Terry Henderson v. Norman Black--Appeal from 173rd District Court of Henderson County

NO. 12-00-00358-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

TERRY HENDERSON,

 
APPEAL FROM THE 173RD

APPELLANT

 

V.

 
JUDICIAL DISTRICT COURT OF

NORMAN BLACK,

APPELLEE

 
HENDERSON COUNTY, TEXASPER CURIAM

Terry Henderson appeals the trial court's judgment in which he was denied the cancellation of a deed conveying his property to Norman Black. In one issue, Henderson complains that the trial court erred when it granted summary judgment in favor of Black on Henderson's cause of action. We affirm.

 

Background

Henderson, Edmund and Margaret Klingbeil, and Lori Elder purchased a 15.12 acre tract of land in Henderson County, Texas from Harvey and Dorothy Parker. The deed of trust listed "104 Amy, Crandall, Texas" as the mailing address for the purchasers. The lien was later transferred to Black. Black eventually foreclosed on the property by a trustee's sale, and Henderson filed suit seeking to set aside the foreclosure due to lack of notice.

Black filed a Motion for Summary Judgment on the grounds that Henderson was given the notice required by law for non-judicial foreclosure of liens. Henderson filed a response to Black's motion, attaching his own affidavit. The trial court, however, granted Black's Motion for Summary Judgment, and this appeal followed.

 

Summary Judgment Standard of Review

In his sole issue, Henderson complains that the trial court erred when it granted Black's Motion for Summary Judgment. In reviewing a 166a(c) summary judgment, this Court must apply the standards established in Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex. 1985), which are:

 

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact 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 non-movant will be taken as true.

 

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

 

Id. at 548-49. For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A movant must either negate at least one essential element of the non-movant's cause of action, or prove all essential elements of an affirmative defense. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Since the burden of proof is on the movant, and all doubts about the existence of a genuine issue of a material fact are resolved against the movant, we must view the evidence and its reasonable inferences in the light most favorable to the non-movant. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965).

Once the movant has established a right to summary judgment, the non-movant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979). A summary judgment is improperly granted if the non-movant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.- San Antonio 1998, pet. denied). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits and other summary judgment proof. The only question is whether or not an issue of material fact is presented. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952).

 

Notice Requirements

When a creditor wishes to declare a note due, it is required to comply with three notice requirements. First, it must make a formal demand for payment of monies past due. Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex. 1975). After allowing the debtor a reasonable period of time to make the payment, the creditor is required to give notice that the entire debt is due. Joy Corp. v. Nob Hill N. Properties, Ltd., 543 S.W.2d 691, 694 (Tex. Civ. App.- Tyler 1976, no writ). Only after providing both notices, may the creditor proceed to give notice of a foreclosure sale. See Tamplen v. Bryeans, 640 S.W.2d 421, 422 (Tex. App.- Waco 1982, writ ref'd n.r.e.). These notice requirements are codified in the Texas Property Code. Article 51.002(b) of the Texas Property Code provides the method for giving notice of a foreclosure sale, as follows:

 

(b) Notice of the sale, which must include a statement of the earliest time at which the sale will begin, must be given at least 21 days before the date of the sale:

 

. . .

 

(3) by the holder of the debt to which the power of sale is related serving written notice of the sale by certified mail on each debtor who, according to the records of the holder of the debt, is obligated to pay the debt.

 

Tex. Prop. Code Ann. 51.002(b)(3) (Vernon 1995). "Service of notice [of trustee sale] by certified mail is complete when the notice is deposited in the United States mail, postage prepaid and addressed to the debtor at the debtor's last known address as shown by the records of the holder of the debt." Tex. Prop. Code Ann. 51.002(e) (Vernon 1995). However, the "last known address" is not necessarily that address on the deed of trust. See Lido Int'l., Inc. v. Lambeth, 611 S.W.2d 622, 624 (Tex. 1981). When the creditor has actual knowledge of a more recent address than that on the deed of trust, but does not mail it to that address, the creditor is not in compliance with the Property Code notice provisions. Id. And when the creditor fails to give the notice required by law, the purchaser is not a bona fide purchaser, making the foreclosure sale invalid. Houston First Am. Savings v. Musick, 650 S.W.2d 764, 769 (Tex. 1983). Consequently, the debtor is entitled to judgment canceling the deed conveyed in the foreclosure sale. Shearer v. Allied Live Oak Bank, 758 S.W.2d 940, 942 (Tex. App.- Corpus Christi 1988, pet. denied).

 

Summary Judgment Evidence

Black met his burden to show that he had given proper notice under the Texas Property Code. Attached to his Motion for Summary Judgment were copies of the notice letters, all mailed to the address on the deed of trust. If Henderson had not responded to the motion, Black would have been entitled to judgment as a matter of law. However, Henderson responded with his own affidavit. We must now determine if Henderson raised a fact issue to preclude a summary judgment in Black's favor.

In his affidavit, Henderson stated that he lived on the property upon which Black had foreclosed, which was not the address on the deed of trust. He also testified that Margaret Klingbeil, who executed the deed of trust along with Henderson, lived in a house on the same property. Klingbeil is Black's cousin. Henderson's mailbox, which is located on a public roadway, has Henderson's name and address on it.

Henderson argues that the above-stated evidence is enough to raise a fact issue as to proper notice. However, there is no evidence that Black had ever been to the property in question, whether to visit with his cousin or otherwise. It would be pure conjecture to state that Black knew of Henderson's actual address simply because his cousin lived in close proximity to Henderson. We do not know if Black even knew his cousin, or knew where his cousin lived, much less that he had noticed Henderson's mailbox at some point in the past. Consequently, Henderson failed to bring forth more than a mere scintilla of evidence to raise a fact question as to Black's knowledge of Henderson's actual address, and Black was entitled to judgment as a matter of law. Accordingly, we overrule Henderson's sole issue and affirm the judgment of the trial court.

Opinion delivered July 25, 2001.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.

 
(DO NOT PUBLISH)