Jerry Wilkins and Fonda Wilkins v. NCNB Texas Mortgage Corporation and Robert Frappier--Appeal from 333rd District Court of Harris County

Wilkins v. NCNB Tex Mtg Corp /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-93-210-CV

 

JERRY WILKINS AND FONDA WILKINS,

Appellants

v.

 

NCNB TEXAS MORTGAGE CORPORATION

AND ROBERT FRAPPIER,

Appellees

 

From the 333rd District Court

Harris County, Texas

Trial Court # 90-66075

 

O P I N I O N

 

This case arose out of an attempted foreclosure by Appellees of a real estate vendor's lien note, secured by a deed of trust, said note and deed of trust having been executed by Appellants.

On June 30, 1983, Appellants Jerry and Fonda Wilkins purchased a house located in Harris County, Texas. In connection with that purchase, they executed a real estate lien note and deed of trust in favor of North American Mortgage Company ("North American") securing the Wilkins mortgage on that property. Said note had an original interest rate of 12.375% per annum with said interest to vary every five (5) years according to:

"For the mean average of the Federal National Mortgage Association's fixed rate sixty (60) day mandatory price as published by FNMA as of the last business day that each of the five (5) calendar years preceding such change date."

 

The Wilkins allege that in violation of the foregoing, at the expiration of the original five (5) year term, on or about July 1, 1988, the interest rate should have been adjusted to 11.069%. Instead, the Wilkins allege North American (not a defendant in this case) and not NCNB Texas Mortgage Corporation ("NCNB"), adjusted the interest rate to 11.5%.

Appellants' promissory note was subsequently purchased by Fundamental Mortgage Corporation ("Fundamental"). The Wilkins' last payment on the note was to Fundamental on November 3, 1990. NCNB acquired the servicing rights to the note on October 13, 1990. NCNB never posted any payment from Appellants, was not the servicer in 1988, and has never been the owner of the note.

The Wilkins originally filed this suit against NCNB and Robert Frappier alleging usury and fraudulent concealment of interest miscalculation on the note securing the purchase of the Wilkins' home. As stated before, NCNB held the servicing rights to the note, and Frappier was the substitute trustee of the deed of trust who attempted to foreclose upon the Wilkins' property. Appellees NCNB and Frappier counterclaimed seeking foreclosure upon the subject real estate.

Trial was to the court without a jury which, in effect, held that Plaintiff-Appellants (Mr. and Mrs. Wilkins) take nothing by their suit, and that Defendant-Appellee NCNB recover actual damages against Plaintiff-Appellants in the amount of $217,256.81, and further that NCNB have foreclosure of the lien on the subject real estate. From this judgment the Wilkins appeal upon ten points of error. We overrule all of Appellants' points and contentions and affirm the trial court's judgment.

The trial court made findings of fact and conclusions of law as follows:

 

FINDINGS OF FACT

1. Any finding of fact that is a conclusion of law shall be construed to be a finding of fact and any conclusion of law which is called a finding of fact will be construed to be a conclusion of law.

2. Neither NCNB Texas Mortgage Corporation nor Robert Frappier charged Jerry Wilkins or Fonda Wilkins any usurious amount of interest.

3. Neither NCNB Texas Mortgage Corporation or Robert Frappier knowingly made any material misrepresentations to Jerry Wilkins or Fonda Wilkins.

4. There was no detrimental reliance by Jerry Wilkins or Fonda Wilkins on any material misrepresentation made by NCNB Texas Mortgage Corporation or Robert Frappier.

5. No damages were sustained by Jerry Wilkins or Fonda Wilkins.

6. NCNB Texas Mortgage Corporation did not commit any fraudulent acts against either Jerry Wilkins or Fonda Wilkins.

7. NCNB Texas Mortgage Corporation is entitled to collect under the terms of the promissory note signed by Jerry Wilkins and Fonda Wilkins.

8. There was a material default under the terms of the promissory note signed by Jerry Wilkins and Fonda Wilkins.

9. Jerry Wilkins and Fonda Wilkins jointly and severally are indebted to NCNB Texas Mortgage Corporation in the amount of $217,256.81.

