Khan v. GBAK Properties, Inc.
2012 Tex. App. LEXIS 2439
| Tex. App. | 2012Background
- Khan purchased Bank of Texas's secured note, deed of trust, and assignment of rents for the Crabb River Property in 2003, and Bank of Texas previously accelerated the note; a bankruptcy proceeding occurred in 2002–2003 with adequate protection payments and later dismissal; Khan acquired the note and related instruments from Bank of Texas in 2003-2006 and later sought foreclosure,
- GBAK’s and Parkway Crossing’s motion asserted the foreclosure action was time-barred because the note had been accelerated before August 5, 2002, triggering a 4-year limitations period that expired by August 5, 2006,
- A separate tortious-interference claim was asserted against Ray and Ellie Lofti in their individual capacities, with Ray allegedly interfering by transferring rents and encumbering the property; Ellie’s involvement was disputed,
- Khan argued acceleration was abandoned, restoring original terms and delaying accrual, while GBAK and Parkway Crossing argued no abandonment occurred and limitations thus expired
- The trial court granted summary judgment for GBAK and Parkway Crossing on limitations grounds and for the Loftis on the tortious-interference claim; the court did not specify basis for Loftis’ judgment, and Khan appeals in part; appellate review is de novo on pure questions of law with a standard for traditional and no-evidence summary judgments
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the foreclosure action is time-barred by the statute of limitations | Khan argues acceleration was abandoned, delaying accrual | GBAK/Parkway Crossing contend acceleration was not abandoned and the four-year period expired by 2006 | Material fact issue on abandonment of acceleration |
| Whether Khan's tortious-interference claims against the Loftis accrued before July 9, 2007 | Khan's petition does not judicially admit accrual timing | Loftis argue petition admits all acts occurred by 2006 | Khan's petition does not judicially admit accrual timing |
| Whether Ray Lofti, personally, can be liable for tortious interference with Khan's existing contracts | Ray directed or participated in interference; acts occurred through Parkway Crossing | Ray argues he acted as corporate officer, not individually liable | Ray Lofti liable in his individual capacity for tortious interference |
| Whether Ellie Lofti is liable for tortious interference with Khan's contracts | Ellie interfered by collecting rents and releasing liens | Ellie did not personally direct or participate; evidence insufficient | Ellie Lofti not liable |
Key Cases Cited
- Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562 (Tex. 2001) (abandonment of acceleration may restore original terms)
- City Nacional Bank of Corpus Christi v. Pope, 260 S.W.903 (Tex.Civ.App.-San Antonio 1924) (use of waiver/abandonment terminology)
- San Antonio Real-Estate, Bldg. & Loan Ass’n v. Stewart, 61 S.W.386 (Tex. 1901) (abandonment may be effected by agreement or actions)
- Burns v. Thomas, 786 S.W.2d 266 (Tex. 1990) (burden on limitations movant)
- MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986) (summary-judgment review standard)