Lucinda Coleman, Individually and as Representative of the Coleman Estate v. Wells Fargo Bank ( 2004 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-03-598 CV ____________________

LUCINDA COLEMAN, individually and as representative of THE ESTATE OF F.S. COLEMAN, decedent, Appellant

V.

WELLS FARGO BANK, ET AL, Appellees

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On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-167,078

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MEMORANDUM OPINION  

Lucinda Coleman, individually and as representative of the Estate of F.S. Coleman, decedent, filed suit against Wells Fargo Bank Minnesota, N.A. alleging wrongful foreclosure. Wells Fargo moved for summary judgment on the basis Coleman had no evidence to support her claim. See Tex. R. Civ. P. 166a(i). The trial court granted the motion and entered a final summary judgment in favor of Wells Fargo. From that judgment Coleman brings this appeal.

Coleman contends the trial court erred in granting summary judgment in favor of Wells Fargo because a genuine issue of material fact exists as to whether notice of default was sent by certified mail. See Tex. Prop. Code Ann. § 51.002(d) (Vernon Supp. 2004). Wells Fargo claims Coleman failed to timely file any summary judgment evidence rebutting Wells Fargo's evidence.

The record reflects Coleman's response to the motion for summary judgment was filed September 16, 2003. A hearing on the motion was held September 19. On September 29, the trial judge requested briefing from both parties. Wells Fargo responded on October 30. On November 18, 2003, the trial judge informed the parties he had reviewed Wells Fargo's supplemental briefing and granted Coleman seven additional days "to file any briefing or controverting authority" before ruling on the matter on November 24. Coleman responded on November 24 and the trial court entered its judgment that day. The trial court's judgment recites, "after examining . . . the response filed by The Coleman Estate, if any, and the summary judgment evidence admitted for consideration . . .."

The record affirmatively indicates the trial court considered the untimely summary judgment response and the trial court expressly gave Coleman leave to file the supplement. Accordingly, we consider Coleman's attached summary judgment evidence. See Goswami v. Metropolitan Sav. and Loan Ass'n, 751 S.W.2d 487, 490 (Tex. 1988), and Mello v. A.M.F., Inc., 7 S.W.3d 329, 332 (Tex. App.--Beaumont 1999, pet. denied).

Coleman filed two affidavits in which she avers that she did not receive notice of acceleration of the note secured by her residence, notice of foreclosure or of foreclosure sale, or the notice of default and intent to accelerate dated September 20, 2002. The affidavit of Jeannine S. Coggeshall, Assistant Vice President of HomeEq Servicing Corporation, Servicer for Wells Fargo, declares notice of default and intent to accelerate was sent to the Colemans at their last known mailing address, mailed by first class certified mail, return receipt requested. That letter was dated September 20, 2002, and there is no certified mail receipt for it in the record. Coggeshall further stated notices of acceleration and sale were sent. That letter was dated December 16, 2002, and the record contains a copy of a certified mail receipt, dated December 17, 2002, marked "unclaimed" and "return to sender." Steve Gerths, Senior Vice President of HomeEq, also filed an affidavit swearing the Colemans were served with written notice by certified mail of the default and intent to accelerate.

The Supreme Court of Texas has held that proof of nonarrival constitutes some evidence that a letter was not mailed. See Sudduth v. Commonwealth County Mut. Ins. Co., 454 S.W.2d 196, 197-98 (Tex. 1970). Although the affidavits of Coggeshall and Gerths may dispel any presumption of nonmailing that arises from the evidence of nonarrival, "the facts upon which the presumption is based remain in evidence and will support any inferences that may properly be drawn therefrom." Id. at 198. Accordingly, we find Coleman raised a genuine issue of material fact as to whether notice of default was sent. Issue one is sustained.

The judgment of the trial court is REVERSED AND REMANDED.

PER CURIAM

Submitted on October 25, 2004

Opinion Delivered December 2, 2004

Before McKeithen, C.J., Burgess and Gaultney, JJ.