James Scott Trimm and Wife Ingrid Trimm v. U.S. Bank, National Association, as Trustee of J.P. Morgan Mortgage Acquisition Corp. 2005-Opt1 ( 2014 )


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  •                         COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-12-00230-CV
    JAMES SCOTT TRIMM AND WIFE                                        APPELLANTS
    INGRID TRIMM
    V.
    U.S. BANK, NATIONAL                                                  APPELLEE
    ASSOCIATION, AS TRUSTEE OF
    J.P. MORGAN MORTGAGE
    ACQUISITION CORP. 2005-OPT1
    ----------
    FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
    TRIAL COURT NO. 96-249211-10
    ----------
    MEMORANDUM OPINION1
    ----------
    Appellants James Scott and Ingrid Trimm appeal from a summary
    judgment in favor of Appellee U.S. Bank, National Association, as Trustee of J.P.
    1
    See Tex. R. App. P. 47.4.
    Morgan Mortgage Acquisition Corp. 2005-OPT1 (U.S. Bank). We reverse and
    remand.
    Background
    The Trimms initiated this suit to contest U.S. Bank’s right to foreclose on
    their home. The Trimms executed a home-equity, adjustable-rate note on April
    5, 2005, payable to H&R Block Mortgage Corporation (H&R Block) in the
    principal amount of $88,000 (the note). The note was secured by a deed of trust
    on the Trimms’ home in Hurst, Texas (the deed of trust). By allonges also dated
    April 5, 2005, H&R Block indorsed the note to Option One Mortgage Corporation
    (Option One), and Option One indorsed the note in blank. In November 2005,
    H&R Block transferred the deed of trust to Option One.
    The Trimms defaulted on the note. In July 2007, the Trimms and Option
    One entered into a Forbearance Agreement under which Option One agreed to
    postpone foreclosure proceedings to allow the Trimms to cure their default.
    Under the terms of the repayment plan set forth in Forbearance Agreement, the
    Trimms were required to make a payment of $2,500 by July 24, 2007, followed
    by six monthly plan payments of $1,570.22 starting on August 25, 2007, and
    ending on January 25, 2008. The Trimms also released Option One from any
    and all claims, known or unknown, arising from or relating to the loan2 or to the
    origination or servicing of the loan.
    2
    “The loan” refers to the note and its securing instrument, the deed of trust.
    2
    During the term of the Forbearance Agreement, the interest rate on the
    loan changed.   U.S. Bank claims Option One sent notice of the interest-rate
    increase to the Trimms by mail on or about October 17, 2007. The Trimms claim
    they never received written notice of the rate increase. Even though the interest
    rate increased, Option One did not increase the plan payments under the
    Forbearance Agreement but opted to demand payment of the additional sums
    accrued as a result of the interest-rate increase at the end of the term of the
    Forbearance Agreement.     The Trimms made their final plan payment in late
    January 2008. According to U.S. Bank, they refused to pay the additional sums
    due as a result of the interest-rate increase and failed to make any additional
    payments on the note.
    The Trimms filed suit against U.S. Bank in November 2010. According to
    the Trimms’ first amended petition, U.S. Bank instituted three separate
    foreclosure proceedings against them. The Trimms alleged that if U.S. Bank is
    the owner and holder of the deed of trust and the Forbearance Agreement, U.S.
    Bank breached those agreements. The Trimms further alleged that the terms of
    the Forbearance Agreement are unconscionable and that U.S. Bank violated the
    Fair Debt Collection Practices Act and committed common-law and statutory
    fraud. The Trimms also sought a declaratory judgment to determine whether
    U.S. Bank is the owner and holder of the note, the deed of trust, and the
    Forbearance Agreement and to determine U.S. Bank’s and the Trimms’ rights
    3
    and duties in connection with the note, deed of trust, and Forbearance
    Agreement.3
    U.S. Bank filed a traditional motion for summary judgment, claiming it was
    entitled to judgment on its affirmative defenses of release, waiver, and estoppel
    based upon the release language in the Forbearance Agreement.               In the
    alternative, U.S. Bank claimed that the statute of frauds barred the Trimms’ fraud
    claims and that it was entitled to summary judgment on all of the Trimms’ claims
    because its summary judgment evidence conclusively disproved one or more
    essential elements of each of their claims.
    According to U.S. Bank’s summary judgment evidence, on or about April
    30, 2008, American Home Mortgage Servicing, Inc. (AHMSI) acquired
    “substantially all of the assets constituting the residential mortgage servicing
    business of [Option One], including without limitation the servicing rights related
    to the Loan . . . making AHMSI the servicer of the Loan.” On December 31,
    2008, AHMSI, claiming to be the “successor-in-interest” to Option One, executed
    an assignment/transfer of lien “memorializing” the transfer of the loan to U.S.
    3
    In their original petition, the Trimms also brought a claim under the Texas
    Deceptive Trade Practices Act (DTPA). Because this claim was omitted from the
    Trimms’ amended petition, which was the live pleading at the time of the
    summary judgment hearing, the Trimms effectively nonsuited their DTPA claim.
    See FKM P’ship, Ltd. v. Bd. of Regents of Univ. of Houston Sys., 
    255 S.W.3d 619
    , 632 (Tex. 2008) (“In civil causes generally, filing an amended petition that
    does not include a cause of action effectively nonsuits or voluntarily dismisses
    the omitted claims as of the time the pleading is filed.”).
    4
    Bank. U.S. Bank appointed AHMSI as its servicer of the loan in April 2011. U.S.
    Bank claims it is the current owner and holder of the note and deed of trust.
