Ali R. Ondemir v. Ocwen Federal Bank, f/k/a Berkeley Bank & Trust FSB--Appeal from 225th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00721-CV
Ali R. ONDEMIR,
Appellant
v.
OCWEN FEDERAL BANK f/k/a Berkeley Bank & Trust FSB,
Appellee
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 1998-CI-02357
Honorable Carol R. Haberman, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: September 10, 2003

AFFIRMED

After purchasing the mortgage on Ondemir's home, and after Ondemir defaulted on his mortgage payments, Ocwen Federal Bank f/k/a Berkeley Bank & Trust FSB initiated foreclosure proceedings. Litigation ensued. Ultimately, the parties signed a settlement agreement and release of claims. When Ondemir failed to vacate the property as required by the settlement agreement, Ocwen filed this suit seeking specific enforcement of the settlement agreement. Ondemir counterclaimed for breach of contract, fraud, promissory estoppel, negligent misrepresentation, and a declaratory judgment.

After Ondemir's counterclaims had been on file for approximately four years, Ocwen filed a motion for summary judgment asserting Ondemir could produce no evidence tending to establish at least one element of each counterclaim. The trial court granted Ocwen's motion for summary judgment on Ondemir's counterclaims and then, at Ocwen's request, dismissed Ocwen's claims. Ondemir appeals pro se. We affirm.

1. In his first issue, Ondemir asks "Except as to the amount of damages, did or did not [Ocwen] show there is any genuine issue as to any material fact and thus movant is entitled to judgment as a matter of law pursuant to T.R.C.P. Rule 166a(c)(ii)?" In his third issue, Ondemir asks: "Did or can [Ocwen] establish as a matter of law that it has no liability to [Ondemir] and that [Ondemir] has not been damaged by the claimed wrongs of [Ocwen]?" In both issues, Ondemir evidences his misunderstanding of the burdens imposed by Rule 166a(i).

Rule 166a(i) permits a counter-defendant such as Ocwen to move for summary judgment - without presenting summary judgment evidence - on the ground there is no evidence of one or more essential elements of a claim or defense on which Ondemir would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i). When Ocwen did so, the burden shifted to Ondemir to produce sufficient summary judgment evidence to raise a genuine issue of material fact on each challenged element. See id.

2. In his second issue, Ondemir asks: "Is there any evidence or not to support any of [Ondemir's] Cause of Action? Or, did [Ondemir] produced [sic] or not summary judgment evidence of one or more essential elements of a claim on which [Ondemir] would have the burden of proof at the trial?"

a. Breach of Contract - In his first amended counterclaim, Ondemir alleged that, as a result of Ocwen's reporting of negative information, he was "denied extensions of credit, including but not limited to denial of mortgage loans and the cancellation of a commitment for a mortgage loan, significantly and repeatedly delaying his ability to relocate to another residence, causing him to lose opportunities to purchase other immediately available or more desirable or less expensive property and requiring him to find mortgage financing at higher rates with lesser discounts than that he had secured or would have been able to secure but for the negative reporting ... by [Ocwen]." In its motion for summary judgment, Ocwen alleged there was no evidence tending to establish that Ondemir "suffered resulting damages proximately caused by ... Ocwen's breach." In his response, Ondemir claims "CTX Mortgage informs ONDEMIR that his loan was denied based on derogatory information obtained by Chace [sic] from OCWEN" and that his applications for a credit card and new car loan were denied because of negative information provided by Ocwen. However, we have not located any summary judgment evidence supporting Ondemir's assertions. Accordingly, the trial court correctly granted summary judgment against Ondemir on his breach of contract counterclaim.