10. The causes of action as asserted in Plaintiff's fourth amended application for injunction, claim for usury, and fraud against Defendant Robert Frappier are groundless, they have no basis in law, or in fact, and are not warranted by good faith argument for the extension, modification, or reversal of existing law.

11. At the trial of this cause of action, Plaintiffs herein introduced no credible evidence to support any of the allegations in their pleadings against Defendant Robert Frappier.

12. Good cause does exist for the award of sanctions against Plaintiff's counsel Wilfried P. Schmitz in the amount of $1,500.00 under Rule 13 of the Texas Rules of Civil Procedure, and an award of lesser sanctions would be inadequate.

13. Plaintiffs' counsel Wilfried Schmitz admitted that Plaintiffs had no cause of action against Defendant Robert Frappier.

14. The court does find that the sum of $1,500.00 is a reasonable sanction for Wilfried P. Schmitz to pay to Robert Frappier for violation of Rule 13 of the Texas Rules of Civil Procedure.

15. Wilfried P. Schmitz failed to comply with this court's order of December 18, 1992. He failed to timely exchange exhibits and he failed to timely object to exhibits as required by that order.

16. Wilfried P. Schmitz's failure to comply with this court's order of December 18, 1992, is without cause, substantial justification, or excuse.

17. The court does find that due to Wilfried P. Schmitz's abuse of the discovery process by failing to comply with this court's order of December 18, 1992, sanctions are warranted, no circumstances exist that would make an award of expenses unjust, and an award of lesser sanctions would be inadequate.

18. The court does find that $500.00 is a reasonable sum for Wilfried P. Schmitz to pay to NCNB Texas Mortgage Corporation for his failure to comply with this court's order regarding discovery.

 

CONCLUSIONS OF LAW

19. Neither NCNB Texas Mortgage Corporation nor Robert Frappier made any usurious charge to Jerry Wilkins and Fonda Wilkins.

20. Jerry Wilkins and Fonda Wilkins' claims, if any, are barred by the applicable statute of limitations.

21. Neither Jerry Wilkins nor Fonda Wilkins have prevailed on any claim that would allow recovery of attorneys' fees.

22. The court finds that there was no usury.

23. The court finds that there was no credible proof of any damages on behalf of Jerry Wilkins and/or Fonda Wilkins.

24. The court finds that Plaintiffs' claims against Robert Frappier were frivolous.

25. The court does conclude the sanctions against Wilfried P. Schmitz, pursuant to Rule 13 and 215 of the Texas Rules of Civil Procedure, were justified under the circumstances in this case.

26. The court does conclude counter-plaintiff NCNB Texas Mortgage Corporation has a valid lien and is entitled to foreclosure of that valid lien on the following described property:

Lot Thirty (30) in Block Ninety-Two (92), of Brook Forest, Section Three (3), an Addition in Harris County, Texas, according to the map or plat thereof recorded in Volume 232, Page 127, of the Map Records of Harris County, Texas, save and except 120 square feet, being more particularly described by metes and bounds in Exhibit "A", attached hereto and incorporated herein for all purposes.

27. The court does conclude that lien is set forth in a certain deed of trust recorded in the real property records of Harris County, Texas, under Harris County Clerk's file No. JO30047, being recorded as film code No. 051-97-2243 through 051-97-2249.

28. The court does conclude it is appropriate for an order of sale to issue to any sheriff or constable in the State of Texas to seize and sell the property securing the lien the same as under execution in satisfaction of judgment.

 

Appellants assert in their first point of error that the trial court erred in refusing to recognize the Wilkins' cause of action for usury. We do not agree.

Appellants admit that the interest rate charged does not exceed the statutory usury rate, but nevertheless, constitutes usury because (they say) the rate exceeds the amount provided by the note. Appellants contend that this constitutes "contractual usury" as opposed to "statutory usury." However, Appellants cite no authority to support this contention, and we have found none. We therefore hold that there is no usury in the case.

Moreover, Appellants pleaded that the incorrect adjustment of their interest rate took place July 1, 1988, a time more than two years before Appellee NCNB became servicer of the loan. Therefore, there is no basis by which Appellants can attack the evidentiary support for the court's finding. In other words, NCNB was not involved in the transaction in 1988.