    In addition to a summary judgment response, the Trimms filed a motion to
    strike portions of U.S. Bank’s summary judgment evidence and filed
    supplemental evidence in support of their response. U.S. Bank made written
    objections to the Trimms’ supplemental evidence, all of which the trial court
    sustained. The trial court granted U.S. Bank’s motion without stating the grounds
    upon which it based its rulings and denied the Trimms’ motion to strike. After
    unsuccessfully seeking a new trial, the Trimms brought this appeal.
    Standard of Review
    We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
    
    315 S.W.3d 860
    , 862 (Tex. 2010). We consider the evidence presented in the
    light most favorable to the nonmovant, crediting evidence favorable to the
    nonmovant if reasonable jurors could, and disregarding evidence contrary to the
    nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
    Advisors, Inc. v. Fielding, 
    289 S.W.3d 844
    , 848 (Tex. 2009). We indulge every
    reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,
    Inc. v. Parker, 
    249 S.W.3d 392
    , 399 (Tex. 2008). A defendant who conclusively
    negates at least one essential element of a cause of action is entitled to
    summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 
    315 S.W.3d 494
    , 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c). Once the defendant
    produces sufficient evidence to establish the right to summary judgment, the
    5
    burden shifts to the plaintiff to come forward with competent controverting
    evidence that raises a fact issue.    Van v. Pena, 
    990 S.W.2d 751
    , 753 (Tex.
    1999).
    Also, a defendant is entitled to summary judgment on an affirmative
    defense if the defendant conclusively proves all the elements of the affirmative
    defense. Frost Nat’l 
    Bank, 315 S.W.3d at 508
    –09; see Tex. R. Civ. P. 166a(b),
    (c). To accomplish this, the defendant-movant must present summary judgment
    evidence that conclusively establishes each element of the affirmative defense.
    See Chau v. Riddle, 
    254 S.W.3d 453
    , 455 (Tex. 2008).
    Discussion
    I. Evidentiary Issues
    We construe the Trimms’ sixth issue as a challenge to the trial court’s
    denial of their motion to strike U.S. Bank’s summary judgment evidence and its
    rulings on U.S. Bank’s objections to the Trimms’ supplemental summary
    judgment evidence.      We review a trial court’s ruling sustaining or overruling
    objections to summary judgment evidence for an abuse of discretion.          See
    Paciwest, Inc. v. Warner Alan Props., LLC, 
    266 S.W.3d 559
    , 567 (Tex. App.—
    Fort Worth 2008, pet. denied). For the reasons explained below, we overrule the
    Trimms’ sixth issue.
    A. The Trimms’ motion to strike U.S. Bank’s summary judgment evidence
    U.S. Bank’s summary judgment evidence included the affidavit of Joseph
    Kaminski, which provides, in relevant part, as follows:
    6
    12. On or about April 30, 2008, substantially all of the assets
    constituting the residential mortgage servicing business of [Option
    One], including without limitation the servicing rights related to the
    loan, were acquired by [AHMSI], making AHMSI the servicer of the
    loan.
    13. On or about December 31, 2008, AHMSI, as successor-in-
    interest to [Option One], executed an Assignment of Deed of
    Trust/Transfer of Lien memorializing the transfer of the loan to [U.S.
    Bank], who is the current owner and holder of the loan. A true and
    correct copy of this Assignment is attached hereto as Exhibit No. 1E
    and is incorporated herein for all purposes.
    In their motion to strike, the Trimms objected to these two paragraphs,
    complaining that (1) they are not based on Kaminski’s personal knowledge and
    (2) they are conclusory.
    Rule 166a(f) requires that affidavits supporting or opposing summary
    judgment must “be made on personal knowledge, shall set forth facts as would
    be admissible in evidence, and shall show affirmatively that the affiant is
    competent to testify to the matters stated therein.” Tex. R. Civ. P. 166a(f); see
    Ryland Grp., Inc. v. Hood, 
    924 S.W.2d 120
    , 122 (Tex. 1996). An affidavit must
    disclose the basis on which the affiant has personal knowledge of the facts
    asserted. Radio Station KSCS v. Jennings, 
    750 S.W.2d 760
    , 762 (Tex. 1988).
    An affiant’s position or job responsibilities can qualify the affiant to have personal
    knowledge of facts and establish how the affiant learned of the facts. Valenzuela
    v. State & Cnty. Mut. Fire Ins. Co., 
    317 S.W.3d 550
    , 553 (Tex. App.—Houston
    [14th Dist.] 2010, no pet.) (stating that affidavits demonstrating personal
    knowledge often state affiant’s knowledge through affiant’s position and
    7
    specifically described job duties); Cooper v. Circle Ten Council Boy Scouts of
    Am., 
    254 S.W.3d 689
    , 698 (Tex. App.—Dallas 2008, no pet.) (holding that
    affiant’s testimony that, as Scout Executive and CEO of defendant organization,
    he had knowledge concerning its operation and organization sufficient to
    demonstrate manner in which he became familiar with facts at issue).
    Kaminski stated in his affidavit that he is employed by AHMSI, the current
    servicer of the loan for U.S. Bank, as an “FC Special Asset Specialist.”         He
    averred that in his capacity as an FC Special Asset Specialist, he has
    “knowledge of the operations and actions of AHMSI and the transferring,
    possession, and servicing of AHMSI’s loans, including the loan . . .” and that he
    had “personal knowledge of each of the matters stated in [the] affidavit.”
