Ohio Gravy Biscuit, Inc. as Trustee for the Woodhaven Drive 1401 Land Trust v. NRZ Pass-Through Trust X, US Bank National Association as Trustee ( 2022 )

Affirmed in part; Reversed and Remanded in part and Opinion Filed April
20, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00881-CV
OHIO GRAVY BISCUIT, INC. AS TRUSTEE FOR THE WOODHAVEN
DRIVE 1401 LAND TRUST, Appellant
V.
NRZ PASS-THROUGH TRUST X, US BANK NATIONAL ASSOCIATION
AS TRUSTEE, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-04848-2019
MEMORANDUM OPINION
Before Justices Myers, Molberg, and Garcia
Opinion by Justice Myers
This is an appeal from a summary judgment granted in favor of appellee NRZ
Pass-Through Trust X, U.S. Bank, National Association as Trustee. Appellant Ohio
Gravy Biscuit, Inc., as trustee for the Woodhaven Drive 1401 Land Trust, argues the
trial court erred in granting summary judgment. We affirm in part and reverse and
remand in part.
BACKGROUND AND PROCEDURAL HISTORY
On December 9, 2002, Daniel Budd and Diana Budd (the Budds) acquired an
interest in property at 1401 Woodhaven Drive, McKinney, Texas 75070 (the
property) via a “Warranty Deed with Vendor’s Lien.” On April 4, 2007, they
executed a “Texas Home Equity Note” (the note) in favor of Countrywide Home
Loans, Inc., in the original principal sum of $400,000, and they executed a “Texas
Home Equity Security Instrument” encumbering the property (the deed of trust) as
security for payment of the note (collectively, the loan agreement). The deed of trust
was recorded in the Collin County public records on April 11, 2007.
Appellee “NRZ Pass-Through Trust X, U.S. Bank Nation Association as
Trustee” is the beneficiary of the deed of trust pursuant to a chain of assignments.
On September 20, 2012, Countrywide, through its nominee Mortgage Electronic
Registration Systems, Inc. (MERS), assigned the deed of trust to Bank of America,
N.A., successor by merger with “BAC Home Loans Servicing, LP f/k/a Countrywide
Home Loans Servicing, LP.” The assignment was recorded in the Collin County
public records four days later, on September 24, 2012. On May 3, 2016, Bank of
America assigned the deed of trust to “Citibank, N.A., Not in its Individual Capacity,
but solely as Trustee of NRZ Pass-Through Trust, VI” (Citibank). This assignment
was recorded in the Collin County public records on May 12, 2016. On April 6,
2018, Citibank assigned the deed of trust to NRZ, and this assignment was recorded
in the Collin County public records on April 23, 2018.
The property was also subject to a homeowner’s association (HOA)
declaration of covenants, conditions, and restrictions—more precisely, the “Second
Amended and Restated Master Declaration of Covenants, Conditions and
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Restrictions for Stonebridge Ranch” (the HOA declaration). The declaration created
an assessment lien securing the Budds’ obligation to pay their HOA dues to the
association.
It is undisputed that the Budds failed to make their contractually scheduled
monthly payments. NRZ, or its predecessors, began foreclosure proceedings on the
property on December 30, 2013, when Bank of America filed the first rule 736
application for foreclosure under cause 429-05154-2013.1 A second rule 736
application was filed by Bank of America on June 15, 2015, under cause 219-02390-
2015. Both applications included a notice of default to the Budds dated December
13, 2012, informing them the loan was “in serious default” because the required
monthly payments had not been made. On June 16, 2014, however, the previous
accelerations were rescinded by Bank of America, and yet another rescission of
acceleration was tendered by NRZ on May 3, 2019.
The Budds also failed to pay their dues to the HOA, and it foreclosed on its
lien on January 5, 2016. Woodhaven Drive 1401 Land Trust (Woodhaven)
purchased the property at the HOA foreclosure sale for $12,000. On January 12,
2016, a substitute trustee’s deed was recorded in the Collin County public records.
