Lecretta J. Dykes v. Cendant Mortgage Corporation f/k/a PHH US Mortgage Corporation--Appeal from 45th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00769-CV
Lecretta J. DYKES,
Appellant
v.
CENDANT MORTGAGE CORPORATION f/k/a PHH US Mortgage Corporation,
Appellee
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CI-00916
Honorable Andy Mireles, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: April 9, 2003

AFFIRMED

Appellant Lecretta J. Dykes sued Cendant Mortgage Corporation ("Cendant") for fraud arising out of a real estate transaction. Dykes appeals the trial court's granting of Cendant's motion for summary judgment. We affirm.

Background

In March of 2000, A.W. Coufal, Jr. hired Coldwell Banker D'Ann Harper Realty, Inc. to advertise and sell his home. Dykes agreed to purchase the house and sought a mortgage company. Dkyes applied to Cendant and was able to obtain an FHA insured loan through Cendant. Under FHA underwriting guidelines, the house had to be appraised before Cendant could loan the funds to Dykes. These FHA guidelines require that an FHA certified appraiser appraise the house to estimate its value and determine if it meets minimal FHA standards. In August of 2000, the initial appraisal was conducted. The final appraisal report did not disclose any alleged defects relating to the house's foundation.

Although the house was appraised, it was not inspected by FHA nor was it inspected by Cendant. In an FHA Purchase Agreement Addendum, Dykes was expressly informed that the house had not been inspected, that the appraisal would not guarantee the condition of the property, and that Dykes "should inspect the property [her]self very carefully or hire a professional home inspection service to inspect the property for [her]." Dkyes did not have the house inspected before closing.

On September 11, 2000, Dykes signed an addendum to her real estate contract, agreeing to accept the property in its then-present condition with a few exceptions: the seller agreed to certify the roof for existing life, to replace the broken glass in the back window, to remove the burglar bars, and to pay certain closing costs. On September 14, 2000, Dykes purchased the property "in its present condition" at a closing held at Alamo Title Company. Cendant loaned Dkyes $59,601 to purchase the house, in return for which Dkyes executed a promissory note and deed of trust in favor of Cendant.

Dykes then fell behind in her mortgage payments, and on December 4, 2001, the house was sold at foreclosure. On January 18, 2002, Dkyes filed suit against Cendant for fraud. In response to Cendant's special exceptions, Dykes specifically stated her factual allegations for her fraud claim against Cendant:

The factual basis of the cause of action being asserted against the Defendant is fraud in the sale and advertising of Real Estate. Defendant intended to devise a scheme for obtaining money by means of a fraudulent representation in the sale of a home with a damaged foundation at the highest market value for homes in this area by deceit. Plaintiff specify [sic] that Defendant committed fraud when: (a) [h]e sold a home with a damaged foundation at the highest market value; (b) [h]e fail[ed] to disclose the damaged foundation in the contract; (c) [h]e benefit[ed] from the sale of the damaged property at the highest market value; (d) [h]e had actual awareness of the damages foundation in that he had to observe the floor to determine the need for carpet.

On August 2, 2002, Cendant filed its motion for summary judgment. Dykes filed a response to the motion. However, upon Cendant's motion, all of the evidence attached to Dykes's response was stricken because it was not properly authenticated. After granting Cendant's motion, the trial court entered judgment in favor of Cendant. Dykes appeals.

Standard of Review

Cendant filed a motion for summary judgment under Texas Rule of Civil Procedure 166a(c) and (i). We review the granting of the motion under the usual standard of review. Tex. R. Civ. P. 166a(c), (i); Merrill Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).

Discussion

Dykes argues that the trial court erroneously granted summary judgment in favor of Cendant on her fraud claim. To state a claim for fraud, a plaintiff must show (1) that a material representation was made, (2) that the representation was false, (3) that when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion, (4) that the speaker made the representation with the intent that the plaintiff should act upon it, (5) that the plaintiff acted in reliance on the representation, and (6) the plaintiff thereby suffered injury. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001) (orig. proceeding). To prove the statutory claim of fraud in a real estate transaction, a plaintiff must show (1) that a false representation was made to her for the purpose of inducing her to enter into a contract and (2) that she relied on that representation in entering into the contract. Tex. Bus. & Comm. Code Ann. 27.01(a)(1) (Vernon 2002). A cause of action for statutory fraud under chapter 27 of the Business and Commerce Code differs from the common law cause of action in that the statutory claim does not require proof that the false representation was made knowingly or recklessly. Larsen v. Carlene Langford & Assocs., Inc., 41 S.W.3d 245, 249 (Tex. App.--Waco 2001, pet. denied).

Here, the evidence attached to Cendant's motion for summary judgment shows that Cendant was merely the mortgage lender which loaned Dykes the funds to purchase the home. Cendant was neither the seller nor the seller's real estate agent. Further, the uncontroverted summary judgment evidence shows that Cendant did not inspect the home or have any knowledge of the home's foundation defects before closing. Moreover, the evidence shows that Dykes was informed that the FHA appraisal did not guarantee the condition of the home and that she should inspect the home herself or hire a professional. Finally, Dykes presented no evidence to refute Cendant's no-evidence motion. Based on this summary judgment record, the trial court properly granted summary judgment.

Conclusion

Because the trial court properly granted summary judgment, we affirm the judgment of the trial court.

Karen Angelini, Justice

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