    Kaminski further averred that AHMSI is the custodian of records “with respect to
    the indebtedness of [the Trimms] that is the subject of this suit,” that he reviewed
    AHMSI’s records related to the loan, and that these records supported his
    affidavit testimony.   Because Kaminski based his statements upon personal
    knowledge gained from his position with AHMSI and his review of AHMSI’s
    records, we conclude this is sufficient to meet the knowledge requirements of
    rule 166a(f). See 
    Valenzuela, 317 S.W.3d at 553
    ; 
    Cooper, 254 S.W.3d at 698
    ;
    Stucki v. Noble, 
    963 S.W.2d 776
    , 780 (Tex. App.—San Antonio 1998, pet.
    denied) (personal knowledge requirement satisfied if affidavit sufficiently
    describes relationship between affiant and case so that it may be reasonably
    assumed that affiant has personal knowledge of facts stated in affidavit).
    8
    The Trimms’ argument that the affidavit was conclusory is likewise without
    merit.     Affidavits containing conclusory statements that fail to provide the
    underlying facts to support the conclusions are not proper summary judgment
    evidence. Dolcefino v. Randolf, 
    19 S.W.3d 906
    , 930 (Tex. App.—Houston [14th
    Dist.] 2000, pet. denied). A statement is conclusory if it expresses a subjective
    belief and gives no factual support for that belief.     Ryland Group, 
    Inc., 924 S.W.2d at 122
    ; Hawthorne v. Star Enter., Inc., 
    45 S.W.3d 757
    , 759 (Tex. App.—
    Texarkana 2001, pet. denied).
    We conclude that Kaminski’s statements in paragraphs twelve and thirteen
    concerning (1) AHMSI’s acquisition of Option One’s assets constituting the
    residential mortgage servicing business of Option One, (2) AHMSI becoming the
    servicer of the loan, (3) AHMSI’s execution of the assignment of deed of
    trust/transfer of lien to U.S. Bank, and (4) U.S. Bank being the owner and holder
    of the loan are not conclusory. See Cannon v. Tex. Indep. Bank, 
    1 S.W.3d 218
    ,
    225 (Tex. App—Texarkana 1999, pet. denied) (finding affiant’s statements
    “concerning execution and delivery of the note, a copy of which was attached to
    and incorporated in the affidavit, and concerning [bank] being the holder and
    owner of the documents, are statements of fact and not mere expressions of
    opinion”).
    The Trimms also objected to paragraphs twelve and thirteen because
    Kaminski was an interested witness. That an affiant is an interested witness is
    not a basis for excluding the affiant’s statements from evidence. To support
    9
    summary judgment, however, an interested witness’s affidavit must be “clear,
    positive, and direct, otherwise credible and free from contradictions and
    inconsistencies, and could have been readily controverted.”     Tex. R. Civ. P.
    166a(c); see Trico Tech. Corp. v. Montiel, 
    949 S.W.2d 308
    , 310 (Tex. 1997).
    The phrase “could have been readily controverted” does not mean that the
    summary judgment evidence could have been easily and conveniently rebutted;
    it means that the testimony was of a nature that could have been effectively
    countered by opposing evidence. Trico 
    Tech., 949 S.W.2d at 310
    (citing Casso
    v. Brand, 
    776 S.W.2d 551
    , 558 (Tex. 1989)).          Kaminski’s statements in
    paragraphs twelve and thirteen are free from contradiction and could have been
    readily controverted if, in discovery, the Trimms had inquired about AHMSI’s
    acquisition of Option One’s assets and the transfer of the loan from AHMSI to
    U.S. Bank.
    But Kaminski’s statements in paragraph thirteen regarding the transfer of
    the loan to U.S. Bank from AHMSI, purportedly as successor-in-interest to Option
    One, so as to support the copy of the “Assignment of Deed of Trust/Transfer of
    Lien”4 attached to Kaminski’s affidavit as exhibit 1E, are inconsistent with his
    4
    The Trimms objected to the “Assignment of Deed of Trust/Transfer of
    Lien” because it was signed by Linda Green, “a known and notorious robo-
    signer.” The Trimms argued that Green was not a vice president of AHMSI and
    that it was doubtful that Green actually signed the assignment or that a notary
    was present when the document was signed. The Trimms offered no evidence
    supporting these factual allegations, and therefore, we reject these arguments.
    See Chance v. CitiMortgage, Inc., 
    395 S.W.3d 311
    , 315–16 (Tex. App.—Dallas
    2013, no pet.) (rejecting argument that indorsement was suspect because it is a
    10
    statements in paragraph twelve that Option One only assigned the assets
    constituting the residential mortgage servicing business, including the servicing
    rights related to the loan, to AHMSI. An assignment of the residential mortgage
    servicing business, however, would not necessarily include assignment of the
    loan.   Because Kaminski’s affidavit is internally inconsistent and there is no
    documentation corroborating Kaminski’s assertion that AHMSI is the successor-
    in-interest to Option One entitled to transfer the loan to U.S. Bank, standing
    alone, the affidavit fails to establish the chain of title to U.S. Bank as a matter of
    law. See First Gibraltar Bank, FSB v. Farley, 
    895 S.W.2d 425
    , 428—29 (Tex.
    App.—San Antonio 1995, writ denied) (stating that “an issue of material fact is
    present on the issue of ownership of a note when there is an unexplained gap in
    the chain of title”). Nevertheless, because Kaminski’s affidavit establishes that
    the note is a “bearer” instrument in U.S. Bank’s possession and that U.S. Bank is
    the holder of the note and the deed of trust, his affidavit and its exhibits are
    sufficient to establish U.S. Bank’s standing to foreclose as a matter of law. See
    Tex. Bus. & Com. Code Ann. § 3.205(b) (West 2002) (stating that when indorsed
    in blank, “an instrument becomes payable to bearer and may be negotiated by
    transfer of possession alone”); Campbell v. Mortg. Elec. Registration Sys. Inc.,
    No. 03-11-00429-CV, 
    2012 WL 1839357
    , at *4 (Tex. App.—Austin May 18, 2012,
    “robotic mark” and not indicative of the signatory’s name, as “mere speculation or
    conjecture regarding the authenticity of the signature [that] cannot defeat
    competent summary judgment evidence”).
