Jimmy Robinson and Gwendolyn Robinson v. Bank One, National Association; Octavio Guajardo and Eduardo Guajardo--Appeal from 225th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00343-CV
Jimmy ROBINSON and Gwendolyn Robinson,
Appellants
v.
BANK ONE NATIONAL ASSOCIATION, Octavio Guajardo, and Eduardo Guajardo,
Appellees
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CI-12650
Honorable David Berchelmann, Jr., Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: January 7, 2004

AFFIRMED AS MODIFIED

Jimmy Robinson and Gwendolyn Robinson (collectively the "Robinsons") appeal a summary judgment granted in favor of Bank One National Association ("Bank One") and Octavio Guajardo and Eduardo Guajardo (collectively the "Guajardos") in a lawsuit arising out of a foreclosure sale. The Robinsons present five issues on appeal, contending the trial court erred in granting the summary judgment as to all of their claims because: (1) the affidavits were not based on personal knowledge and were conclusory; (2) the motion for summary judgment did not address all of the Robinsons' claims; and (3) Bank One failed to file an answer or other pleading requesting attorney's fees. In its brief, Bank One waives the trial court's award of attorney's fees and requests that we modify the trial court's judgment to exclude the attorney's fees award. In view of Bank One's waiver, we do not address the Robinson's fifth issue, but we modify the trial court's judgment to eliminate the attorney's fees award. We affirm the trial court's judgment as modified.

Background

On April 30, 1996, the Robinsons executed a note payable to the order of Waterfield Financial Corporation in the amount of $140,000. The note was secured by a deed of trust giving Waterfield a lien against certain real property. The note and deed of trust were subsequently assigned to Bank One.

The Robinsons fell behind on their mortgage payments in 2000. The loan servicer for Bank One, HomeComings Financial, mailed a letter to the Robinsons dated June 15, 2001, stating that a default existed under the deed of trust and that the action required to cure the default was the payment of all past-due amounts. The letter further stated that if the default was not cured within thirty days, Bank One would accelerate the maturity of the note and foreclose on the property without further notice or demand. The Robinsons filed for bankruptcy in October of 2001; however, the case was subsequently dismissed on February 8, 2002.

On March 8, 2002, a law firm retained by Bank One sent a letter to the Robinsons, informing them that the note was accelerated and that the property would be foreclosed upon on April 2, 2002. The property was foreclosed and sold to the Guajardos. The Robinsons sued Bank One and the Guajardos asserting various causes of action. The trial court granted summary judgment in favor of Bank One.

Discussion

Summary judgment is appropriate only when there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 252 (Tex. 2002). In reviewing a traditional motion for summary judgment, the reviewing court must resolve every doubt and indulge every reasonable inference in the nonmovant's favor. Id. All evidence favorable to the nonmovant will be taken as true. Id.

In their third issue, the Robinsons contend that the summary judgment granted by the trial court was overly broad because the summary judgment motion did not address the elements of each of the Robinsons' claims. Although the Robinsons assigned various labels to their causes of action, the basis for each claim is that they did not receive proper notice of acceleration and foreclosure in violation of the terms of the deed of trust and the provisions of the Texas Property Code. Bank One's motion adequately addressed these issues.

In their first and second issues, the Robinsons contend that the affidavits in support of Bank One's motion were not based on personal knowledge and were conclusory. Jeffrey Hiller's affidavit only addresses attorney's fees and certifies documents from the bankruptcy hearing. We need not address the adequacy of Hiller's affidavit in regard to the attorney's fees because Bank One has waived the recovery of those fees. With regard to the bankruptcy documents, copies of the documents were attached to Hiller's affidavit, Hiller stated that the documents were true and correct copies, and the affidavit was properly sworn. Accordingly, the documents were sworn copies within the meaning of Rule 166a(f). See Republic Nat'l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex. 1986); Columbia Rio Grande Reg'l Hosp. v. Stover, 17 S.W.3d 387, 396 (Tex. App.--Corpus Christi 2000, no pet.).

With regard to the personal knowledge of the other two affiants, the Robinsons failed to object to the form of the affidavits on the ground that they did not show personal knowledge; therefore, this complaint is waived. See Grand Prairie Indep. Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990); Garcia v. John Hancock Variable Life Ins. Co., 859 S.W.2d 427, 433 (Tex. App.--San Antonio 1993, writ denied). Even if the objection had not been waived, in order to establish personal knowledge, the affiant need only show how the affiant became personally familiar with the facts. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 176 (Tex. App.--Dallas 2000, pet. denied). With regard to the affidavit of Mimi Lev, Lev states that she is a foreclosure specialist with HomeComings Financial and is the custodian of the records relating to the Robinsons' note and deed of trust. Similarly, Becky Howell states that she is the foreclosure manager at the law firm assisting Bank One in collecting the note. Howell further states that she is custodian of records regarding the note and deed of trust as well as the activities taken by the law firm relating to the foreclosure. These statements are sufficient to show how Lev and Howell became personally familiar with the facts.

With regard to the Robinsons' contention that the affidavits were conclusory, a conclusory statement is one that does not provide the underlying facts to support the conclusion. Chaney v. Corona, 103 S.W.3d 608, 611 (Tex. App.--San Antonio 2003, pet denied). The Robinsons appear to be arguing that all of the statements in the affidavits of Lev and Howell are conclusory because Lev and Howell did not have "a stated basis of personal knowledge." However, we have already rejected the contention that Lev and Howell failed to establish personal knowledge of the facts. The statements made in the affidavits that the Robinsons failed to make payments on the note and that notice was sent regarding the intent to accelerate, the acceleration, and the foreclosure are factual statements based on the personal knowledge of Lev and Howell.

In their fifth issue, the Robinsons assert that the summary judgment was overly broad because the Guajardos did not independently move for summary judgment. Because the trial court properly granted summary judgment in favor of Bank One, the Robinsons have no claim against the Guajardos as the purchasers at the foreclosure as a matter of law. It would be meaningless for this court to reverse the judgment as to the claims against the Guajardos since the Robinsons could not recover on such claims as a matter of law. See Chale Garza Investments, Inc. v. Madaria, 931 S.W.2d 597, 601 (Tex. App.--San Antonio 1996, writ denied); Bieganowski v. El Paso Med. Center Joint Venture, 848 S.W.2d 361, 362 (Tex. App.--El Paso 1993, writ denied).

Conclusion

The trial court's judgment is modified to eliminate all awards of attorney's fees. The judgment is affirmed as modified.

Catherine Stone, Justice