Additionally, usury claims are restricted to the immediate parties to the transaction alleged to create the usury. Our Supreme Court in Houston Sash & Door Co. v. Heaner, (Tex. 1979) 577 S.W.2d 217 at page 222 says: " . . . . Since statutes of a penal nature are to be strictly construed, the penalty forfeitures provided in Article 5069-1.06 are restricted to the immediate parties to the transaction creating the usury defense." (Italics ours).

In the case at bar, the immediate parties to the loan transaction which Appellants contend gives rise to the usury claim were the Wilkins and North American Mortgage. At the time of the alleged usurious charge, the note was owned and serviced by Fundamental. Appellee NCNB later became the servicer of the note. NCNB was not an immediate party to the loan transaction; therefore, the Wilkins' usury claims against NCNB must fail. Appellants' first point of error is overruled.

Appellants' points nine and ten assert the trial court erred when it found against the Wilkins' fraud claim because (they contend) the evidence was legally conclusive or, in the alternative, such finding was against the great weight and preponderance of the evidence.

The elements of fraud are a material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of the truth, which was intended to be acted upon, which was relied upon, and which caused injury. DeSantis v. Wackenhut, (Tex. 1990) 793 S.W.2d 670, 688, 689; Stone v. Lawyers Title Ins. Corp., (Tex. 1977) 554 S.W.2d 183, 185. To prove common law fraud, the claimants have the burden of establishing all of the hereinabove enumerated elements of fraud.

We have carefully examined the record, and are unable to find any evidence that Appellants ever relied upon any misrepresentation on the part of Appellees, or that Appellants ever suffered damages or injury as a result of such reliance. There is no evidence of reliance because NCNB entered the transaction seven years after the note was signed and two years after the alleged usury. We overrule Appellants' ninth and tenth points of error.

Appellants' points two through four contend the trial court erred when it found in favor of NCNB's counterclaim because the evidence is legally or, in the alternative, factually insufficient to support these findings, and NCNB was not the holder of the note. By Appellants' fifth point of error it is contended the trial court abused its discretion because such evidence was hearsay and probably caused the rendition of improper judgment. Point of error six asserts the trial court erred when it modified the time to make hearsay objections in its docket control order.

NCNB's counterclaim sought collection on the note and foreclosure under the deed of trust. Appellants made hearsay objections to the introduction of the note and deed of trust, which objections were overruled by the trial court. We are unable to see how the note and deed of trust could be hearsay, particularly since both instruments were executed by Appellants.

NCNB alleged it was authorized to collect sums due under the note by virtue of its servicing agreement with the owner of the note. Appellants now raise for the first time on appeal that NCNB Texas Mortgage Corporation failed to establish it was the holder of the note. They failed to affirmatively plead under Rules 93 or 94, Texas Rules of Civil Procedure, that there was a defect in the parties or that NCNB was not able to maintain suit in the capacity which it had asserted. Rule 93(2), Texas Rules of Civil Procedure, requires that a verified pleading be filed any time the record does not affirmatively demonstrate the plaintiff's or defendant's right to sue or be sued in whatever capacity he is suing or being sued. Pledger v. Schoelkoph, (Tex. 1988) 762 S.W.2d 145. On its counterclaim, NCNB alleged it was contractually entitled to receive all monies due under the note. That allegation was uncontroverted by Appellants. The note in question is owned by Fundamental Mortgage, but NCNB is contractually obligated to collect and properly process the payments.

The Wilkins admitted they had signed the promissory note in question and had not made a payment on it in more than thirty (30) months. NCNB did not rely on hearsay to establish its counterclaim. It relied upon its records, the testimony of the plaintiffs, and the testimony of Mr. Robert Thornton, one of its authorized representatives.

We have carefully considered Appellants' remaining points of error, and overrule all of same as being without merit.

Judgment of the trial court is affirmed.

JOHN A. JAMES, JR.

Justice (Retired)

 

Before Justice Cummings,

Justice Vance, and

Justice James (Retired)

Affirmed

Opinion delivered and filed August 17, 1994

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