1
Section 21 of the deed of trust authorized the lender to accelerate the debt in the event of default and to
“invoke the power of sale” if the default was not cured. Section 22 provided the terms governing a
foreclosure sale of the property by the trustee. Under section 22, “Borrower authorize[d] Trustee to sell the
Property to the highest bidder for cash in one or more parcels and in any order Trustee determines,” and
required the trustee to deliver a trustee’s deed to the purchaser of the Property.
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On June 14, 2016, NRZ’s predecessor in interest, Bank of America, N.A.
(Bank of America), filed suit against Woodhaven in a Collin County district court
(cause 416-02540-2016) seeking to quiet title to the property and for a declaratory
judgment to establish that its deed of trust was valid; that it was superior to the HOA
assessment lien; and that Bank of America held clear title to the property (the 2016
lawsuit). In 2017, Citibank substituted in as plaintiff for Bank of America.
On September 8, 2017, the trial court granted summary judgment, including
declaratory relief, in Citibank’s favor. Woodhaven appealed the summary judgment,
and on December 19, 2018, we affirmed the trial court’s judgment. See Woodhaven
Dr. 1401 Land Trust v. Citibank, N.A., No. 05-17-01393-CV, 2018 WL 6629586(Tex. App.—Dallas Dec. 19, 2018, no pet.) (mem. op.) (affirming trial court’s
summary judgment and declaratory judgment in favor of Citibank).
On March 11, 2019, NRZ filed a notice of substitute trustee’s sale, and the
property was scheduled for an April 2, 2019, foreclosure sale. However, on March
21, 2019, appellant Ohio Gravy Biscuit, Inc. (OGB), as trustee for the Woodhaven
Drive 1401 Land Trust, filed suit against NRZ in a Collin County district court
seeking to stop the foreclosure, alleging suit to quiet title (the March 2019 suit). The
petition alleged that more than four years had passed since the acceleration of the
note and that the deed of trust had terminated. The foreclosure sale was cancelled,
and foreclosure delayed, because of a temporary restraining order (TRO) obtained
by OGB and signed by the trial court on March 27, 2019. The TRO indicates its
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basis was that the exercise of the powers of sale under the deed of trust had
terminated, based on the (alleged) expiration of the statute of limitations.
New notices of default were mailed to the Budds on June 19, 2019. They
failed to cure the default, and as of May 14, 2020, the loan agreement payoff was
approximately $703,779.31, which continues to accrue interest at a per diem rate of
$65.04.2 NRZ has been paying property taxes on the property and has been paying
and maintaining insurance for the property.
On August 28, 2019, NRZ filed the instant original petition against the Budds
and OGB in the 401st district court of Collin County seeking (among other relief) a
home equity judicial foreclosure and asserting claims against OGB for tortious
interference with contract, quantum meruit, and money had and received. OGB filed
its answer and request for disclosure on September 30, 2019. On June 11, 2020,
NRZ filed a combined motion for summary judgment as to OGB and motion for
default judgment as to the Budds. On June 29, OGB filed a counter-petition
asserting a quiet title claim. OGB filed its summary judgment response on July 6,
2020. NRZ filed a reply to the response three days later, on July 9, and the trial court
signed the final judgment granting default and summary judgment for NRZ on July
10. In addition to authorizing judicial foreclosure of the property, the judgment
orders OGB to pay NRZ $21,139.06 for damages NRZ sustained because of the
2
See TEX. PROP. CODE § 12.017(a)(5) (defining “Payoff statement” to include the unpaid balance of a
loan secured by a mortgage and per diem interest for the unpaid balance).
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trust’s actions. On July 31, 2020, OGB filed a motion for new trial, which was
overruled by operation of law, and on October 8, 2020, it filed the instant notice of
appeal.
DISCUSSION
Summary Judgment Standard of Review
We review a summary judgment de novo. Trial v. Dragon, 593 S.W.3d 313,
316 (Tex. 2019). A motion for summary judgment requires the moving party to
show that no genuine issue of material fact exists and that it is entitled to judgment
as a matter of law. TEX. R. CIV. P. 166a(c); Lujan v. Navistar, Inc., 555 S.W.3d 79,
84 (Tex. 2018). If the movant carries this burden, the burden shifts to the nonmovant
to raise a genuine issue of material fact. Lujan, 555 S.W.3d at 84. We take evidence
favorable to the nonmovant as true and indulge every reasonable inference and
resolve any doubts in the nonmovant’s favor. Ortiz v. State Farm Lloyds, 589
S.W.3d 127, 131 (Tex. 2019).
