.3d 517 (Tex. App.—Houston [1st Dist.] 2009) (no-evidence summary-judgment burden shifting)
- Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006) (non-movant’s burden to produce evidence after no-evidence motion)
- Benchmark Bank v. Crowder, 919 S.W.2d 657 (Tex. 1996) (trial court must affirmatively indicate acceptance of late-filed summary-judgment evidence)
- Goswami v. Metropolitan Savings & Loan Ass’n, 751 S.W.2d 487 (Tex. 1988) (presumption trial court did not consider late-filed evidence absent record indication)
- Fertic v. Spencer, 247 S.W.3d 242 (Tex. App.—El Paso 2007) (consequence of failing to obtain leave to late-file response/evidence)
- Binur v. Jacobo, 135 S.W.3d 646 (Tex. 2004) (permitting hybrid summary-judgment motions)
- Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005) (pro se litigants are held to same procedural rules as attorneys)