b. Negligent Misrepresentation - In his first amended counterclaim, Ondemir alleged that he detrimentally relied on false representations made by Ocwen to Ondemir to guide him in conducting his business. In its motion for summary judgment, Ocwen asserted there is no evidence to establish a misrepresentation. In his response, Ondemir stated that "the evidence in the chronicled FACTS show that Ocwen ... misrepresented ... multiple false information on credit reporting and on discovery without care or competence but with deception and malice." But "[t]o defeat a motion made under paragraph (i)," the response must "point out evidence that raises a fact issue on the challenged elements." Tex. R. Civ. P. 166a, Comment to 1997 change. Ondemir failed to do so; he did not direct the trial court to any particular evidence that raises a genuine issue of material fact regarding whether Ocwen negligently misrepresented a particular fact. Accordingly, the trial court correctly granted Ocwen's motion for summary judgment on Ondemir's negligent misrepresentation claim.

c. Fraud - In his first amended counterclaim, Ondemir alleges that Ocwen committed fraud by entering into the settlement agreement without intending to perform. In its motion for summary judgment, Ocwen asserted there is no evidence that it did not intend to perform according to the terms of the settlement agreement. In his response, Ondemir again stated generally that his factual recitation established fraud and asserted "[t]here is more evidence on the intention of OCWEN to hurt ONDEMIR that will be presented in the trial," without referring the court to any particular evidence suggesting that, at the time it signed the settlement agreement, Ocwen did not intend to perform. The trial court therefore correctly granted summary judgment against Ondemir on his fraud claim.

d. Promissory Estoppel - In his first amended counterclaim, Ondemir purported to allege a cause of action for promissory estoppel because Ocwen failed to "remove all negative information related to the 'Property, the Note of [sic] collection thereof' ... [from] ONDEMIR'S credit report." However, promissory estoppel is available as a cause of action only to "a promisee who relied to his detriment on an otherwise unenforceable promise." Frost Crushed Stone Co. v. Odell Geer Constr. Co., 110 S.W.3d 41, 44 (Tex. App.-Waco 2002, no pet.). Since there is no allegation that the settlement agreement is unenforceable, promissory estoppel is not available as a cause of action. Accordingly, the trial court correctly granted summary judgment against Ondemir on his promissory estoppel claim.

e. Breach of Duty of Good Faith and Fair Dealing - In his first amended counterclaim, Ondemir alleged Ocwen breached a duty of good faith and fair dealing. In its supplemental motion for summary judgment, Ocwen asserted there is no evidence tending to establish the special relationship that stands as a prerequisite to imposition of a duty of good faith and fair dealing. See, e.g., Aranda v. Insurance Co. of N. Am., 748 S.W.2d 210, 212-13 (Tex. 1988); Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex. 1987). We agree. The relationship between Ondemir and Ocwen is not sufficiently similar to that between the liability insurer and its insured or an injured worker and her worker's compensation carrier to warrant imposing on Ocwen a duty of good faith and fair dealing. See Great Am. Ins. Co. v. North Austin Mun. Util. Dist. No. 1, 908 S.W.2d 415, 418 (Tex. 1995). Therefore, the trial court correctly granted summary judgment against Ondemir on his claim for breach of a duty of good faith and fair dealing.

f. Declaratory Judgment - In his first amended counterclaim, Ondemir sought a declaratory judgment that Ocwen committed the acts and owed the legal duties upon which his other causes of action were predicated. However, a declaratory judgment "is not available to settle disputes already pending before a court." BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990) (citations omitted); see, e.g., Housing Auth. v. Valdez, 841 S.W.2d 860, 864-65 (Tex. App.-Corpus Christ 1992, writ denied). Therefore, the trial court correctly granted summary judgment against Ondemir on his request for a declaratory judgment.

3. Ondemir also contends he was not given proper notice of the summary judgment hearing and complains he did not have the opportunity to argue the motion orally. The record conclusively establishes Ondemir was given more than twenty-one days notice of the date specified for hearing. See Tex. R. Civ. P. 166a(c). No oral hearing is required before a trial court rules on a motion for summary judgment. Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998).

The judgment is affirmed.

Sarah B. Duncan, Justice