Appellant’s Issues
OGB argues the trial court erred in granting NRZ’s motion for summary
judgment because the summary judgment record contained genuine issues of
material fact. More specifically, OGB argues (1) the summary judgment record did
not contain competent evidence to establish a prima facie case for tortious
interference with contract; (2) a prima facie case for quantum meruit or unjust
enrichment; (3) the record contains evidence establishing that NRZ’s lien was void
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ab initio; and (4) the trial court erred in allowing a judicial foreclosure because NRZ
failed to establish any entitlement to judicial foreclosure.
Quantum Meruit
We begin with OGB’s second issue, which argues the trial court erred in
awarding judgment for NRZ because the summary judgment record does not contain
competent evidence establishing a prima facie case for quantum meruit or unjust
enrichment.3
“Quantum meruit is an equitable remedy which does not arise out of a
contract, but is independent of it.” Vortt Expl. Co. v. Chevron U.S.A., Inc., 787
S.W.2d 942, 944 (Tex. 1990). Generally, a party may recover under quantum meruit
only if no express contract covering the services or materials furnished exists. Id.;
Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988). Quantum meruit “is based upon
the promise implied by law to pay for beneficial services rendered and knowingly
accepted.” Campbell v. Nw. Nat’l Life Ins. Co., 573 S.W.2d 496, 498 (Tex. 1978).
A party can recover in quantum meruit when non-payment for the services rendered
would result in an unjust enrichment to the party benefited by the work. Vortt Expl.
Co., 787 S.W.2d at 944.
Recognizing that quantum meruit is founded on unjust enrichment, the
essential elements of a quantum meruit claim are: (1) valuable services were
3
During oral argument, counsel for NRZ abandoned the claims for tortious interference and money
had and received, so we do not discuss OGB’s first issue, which concerns the tortious interference claim.
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rendered or materials furnished; (2) for the person sought to be charged; (2) which
services and materials were accepted by the person sought to be charged, used and
enjoyed by him or her; (4) under such circumstances as reasonably notified the
person sought to be charged that the plaintiff in performing such services was
expecting to be paid by the person sought to be charged. Vortt Expl. Co., 787 S.W.2d
at 944 (citing Bashara v. Baptist Mem’l Hosp. Sys., 685 S.W.2d 307, 310 (Tex.
1985)); see also In Matter of Marriage of S.C., No. 05-14-00661-CV, 2015 WL
4524191, at *7 n.7 (Tex. App.—Dallas July 27, 2015, no pet.) (mem. op.); Speck v.
First Evangelical Lutheran Church of Houston, 235 S.W.3d 811, 815 (Tex. App.—
Houston [1st Dist.] 2007, no pet.). To recover in quantum meruit, the plaintiff must
show it rendered valuable services or furnished materials for the defendant; it is not
enough to show the plaintiff rendered valuable services or furnished materials that
benefited the defendant. Truly, 744 S.W.2d at 944; 2001 Trinity Fund, LLC v.
Carrizo Oil & Gas, Inc., 393 S.W.3d 442, 455 (Tex. App.—Houston [14th Dist.]
2012, pet. denied); see Metroplexcore, L.L.C. v. Parsons Transp., Inc., 743 F.3d 964,
975 (5th Cir. 2014) (discussing Vortt).
OGB attacks the fourth element of NRZ’s quantum meruit claim, arguing
there is no summary judgment evidence it had any expectation it would be paid by
OGB. OGB cites Balfour Beatty Rail, Inc. v. Kansas City Southern Railway Co.,
173 F. Supp. 3d 363 (N.D. Tex. 2016), aff’d as modified and remanded, 725 F.
App’x 256 (5th Cir. 2018), where the court explained the fourth element of a
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quantum meruit claim as follows:
To satisfy this last requirement, the claimant must show that, before it
provided services or furnished materials, it notified the person or entity
sought to be charged that it anticipated payment for such services or
materials or the person or entity sought to be charged had notice
beforehand that the claimant anticipated payment for the services or
materials being provided.