    11
    pet. denied) (mem. op.) (“[W]hen a mortgage note is transferred, the mortgage or
    deed of trust is also automatically transferred to the note holder by virtue of the
    common-law rule that ‘the mortgage follows the note.’” (quoting J.W.D., Inc. v.
    Fed. Ins. Co., 
    806 S.W.2d 327
    , 329–30 (Tex. App.—Austin 1991, no writ))).
    The Trimms also argued that the best evidence of the transfer of assets
    from Option One to AHMSI as described in paragraph twelve of Kaminiski’s
    affidavit would be the documents transferring those assets, not Kaminski’s
    testimony regarding the transfer. The best evidence rule states, “To prove the
    content of a writing, recording, or photograph, the original writing, recording, or
    photograph is required except as otherwise provided in these rules or by law.”
    Tex. R. Evid. 1002. The rule does not apply unless a party is seeking to prove
    the contents of a document. DeSoto Wildwood Dev., Inc. v. City of Lewisville,
    
    184 S.W.3d 814
    , 828 (Tex. App.—Fort Worth 2006, no pet.). Because U.S. Bank
    is not attempting to prove the contents of a document, the best evidence rule
    does not apply. See 
    id. The Trimms
    objected to exhibit 1H to the Kaminski Affidavit, which is a
    copy of the electronically stored copy of the letter Option One sent to the Trimms
    in October 2007 notifying them of the interest-rate increase, on the ground that
    the exhibit violated the best evidence rule. The Trimms argued that a copy of the
    original letter sent to the Trimms would be the best evidence of the notice of the
    interest-rate increase.    See Tex. R. Evid. 1002, 1003 (addressing the
    admissibility of duplicates). An original is not required, and other evidence of the
    12
    writing is admissible if the original has been lost or destroyed, is not obtainable
    by judicial process or procedure, or is under the control of the party against
    whom it is offered. See Tex. R. Evid. 1004(a), (b), (d). U.S. Bank claimed it no
    longer had the original notice letter because the original was sent to the Trimms.
    The Trimms claimed they never received written notice of the rate increase. In
    light of the inferences that could be drawn from the conflicting testimony
    regarding whether the notice letter was sent, the trial court did not abuse its
    discretion by determining that that exhibit 1H was admissible under rule of
    evidence 1004.
    We conclude that the trial court did not abuse its discretion by overruling
    each of the Trimms’ objections and, therefore, did not err by denying the Trimms’
    motion to strike U.S. Bank’s summary judgment evidence.
    B. U.S. Bank’s objections to the Trimms’ supplemental summary judgment
    evidence
    After filing their summary judgment         response, the Trimms        filed
    supplemental summary judgment evidence that they claimed called into question
    the authenticity and genuineness of the affidavits, assignments, and other
    summary judgment evidence submitted by U.S. Bank. Among other grounds,
    U.S. Bank objected to the Trimms’ supplemental summary judgment evidence
    because the Trimms did not timely file their supplemental summary judgment
    evidence in accordance with the parties’ rule 11 agreement.
    13
    According to U.S. Bank, the hearing on its motion for summary judgment
    was originally scheduled for February 24, 2012. The Trimms requested that the
    hearing be rescheduled, and the parties entered into a rule 11 agreement in
    which they agreed to reset the hearing for March 2, 2012, but they agreed that
    the Trimms’ deadline to file and serve a response to U.S. Bank’s motion for
    summary judgment, including any supporting evidence, would remain February
    17, 2012. See Tex. R. Civ. P 166a(c), (d). The Trimms filed their supplemental
    evidence on February 27, 2012. Because the Trimms filed their supplemental
    evidence after the deadline set forth in the rule 11 agreement, we conclude the
    trial court did not abuse its discretion by sustaining U.S. Bank’s objection to the
    Trimms’ supplemental summary judgment evidence. See Fraud-Tech, Inc. v.
    Choicepoint, Inc., 
    102 S.W.3d 366
    , 377 (Tex. App.—Fort Worth 2003, pet.
    denied) (“[P]arties may alter the deadline for filing a [summary judgment]
    response by Rule 11 agreement.”).
    II. U.S. Bank’s Waiver, Release, and Estoppel Affirmative Defenses
    U.S. Bank moved for summary judgment on its waiver, release, and
    estoppel affirmative defenses, arguing that the Trimms voluntarily released all of
    their claims against Option One and its successors under paragraph fourteen of
    the Forbearance Agreement.        U.S. Bank urges us to affirm the summary
    judgment on procedural grounds because the Trimms have not asserted a
    general issue complaining that the trial court erred by granting U.S Bank’s motion
    for summary judgment nor have they asserted as one of their six specific issues
    14
    that the trial court erred in granting summary judgment on U.S. Bank’s affirmative
    defenses of release, waiver, and estoppel. See Malooly Bros., Inc. v. Napier,
    
    461 S.W.2d 119
    , 121 (Tex. 1970) (stating that summary judgment “must stand,”
    because “it may have been based on a ground not specifically challenged by the
    plaintiff” and because “there was no general assignment that the trial court erred
    in granting summary judgment” (supporting citations omitted)).
    U.S. Bank is correct that in the “Issues Presented” section of their brief, the
    Trimms specifically assert six issues, none of which challenge the propriety of the
    summary judgment against them based upon U.S. Bank’s affirmative defenses.
