Wrongful foreclosure claim in Texas

ELEMENTS OF CAUSE OF ACTION FOR WRONGFUL FORECLOSURE 

The elements of a wrongful foreclosure claim are: (1) a defect in the foreclosure sale proceedings; (2) an inadequate selling price; and (3) a causal connection between the defect and the inadequate selling price. See Charter Nat'l Bank-Houston v. Stevens, 781 S.W.2d 368, 371 (Tex. App.-Houston [14th Dist.] 1989, writ denied).

The elements of a wrongful-foreclosure claim are: (1) a defect in the foreclosure sale proceedings; (2) a grossly inadequate selling price; and (3) a causal connection between the defect and the grossly inadequate selling price. Sauceda v. GMAC Mortg. Corp., 268 S.W.3d 135, 139 (Tex. App.-Corpus Christi 2008, no pet.). 

The elements of a wrongful foreclosure claim are: (1) a defect in the foreclosure-sale proceedings; (2) an inadequate selling price; and (3) a causal connection between the defect and the inadequate selling price. See Estate of Broughton v. Financial Freedom Senior Funding Corp., No. 13-14-00091-CV, 2016 WL 2955058, at *3 (Tex. App.-Corpus Christi, May 19, 2016, pet. filed) (mem. op.); Buchanan v. Compass Bank, No. 02-14-00034-CV, 2015 WL 222143, at *5 (Tex. App.-Fort Worth Jan. 15, 2015, pet. denied) (mem. op.); Charter Nat'l Bank-Houston v. Stevens, 781 S.W.2d 368, 371 (Tex. App.-Houston [14th Dist.] 1989, writ denied).

REMEDIES 

The proper remedy for wrongful foreclosure is either: (1) damages equal to the difference between the value of the property and the indebtedness; or (2) the setting aside of the foreclosure sale. See Pinnacle Premier Prop., Inc. v. Breton, 447 S.W.3d 558, 565 (Tex. App.-Houston [14th Dist.] 2014, no pet.); Wells Fargo Bank, N.A. v. Robinson, 391 S.W.3d 590, 593-94 (Tex. App.-Dallas 2012, no pet.). A plaintiff seeking damages for wrongful foreclosure must show that (1) there was an irregularity in the foreclosure sale and (2) the irregularity caused the plaintiff damages. See University Sav. Ass'n v. Springwoods Shopping Ctr., 644 S.W.2d 705, 706 (Tex. 1982); Houston Omni USA Co. v. Southtrust Bank Corp., N.A., No. 01-07-00433-CV, 2009 WL 1161860, at *6 (Tex. App.-Houston [1st Dist.] Apr. 30, 2009, no pet.) (mem. op.).

See recent case opinions below:

James V. Long, Appellant,
v.
Southwest Funding, L.P.; OneWest Bank, FSB; IndyMac Mortgage Services; and Deutsche Bank National Trust Co., Appellees.

No. 03-15-00020-CV. 

Court of Appeals of Texas, Third District, Austin.

Filed: February 16, 2017.

Appeal from the District Court of Travis County, 126th Judicial District, No. D-1-GN-10-003483, Honorable Tim Sulak, Judge Presiding.

Affirmed.

Before Justices Puryear, Goodwin, and Bourland.

MEMORANDUM OPINION

CINDY OLSON BOURLAND, Justice. 

Appellant James V. Long filed suit against appellees Southwest Funding, L.P. (Southwest Funding), OneWest Bank, FSB (OneWest), IndyMac Mortgage Services (IndyMac), and Deutsche Bank National Trust Co. (Deutsche Bank), alleging claims of wrongful foreclosure, fraud, and violation of the Truth in Lending Act (TILA) based on appellees' foreclosure of his homestead after he defaulted on a home-equity loan. Long also sought declaratory relief, requesting declarations that his loan had been paid in full and that appellees could not foreclose on the property.

OneWest, IndyMac, and Deutsche Bank filed a counterclaim seeking a declaratory judgment confirming their right to foreclose on the property. Long then filed a motion for partial summary judgment, and appellees filed traditional and no-evidence summary-judgment motions.^[1] In two orders, the trial court granted appellees' motions and ordered that Long take nothing in his suit.^[2] Long appeals from the trial court's orders with respect to appellees' traditional summary-judgment motions but does not appeal the implicit denial of his motion or the portion of the orders granting appellees' no-evidence summary-judgment motions with respect to his fraud claim. 

We will affirm the trial court's orders.

BACKGROUND

The record shows that on March 16, 2007, Long executed an agreement with Southwest Funding to obtain a home-equity loan in the amount of $710,400. The debt was secured by a Texas Home Equity Security Instrument granting a first lien on Long's property. After Long defaulted on the loan and failed to cure the default, Deutsche Bank, as purported successor and assign, filed an application for judicial foreclosure in the district court in Travis County (the first lawsuit). See Tex. R. Civ. P. 736. The district court rendered judgment in that proceeding allowing Deutsche Bank to proceed with a foreclosure sale of the property. Long filed a motion for new trial, which the trial court granted. There is no indication in the record of a new trial being conducted or the resolution of the first lawsuit. Rather, the record indicates that Deutsche Bank obtained and filed propriety of a defendant adopting a co-defendant's summary-judgment motion because Long does not raise the issue on appeal. See Tex. R. App. P. 38.1(i); Lairsen v. Slutzky, 80 S.W.3d 121, 130 (Tex. App.-Austin 2002, pet. denied). a substitute trustee's deed to the property after a foreclosure sale. Shortly after the foreclosure sale occurred, Long filed the underlying suit against appellees that is the subject of this appeal.

In May 2013, while Long's underlying suit was pending, Deutsche Bank filed a "Statement of Facts to Purge Real Property Records" in the official public records of Travis County stating that the substitute trustee's deed obtained in the foreclosure sale was void due to a failure to meet required "conditions precedent" prior to the sale. The statement further expressed that Deutsche Bank "ha[d] not accepted delivery of [the substitute trustee's deed]," that there "ha[d] been no conveyance of the Property by the Deed," and that "[t]itle to said property is vested in James V. Long." Presumably these actions were in response to the first lawsuit, but the record is unclear on this point. In 2014, the trial court granted appellees' summary-judgment motions and implicitly denied Long's summary-judgment motion in Long's underlying suit. This appeal followed.