Id. at 403. NRZ tries to distinguish Balfour by arguing the above passage— which
it claims was “cherry picked” out of the opinion—relates to “services or materials”
furnished as part of a construction contract. See id. Additionally, argues NRZ, it
provided a service or material to OGB by paying ad valorem taxes and hazard
insurance on the property that benefitted OGB “while it continued its unfettered
collection of rental income” on the property.
However, other cases besides Balfour have explained that in order to recover
under quantum meruit, the services rendered by a party must be accepted and used
by another under circumstances which would reasonably notify the recipient that the
performing party expected the recipient to pay him or her for the work; the basis for
a claim in quantum meruit is either an express or implied agreement to pay for the
work. See, e.g., Pearl Res. LLC v. Charger Servs., LLC, 622 S.W.3d 106, 121–22
(Tex. App.—El Paso 2020, pet. denied); BP Automotive LP v. RML Waxahachie
Dodge, LLC, 517 S.W.3d 186, 207 (Tex. App.—Texarkana 2017, no pet.); Gen.
Capital Group Beteligungsberatung GMBH v. AT & T, 407 S.W.3d 507, 512 (Tex.
App.—Dallas 2013, pet. denied); Walker & Assoc. Surveying, Inc. v. Roberts, 306
S.W.3d 839, 858 (Tex. App.—Texarkana 2010, no pet.); Residential Dynamics, LLC
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v. Loveless, 186 S.W.3d 192, 199 (Tex. App.—Fort Worth 2006, no pet.); Gen.
Homes, Inc. v. Denison, 625 S.W.2d 794, 796 (Tex. App.—Houston [14th Dist.]
1981, no writ); see also Truly, 787 S.W.2d at 944.
The summary judgment evidence does not support the notice element. This
element focuses on what the recipient of the services knew or should have known
before or at the time the services were accepted. Balfour, 173 F.Supp.3d at 403;
Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 & n.4 (Tex.
1992); Ellis v. Reliant Energy Retail Servs., L.L.C., 418 S.W.3d 235, 255 (Tex.
App.—Houston [14th Dist.] 2013, no pet.); Myrex Indus., Inc. v. Ortolon, 126
S.W.3d 548, 551 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). An essential
element of any claim for recovery in quantum meruit is, of course, that the plaintiff
must expect to be compensated for the services rendered. Vortt Expl. Co., 787
S.W.2d at 944; Pearl Res. LLC, 622 S.W.3d at 121–22; Gen. Capital Group, 407
S.W.3d at 512–13. But the defendant must have the same expectation. Vortt Expl.
Co., 787 S.W.2d at 944; General Capital Grp., 407 S.W.3d at 512.
NRZ does not direct us to—and we have not found—any summary judgment
evidence showing OGB accepted NRZ’s payment of the ad valorem taxes and
insurance on the property under such circumstances as reasonably notified OGB that
NRZ expected to be paid for the services rendered. Nor are we persuaded by NRZ’s
citation of paragraph 9 of the deed of trust (titled “Protection of Lender’s Interest in
the Property and Rights Under this Security Instrument”), which, as NRZ explains,
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entitled it to pay the taxes and insurance on the property to protect its interest,
because, again, there is no evidence OGB had notice NRZ anticipated repayment.
NRZ has thus not met its burden of showing there is no genuine issue of
material fact, and that it is entitled to judgment as a matter of law on its quantum
meruit claim. See, e.g., Heldenfels Bros., 832 S.W.2d at 41 & n.4; Vortt Expl. Co.,
787 S.W.2d at 944–45; Ellis, 418 S.W.3d at 254; Gen. Capital Group , 407 S.W.3d
at 512–13; Myrex Indus., 126 S.W.3d at 551. Therefore, we sustain OGB’s second
issue and conclude the trial court erred in granting summary judgment in favor of
NRZ on its quantum meruit claim.4
Quiet Title Counterclaim
In its third issue, OGB contends the trial court erred in awarding summary
judgment for NRZ because the record contained evidence the lien was void ab initio
pursuant to the Texas Constitution. OGB’s argument is based on its suit to quiet title
counterclaim and article XVI, section 50 of the Texas Constitution, which provides
that a home equity loan may not exceed 80 percent of the fair market value of the
home. See TEX. CONST. art. XVI, § 50(a)(6)(B). OGB argues the advance of
$400,000 was more than the appraised value of the property, and that the trial court
therefore erred in awarding a foreclosure judgment because the evidence established
4
In a reply brief, OGB raises the argument that allowing NRZ to recover under a theory of quantum
meruit or unjust enrichment and, at the same time, pursue judicial foreclosure amounts to a “double
recovery,” which is prohibited. NRZ sur-replies that this argument was not raised in the trial court and that
it is, thus, waived. Because of our conclusion above that the court erred in granting summary judgment for
NRZ on its quantum meruit claim, we do not address this argument.