    Before enumerating these issues, however, the Trimms assert generally in an
    introductory question, “Were there genuine matters of fact at issue requiring an
    inquiry for the finder of fact?” In light of our responsibility to construe briefs
    liberally, we construe this statement as a general assignment of error by the
    Trimms, which permits them to argue all the reasons the trial court erred by
    granting summary judgment in favor of U.S. Bank. See Tex. R. App. P. 38.9;
    Malooly Bros., 
    Inc., 461 S.W.2d at 121
    .
    Moreover, even though the Trimms do not set out a separate issue worded
    as challenging the summary judgment based on these affirmative defenses, the
    Trimms argue in the substance of their brief that U.S. Bank failed to prove that it
    had the right to enforce the Forbearance Agreement and, alternatively, that the
    release provisions of the Forbearance Agreement are unconscionable.              We
    construe these arguments as a challenge to the summary judgment on U.S.
    15
    Bank’s waiver, release, and estoppel affirmative defenses. See Weeks Marine,
    Inc. v. Garza, 
    371 S.W.3d 157
    , 162 (Tex. 2012) (holding that an appellant may
    preserve error in the “body” of his brief even if it is not separately listed as an
    issue); Perry v. Cohen, 
    272 S.W.3d 585
    , 587 (Tex. 2008) (“Appellate briefs are to
    be construed reasonably, yet liberally, so that the right to appellate review is not
    lost by waiver.”).
    Paragraph fourteen of the Forbearance Agreement provides as follows:
    By their execution and delivery to Lender of this Agreement,
    the Borrowers acknowledge that the Arrearage is the Borrowers’ full
    responsibility and was produced solely by the actions or inactions of
    the Borrowers. Furthermore, Borrowers agree that they have no
    defense, setoff or counterclaim related to the loan or the Property, or
    to the Lender’s activities relating to the loan or the Property, and
    Borrowers hereby voluntarily release, discharge and agree not to
    sue Lender for any and all claims, demands, controversies,
    damages, actions, causes of action, liabilities, rights, costs (including
    attorney fees and court and litigation costs and expenses),
    indemnities, obligations or losses of any kind or nature whatsoever,
    whether at this time known or unknown, for or by reason of any act,
    omission, event, transaction, matter or cause, arising from or relating
    to the loan, the origination of the loan or the servicing of the loan, or
    any dispute arising from or relating to the loan, the origination of the
    loan or the servicing of the loan, or any of the facts upon which any
    such dispute it based.
    U.S. Bank asserts it offered uncontested, competent summary judgment
    evidence establishing that Option One transferred the right to enforce the
    Forbearance Agreement to U.S. Bank.5 Thus, U.S. Bank argues, it is entitled to
    enforce paragraph fourteen of the Forbearance Agreement for its benefit.
    5
    U.S. Bank argues that the Trimms judicially admitted in their first amended
    petition that the Forbearance Agreement is a valid, enforceable agreement
    16
    Viewing the evidence in the light most favorable to the Trimms and
    indulging every reasonable inference and resolving any doubts in their favor, we
    conclude that U.S. Bank did not establish as a matter of law that Option One
    transferred its rights under the Forbearance Agreement to U.S. Bank.        Even
    though Kaminski’s affidavit states that AHMSI acquired “all of the assets
    constituting the residential mortgage servicing business, including without
    limitation the servicing rights related to the Loan” and that AHMSI, as successor-
    in-interest to Option One, transferred the loan to U.S. Bank, U.S. Bank’s
    summary judgment evidence does not establish as a matter of law that U.S Bank
    acquired Option One’s rights under the Forbearance Agreement or that Option
    One assigned its rights under the Forbearance Agreement to U.S. Bank.
    The Forbearance Agreement is between the Trimms and Option One. The
    term “Lender” in the Forbearance Agreement is defined to include only Option
    One and does not include Option One’s successors-in-interest. Thus, under the
    Forbearance Agreement’s express terms, even if U.S. Bank were Option One’s
    successor-in-interest, contrary to U.S. Bank’s motion for summary judgment, the
    between the Trimms and U.S. Bank, subject only to U.S. Bank proving that it was
    Option One’s successor. The Trimms pled as follows: “The Texas Home Equity
    Security Instrument and Forbearance Agreements are valid and binding
    agreements between Plaintiffs and Defendant, if Defendant is indeed the true
    owner of and holder of said agreements and the Deed of Trust.” [Emphasis
    added.] Because this statement is not unequivocal, it is not a judicial admission.
    See Warnke v. Nabors Drilling USA, L.P., 
    358 S.W.3d 338
    , 344 (Tex. App.—
    Houston [1st Dist.] 2011, no pet.) (“An admission in a pleading must be
    deliberate, clear, and unequivocal to constitute a judicial admission.”).
    17
    Trimms only released Option One, not its successors. If the trial court granted
    summary judgment on U.S. Bank’s waiver, release, and estoppel affirmative
    defenses, the trial court erred in doing so because U.S. Bank failed to
    conclusively establish as a matter of law that it was entitled to summary judgment
    on these defenses.      Accordingly, we sustain the Trimms’ challenge to the
    summary judgment on these affirmative defenses.6
    III. Breach of Contract
    In their second, third, and fourth issues, the Trimms assert there are
    genuine issues of material fact precluding summary judgment against them on
    their claim that U.S. Bank and its predecessors breached the deed of trust and
    the Forbearance Agreement. In their amended petition, the Trimms alleged U.S.