DISCUSSION

Long contends that the trial court erred in granting appellees' traditional summary judgment with respect to: (1) his TILA claim, (2) his wrongful-foreclosure claim, and (3) appellees' counterclaim for judicial foreclosure. We will address each claim under its applicable summary-judgment standard below.

Standard of Review

We review summary judgments de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A traditional motion for summary judgment must show that there is no genuine issue as to a specified material fact and, therefore, that the moving party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005). When defendants move for summary judgment on a plaintiff's claims (as appellees did with regard to Long's wrongful-foreclosure and TILA claims in this case), the defendants must disprove at least one element of each claim as a matter of law. Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996); Kalyanaram v. University of Tex. Sys., 230 S.W.3d 921, 925 (Tex. App.-Dallas 2007, pet. denied). If the defendants meet their burden, the plaintiff must respond and present evidence raising a fact issue. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999). When defendants move for a traditional summary judgment on their counterclaim (as appellees did with respect to their counterclaim for judicial foreclosure in this case), they must conclusively prove all essential elements of their counterclaim. See id. at 223. If they conclusively establish their counterclaim, the burden shifts to the plaintiff to respond to the summary judgment. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000).

Where, as here, a trial court's order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories presented to the trial court and preserved for appellate review are meritorious. Provident Life, 128 S.W.3d at 216; Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).

Long's Claims

A. TILA Claim

In his petition, Long alleged that appellees failed to comply with the Truth in Lending Act in their disclosures to him regarding the home-equity loan.^[3] In their motion for summary judgment, appellees alleged that Long's claim failed as a matter of law on two grounds: (1) because appellees did not violate TILA, and (2) because the claim was barred by the applicable statute of limitations.^[3] On appeal, Long challenges only the first ground and does not challenge the ground regarding the statute of limitations. When the trial court does not specify the basis for its summary judgment, as in this case, the appellant must attack all independent bases or grounds that support the judgment. See Schuetz v. Source One Mortg. Servs. Corp., No. 03-15-00522-CV, 2016 WL 4628048, at *6 (Tex. App.-Austin Sept. 1, 2016, no pet. h.) (mem. op.); Oliphant Fin. LLC v. Angiano, 295 S.W.3d 422, 423 (Tex. App.-Dallas 2009, no pet.). When an appellant fails to challenge each possible ground for summary judgment, we must uphold the judgment on the unchallenged grounds. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970); Schuetz, 2016 WL 4628048, at *6; Humphries v. Advanced Print Media, 339 S.W.3d 206, 208 (Tex. App.-Dallas 2011, no pet.). Because Long did not challenge one of the grounds on which the trial court could have granted summary judgment regarding his TILA claim, we affirm the summary judgment as to that claim. See Malooly, 461 S.W.2d at 121; Schuetz, 2016 WL 4628048, at *6.

B. Wrongful-Foreclosure Claim

In his petition in the trial court, Long alleged a wrongful-foreclosure claim and sought rescission of the foreclosure sale and damages. He asserts on appeal that the trial court erred in granting summary judgment on this claim. The elements of a wrongful foreclosure claim are: (1) a defect in the foreclosure-sale proceedings; (2) an inadequate selling price; and (3) a causal connection between the defect and the inadequate selling price. See Estate of Broughton v. Financial Freedom Senior Funding Corp., No. 13-14-00091-CV, 2016 WL 2955058, at *3 (Tex. App.-Corpus Christi, May 19, 2016, pet. filed) (mem. op.); Buchanan v. Compass Bank, No. 02-14-00034-CV, 2015 WL 222143, at *5 (Tex. App.-Fort Worth Jan. 15, 2015, pet. denied) (mem. op.); Charter Nat'l Bank-Houston v. Stevens, 781 S.W.2d 368, 371 (Tex. App.-Houston [14th Dist.] 1989, writ denied).

The proper remedy for wrongful foreclosure is either: (1) damages equal to the difference between the value of the property and the indebtedness; or (2) the setting aside of the foreclosure sale. See Pinnacle Premier Prop., Inc. v. Breton, 447 S.W.3d 558, 565 (Tex. App.-Houston [14th Dist.] 2014, no pet.); Wells Fargo Bank, N.A. v. Robinson, 391 S.W.3d 590, 593-94 (Tex. App.-Dallas 2012, no pet.). A plaintiff seeking damages for wrongful foreclosure must show that (1) there was an irregularity in the foreclosure sale and (2) the irregularity caused the plaintiff damages. See University Sav. Ass'n v. Springwoods Shopping Ctr., 644 S.W.2d 705, 706 (Tex. 1982); Houston Omni USA Co. v. Southtrust Bank Corp., N.A., No. 01-07-00433-CV, 2009 WL 1161860, at *6 (Tex. App.-Houston [1st Dist.] Apr. 30, 2009, no pet.) (mem. op.).

In appellees' summary-judgment motion, they argued that Long's wrongful-foreclosure claim failed as a matter of law because Long did not suffer any injury. There was no injury, they argued, because Long was still in possession of the property. Further, they attached to their motion a document showing that they had rescinded the foreclosure sale and that title to the property remained in Long's name. The document was titled, "Statement of Facts to Purge Real Property Records," was made by the substitute trustee for Deutsche Bank, and was filed by Deutsche Bank in the official public records of Travis County. In the statement, the substitute trustee explained that the statement was being filed "to purge the official real property records of all evidence of the putative foreclosure sale" in this case. The trustee also stated that the substitute trustee's deed obtained in the foreclosure sale was void due to a failure to meet required "conditions precedent" prior to the sale. In addition, the trustee stated that Deutsche Bank "ha[d] not accepted delivery of [the substitute trustee's deed]," that there "ha[d] been no conveyance of the Property by the Deed," and that "[t]itle to said property is vested in James V. Long." Further, Long did not dispute in the trial court and does not dispute on appeal that he was still in possession of the property and still held title to the property at the time of the summary-judgment proceedings.