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the lien was invalid in that it violated the 80 percent rule in article XVI, section 50.
NRZ responds that OGB’s suit to quiet title counterclaim fails as a matter of
law because (1) it is barred by res judicata and/or issue preclusion, which was tried
by consent; and (2) OGB failed to prove the lien was invalid. We focus on NRZ’s
first argument.
“Res judicata is a generic term for the related concepts of claim preclusion
(res judicata) and issue preclusion (collateral estoppel).” Barnes v. United Parcel
Serv., Inc., 395 S.W.3d 165, 173 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).
Collateral estoppel, or issue preclusion, precludes relitigation of issues resolved in a
prior suit. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992); New
Talk, Inc. v. Sw. Bell Tel. Co., 520 S.W.3d 637, 645 (Tex. App.—Fort Worth 2017,
no pet.). Res judicata, or claim preclusion, bars relitigation of claims that have been
finally adjudicated or that arise out of the same subject matter and could have been
litigated in the prior action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex.
1996); New Talk, Inc., 520 S.W.3d at 645.
Res judicata and collateral estoppel are affirmative defenses that must be
pleaded unless tried by consent. See TEX. R. CIV. P. 94; In re I.M., No. 06-21-00002-
CV, 2021 WL 1991271, at *13 (Tex. App.—Texarkana May 19, 2021, pet. denied)
(mem. op.); In re D.L.W., No. 07-15-00243-CV, 2015 WL 8225213, at *4 n.9 (Tex.
App.—Amarillo Dec. 4, 2015, no pet.) (mem. op.); In re R.J.P., 179 S.W.3d 181,
183 n.1 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (plurality op.). Unpleaded
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claims or defenses that are tried by express or implied consent of the parties are
treated as if they had been raised by the pleadings. Roark v. Stallworth Oil & Gas,
Inc., 813 S.W.2d 492, 495 (Tex. 1991). Trial by consent may be appropriate in some
summary judgment situations. Id.; see Basic Capital Mgmt. v. Dynex Comm., Inc.,
348 S.W.3d 894, 899 (Tex. 2011); Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313
(Tex. 2006).
For res judicata to apply, the following elements must be present: (1) a prior
final determination on the merits by a court of competent jurisdiction; (2) identity of
parties or those in privity with them; and (3) a second action based on the same
claims as were raised or could have been raised in the first action. Travelers Ins.
Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Hill v. Tx–An Anesthesia Mgmt.,
LLP, 443 S.W.3d 416, 424 (Tex. App.—Dallas 2014, no pet.). The doctrine seeks
to bring an end to litigation, prevent vexatious litigation, maintain stability of court
decisions, promote judicial economy, and prevent double recovery. Barr, 837
S.W.2d at 629.
Neither res judicata nor collateral estoppel were pleaded. But the record
shows that, in its August 2019 original petition, NRZ asserted that OGB’s quiet title
claim from the March 2019 suit was “the exact claim” adjudicated in the 2016 suit
between Citibank and Woodhaven. NRZ’s petition and summary judgment motion
included as an exhibit our prior opinion from the 2016 case, where we stated in part
that “the summary judgment evidence conclusively established Citibank’s lien was
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valid and superior to Woodhaven’s lien.” Woodhaven, 2018 WL 6629586, at *4
(emphasis added). In its counter-petition filed on June 29, 2020, eighteen days after
NRZ’s summary judgment motion, OGB asserted a quiet title claim that the deed of
trust was void ab initio based on the loan allegedly violating article XVI, section 50.