    Bank breached the deed of trust and the Forbearance Agreement by not giving
    proper notices to the Trimms; by demanding payment of charges, fees, and other
    monies the Trimms claim they did not owe; and by proceeding with foreclosure
    proceedings.
    The essential elements of a breach of contract claim are (1) a valid
    contract exists between the plaintiff and the defendant; (2) the plaintiff performed
    or tendered performance or was excused from doing so; (3) the defendant
    6
    Because we determine that U.S. Bank failed to establish as a matter of
    law that it was entitled to summary judgment on its waiver, release, and estoppel
    affirmative defenses, we do not address the Trimms’ argument that the release
    provisions in the Forbearance Agreement are unconscionable. See Tex. R. App.
    P. 47.1.
    18
    breached the contract; and (4) the plaintiff incurred damages as a result of the
    defendant’s breach. West v. Triple B Servs., LLP, 
    264 S.W.3d 440
    , 446 (Tex.
    App.—Houston [14th Dist.] 2008, no pet.). In its motion for summary judgment,
    U.S. Bank attempted to negate the second, third, and fourth elements of the
    Trimms’ claim.
    A. Breach of the Deed of Trust and the Forbearance Agreement
    In its motion, U.S. Bank argued that neither it nor its predecessors
    breached the deed of trust or the Forbearance Agreement. It further argued that
    the Trimms could not maintain their breach of contract claim because they
    defaulted on their obligations under the deed of trust and the Forbearance
    Agreement by failing to pay the additional sums due as a result of the note’s
    interest rate increasing during the term of Forbearance Agreement and defaulted
    on their obligations under the deed of trust and the note by failing to make any
    payments on the loan since January 2008.
    The Trimms did not dispute that they have failed and refused to pay any
    additional sums allegedly due as a result of the interest-rate increase and have
    not made any payments on the note since making their final plan payment.
    Instead, they contended that Option One breached the deed of trust and
    Forbearance Agreement first by failing to provide, prior to the final plan payment
    due date, written notice that they were not current on their plan payments and
    that the interest rate on the note would be increased.
    19
    On appeal, U.S. Bank admits it has never contended that the Trimms were
    not current on their plan payments and do not contest the Trimms’ affidavit
    testimony that they timely made each plan payment required by the Forbearance
    Agreement. U.S. Bank contends, however, that Option One was not required to
    give the Trimms notice of the interest-rate increase under the terms of the deed
    of trust or the Forbearance Agreement.
    According to U.S. Bank, when the interest rate on the note increased
    during the term of the Forbearance Agreement, Option One chose not to
    increase the amount of the plan payment pursuant to the following provision in
    paragraph seven of the Forbearance Agreement:
    If the Note is an adjustable rate instrument, the Plan Payment may
    be subject to increase pursuant to interest rate adjustments as
    dictated by the terms of the Note. If the Plan Payment is not
    increased despite an interest rate increase pursuant to the Note, the
    sums accrued but unpaid due to the interest rate increase
    (“Additional Sums Due Per Rate Change”) must also be paid to
    satisfy the terms and conditions of this Agreement and bring the loan
    current. . . . In order to ensure payment by Borrowers of such
    Additional Sums Due Per Rate Change and in Lender’s sole and
    absolute discretion, the Plan Payment amount may be subject to
    increase, upon written notice by Lender to Borrowers, to an amount
    necessary to bring the loan current by the final Plan Payment due
    date under this Agreement.
    Relying on this provision, Option One chose to demand the additional sums
    accrued but unpaid as a result of the interest-rate increase after the final plan
    payment was made in January 2008. We agree that neither this provision nor
    any other provision in the Forbearance Agreement expressly required Option
    One to provide notice, written or otherwise, of the interest-rate increase. Under
    20
    paragraph seven, Option One was only required to give the Trimms written notice
    if it increased the plan payment amount, which it chose not to do.
    However, the Forbearance Agreement provides that “[a]ll of [the Trimms’]
    rights and responsibilities under, and all of the terms and conditions of the note
    and [deed of trust] shall remain in full force and effect except as expressly
    modified by this Agreement.” The deed of trust requires that Option One give the
    Trimms notice of the interest-rate increase: “The Note Holder will deliver or mail
    [the Trimms] a notice of any changes in [the] interest rate and the amount of [the]
    monthly payment before the effective date of any change.”
    According to Kaminski’s affidavit and exhibit 1H thereto, on or about
    October 17, 2007, Option One notified the Trimms by mail that the interest rate
    would increase, effective December 1, 2007. James Trimm, however, testified in
    his affidavit that he never received written notice of the interest-rate increase.
    Thus, because a genuine issue of material fact remains as to whether Option
    One sent notice as required by the deed of trust, U.S. Bank failed to conclusively
    prove that it or Option One did not breach the deed of trust and the Forbearance
    Agreement or that the Trimms did breach the deed of trust and the Forbearance
    Agreement.7 See Sauceda v. GMAC Mortg. Corp., 
    268 S.W.3d 135
    , 139–40
    7
    U.S. Bank never argued that even if failure to provide notice constituted a
    default under the deed of trust and the Forbearance Agreement, such a failure
    was not a material breach excusing the Trimms’ nonperformance. U.S. Bank
    also never argued that the breach of the deed of trust and the Forbearance
    Agreement as alleged by the Trimms was by Option One and that Option One’s
    breach should not be attributed to U.S. Bank.
    21
    (Tex. App.—Corpus Christi 2008, no pet.) (holding that in an action to set aside
    foreclosure and quiet title, affidavit of homeowner stating that notice of
    foreclosure was never received created a genuine issue of material fact).
    B. The Trimms’ damages
    U.S. Bank also argued in its summary judgment motion that even if U.S.