Because there is no dispute that title to and possession of the property remained with Long, we conclude that appellees established as a matter of law that Long suffered no injury from the rescinded foreclosure sale in this case. See Davis v. Deutsche Bank Nat'l Trust, No. 03-12-00768-CV, 2015 WL 1967909, at *2 (Tex. App.-Austin Apr. 30, 2015, no pet.) (mem. op.) (summary judgment proper on appellant's wrongful-foreclosure claim where foreclosure sale was rescinded and appellant was still in possession of property); Robinson, 391 S.W.3d at 594 (recovery of damages for wrongful-foreclosure claim not appropriate where borrower still holds title to and possesses property). Accordingly, summary judgment was proper on this claim.^[4]

Appellees' Counterclaim

In their Answer to Long's petition, appellees^[5] alleged a declaratory-judgment counterclaim seeking a declaration that they were entitled to foreclose on the property pursuant to the security instrument and the applicable foreclosure statutes. They then moved for summary judgment on their counterclaim. Long objected in the trial court to the affidavit supporting the summary-judgment evidence regarding this counterclaim, and he argues on appeal that the trial court erred in considering the affidavit. We will first address Long's objection to the affidavit and then address the merits of the counterclaim.

A. Objections to Affidavit

The affidavit to which Long objected is the business-records affidavit of the vice president of OneWest, the mortgage servicer for Deutsche Bank. Long contends on appeal that the affidavit "is wholly inadequate" because (1) the signature block indicates that the vice president signed "in a corporate capacity" and "as if a corporation was testifying" by listing OneWest first before the affiant's name under the signature line, and (2) the affidavit did not show that the vice president had personal knowledge of the exhibits attached to the affidavit. We note that the record shows that Long did not obtain a ruling on his objections, calling into question whether he waived at least one of his objections, see Grand Prairie Indep. Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990) (per curiam); Investment Retrievers, Inc. v. Fisher, No. 03-13-00510-CV, 2015 WL 3918503, at *4-5 (Tex. App.-Austin June 25, 2015, no pet.) (mem. op.); Sprayberry v. Siesta MHC Income Partners, L.P., No. 03-08-00649-CV, 2010 WL 1404598, at *2-4 (Tex. App.-Austin Apr. 8, 2010, no pet.) (mem. op.), but even assuming he did not waive his objections, we conclude that the trial court did not err in considering the affidavit.

We review evidentiary rulings in summary-judgment proceedings under an abuse-of-discretion standard. See Ordonez v. Solorio, 480 S.W.3d 56, 67-68 (Tex. App.-El Paso 2015, no pet.); Paciwest, Inc. v. Warner Alan Props., LLC, 266 S.W.3d 559, 567 (Tex. App.-Fort Worth 2008, pet. denied). A trial court abuses its discretion if it acts without regard to guiding rules or principles. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). We must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling. Id.

Turning to Long's arguments, we are unpersuaded by his first argument focusing on the signature block of the affidavit. Long cites only to authority stating that a party must sign an affidavit and that a corporation itself cannot serve as the signatory on an affidavit, and the affidavit in this case does not run afoul of either of these legal principles. See Tex. Gov't Code § 312.011; Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 204-06 (1993). Specifically, the affidavit here makes clear that it was not prepared or signed by a corporate entity but rather was prepared and signed by a person: Charles Boyle, the vice president of OneWest. Specifically, the affidavit is written from Boyle's perspective, states that it was prepared by Boyle, and contains Boyle's signature followed by:

OneWest Bank, FSB By: Charles Boyle Its: Vice President

Because the affidavit shows that Boyle prepared and signed the affidavit, and because Long does not cite to any authority supporting his position, we reject Long's argument.

We are also unpersuaded by Long's argument that the affidavit does not show that Boyle had personal knowledge of the exhibits attached to his affidavit. In the affidavit, Boyle stated that he was employed by OneWest, that he was "authorized in all respects to make th[e] affidavit," and that "given [his] job duties, every statement contained in [the] affidavit [was] within [his] personal knowledge and [was] true and correct." He further stated:

In the regular performance of my job functions, I am familiar with business records maintained by OneWest Bank for the purpose of servicing mortgage loans. These records (which include data compilations, electronically imaged documents, and others) are made at or near the time by, or from information provided by, persons with knowledge of the activity and transactions reflected in such records, and are kept in the course of business activity conducted regularly by OneWest Bank. It is the regular practice of OneWest Bank's mortgage servicing business to make these records. The records attached to this Affidavit . . . are true and correct copies of each identified business records as maintained by OneWest.

The affiant in a business-records affidavit is considered a "qualified witness" if the person has personal knowledge of the business's record-keeping practices or of the facts contained within the business records. See Tex. R. Evid. 602, 803(6), 902(10); Rodriguez v. Citimortgage, Inc., No. 03-10-00093-CV, 2011 WL 182122, at *4 (Tex. App.-Austin Jan. 6, 2011, no pet.) (mem. op.); In re E.A.K., 192 S.W.3d 133, 142 (Tex. App.-Houston [14th Dist.] 2006, pet. denied). Further, an affiant's position or job responsibilities can qualify him to have personal knowledge of facts and establish how he learned of the facts, and it is sufficient for him to state that he is personally acquainted with the facts and that he has access to, has reviewed, and is familiar with the records attached to the affidavit. See Scott v. U.S. Bank, Nat'l Ass'n, No. 02-12-00230-CV, 2014 WL 3535724, at *3 (Tex. App.-Fort Worth July 17, 2014, no pet.) (mem. op.); Valenzuela v. State & Cty. Mut. Fire Ins. Co., 317 S.W.3d 550, 553 (Tex. App.-Houston [14th Dist.] 2010, no pet.).

