Optimum Bonus Texas, Inc v. Ocwen Loan Servicing, LLC and HSBC Bank USA, NA, as Trustee on Behalf of ACE Securities Corp. Home Equity Loan Trust Series 2007-WM2, Asset Backed Passed-Through Certificates
14-14-00709-CV
| Tex. App. | Dec 31, 2015Background
- In October 2011 Optimum Bonus Texas, Inc. purchased a one-acre tract (the Property) at a foreclosure sale based on a home-equity lien (the Lien) held by HSBC (as Trustee) and serviced by Ocwen.
- Optimum sued within two years seeking equitable rescission of the foreclosure sale, alleging the Lien was invalid under Texas Constitution requirements and therefore the foreclosure was void.
- The Bank Parties moved for traditional summary judgment asserting limitations and that summary-judgment evidence negated essential elements of Optimum’s claim; the trial court granted judgment without specifying grounds and later severed the Bank Parties’ claims for appeal.
- Optimum’s live pleading relied solely on the theory that the Lien was invalid (not on mistake theories); it did not plead unilateral mistake and did not allege it itself was mistaken about the sale.
- On appeal Optimum argued the trial court erred because it had a unilateral-mistake claim (that Optimum mistakenly believed it purchased a larger tract), a theory not pleaded or tried by consent in the trial court.
- The court affirmed: because Optimum did not plead or try unilateral mistake (and did not brief error as to the pleaded Lien-invalidity claim), Optimum failed to show the trial court erred in granting summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether rescission of the foreclosure sale can be granted based on unilateral mistake | Optimum: it mistakenly believed it purchased a larger tract at the sale, so rescission is warranted | Bank: Optimum pleaded only Lien invalidity; unilateral mistake was not pled or tried by consent; summary judgment proper | Court: No — unilateral mistake was not pleaded or tried by consent; appellate challenge fails |
| Whether Optimum pleaded a claim to rescind based on invalidity of the Lien | Optimum: argued on appeal it did not rely on Lien defects for rescission (changed position) | Bank: Optimum’s live pleading asserted only Lien invalidity as the basis for rescission | Court: Pleading shows only Lien-invalidity theory; Optimum cannot switch to unpled unilateral-mistake theory on appeal |
| Whether the summary-judgment record shows fact issues on mistake/misconduct grounds | Optimum: summary-judgment evidence raises fact issues (relating to mistake) | Bank: summary judgment negated essential elements of Optimum’s pleaded claim; parties did not try unilateral mistake | Court: Even assuming mutual mistake or fraud were tried by consent, Optimum did not brief error as to those claims; no reversible error shown |
| Whether appellate briefing preserved error as to the trial court’s granting of summary judgment | Optimum: argues trial court erred by granting summary judgment on the sole asserted grounds | Bank: contends Optimum failed to challenge the actual grounds decided below | Court: Optimum did not brief arguments against the judgment as to its pleaded claim; issues over unilateral mistake not preserved; affirmance affirmed |
Key Cases Cited
- Myrad Properties, Inc. v. LaSalle Bank Nat’l Ass’n, 300 S.W.3d 746 (Tex. 2009) (rescission may be granted for defects in foreclosure; summary judgment can establish entitlement to rescission)
- James T. Taylor & Son, Inc. v. Arlington Indep. Sch. Dist., 335 S.W.2d 371 (Tex. 1960) (elements for rescission based on unilateral mistake)
- SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347 (Tex. 1995) (pleadings must give reasonable notice and be liberally construed but cannot be made to contain claims not pleaded)
- Moneyhon v. Moneyhon, 278 S.W.3d 874 (Tex. App.—Houston [14th Dist.] 2009) (pleading cannot be read to include claims that are not reasonably inferred)
- San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323 (Tex. App.—Houston [14th Dist.] 2005) (appellate briefing must present specific arguments and record citations to preserve alleged error)