APPELLANT v. APPELLEES (2012)

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

DISSENTING MEMORANDUM OPINION1

I agree with the majority that the main issue in this case is whether MidFirst had acquired the capacity as mortgagee to initiate nonjudicial foreclosure proceedings before it sent Ms. Robeson the letters of January 5 and January 8, 2009, accelerating the debt and noticing the trustee's sale.   But I respectfully disagree with the majority's ultimate conclusion and instead believe that a genuine issue of material fact exists as to when MidFirst acquired that capacity because of the obvious conflict in MidFirst's own summary judgment evidence.

The assignment of the note and deed of trust from MERS (as nominee for Alethes, LLC, the original mortgagee) to MidFirst, a copy of which was attached to the affidavit of MidFirst Vice President Melissa Poage, states that it was executed on February 20, 2009, and filed in the county records on March 4, 2009.   But the affidavit of MidFirst Vice President Thad Burr states that the note and deed of trust were “transferred” to MidFirst on October 1, 2008.   I do not see how the majority concludes that the date of execution of the assignment to MidFirst of the note and deed of trust somehow is “not evidence of the actual date” that MidFirst became authorized to initiate foreclosure under the deed of trust, but the statement in the affidavit of Thad Burr as to a date some four months earlier upon which there was a “transfer,” whatever that means, is “uncontroverted” evidence.   Majority op. at 5.

It is important to clarify that the affidavits of those two vice presidents were not filed at the same time as part of the supporting evidence for MidFirst's motion for summary judgment, although they are addressed together in the majority opinion.   Majority op. at 5. To the contrary, the Melissa Poage affidavit, with its attached documents including the February 20, 2009 assignment to MidFirst, which was, in turn, attached to the motion for summary judgment, was initially relied upon by MidFirst as the sole basis for its authority to initiate foreclosure proceedings and to sell Ms. Robeson's property at the trustee's sale on April 7, 2009.   Ms. Robeson's response pointed out and brought home to both MidFirst and the trial court that the letters initiating foreclosure, dated January 5 and 8, 2009, were sent more than a month and a half prior to the February 20 assignment of the note and deed of trust to MidFirst.   It was only after receiving the Robeson response that Midfirst's later affidavit was then prepared and attached to and filed with MidFirst's reply to Ms. Robeson's response to the motion for summary judgment, for the first time stating that the note and deed of trust were actually “transferred to MidFirst on October 1, 2008,” and that Midland Mortgage Co. had begun servicing the loan on December 2, 2008, prior to any letter demands or notices from MidFirst to Ms. Robeson.

I would hold that Ms. Robeson was entitled to rely on MidFirst's own affidavits and documents filed in support of MidFirst's hybrid traditional and no-evidence motion for summary judgment and that MidFirst's own summary judgment evidence raised a genuine issue of material fact as to when it had authority to initiate foreclosure, thus precluding summary judgment on the claim for violations of the Texas Debt Collection Practices Act. See Tex. Fin.Code Ann. § 392.301(a)(8) (West 2006);  Biggers v. BAC Home Loans Serv'g, LP, 767 F.Supp.2d 725, 730 (N.D.Tex.2011).

DELIVERED:  May 22, 2012

FOOTNOTES

FN1. See Tex.R.App. P. 47.4..  FN1. See Tex.R.App. P. 47.4.