KENNETH EUGENE BELL, FROM A DISTRICT COURT APPELLANT, v. MBANK PRESTON, f/k/a PRESTON STATE BANK, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-01277-CV
 
KENNETH EUGENE BELL,                        FROM A DISTRICT COURT
 
 
        APPELLANT,
 
 
v.
 
 
MBANK PRESTON, f/k/a
PRESTON STATE BANK,
 
 
        APPELLEE.                                          OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, LAGARDE AND KINKEADE
OPINION BY JUSTICE KINKEADE
JULY 12, 1989
        MBank Preston sued Kenneth Eugene Bell and Emily Hight Bell for a deficiency resulting from the foreclosure of certain real properties securing payment of a commercial note. Bell contends that the trial court improperly granted summary judgment for MBank. We disagree and affirm the trial court's judgment.
        In his first point of error, Bell claims that the trial court improperly granted summary judgment because MBank omitted crucial documents in its summary judgment proof. Bell claims that MBank failed to attach the "Notices of Sale" and "Repeated Demands" documents referred to in its affidavits. Bell asserts that the failure to attach these documents constituted a fatal defect which precludes summary judgment.         Rule 166-A(e) of the Texas Rules of Civil Procedure states that:
                     Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by opposing party with opportunity, but refusal, to amend.
        In interpreting rule 166-A(e), Texas courts have held that the failure to attach documents referenced in affidavits constitutes a defect of form. Texas Nat'l Corp. v. United Systems Int'l, Inc., 493 S.W.2d 738, 741 (Tex. 1973); Hillkee, Inc. v. Navarro Savings Assoc., 632 S.W.2d 374 (Tex. App.--Waco 1982, no writ). The Texas Supreme Court has held that a party waives its right to complain of a defect in the form of a movant's summary judgment proof if he fails to except to a motion for summary judgment, or the affidavit accompanying the motion, prior to the entry of judgment. Life Insurance Co. of Virginia v. Gar-Dal, Inc., 570 S.W.2d 378, 380 (Tex. 1978); see also Hillkee, 632 S.W.2d at 374. Additionally, rule 166-A(e) states that, unless objected to by a party with opportunity, defects in the form of affidavits or attachments will not be grounds for reversal. Thompson v. Dart 736 S.W.2d 821, 828 (Tex. App.--San Antonio 1988, no writ) (citing Youngstown Sheet & Tube Co. Penn 363 S.W.2d 230, 234 (Tex. 1962)).
        MBank's failure to attach the documents it referred to in its motion for summary judgment was a defect of form. Texas Nat'l Corp., 493 S.W.2d at 741. Bell failed to object to this defect at the trial court level. Therefore, Bell is precluded from complaining about the defect for the first time on appeal. Gar-Dal, Inc., 570 S.W.2d at 380. We overrule Bell's first point of error.
        In his second point of error, Bell claims that the trial court erred in granting summary judgment for MBank's attorney's fees and costs. Bell asserts that MBank's charges for expenses and attorney's fees incurred in connection with the foreclosures were substantially in excess of that which was fair, just, equitable or reasonable. However, the only summary judgment proof that Bell offered was one affidavit which states in its entirety: "My name is Emily Jane Hight Bell, and I am one of the Defendants in this cause of action. I have read the Motion in Opposition to Plaintiff's Motion for Summary Judgment, and state that all statements contained therein are just and true within my own knowledge." MBank objected to the affidavit as defective, thereby bringing it to the trial court's attention. TEX. R. CIV. P. 166-A.
        Supporting and opposing affidavits to a motion for summary judgment shall set forth such facts as would be admissible into evidence. TEX. R. CIV. P. 166-A(e). Pleadings do not constitute summary judgment evidence. Nicholson v. Memorial Hosp. System, 722 S.W.2d 746, 749 (Tex. Civ. App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.). A motion for summary judgment, as well as a response to a motion for summary judgment, is a pleading. Nicholson, 722 S.W.2d at 749. Therefore, a response to a motion for summary judgment is not proper summary judgment evidence. An affidavit in support of a motion or response to a motion for summary judgment which simply adopts pleadings is insufficient either to support or defeat the motion. Loomis v. City Dallas, 472 S.W.2d 809, 811 (Tex. Civ. App.--Dallas 1971, writ ref'd n.r.e.); Langley v. Kamen & Co., 455 S.W.2d 820, 824 (Tex. Civ. App.--Texarkana 1970, writ ref'd n.r.e.); Sparkman v. McWhirter, 263 S.W.2d 832, 838-39 (Tex. Civ. App.--Dallas 1953, writ ref'd n.r.e.).
        Bell's affidavit seemingly attempts to adopt the statements in the response to MBank's motion for summary judgment by averring that the statements are true. It does not contain any statements of fact as required by rule 166-A(e). We find that the affidavit is not sufficient to defeat MBank's motion for summary judgment. Therefore, the trial court did not err in granting summary judgment for the attorney's fees and costs incurred in the foreclosures. We overrule Bell's second point of error.
        In his third point of error, Bell alleges that a substantial material issue of fact exists as to the commercial reasonableness of the amount of money bid at the foreclosure sales. He contends that MBank had the burden to prove that the bid prices at the foreclosure sale were fair and reasonable. He cites Olney Savings and Loan Assoc. v. Farmers Market of Odessa, Inc., 764 S.W.2d 869, 871 (Tex. App.--El Paso 1989, no writ history) for the rule that, in order to get a deficiency judgment after a non-judicial foreclosure of real property, the lender must prove that the bid price was fair and reasonable. The Olney case is factually distinguishable from the case at bar. In Olney, the guarantors of a note attacked the validity of the foreclosure sale by alleging fraud. Their fraud allegations questioned whether a deficiency actually existed at all. The court held that a jury question existed as to the fact of the deficiency and that the lender had the burden of proof to show that the bid price was fair and reasonable. Olney, 764 S.W.2d 871.
        In a concurring opinion, Chief Justice Osborn emphasized the differences in the law in the situation where a mortgagor challenges the validity of a foreclosure sale and when there is no challenge. He wrote: "If there is no attack on the validity of the sale, it should be presumed valid and there is no burden on the lender to establish that its bid price was fair and reasonable." Olney, 764 S.W.2d at 873 (Osborn, C.J., concurring). The Olney case is therefore factually distinguishable from our case. In our case, Bell did not challenge the validity of the foreclosure sale, so MBank was under no obligation to prove that the bid price was fair and reasonable.
        Bell contends that MBank sold the properties for a grossly inadequate price. Mere inadequacy of consideration alone does not render a foreclosure sale void if the sale was conducted legally and fairly. In Packer v. First Tx. Savings Assoc. of Dallas, 567 S.W.2d 574, 575 (Tex. Civ. App.--Eastland 1978, writ ref'd n.r.e.), the court held that when the defendant failed to present proof as to any irregularity in the trustee's sale of property, the inadequacy of consideration was immaterial.
        In the present case, Bell produced no summary judgment evidence as to the unreasonableness of the sale of the properties. He produced only an affidavit, which we have held was not competent summary judgment evidence. Bell failed to prove any irregularity in the sales of the properties. Any complaint about the inadequacy of the amount bid cannot affect the validity of the sale. Packer, 567 S.W.2d at 575. There is no factual issue concerning the commercial reasonableness of the sale. We overrule Bell's third point of error and affirm the trial court's judgment.
 
 
 
                                                          
                                                          ED KINKEADE
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
88-01277.F
 
 
File Date[01-02-89]
File Name[881277]