Long specifically argues that Boyle did not have personal knowledge of the documents because they were "documents received from another entity," as OneWest was serving as Deutsche Bank's mortgage servicer. However, an affidavit can still establish an affiant's personal knowledge of the referenced documents even if a third-party created the documents. See National Health Res. Corp. v. TBF Fin., LLC, 429 S.W.3d 125, 130 (Tex. App.-Dallas 2014, no pet.); Roper v. CitiMortgage, Inc., No. 03-11-00887-CV, 2013 WL 6465637, at *12 (Tex. App.-Austin Nov. 27, 2013, pet. denied) (mem. op.); Ainsworth v. CACH, LLC, No. 14-11-00502-CV, 2012 WL 1205525, at *5 (Tex. App.-Houston [14th Dist.] Apr. 10, 2012, pet. denied) (mem. op.); Simien v. Unifund CCR Partners, 321 S.W.3d 235, 240-41 (Tex. App.-Houston [1st Dist.] 2010, no pet.); Nice v. Dodeka, LLC,No. 09-10-00014-CV, 2010 WL 4514174, at *4 (Tex. App.-Beaumont Nov. 10, 2010, no pet.) (mem. op.).

Given the information set forth in the affidavit—including Boyle's role as vice president of OneWest and his statements that the documents were made by people with knowledge of the activity and transactions reflected in the documents, that the documents were kept in the regular course of One West's business activity, and that he was familiar with the documents as part of his regular job performance as a mortgage servicer—we reject Long's argument that the affidavit does not demonstrate that Boyle had personal knowledge of the documents. See Tex. R. Evid. 602, 803(6), 902(10); Roper, 2013 WL 6465637, at *12; Rodriguez, 2011 WL 182122, at *4.

Having rejected both of Long's arguments regarding the affidavit, we conclude that the trial court did not abuse its discretion in considering the affidavit.

B. Counterclaim

As stated above, the trial court granted appellees' summary-judgment motion regarding their counterclaim seeking a declaration that they were entitled to foreclose on the property pursuant to the security instrument and the applicable foreclosure statutes. In its judgment, the trial court specifically stated that appellees were "granted declaratory relief that they may lawfully proceed with the foreclosure sale of the property at issue in this litigation pursuant to the terms of the Deed of Trust and § 51.002 of the Texas Property Code." The counterclaim was brought under former rule 735 of the Texas Rules of Civil Procedure, which allowed a party to file a "counterclaim seeking a final judgment which includes an order allowing foreclosure under the security instrument and Tex. Prop. Code § 51.002." See former Tex. R. Civ. P. 735(2) (expired Jan. 1, 2012).

In support of its right to foreclose, Deutsche Bank provided Boyle's business-records affidavit, in which he stated that Long executed a note and security instrument, that the note and security instrument were assigned to Deutsche Bank, that Long had stopped paying on the loan, that Long was sent a notice of default and a notice of acceleration, and that Long still had not cured the default. Attached to the affidavit as further summary-judgment evidence was: (1) the Texas Home Equity Note signed by Long, (2) the Texas Home Equity Security Instrument signed by Long and allowing foreclosure in the event of default, (3) an "Assignment of Note and Deed of Trust" to Deutsche Bank, (4) a notice of default sent to Long, (5) a notice of acceleration sent to Long, and (6) excerpts from the deposition of Long in which he admitted that he had stopped making payments on the loan. Given the evidence presented by Deutsche Bank, we conclude that it established its right to summary judgment as a matter of law on its counterclaim. See id.; Bierwirth v. TIB-The Indep. BankersBank, No. 03-11-00336-CV, 2012 WL 3239121, at *4 (Tex. App.-Austin Aug. 10, 2012, no pet.) (mem. op.). Thus, the burden shifted to Long to raise an issue of material fact. See M.D. Anderson, 28 S.W.3d at 23.

Long argues that he raised issues of material fact as to whether Deutsche Bank was entitled to foreclose on his property because (1) Deutsche Bank declared that the prior deed it obtained in a foreclosure sale of Long's property was void in a "Statement of Facts to Purge Real Property Records," and Deutsche Bank did not "provide evidence that [it] did anything to correct its prior problems" and (2) Deutsche Bank did not show that it was the holder of the note. As support for his first argument—that Deutsche Bank could no longer seek foreclosure in this suit because it had rescinded a previous foreclosure sale—Long points only to the "Statement of Facts to Purge Real Property Records" itself, in which the substitute trustee for Deutsche Bank stated that "one or more conditions precedent required by Tex R. Civ. P. 54 and Tex. Prop. Code 51.002 to conduct the putative foreclosure sale had not been accomplished." The substitute trustee further stated in the document that "the Deed is void and without force and effect," that Deutsche Bank "ha[d] not accepted delivery of said Deed," and that "[t]itle to said property is vested in James V. Long." The property-code provision referenced in the statement pertains to actions required in conducting a foreclosure sale of a property.^[6]See Tex. Prop. Code § 51.002. Long asserts that "the document specifically states that one or more conditions precedent were not performed" and that "the summary judgment evidence does not attempt to provide evidence that Deutsche Bank did anything to correct its prior problems."

However, evidence that Deutsche Bank rescinded a 2010 foreclosure sale is not evidence that the bank cannot conduct another foreclosure sale in 2014, when the trial court granted the summary-judgment motions in this case. Long does not point to any defects in the summary-judgment evidence presented by Deutsche Bank that would potentially prevent Deutsche Bank from foreclosing on the property. For example, he does not contend that he was not in default or that he did not receive proper notice of his default. He has the burden to direct this Court to evidence in the record that supports his contention; it is not our duty to make an independent search of the summary-judgment record for evidence supporting his argument. See Larsen v. OneWest Bank, FSB, No. 14-14-00485-CV, 2015 WL 6768722, at *9 (Tex. App.-Houston [14th Dist.] Nov. 5, 2015, no pet.) (mem. op.); Cottledge v. Roberson, No. 05-12-00720-CV, 2013 WL 1456653, at *1 (Tex. App.-Dallas Apr. 9, 2013, no pet.) (mem. op.); Leija v. Laredo Cmty. Coll., No. 04-10-00410-CV, 2011 WL 1499440, at *5 (Tex. App.-San Antonio Apr. 20, 2011, no pet.)(mem. op.). Because Long does not point to any defects in Deutsche Bank's summary-judgment evidence or any authority indicating that Deutsche Bank is not entitled to foreclose on his property, we are unpersuaded by his first argument.

