CYNTHIA S. GILLESPIE, Appellant v. MIDLAND MORTGAGE CO., Appellee

AFFIRM and Opinion Filed March 26, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00348-CV
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CYNTHIA S. GILLESPIE, Appellant
V.
MIDLAND MORTGAGE CO., Appellee
.............................................................
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. 05-07474
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MEMORANDUM OPINION
Before Justices Whittington, Moseley, and O'Neill
Opinion By Justice O'Neill
        This appeal involves a wrongful foreclosure action filed by appellant Cynthia S. Gillespie against appellee Midland Mortgage Co. In two issues, Gillespie claims the trial court erred in granting Midland's summary judgment motion because Midland failed to give proper statutory notice of the proceedings, and the supporting evidence is legally insufficient. We affirm.
Background
        On May 3, 2000 Gillespie executed a Deed of Trust in favor of MegAmerica Mortgage Group, Inc. for the purchase of property in DeSoto, Texas. The Deed of Trust was then assigned to Irwin Mortgage Corporation. Irwin Mortgage later transferred the Deed of Trust to Mortgage Electronic Registration Systems, Inc., whose successor servicing agent is Appellee Midland Mortgage Co.
        In August 2002, Gillespie filed for bankruptcy; however, the bankruptcy court entered an order modifying the stay, which required her to make post-petition loan payments. Gillespie defaulted on these ordered payments. Midland then sent Gillespie an explanation of her default status with her post-petition payment history. In a letter from Gillespie dated January 5, 2005, she acknowledged she owed money from October 2003 to December 2004. Midland later sent a notice of default on April 19, 2005 stating she was in default for payments from March 1, 2003 through April 1, 2005 and if the amount was not in its possession within thirty days, “we intend to proceed with foreclosure.” Midland subsequently sent a notice of acceleration and a notice of trustee sale. On July 5, 2005, Midland foreclosed on Gillespie's house.
        On August 3, 2005, Gillespie filed suit, alleging wrongful foreclosure based on retaliation and due process violations. After she conducted no discovery and did not respond to Midland's discovery requests, Midland filed its no evidence and traditional motion for summary judgment. Gillespie filed no response or objections to the motion. The trial court conducted a hearing on February 3, 2006 and granted Midland's motion for summary judgment. This appeal followed.
Notice of Summary Judgment Hearing
        In her first issue, Gillespie contends the trial court erred in granting summary judgment because Midland failed to give proper statutory notice of the proceeding. She claims she only received the notice sent via regular mail and not the copy sent through certified mail; therefore, she was not provided the required twenty-one days notice prior to the hearing. See Tex. R. Civ. P. 21a. Midland responds Gillespie has waived any alleged complaint to the deficiency of the notice by not filing a written objection. Further, even if the issue is not waived, it sent proper notice pursuant to Texas Rule of Civil Procedure 21a.
        Without deciding whether Midland provided proper notice under rule 21a, we conclude Gillespie has failed to preserve her issue for review. If a party receives notice that may be untimely, but sufficient to enable the party to attend the summary judgment hearing, the party must file a motion for continuance or raise the late notice complaint in writing, supported by affidavit, and raise the issue to the trial court during the summary judgment hearing. Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558, 560 (Tex. App.-Dallas 2003, pet. denied); Veal v. Veterans Life Ins. Co., 767 S.W.2d 892, 895 (Tex. App.-Texarkana 1989, no writ) (holding rule 21a notice requirement may be waived if party receives notice, appears at hearing, and does not file motion for continuance). To hold otherwise would allow a party who participated in the hearing to wait until after summary judgment is granted and then raise the complaint of late notice for the first time in a post-trial motion or on appeal. Nguyen, 108 S.W.3d at 560.
        Here, Gillespie acknowledges she received notice of the hearing through regular mail and attended the hearing. Further, the record does not show that prior to the hearing she filed a motion for continuance or filed a late notice complaint in writing, supported by affidavit, which she raised to the trial court during the summary judgment hearing.   See Footnote 1 
        Accordingly, Gillespie had prior notice of the hearing and failed to object to the notice as untimely before submission to the trial court. Therefore, she has waived her complaint, and we overrule her first issue.    See Footnote 2 
 
