Murphy v. Wells Fargo Bank, N.A.
455 S.W.3d 621
Tex. App.2013Background
- Appellants Murphy sought refinancing with Wells Fargo based on a promised refinance at a lower rate after two years of on-time payments and improved credit.
- On January 5, 2006, Wells Fargo funded $252,000 under a Loan Agreement; monthly payments; escrow option chosen; prior oral agreements superseded; no oral variations allowed.
- Less than a year later, appellants defaulted and admitted withholding payments to pressure negotiations; they failed to directly pay 2007–2009 property taxes, leading Wells Fargo to pay taxes and establish an escrow.
- Wells Fargo sent a default notice on April 6, 2008 for a $14,371.33 delinquency; foreclosure commenced July 14, 2008; note and deed were assigned to HSBC on May 29, 2008 with HSBC servicing.
- November 14, 2008 appellants sued Wells Fargo and HSBC for breach of oral contract, declaratory relief to stop foreclosure, fraud, and DTPA; Wells Fargo counterclaimed for declaratory relief; both moved for summary judgment; the trial court granted summary judgment for appellees and awarded Wells Fargo attorney’s fees against appellants personally; the final judgment was later remanded to the extent of the fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Attorney’s fees against nonrecourse borrowers | Murphy: nonrecourse loan means no personal liability; fees must be against property only. | Wells Fargo: fees may be recoverable under statute or contract as applicable. | Fees cannot be personal; fee award against appellants reversed. |
| DTPA and fraud claims on summary judgment | Murphy: some genuine issues of material fact exist for DTPA and fraud. | Wells Fargo: no consumer status under DTPA; fraud based on a conditional promise is indefinable. | DTPA claims dismissed; fraud claim too indefinite; summary judgment upheld for Wells Fargo. |
| Deemed admissions denial | Murphy: trial court abused by not allowing withdrawal of deemed admissions. | Wells Fargo: admissions already support judgment; withdrawal unnecessary. | Any error harmless; no reversal required. |
| Motion for new trial | Murphy: needed discovery (corporate representative deposition) to oppose summary judgment. | Wells Fargo: issue waived due to missing affidavit/continuance details. | Waived; no abuse of discretion; new trial denial affirmed. |
Key Cases Cited
- Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (traditional summary judgment standard guidance)
- IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794 (Tex. 2004) (no evidence/affirmative defense standard in summary judgment)
- Ford v. City State Bank of Palacios, 44 S.W.3d 121 (Tex.App.-Corpus Christi 2001) (conditional promises and fraud sufficiency)
- Allstate Ins. Co. v. Hallman, 159 S.W.3d 640 (Tex. 2005) (section 37.009 attorney’s fees in declaratory judgments)
- Aquaduct, L.L.C. v. McElhenie, 116 S.W.3d 438 (Tex.App.-Houston [14th Dist.] 2003) (declaratory judgments authority and fee shifting)
- Bradt v. State Bar of Texas, 905 S.W.2d 756 (Tex.App.-Houston [14th Dist.] 1995) (attorney’s fees under declaratory judgments analysis)