Long likewise fails to raise an issue of material fact regarding his second contention—that Deutsche Bank was not the holder of the note. Deutsche Bank provided an "Assignment of Note and Deed of Trust" showing that the note was assigned to Deutsche Bank in January 2010. Long does not challenge the assignment in his brief or even make any mention of it. Rather, he points to his own affidavit filed in the trial court, in which he stated that "Deutsche Bank is not the holder of note," that he had been "denied access" to the original note despite making numerous demands for it, and that Deutsche Bank representatives made statements to him "to the effect that such note cannot be located." He argues that the statements in his affidavit are "evidence that Deutsche Bank was not the holder of the note." However, his own statement in an affidavit that Deutsche Bank was not the note-holder is self-serving and conclusory, as it is unsupported by independent facts, and therefore does not raise a fact issue. See Purcell v. Bellinger, 940 S.W.2d 599, 602 (Tex. 1997); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Garza v. City of Hous., No. 14-06-00475-C, 2007 WL 2089287, at *5 (Tex. App.-Houston [14th Dist.] July 24, 2007, no pet.) (mem. op.).

Having rejected both of Long's arguments, we overrule this issue.

CONCLUSION

We affirm the trial court's summary-judgment orders.

[1] OneWest, IndyMac, and Deutsche Bank joined in filing a traditional and no-evidence summary-judgment motion, and Southwest Funding then filed its own traditional and no-evidence motion incorporating the substance of the other appellees' motions. We need not decide the

[2] The orders granting appellees' motions for summary judgment constitute an implicit denial of Long's motion for summary judgment. See 2004 Dodge Ram v. State, No. 03-14-00704-CV, 2016 WL 4515936, at *2 n.3 (Tex. App.-Austin Aug. 26, 2016, no pet.) (mem. op.); General Agents Ins. Co. of Am., Inc. v. El Naggar, 340 S.W.3d 552, 557 (Tex. App.-Houston [14th Dist.] 2011, pet. denied).

[3] The Truth in Lending Act protects consumers from inaccurate and unfair credit practices. See 15 U.S.C. §§ 1601-1667.

[3] A one-year statute of limitations governs claims brought under the Truth in Lending Act, running from the date of each violation. See id. § 1640(e).

[4] In his petition, Long also sought declaratory relief. Specifically, he requested declarations "that the note ha[d] been paid in full" and that appellees "ha[d] no right or standing to foreclose any lien secured by [the property]." On appeal, Long does not address his declaratory-judgment claims in any way and has therefore waived appellate review of the trial court's resolution of these claims. See Tex. R. App. P. 38.1(i); Ross v. St. Luke's Episcopal Hosp., 462 S.W.3d 496, 500 (Tex. 2015); Liberty Mut. Ins. Co. v. Griesing, 150 S.W.3d 640, 648 (Tex. App.-Austin 2004, pet. dism'd w.o.j.).

[5] With respect to the counterclaim, references to "appellees" are references to OneWest, IndyMac, and Deutsche Bank, as Southwest Funding did not file a counterclaim.

[6] The other authority referenced, rule 54 of the Texas Rules of Civil Procedure, states the following:

In pleading the performance or occurrence of conditions precedent, it shall be sufficient to aver generally that all conditions precedent have been performed or have occurred. When such performances or occurrences have been so plead, the party so pleading same shall be required to prove only such of them as are specifically denied by the opposite party.

Tex. R. Civ. P. 54.

THE ESTATE OF SANDRA BROUGHTON, Deceased.
GARY T. WEIMER, INDIVIDUALLY AND AS INDEPENDENT CO-EXECUTOR OF THE ESTATE OF SANDRA BROUGHTON, Deceased;
GREG WEIMER, INDIVIDUALLY AND AS INDEPENDENT CO-EXECUTOR OF THE ESTATE OF SANDRA BROUGHTON; ET AL., Appellants,
v.
FINANCIAL FREEDOM SENIOR FUNDING CORPORATION; FINANCIAL FREEDOM ACQUISITION, LLC; AND FEDERAL NATIONAL MORTGAGE ASSOCIATION A/K/A FANNIE MAE, Appellees.

No. 13-14-00091-CV.

Court of Appeals of Texas, Thirteenth District, Corpus Christi, Edinburg.

Delivered and filed May 19, 2016.

Before Chief Justice Valdez and Justices Rodriguez and Wittig.

MEMORANDUM OPINION

Memorandum Opinion by Justice DON WITTIG.^[1]

This is an appeal of a summary judgment on a claim of wrongful foreclosure of a reverse mortgage.^[2] Appellants include the Estate of Sandra Broughton, Deceased; Gary T. Weimer, Individually and as Independent Co-Executor of the Estate of Sandra Broughton, Deceased; Greg Weimer, Individually and as Independent Co-Executor of the Estate of Sandra Broughton, Deceased; Jere Bob Bowden; and Bonnie Zamora, (collectively "Broughtons"). Appellees are Financial Freedom Senior Funding Corporation ("FFSFC"), Financial Freedom Acquisition, LLC, ("FFA"), and Federal National Mortgage Association ("Fannie Mae").

The Broughtons argue that irregularities caused a wrongful foreclosure with resulting inadequate consideration and that the entity that foreclosed the property did not have legal authority to do so. By memorandum opinion issued on March 3, 2016, we affirmed the summary judgment in part and reversed and remanded in part. See Estate of Broughton v. Fin. Freedom Senior Funding Corp., No. 13-14-00091-CV, 2016 WL 836834, at *1 (Tex. App.-Corpus Christi Mar. 3, 2016, no. pet. h.) (mem. op.). Appellees have subsequently filed a motion for rehearing in this cause. Without changing our previous disposition, we deny the motion for rehearing, withdraw our earlier opinion and associated judgment, and issue this memorandum opinion and related judgment in their stead.