    Bank breached the deed of trust and the Forbearance Agreement, the Trimms
    were not damaged as a result. In support of this argument, U.S. Bank asserted
    that the Trimms have enjoyed a significant benefit from residing in their home
    without making any payments on the loan since January 2008. U.S. Bank further
    argued that the Trimms’ expenses to defend against foreclosure and bring this
    lawsuit were a result of their breach of the deed of trust and their bad faith pursuit
    of an action they knew or should have known they released in the Forbearance
    Agreement.
    In order to properly obtain summary judgment on this ground, U.S. Bank
    was required to conclusively negate the causation element of the Trimms’ breach
    of contract claim. See Tex. R. Civ. P. 166a(c). The Trimms pled for actual,
    consequential, incidental, and mental anguish damages. James Trimm stated in
    his affidavit that the Trimms are seeking money damages for the damage done to
    their credit scores by U.S. Bank and for the emotional distress caused by U.S.
    Bank’s attempts to foreclose on their home.          The only summary judgment
    evidence U.S. Bank points to is Kaminski’s affidavit testimony that the Trimms
    have not made any payments on the loan since they made the last plan payment
    22
    in January 2008. This is insufficient to conclusively prove that the Trimms were
    not damaged by U.S. Bank’s alleged breach.8
    Because U.S. Bank failed to conclusively negate at least one element of
    the Trimms’ breach of contract claim, the trial court erred by granting summary
    judgment against the Trimms on this claim. Accordingly, we sustain the Trimms’
    second, third, and fourth issues.
    IV. Fair Debt Collection Practices Act
    Although not raised as a separate issue, the Trimms assert that there is a
    genuine issue of material fact as to the amount they owed at the end of the
    Forbearance Agreement, and that by attempting to collect additional amounts on
    the loan accrued as a result of the increased interest rate—which the Trimms
    contend they do not owe—U.S. Bank violated the Fair Debt Collection Practices
    Act (FDCPA). In their amended petition, the Trimms alleged U.S. Bank violated
    the FDCPA by attempting to collect more than the amount of the debt, by
    attempting to wrongfully foreclose on the Trimms’ home, and by trying to force
    the Trimms into loan modifications with incorrect amounts due. See 15 U.S.C.A.
    § 1692f (West 2009). U.S. Bank moved for summary judgment on the Trimms’
    FDCPA claim, asserting that because it never attempted to collect more than was
    due under the note and the deed of trust and it only sought to foreclose eighteen
    8
    Because U.S. Bank moved for summary judgment on the grounds that the
    Trimms were not damaged as a result of U.S. Bank’s alleged breach, we do not
    address whether the types of damages the Trimms seek are available. See G.H.
    Towing Co. v. Magee, 
    347 S.W.3d 293
    , 297 (Tex. 2011) (noting that a court
    cannot grant summary judgment on grounds not presented in the motion).
    23
    months after the end of the Forbearance Agreement because the Trimms did not
    make any payments during that period, U.S. Bank did not violate the FDCPA as
    alleged by the Trimms. U.S Bank argued that at the end of the Forbearance
    Agreement, it only attempted to collect the amounts due as a result of the
    interest-rate increase during the term of the Forbearance Agreement and that it
    only continued to seek amounts properly collectible under the loan, including
    principal, interest, and various fees and expenses.
    U.S. Bank presented no evidence to establish the amounts it alleged were
    properly due under the note, the deed of trust, and the Forbearance Agreement
    or of the amounts it attempted to collect from the Trimms. And, as discussed
    above, it failed to establish that it gave the Trimms notice of the interest-rate
    increase as required by the deed of trust.            Because U.S. Bank has not
    conclusively negated at least one element of the Trimms’ FDCPA claim, the trial
    court erred by granting summary judgment on this claim. Accordingly, we sustain
    the Trimms’ challenge to the trial court’s summary judgment on their FDCPA
    claim.
    V. Fraud
    In their fifth issue, the Trimms argue that the trial court erred by granting
    summary judgment on their statutory and common-law fraud claims. The Trimms
    allege that prior to entering into the loan in April 2005, Option One represented to
    the Trimms that if they maintained a good payment history, they could refinance
    the loan at a fixed interest rate after two years through an internal program
    24
    offered by Option One. The Trimms claim they entered into the loan in reliance
    on this promise. The Trimms further claim that when they attempted to refinance
    the loan in the spring of 2007, they had a good payment record, but contrary to
    its promise, Option One had changed its qualification standards and would not
    refinance the loan at a fixed rate.
    In its motion for summary judgment, U.S. Bank argued that the statute of
    frauds, as codified in business and commerce code section 26.02, barred the
    Trimms’ fraud claims. See Tex. Bus. & Com. Code Ann. § 26.02(b)–(d) (West
    2009). Section 26.02(b) provides that “[a] loan agreement in which the amount
    involved in the loan agreement exceeds $50,000 in value is not enforceable
    unless the agreement is in writing and signed by the party to be bound or by that
    party’s authorized representative.” Tex. Bus. & Com. Code Ann. § 26.02(b). The
    term “loan agreement” includes any promise, agreement, undertaking, or
    commitment “pursuant to which a financial institution loans or delays repayment
    of or agrees to loan or delay repayment of money, goods, or another thing of
    value or to otherwise extend credit or make a financial accommodation.” Tex.
    Bus. & Com. Code Ann. § 26.02(a)(2) (West 2009). The statute further provides
    that “the rights and obligations of the parties to an agreement subject to
    Subsection (b) of this section shall be determined solely from the written loan
    agreement, and any prior oral agreements between the parties are superseded
    by and merged into the loan agreement” and that “an agreement subject to
    Subsection (b) of this section may not be varied by any oral agreements or
    25
    discussions that occur before or contemporaneously with the execution of the
    agreement.”    