Legal Sufficiency of Summary Judgment Evidence
        In her second issue, Gillespie alleges Midland's evidence is legally insufficient to support summary judgment. Under Texas Rule of Civil Procedure 166a(i), a party may move for summary judgment if no evidence exists to support one or more essential elements of a claim on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). A no evidence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact on the challenged elements. Scroggs v. Am. Airlines, Inc., 150 S.W.3d 256, 261 (Tex. App.-Dallas 2004, no pet.). When, as here, a trial court's order for summary judgment does not specify the ground or grounds relied on for its ruling, an appellate court will affirm a summary judgment if any of the theories advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
        In a wrongful foreclosure suit, a debtor may recover damages if the mortgagee either (1) fails to comply with statutory or contractual terms, or (2) complies with such terms, yet takes affirmative action detrimentally affecting the fairness of the foreclosure process. First State Bank v. Keilman, 851 S.W.2d 914, 921-22 (Tex. App.-Austin 1993, writ denied). Midland asserts it complied with the statutory requirements of Texas Property Code section 51.002; therefore, the trial court properly granted summary judgment. It further contends Gillespie provided no evidence to support her wrongful foreclosure cause of action. Gillespie asserts the evidence is legally insufficient to support summary judgment because (1) Midland did not submit any evidence she was in default as of April 19, 2005, and (2) it did not send, nor did she receive a default notice, a notice of acceleration, and a notice of the foreclosure sale.
        We conclude the trial court properly granted Midland's no evidence summary judgment motion because Gillespie offered no evidence of Midland's failure to comply with any statutory or contractual terms in the foreclosure of her house. After Gillespie filed her wrongful foreclosure suit and adequate time for discovery passed, Midland filed its no evidence motion for summary judgment. Attached to the motion was a Substitute Trustee's Deed with an Affidavit in Support of Substitute Trustee's Deed from Michael J. Schroeder, Midland's attorney, verifying that all required statutory and contractual terms had been met.   See Footnote 3  See Tex. Prop. Code Ann. § 51.002(b), (d) (Vernon Supp. 2006).
        Gillespie did not object to this evidence or bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact that Midland failed to comply with the statutory notice requirements. See id. § 51.002(e) (“The affidavit of a person knowledgeable of the facts to the effect that service was completed is prima facie evidence of service.”); Sullivan v. Nat'l W. Life Ins. Co., 417 S.W.2d 896, 898 (Tex. Civ. App.-Houston 1967, no writ) (holding recitations together with the sale established prima facie evidence that proper notice requirements were observed). Thus, she failed to provide evidence to support an essential element of her wrongful foreclosure claim.   See Footnote 4  Accordingly, the trial court properly granted Midland's no evidence motion for summary judgment. See Carr, 776 S.W.2d at 569 (holding appellate court will affirm a summary judgment if any of the theories advanced are meritorious when the order does not specify the ground relied on). Because we conclude the trial court properly granted the no evidence motion for summary judgment, we need not address Gillespie's remaining arguments. Tex. R. App. P. 47.1.
        We overrule Gillespie's second issue and affirm the trial court's judgment.
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
060348F.P05
 
Footnote 1 Although Gillespie alleges in her brief that she requested a continuance and made the trial court “fully aware of the fact that the only mailing she received, four days before the hearing, was the mailing sent via regular mail,” we do not have before us any written motion for continuance or the reporter's record from the hearing to substantiate her claims.
Footnote 2 We recognize Gillespie is a pro se appellant; however, pro se litigants are held to the same standards as licensed attorneys and must comply with all applicable laws and rules of procedure. Hope's Fin. Mgmt. v. Chase Manhattan Mortgage Corp., 172 S.W.3d 105, 107 (Tex. App.-Dallas 2005, pet. denied). Thus, on appeal the pro se appellant must properly present her case. Decker v. Dunbar, 200 S.W.3d 807, 809 (Tex. App.-Texarkana 2006, pet. denied).
Footnote 3 The affidavit specifically states it is made “for the purpose of declaring the incidents of statutory and contractual compliance of the entity or entities set forth herein. . . .”
. . .
 
 
3. . . . [P]roper notice was sent prior to the acceleration of the Debt. All obligations and duties of the Mortgagee or the Mortgage Servicer were performed in the manner required by law and all notices were served on the Debtor at the Debtor's last known address as shown by the records of the Mortgagee or the Mortgage Servicer prior to acceleration of the debt.
 
 
 
4. I, . . ., did, at least twenty-one days preceding JULY 5, 2005, the date of the sale made by the Trustee, serve written notice of the proposed sale, by certified mail, on each debtor obligated to pay such indebtedness according to the records of the Mortgagee or the Mortgage Servicer, by depositing a copy of the Notice of Non-Judicial Foreclosure Sale (“Notice of Sale”), enclosed in a postage prepaid wrapper, properly addressed to each such debtor at such debtor's most recent address as shown by the records, . . . , in a post office or official depository under the care and control of the United States Postal Service; and further did at least twenty-one (21) days preceding the date of said sale cause to have posted a signed copy of the Notice of Sale at the Courthouse door of the county courthouse of DALLAS county, Texas . . . . Further: said foreclosure sale began no later than three (3) hours after the earliest time set forth in the Notice of Sale and was held in the area specified in the Notice of Sale.
Footnote 4 Although Gillespie alleged the certified mail receipts attached to Midland's notices are “blatant forgeries,” she failed to object to any of Midland's evidence prior to or during the summary judgment hearing. Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.-Dallas 2006, no pet.) (noting as a prerequisite to presenting a complaint for review, the record must show a timely objection was made to the trial court). Because she failed to properly preserve any alleged argument regarding forged documents, we do not consider it on appeal. Tex. R. App. P. 33.1(a).