449 S.W.3d 257
Tex. App.2014Background
- Holmes signed a guaranty for a $1,750,000 Note secured by twenty residential lots, with a Waiver of Defenses in the Guaranty.
- HFI (the borrower) declared bankruptcy and stopped paying; Graham Mortgage foreclosed and purchased the remaining lots for $1,120,000.
- Graham Mortgage sued Holmes for deficiency under the Note and Guaranty for $912,077.09, with interest and fees alleged.
- Holmes asserted multiple defenses (including accord and satisfaction, estoppel, cancellation, illegality, unjust enrichment, offset, etc.) and sought value adjustment under Property Code § 51.003.
- Both sides moved for summary judgment; the trial court granted Graham Mortgage’s traditional motion and denied Holmes’s partial motions.
- The court held that the Guaranty waiver provision forecloses Holmes’s defenses and that Graham Mortgage established entitlement to judgment as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether forwarded requests for admission were validly served | Holmes | Graham Mortgage | No deemed admissions; trial court’s ruling affirmed. |
| Whether Morrow affidavit evidence sustains summary judgment | Holmes | Graham Mortgage | Affidavit properly supported summary judgment; objections failed. |
| Whether the Waiver of Defenses in the Guaranty bars Holmes's affirmative defenses | Holmes | Graham Mortgage | Waiver bars defenses; deficiency judgment affirmed. |
| Whether Holmes's defenses can defeat summary judgment given the waiver | Holmes | Graham Mortgage | Defenses insufficient to defeat judgment under waiver language. |
| Whether the Moayedi offset defense can be rescinded by the waiver | Holmes | Graham Mortgage | Moayedi offset defense waived by broad waiver; not rescinded. |
Key Cases Cited
- Swilley v. Hughes, 488 S.W.2d 64 (Tex. 1972) (summary judgment standards; traditional vs no-evidence)
- Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (burden on movant to show no genuine fact issue)
- Gish v., 286 S.W.3d 306 (Tex. 2009) (no-evidence standard applied; cross-motions considerations)
- Brownlee v. Brownlee, 665 S.W.2d 111 (Tex. 1984) (affidavits must set forth facts, not legal conclusions)
- Avary v. Bank of Am., N.A., 72 S.W.3d 779 (Tex. App.—Dallas 2002) (discovery rulings; abuse of discretion standard)
- Jones v. Stayman, 732 S.W.2d 437 (Tex. App.—Dallas 1987) (service rules and prejudice considerations)
- Moayedi v. Interstate 35/Chisam Rd., L.P., 438 S.W.3d 1 (Tex. 2014) (waiver of §51.003 offset defenses; broad waivers)
- 1st Coppell Bank v. Smith, 742 S.W.2d 454 (Tex. App.—Dallas 1987) (mistake-of-law considerations; later disapproved in part)
- Richardson v. Allstate Texas Lloyd’s, 235 S.W.3d 863 (Tex. App.—Dallas 2007) (affirmative defenses burden; substantive proof required)
- Denson v. Dallas County Credit Union, 262 S.W.3d 846 (Tex. App.—Dallas 2008) (illegality and defenses context in waiver discussion)