    Id. § 26.02(c),
    (d).   Section 26.02(e) requires that each loan
    agreement that is subject to subsection (b) must notify the debtor or obligor about
    section 26.02(d)’s prohibition against oral modifications.   
    Id. § 26.02(e)
    (West
    2009). If the notice required by subsection (e) is not given on or before execution
    of the loan agreement or is not conspicuous, section 26.02 does not apply to the
    loan agreement. 
    Id. § 26.02(d).
    U.S. Bank argued that because the Trimms’ fraud claims are based on an
    alleged oral promise made prior to the execution of the loan that Option One
    would allow the Trimms to refinance the loan at a fixed rate, it is subject to the
    statute of frauds and fails as a result. We disagree. Neither the note nor the
    deed of trust nor any other document in U.S. Bank’s summary judgment
    evidence contains the notice required by section 26.02(e). Therefore, U.S. Bank
    cannot take advantage of section 26.02. See 
    id. § 26.02(d);
    see also Comiskey
    v. FH Partners, LLC, 
    373 S.W.3d 620
    , 641 n.25 (Tex. App.—Houston [14th Dist.]
    2012, pet. denied) (stating that in order to take advantage of business and
    commerce code section 26.02, the financial institution must give notice as
    required by section 26.02(e)).
    If the trial court granted summary judgment on the Trimms’ fraud claim
    based upon U.S. Bank’s statute of frauds defense under section 26.02, the trial
    court erred in doing so because U.S. Bank failed to establish this defense as a
    matter of law. Accordingly, we sustain the Trimms’ fifth issue.
    26
    VI. Request for Declaratory Judgment
    We construe the Trimms’ first issue as a challenge to the summary
    judgment on their declaratory judgment claims. In their amended petition, the
    Trimms asked the trial court to determine U.S Bank’s and the Trimms’ rights and
    duties in connection with the note, the deed of trust, the and Forbearance
    Agreement, specifically (1) who was the current owner and holder of the note; (2)
    whether the owner and holder of the note approved any mortgage servicer to
    collect payments under the deed of trust and Forbearance Agreement; (3)
    whether the collection of payments was in violation of the agreements previous
    owners and holders of these instruments had with the Trimms; (4) who was the
    owner of the deed of trust and the Forbearance Agreement; (5) what amounts
    were owed by the Trimms to U.S. Bank; and (6) how the Trimms’ payments were
    applied.
    U.S Bank moved for summary judgment on the Trimms’ request for a
    declaration as to who was the current owner and holder of the note, who was the
    current owner of the deed of trust, what amounts were owed by the Trimms to
    U.S. Bank, and how the Trimms’ payments were applied. Because U.S. Bank
    did not move for summary judgment on the Trimms’ request for declarations as
    to whether the owner and holder of the note approved any mortgage servicer to
    collect payments under the deed of trust and the Forbearance Agreement,
    whether the collection of payments was in violation of the agreements that
    previous owners and holders of these instruments had with the Trimms, and who
    27
    was the owner of the Forbearance Agreement, the trial court erred by granting
    summary judgment on these requests for declaratory relief. See G.H. Towing
    
    Co., 347 S.W.3d at 297
    (“Granting a summary judgment on a claim not
    addressed in the summary judgment motion . . . is, as a general rule, reversible
    error.”); McConnell v. Southside Indep. Sch. Dist., 
    858 S.W.2d 337
    , 341 (Tex.
    1993) (holding that a motion for summary judgment “must stand or fall on the
    grounds expressly presented in the motion”); see also Double Diamond, Inc. v.
    Van Tyne, 
    109 S.W.3d 848
    , 852 (Tex. App.—Dallas 2003, no pet.) (where
    traditional summary judgment motion did not address claim for declaratory
    judgment, trial court erred in granting summary judgment on declaratory
    judgment cause of action).
    U.S. Bank argued it was entitled to summary judgment because its
    summary judgment evidence proved that it was the owner and holder of the note
    and the deed of trust and, therefore, was entitled to enforce them. U.S. Bank
    further argued it was entitled to summary judgment because the specific amounts
    owed and how the payments were applied is irrelevant because it is indisputable
    that the loan was in default as the Trimms had not made any payments on the
    loan since January 2008. The purpose of a declaratory judgment action is to
    “declare [the] rights, status, and other legal relations whether or not further relief
    is or could be claimed.” Tex. Civ. Prac. & Rem. Code Ann. § 37.003(a) (West
    2008). By granting U.S. Bank’s motion for summary judgment, the trial court
    effectively entered a take-nothing judgment against the Trimms on their request
    28
    for declaratory relief, thereby denying the Trimms a determination by declaratory
    judgment.    But U.S. Bank did not move for summary judgment on the grounds
    that the Trimms were not entitled to declaratory relief. Therefore, the trial court
    erred by granting summary judgment on the Trimms’ claims for declaratory relief.
    See G&H Towing 
    Co., 347 S.W.3d at 297
    (noting that a court cannot grant
    summary judgment on grounds not presented in the motion). Accordingly, we
    sustain the Trimms’ first issue.
    Conclusion
    We overrule the Trimms’ sixth issue. Having sustained all of the Trimms’
    remaining issues, we reverse the trial court’s summary judgment and remand this
    case to the trial court for further proceedings. See Tex. R. App. P. 43.2(d).
    /s/ Anne Gardner
    ANNE GARDNER
    JUSTICE
    PANEL: GARDNER, WALKER, and MCCOY, JJ.
    DELIVERED: July 17, 2014
    29