We affirm in part and reverse and remand in part.^[3]

I. BACKGROUND

In 2006, Sandra and her husband Donald Broughton entered into a reverse mortgage loan on their homestead located at 190 Oakwood Trail, Leander, Williamson County, Texas with FFSFC. The original note was for $300,240.00. FFSFC, a subsidiary of Indymac Bank, was placed into FDIC receivership in July 2009. Certain assets of FFSFC presumably including the property in question were sold to FFA, including the mortgage servicing rights. However, conflicting summary judgment proof showed a prior sale of the same mortgage assets from FFA to Fannie Mae on July 23, 2007. The original Broughton note and deed of trust contained an acceleration clause requiring payment on the death of all borrowers. Sandra Broughton survived her husband, but died December 24, 2009. There was a delay in executing letters testamentary due to the loss of the original will. The letters were finally granted August 23, 2010, with Greg and Gary Weimer as co-executors of the estate.

Summary judgment proof showed that neither executor received FFA's notice letter dated January 26, 2010 because the letter was not sent to the debtor's address. Instead it was sent to the deceased Broughtons' former Oakwood Trail address. Nor had letters testamentary been issued at that time. On November 22, 2010, FFA sent a notice of foreclosure intended for Gary Weimer; the notice was again to the Oakwood Trail address, not to his mailing address. On February 15, 2011, FFA sent a notice of lien and election of preferred lien status stating that the estimated payoff for the loan was $162,095.18. On April 4, 2011, FFA (but not the lender) sent the executors a notice of substitute trustee sale. Although additional extensions were requested, they were denied. The property was listed for sale by the Weimers for the estimated value of $610,000.00. The property was foreclosed on May 3, 2011, and the underlying lawsuit for wrongful foreclosure was filed in August of 2011.

II. STANDARD OF REVIEW

Summary judgments are reviewed de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We apply the following standards in reviewing a traditional summary judgment: (1) the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in favor of the nonmovant. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985)).

A no-evidence motion for summary judgment is similar to a motion for a pretrial directed verdict. See Merrell Dow Pharms, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). In a no-evidence summary judgment motion, the movant contends there is no evidence of one or more essential elements of the claims for which the non-movant would bear the burden of proof at trial. TEX. R. CIV. P. 166a(i); Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008). Once the motion is filed, the burden shifts to the non-movant to present evidence raising an issue of material fact as to the elements specified in the motion. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The trial court must grant the motion unless the non-movant produces more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements. See Wilson, 249 S.W.3d at 426. However, the non-moving party is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements. TEX.R. CIV. P. 166a(i), Notes and Comments (1997); Wilson, 249 S.W.3d at 426. We review a no-evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). A no-evidence motion that only generally challenges the sufficiency of the non-movant's case and fails to state the specific elements that the movant contends lack supporting evidence is fundamentally defective and cannot support summary judgment as a matter of law. Jose Fuentes Co. v. Alfaro, 418 S.W.3d 280, 283 (Tex. App.-Dallas 2013, pet. denied).

III. UNFAIR PRICE

The elements of a wrongful foreclosure claim are: (1) a defect in the foreclosure sale proceedings; (2) an inadequate selling price; and (3) a causal connection between the defect and the inadequate selling price. See Charter Nat'l Bank-Houston v. Stevens, 781 S.W.2d 368, 371 (Tex. App.-Houston [14th Dist.] 1989, writ denied).^[4] We first examine the adequacy of the sales price.

The Broughtons contend irregularities in the foreclosure sale caused or contributed to cause the property to be sold for an inadequate or grossly inadequate price, citing as authority American Sav. & Loan Ass'n of Houston v. Musick, 531 S.W.2d 581, 587 (Tex. 1975). The property sold at foreclosure for $173,365.40, while the estimated value of the property was $610,000.00. FFA's own appraisal shortly before foreclosure placed the value at $340,000.00,^[5] and the property had been listed by appellants in 2010 for $585,000.00. The Broughtons also argue that, depending on the degree of price inadequacy, there may be a presumption that an irregularity in the sale caused the low price. See Apex Fin. Corp. v. Brown, 7 S.W.3d 820, 828-29 (Tex. App.-Texarkana 1999, no pet.). "The particular facts of each case will determine whether the sale price was so grossly inadequate as to warrant the setting aside of the sheriff's sale." Id. (citing House v. Robertson, 36 S.W. 251 (Tex. 1896); Rio Delta Land Co. v. Johnson, 566 S.W.2d 710, 712 (Tex. Civ. App.-Corpus Christi 1978, writ ref'd n.r.e.)).

Appellees counter, citing Richardson v. Kent, which held that a sales price must fall so far short of the real value as to shock a correct mind (thereby raising a presumption that fraud attended the purchase). See 47 S.W.2d 420, 425 (Tex. Civ. App.-Dallas 1932, no writ). Appellees also argue that a price of more than fifty percent of property value is not grossly inadequate as a matter of law. See Terra XXI, Ltd. v. Harmon, 279 S.W.3d 781, 788 (Tex. App.-Dallas 2007, pet denied). The Terra court relied upon Kent as sole support for this proposition—and in Kent the court more accurately stated that they could find no case that held a sales price of more than fifty percent was grossly inadequate as a matter of law. Compare id. with Kent, 47 S.W.2d at 425 ("Therefore it appears that the consideration paid and to be paid by Richardson was approximately 50 per cent of the then value of the land, as found by the jury. We know of no case holding that, when property at a forced sale brings fifty per cent of its value, the consideration paid by the purchaser is decreed as a matter of law, to be grossly inadequate; hence no presumption of fraud can be indulged in respect to this sale. . . ." (emphasis added)).

We reject appellees' argument that a sale price of approximately fifty percent of the value is adequate as a matter of law. See id. In any event, and more to the point, the significant disparity between the sales price of $173,365.40 and the opinion of market value of $610,000.00, greatly exceeds fifty percent and in fact is over three hundred and fifty percent. Cf. Stevens, 781 S.W.2d at 370-75 (finding approximately eighty-four percent of $430,000.00 fair market value to be inadequate and a proper cohort of damages).

