John Hammond Wofford and Rebecca Hughes Wofford v. Texas Commerce Bank--Austin, N.A. and D. B. MacKenzie-Graham--Appeal from 201st District Court of Travis County

Wofford v. Texas Commerce Bank-Austin, N.A. IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-230-CV
JOHN HAMMOND WOFFORD AND REBECCA HUGHES WOFFORD,

APPELLANTS


vs.
TEXAS COMMERCE BANK-AUSTIN, N.A. AND D.B. MACKENZIE-GRAHAM,

APPELLEES


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT,
NO. 491,660, HONORABLE JOHN K. DIETZ, JUDGE

PER CURIAM

This appeal involves a bank's foreclosure on a personal residence. At issue is the propriety of a summary judgment awarding the bank postforeclosure title and possession to the residence. The district court rendered a general summary judgment in favor of Texas Commerce Bank-Austin, N.A. and D.B. MacKenzie-Graham, appellees. John H. Wofford and Rebecca H. Wofford, appellants, raise four points of error. We will affirm.

In 1980 the Woffords executed a promissory note and deed of trust in favor of Capitol National Bank of Austin to finance the purchase of their home. This note and deed of trust were renewed in March 1989 in favor of Capitol National Bank's successor, Texas Commerce Bank-Austin, N.A. The note became due and payable in full in March 1990, and the Woffords subsequently defaulted. The Bank posted the house for foreclosure in August 1990, and the Woffords obtained a temporary restraining order to prevent the foreclosure. In November 1990, following the expiration of the temporary restraining order, the Bank again posted the house for foreclosure. Late that same month, the Woffords filed a voluntary petition for bankruptcy. In re Wofford, No. 90-13842-LK (Bankr. W.D. Tex. Nov. 30, 1990) (petition for relief).

On June 13, 1991, the bankruptcy court rendered an agreed order that required the Woffords to pay in full all amounts due the Bank on or before August 31, 1991, or the Bank would be entitled to post the house for foreclosure. The Woffords failed to make the payments, and the Bank again posted the house for foreclosure in October 1991. The Woffords refused to vacate the house and requested a third temporary restraining order, temporary injunction, and damages against the Bank and the substitute trustee, D.B. MacKenzie-Graham, for: (1) violations of the Deceptive Trade Practices--Consumer Protection Act, Tex. Bus. & Com. Code Ann. 17.41-.63 (West 1987 & Supp. 1993); (2) unconscionable actions; (3) negligence and gross negligence; (4) breach of contract; and (4) misrepresentation. The Bank and MacKenzie-Graham moved for summary judgment for title to and possession of the house. The district court rendered a general summary judgment in favor of the Bank and MacKenzie-Graham, and against the Woffords on their claims.

The Woffords bring four points of error: (1) a so-called "Malooly point" ("the trial court erred in rendering summary judgment"); (1) (2) the trial court erred in rendering summary judgment because the Woffords presented sufficient evidence to create a genuine issue of material fact; (3) the trial court erred in rendering summary judgment because the Bank and MacKenzie-Graham failed to prove that no genuine issue of material fact exists; and (4) the trial court erred in rendering summary judgment against the Woffords on their claims because no motion for summary judgment was made regarding these claims. (2)

In point of error two, the Woffords argue that the trial court erred in rendering summary judgment because the Woffords presented sufficient evidence to create a genuine issue of material fact regarding whether the Bank and MacKenzie-Graham were reasonable in pursuing a foreclosure sale. The bankruptcy court's agreed order states, "In the event TCB [the Bank] is not paid in full on or about August 31, 1991, as provided hereinabove, TCB is authorized to pursue its non-bankruptcy remedies, however, TCB agrees to be reasonable in regards to pursuing its foreclosure sale remedy." The Woffords claim several of the Bank and MacKenzie-Graham's actions show a lack of reasonableness. We disagree.

The Woffords have accused the Bank and MacKenzie-Graham of not being reasonable because the Bank and MacKenzie-Graham have refused to accept any remedy other than full payment by August 31, 1991. Reading the bankruptcy court's agreed order as a whole, we hold that the term "reasonable" does not require that the Bank and MacKenzie-Graham forego their right to pursue nonbankruptcy remedies against the Woffords. Because there is no genuine issue of material fact regarding whether the Bank and MacKenzie-Graham were reasonable in pursuing a foreclosure sale, point of error two is overruled.

In point of error three, the Woffords argue that the trial court erred in rendering summary judgment because the Bank and MacKenzie-Graham failed to prove that no genuine issue of material fact exists. The Bank and MacKenzie-Graham's motion for partial summary judgment and severance stated:


1. . . . To the extent any affirmative claim for relief asserted by the Woffords affects [the Bank's] counterclaim for title to and possession of the Property, [the Bank] also seeks summary judgment on such claim.


2. The grounds for this Motion are that there are no genuine issues as to any material fact and [the Bank] is entitled to judgment as a matter of law confirming its fee simple title to and granting it possession of the Property, based on the undisputed fact that [the Bank] is the fee simple title owner of the Property, having acquired such title through a foreclosure sale duly conducted in accordance with the requirements of law, and is entitled to immediate possession of the Property.


All of the Woffords' affirmative claims are grounded on the Bank's alleged violation of the reasonableness provision of the bankruptcy court's agreed order, regarding which we have already held that no genuine issue of material fact exists regarding whether the Bank and MacKenzie-Graham were reasonable in pursuing a foreclosure sale. Point of error three is overruled.

In point of error four, the Woffords argue that the trial court erred in rendering summary judgment because no motion for summary judgment was made regarding these claims. Paragraph one of the Bank and MacKenzie-Graham's motion for partial summary judgment and severance, quoted above, clearly requests summary judgment on the Woffords' affirmative claims. Point of error four is overruled.

Because we have overruled the Woffords' specific points of error, we overrule their Malooly point of error one. The judgment of the district court is affirmed.


[Before Chief Justice Carroll, Justices Jones and Kidd]

Affirmed

Filed: January 20, 1993

[Do Not Publish]

1. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).

2. The standards for reviewing a motion for summary judgment are well established: (1) The movant for summary judgment has the burden of showing that no genuine issue of material fact exists 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 resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).