Rinard v. Bank of AmericaRinard v. Bank of America
OPINION
Chаrles and Maria Rinard appeal from a summary judgment for judicial foreclosure granted in favor of Bank of America (“the Bank”). The Rinards appeal the court’s judgment in seven issues, arguing, in essence that a fact issue remains as to each defensive ground raised in their рleadings, that res judicata does not bar their defenses, and that the Bank has not established its right to foreclosure as a matter of law.
On February 10, 1998, Charles and Maria Rinard received a home equity loan from NationsBank of Texas, N.A., predecessor to the current creditor, Bank of America. The loan was secured by a deed of trust on the Rinard’s home at 720 Del Mar, in El Paso. At that time, the Ri-nards owned their home outright, having paid off a seller financed mortgage in 1996. The loan proceeds were identified in the note as follows: the Rinards received $110,000; $20,518.24 would be paid to “Insurance Companies” on the Rinards’ behalf for “Credit Life, and/or A & H” insurance; “GAR” received $375 for appraisals; and “Lawyers Title of El Paso” were paid $1,346 for their services. The total amount financed was $132,239.24, payable in 180 monthly installments, beginning on March 27,1998.
The Rinards defаulted on the loan in November 2003. On October 16, 2005, the Rinards filed for Chapter 7 bankruptcy. The couple’s dischargeable debts were discharged by the bankruptcy court on February 8, 2006, and a final order closing the bankruptcy was entered on February 9, 2006. The 1998 home equity loan survived the bаnkruptcy, on October 16, 2006, Bank
The Bank moved for summary judgment on traditional and no-evidence grounds, arguing that it was entitled to foreclose on the Rinard’s property as a matter of law because of the couple’s failure to make payments, and that the Rinard’s defenses to the terms of the promissory note were barred by law, or not supported by evidence. In a supplemental motion, the Bank also contends that thе Rinards defenses are barred by the doctrine of res judicata, as the note was subject to all of the Rinard’s enforcement challenges during the pendency of the couple’s Chapter 13 bankruptcy proceeding. The trial court granted the Bank’s motion, and entered a judgment permitting the institution to proceed with foreclosure proceedings on June 29, 2009.
In Issues One, Two, and Four, the Ri-nards challenge the summary judgment as to Bank of America’s petition for judicial foreclosure. In Issue Three, the Rinards contend the summary judgment was improper becausе the note is ambiguous, and argue a jury should be permitted to determine the parties’ intent. In Issues Five and Six, the Rinards assert that the summary judgment on their claims for violations of the DTPA and the Texas Insurance Code was improper as the claims are not barred by the statute of limitations. Finally, in Issue Seven, the Rinards contend the summary judgment was improper because their arguments against the enforcement of the note are not barred by res judicata subsequent to bankruptcy.
Before we begin our analysis of the summary judgment, we must determine what claims and causes of action fall within the bounds of this appeal. The Rinards’ Third Amended Answer and Counter Claim alleged that they were induced to sign the note by the loan officer’s fraudulent representations regarding credit disability insurance. The amended answer and counter petition also contained claims pursuant to thе Texas Insurance Code and the DTPA, a negligence cause of action, and sought to have the lien removed from their home pursuant to these claims. For all the counter-claims, the Rinards sought
The Bank maintained its right to judgment as a matter of law regarding the judicial foreclosure throughout the summary judgment proceedings. Regarding the Rinard’s counter-claims and affirmative defenses, the Bank relied, in part on the terms of the note, and asserted that the Rinards claims for affirmative relief, including their claims for fraud, and statutory violations, were barred by the statute of limitations as a matter of law. In their summary judgment response, under the heading, “The Statutes of Limitations Do Not Bar Defensive Claims” the Rinards made the following representations to the court:
In this case the Rinards are the Defendants. They are making defensive claims. In this case the Rinards are defending against the sought after judicial foreclоsure on their home. They are not seeking affirmative relief such as an actual damage recovery for the fraud and deception of the bank.
Based on this language, the Bank argues the Rinards abandoned their claims for affirmative relief, and proceedеd to judgment exclusively on the basis that the Bank’s alleged fraudulent representation barred the Bank’s right to foreclose on the note. The Rinards do not address the question of abandonment, but reassert their theory that the claims were made only as defenses to the judicial foreclosure. Without citation to any legal authority, the Rinards argue, that any money damages they would be entitled to recover would “off set or negate” the amount due on the loan, and conclude that the deed of trust is invalid. Whether the Rinards have abandoned their counter-claims, or simply waived those claims by failing to adequately brief their “offset” argument, the result is the same; the trial court did not err by entering summary judgment against the Rinards on their counter-claims, and we will proceed with our analysis on the issue of the Rinards’ fraud defense to the judicial foreclosure. See Tex.R.App.P. 38.1(f) (requiring an appellant’s brief to “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”). Issues Five and Six are overruled.
In Issues One, Two, and Four, the Rinards assert that the summary judgment was improperly granted on Bank of America’s judicial foreclosure claim. The Rinards’ arguments in this point are fo
To obtain a judicial foreclosure, Bank of America was required to demonstrate that the note was a purchase monеy note, that some part of the purchase money is due and unpaid, and that the property subject to the lien is the same property on which it seeks to enforce the lien.
Kyle v. Countrywide Home Loans, Inc.,
Although the Rinards have foregone their tort claims for affirmativе relief based, they maintain that the summary judgment was improper because fact issues remain regarding the Bank’s alleged fraudulent inducement, and misrepresentations related to their request for disability insurance. Based on their argument that the contract was procured by fraud and misrepresentation, the Rinards contend the contract is unenforceable, and the foreclosure improper. To survive summary judgment, the Rinards had to raise a fact issue as to each element of the defense.
See
Tex.R.Civ.P. 166a(c);
Leone,
In this instance, there is no dispute that the loan documents the Rinards read and signed, on February 10, 1998, included $20,518.24, for “JOINT CREDIT LIFE” insurance. The note does not contain a line or designate any premium amount for credit disability, or any other optional insurance. The foundation of the Rinards’ arguments for avoidance of the foreclosure is that they were induced into signing the note because the Bank rеpresented that credit disability insurance would be purchased, and that premium would be included in the loan principle. This alleged misrepresentation is directly contradicted by the express terms of the note, and therefore cannot support the justifiable reliаnce element of the Rinards’ fraud defense.
See DRC Parts,
Having overruled Appellant’s Issues One, Two, Four, Five, and Six, we affirm the trial court’s summary judgment.
Notes
. Mr. Rinard began having health issues in 1999. In 2005, he was diagnosed with congestive heart failure and lyphedema, and was no longer able to work as a truck driver. Mrs. Rinard also stopped working due to emphysema in 2003.