Some courts have rejected the language that a foreclosure selling price be "grossly inadequate." See id. at 371. In Stevens, the relevant jury question was whether the "fairness" of the foreclosure price was affected by the failure of the mortgagee to notify, as promised, a person interested in purchasing the property. Id. In Stevens, it should also be noted that the fair market value of the property was $430,000.00 and the sale price was $355,000.00, a difference of $54,315.00. Id. 370-71. The trial court and appellate court rejected a proposed jury question that asked whether $355,000.00 was a "grossly inadequate bid price." Id. at 371. Rather than the sometimes-used test of "grossly inadequate bid price", the correct inquiry is the inadequacy of consideration. See id. at 373-74. Furthermore, whether or not irregularities of a sale had any influence upon the consideration paid in the sale is a question of fact. Id. at 374 (citing Allen v. Pierson, 60 Tex. 604, 605-06 (1884) (stating that where the price is grossly inadequate, slight additional facts showing fraud, irregularity, or other circumstances calculated to prevent the property from bringing something like its reasonable value, might be sufficient to avoid the sale.)

Given the significant disparity between the sale price of $173,365.40, appellees' own appraisal of $340,000.00, and an appraised value of $610,000.00, we conclude appellants raised a fact issue thus preventing a summary judgment on this element. Id.; Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007); Apex Fin. Corp., 7 S.W.3d at 829.

IV. NOTICE

On January 26, 2010, FFA sent correspondence addressed to the Estate of Broughton at 190 Oakwood Tr., Leander, Texas, 78641, stating a future threat to foreclose if any deficiencies were not cured within thirty days. Gary Weimer filed a summary judgment affidavit stating he did not receive the letter and the stated address was not his address. In his affidavit, Gary Weimer unequivocally stated he did not receive this correspondence and had not and did not reside at that address. We previously held a similar affidavit by the homeowner regarding lack of service constitutes some evidence of a defect in the foreclosure sale proceedings. Sauceda v. GMAC Mortg. Corp., 268 S.W.3d 135, 139-40 (Tex. App.-Corpus Christ 2008, no pet.). Thus, a fact issue remained as to whether the Saucedas were served with the notice that section 51.002(b)(3) of the property code required. See TEX. PROP. CODE ANN. § 51.002(b)(3), (West, Westlaw through 2015 R.S.); Sauceda, 268 S.W.3d at 140. Furthermore, appellees fail to show that the 190 Oakwood Trail address is the last known address of the "debtor," given the demise of Mrs. Broughton, the last survivor of the couple.^[6]

Appellants contend impliedly that the deed of trust notice requirements trump the property code requirements. The deed of trust apparently allows notice to be sent to the property address, presumably vacant after the death of Mrs. Broughton. This contrasts with section 51.002(b)(3) & (e) requiring written notice to each debtor at the debtor's last known address.^[7] Furthermore, section 51.002(d) provides:

Notwithstanding any agreement to the contrary, the mortgage servicer of the debt shall serve a debtor in default under a deed of trust or other contract lien on real property used as the debtor's residence with written notice by certified mail stating that the debtor is in default under the deed of trust or other contract lien and giving the debtor at least 20 days to cure the default before notice of sale can be given under Subsection (b). The entire calendar day on which the notice . . . is given, regardless of the time of day at which the notice is given, is included in computing the 20-day notice period . . ., and the entire calendar day on which notice of sale is given under Subsection (b) is excluded in computing the 20-day notice period.

TEX. PROP. CODE ANN. § 51.002(d) (emphasis added).

Appellants contend that there is no proper summary judgment proof as to the holder of the note and the mortgagee on the deed of trust. The deposition testimony of Gail Funkhauser, who claimed to be the person most knowledgeable of the details of the transaction, testified that Fannie Mae had purchased the note and owned it throughout the transaction. Fannie Mae was the holder of the note, and perhaps the mortgagee, but did not foreclose the note. Fannie Mae was also the purchaser and sole bidder at the foreclosure "sale."^[8] Nor is the record clear that FFA had specific authority from Fannie Mae to foreclose. It appears that at one time the deed of trust was assigned from FFSFC to Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for FFA. Other proof suggests that Fannie Mae was the mortgage holder and owner of the note. Nevertheless, we agree with appellees that FFA as servicer of the deed of trust had authority to act on behalf of the lender, subject to statutory, contract, and constitutional restrictions. See Aguero v. Ramirez, 70 S.W.3d 372, 374 (Tex. App.-Corpus Christi 2002, pet. denied) (explaining that a deed of trust may be enforced by the mortgagee, regardless of whether the mortgagee also holds the note).

Appellants contend that section 51.0025 allows a mortgage servicer to foreclose on behalf of a mortgagee if the servicer and mortgagee have entered into an agreement to foreclose and the required notices under section 51.002(b) disclose that the servicer is representing the mortgagee under the servicing agreement and the name of the mortgagee. See TEX. PROP. CODE ANN. §§ 51.0025, 51.002(b)(3). Appellees argue that where there is a debt secured by a note, which is, in turn, secured by a lien, the note and lien constitute separate obligations. See Aguero, 70 S.W.3d at 374. We agree. However, appellants are correct that the FFA did not disclose that it acted under an agreement with Fannie Mae to service the note. These too are separate obligations. Appellants counter that they were the mortgagee, not the noteholder, and accordingly did not need to disclose their principals and were empowered to foreclose.

In their brief, appellees admit and argue that their notice of substitute trustee sale shows the address of FFA and stated that FFA was acting as both the mortgagee and mortgage servicer. Indeed, this notice shows FFSFC, a subsidiary of Indy Mac Bank, as the original mortgagee, and FFA as "current" mortgagee and mortgage servicer.^[9] Yet the summary judgment proof is in conflict as to the mortgagee note holder. Indeed FFA conveyed multiple mortgages to Fannie Mae, presumably including the Broughton mortgage/deed of trust in question.

FFA did not disclose it was acting on behalf of Fannie Mae. No copy of the note was produced. There is no showing of a complete chain of title between FFSFC and Fannie Mae. Further, there was no showing appellees had an agreement between FFA and Fannie Mae giving FFA authority to service the note and foreclose on behalf of Fannie Mae. The notice stated FFA was acting as the mortgage servicer for FFA, not that it was the lender.

Even assuming that FFA notices were properly originated, appellants failed to give the proper notice when the loan became due.^[10] Under the deed of trust, the "Lender shall notify the secretary and borrower whenever the loan becomes due and payable under Paragraph 9." While FFA (or FFSFC) was the original lender, according to some summary judgment proof, the note and mortgage were apparently sold to Fannie Mae. The Texas Constitution also required notice from the lender. Subsection 10 "does not permit the lender to commence foreclosure until the lender gives notice to the borrower. . . ." TEX. CONST. art. XLI § 50(k)(10). The lender's notice must provide that a ground for foreclosure exists, giving the borrower at least thirty^[11] days to remedy the condition, pay the debt, or convey the homestead property. Id. The failure of the lender to notify is cumulative of the fact that the executors were not initially notified and did not live at the Oakwood Trail address. Furthermore, Fannie Mae did not actually bid at the "sale" which, according to Funkhauser, amounted to a paper transaction with the note and property reverting back to Fannie Mae for the amount of the debt with no other bidders.

In our de novo review of a trial court's summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Tamez, 206 S.W.3d at 582. Every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in favor of the nonmovant. Am. Tobacco Co., 951 S.W.2d at 425. Here, the proof does not unequivocally establish that FFA was the authorized mortgage servicer of Fannie Mae. Issues of fact foreclose the availability of summary judgment under these circumstances. We hold that there is some evidence of irregularity of the sale pertaining to required notices under the constitution, applicable statutes, and the deed of trust. There is more than ample evidence on the lack of sufficient consideration paid and some evidence of the likelihood of this causal connection between the defects and the inadequate selling price. See Sauceda, 268 S.W.3d at 139; Apex Fin. Corp., 7 S.W.3d at 828-29. Furthermore, under our system, it is a question of fact to be determined from the evidence whether or not the irregularity had any influence upon the consideration for which the property sold. Prudential Corp. v. Bazaman, 512 S.W.2d 85, 90 (Tex. Civ. App.-Corpus Christi, 1974, no writ) (citing Allen v. Pierson, 60 Tex. 604 (1884) ("It is not a matter of law to be assumed by the court.")).

V. BREACH OF CONTRACT CLAIMS

Appellees point out that the Broughtons did not respond to the no-evidence motion for summary judgment on the breach of contract claims. The trial court must grant the motion unless the non-movant produces more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements. See Wilson, 249 S.W.3d at 426. We accordingly affirm in part the trial court's summary judgment dealing with the breach of contract claims.

VI. CONCLUSION

The portion of the summary judgment dealing with the breach of contract claims is affirmed. The remainder of the summary judgment is reversed and remanded.

[1] Retired Fourteenth Court of Appeals Justice Don Wittig was assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. See TEX. GOV'T CODE ANN. § 74.003 (West, Westlaw through 2015 R.S.).

[2] This case is before the Court on transfer from the Third Court of Appeals in Austin pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.).

[3] Appellees recently filed a motion to set this cause for hearing by submission "on the soonest available date." We grant appellees' motion and issue this opinion accordingly.

[4] As we discuss below, various courts have used different language to reflect the price inadequacy necessary depending on the circumstances. The Stevens Court uses the term "grossly" inadequate sales price while at the same time holding that the jury question about the fairness of the price was correct. See Charter Nat'l Bank-Houston v. Stevens, 781 S.W.2d 368, 371 (Tex. App.-Houston [14th Dist.] 1989, writ denied).

[5] Appellees argue that appellants "judicially admit" a market value of $340,000 but context shows both in the underlying pleadings and their brief, appellants are referencing FAA's own estimate of value.

[6] Section 51.002(b)(3) of the property code also required notice of sale to each debtor. See TEX. PROP. CODE ANN. § 51.002(b)(3). While there is some evidence that Mrs. Broughton lived at the address during her lifetime, there is no proof anyone lived there after her death.

[7] Section (e) provides that notice by certified mail is complete when deposited in the US mail, postage prepaid and addressed to the debtor at the debtor's last known address. In any event, even if an affidavit was submitted to the effect that service was completed, such evidence is only prima facie and could be controverted as was done here.

[8] According to the testimony of Funkhauser, Fannie Mae did not actually bid at a "sale." "It's a paper transaction. If there is no third party sale, it reverts back to the note holder for the amount of the debt." Thus, another irregularity is at issue because it appears there was some evidence that there was no public sale as required under section 51.002(a). See TEX. PROP. CODE ANN. § 51.002(a) (West Westlaw through 2015 R.S.).

[9] Appellees go on to argue at page 5 of their response, FFA as mortgagee was not required to disclose it had any servicing agreement with FNMA or anyone else.

[10] Appellants note the lender to be the beneficiary under the deed of trust.

[11] Or at least twenty days under certain conditions not applicable here.

ORDERS ON CASES GRANTED
THE FOLLOWING PETITION FOR REVIEW IS GRANTED:
16-0485	FINANCIAL FREEDOM SENIOR FUNDING CORPORATION, FINANCIAL FREEDOM ACQUISITION LLC, AND FEDERAL NATIONAL MORTGAGE ASSOCIATION v. THE ESTATE OF SANDRA BROUGHTON, DECEASED, ET AL.; from Williamson County; 13th Court of Appeals District (13-14-00091-CV, ___ SW3d ___, 05-19-16)
	joint motion to grant review, vacate court of appeals' judgment, and affirm trial court's judgment granted as follows: Pursuant to Texas Rule of Appellate Procedure 56.3, without considering the merits, the Court grants the petition for review, vacates the judgment of the court of appeals, and affirms the judgment of the trial court. The parties' request that the court of appeals' opinion be vacated is denied.