Six days later, on July 6, OGB filed its response to NRZ’s summary judgment,
arguing again the lien was void ab initio based on article XVI, section 50. In its
summary judgment reply filed three days after that, at 1:43 p.m. on July 9, the day
before the court signed the final judgment, NRZ asserted that, to the extent OGB
was stating a new argument that the lien was invalid “based on some type of
constitutional challenge,” OGB was barred from doing so by res judicata or issue
preclusion. The court’s final judgment states that it considered the summary
judgment motion along with the pleadings, legal arguments, affidavits on file with
the court, and all other pertinent evidence.
Given the record here, we conclude the issue of res judicata was tried by
consent, and that the summary judgment record establishes res judicata. First, the
previous judgment was rendered by a court of competent jurisdiction. Second, it is
undisputed that the parties here are in privity with those in the previous case. Third,
OGB’s quiet title counterclaim against NRZ arises out of the same transaction that
was the subject of the 2016 suit, where the deed of trust’s validity was at issue, and
it could have been brought in the previous suit. See Woodhaven, 2018 WL 6629586,
at *1 (“BOA filed suit against Woodhaven on June 14, 2016, seeking to quiet title
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to the Property and for declaratory judgment that its First Lien Deed of Trust was
valid, the First Lien Deed of Trust was superior to the assessment lien, and BOA
held clear title to the Property.”). OGB argues the prior case dealt only with lien
priority, but the parties in that case litigated the validity of the deed of trust and we
held that Citibank’s lien was valid and superior to Woodhaven’s. See id. at *4.
Accordingly, OGB’s suit to quiet title counterclaim is barred by res judicata.
We overrule OGB’s third issue.
Judicial Foreclosure
In its fourth issue, OGB argues the trial court erred in allowing judicial
foreclosure because NRZ failed to establish its entitlement to a judicial foreclosure.
More precisely, OGB contends NRZ did not establish all the elements of a judicial
foreclosure.
“‘To foreclose under a security instrument in Texas with a power of sale, the
lender must demonstrate that: (1) a debt exists; (2) the debt is secured by a lien
created under Art. 16, § 50(a)(6) of the Texas Constitution; (3) plaintiffs are in
default under the note and security instrument; and (4) plaintiffs received notice of
default and acceleration.’” Bracken v. Wells Fargo Bank, N.A., No. 05-16-01334-
CV, 2018 WL 1026268, at *5 (Tex. App.—Dallas Feb. 23, 2018, pet. denied) (mem.
op.) (quoting Huston v. U.S. Bank Nat’l Ass’n, 988 F. Supp. 2d 732, 740 (S.D. Tex.
2013), aff’d, 583 Fed. Appx. 306 (5th Cir. 2014)).
OGB focuses on the fourth element, arguing NRZ did not establish its
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entitlement to summary judgment on judicial foreclosure because it failed to show
it accelerated the note before filing suit. The record, however, includes the prior
notices of acceleration that were rescinded in 2014, when the lender’s attorney sent
a notice of rescission, and, later, the notice of default to the borrowers dated June
19, 2019. OGB does not dispute that notice of default was mailed in June 2019,
which provided an opportunity to cure the default.
Moreover, NRZ’s petition included the following acceleration language in
paragraph 13—bolded and underlined: “Payment of the past due balance on the
debt has not been received by Plaintiff. Because of this default, Plaintiff has
elected to ACCELERATE the maturity of the debt.” The filing of suit itself may
constitute notice of acceleration. Joy Corp. v. Nob Hill N. Props., Ltd., 543 S.W.2d
691, 694 (Tex. Civ. App.—Tyler 1976, no writ) (stating that to accelerate, a
lienholder must make a formal demand for the payment of the past due amount, give
an opportunity to make the payment, and “[d]eclare that the entire debt is due, or
take some unequivocal action, such as filing suit, which indicates that the entire debt
is due”); Emmert v. Wilmington Sav. Fund Soc’y, FSB, No. 02-17-00119-CV, 2018
WL 1005002, at *4 (Tex. App.—Fort Worth Feb. 22, 2018, no pet.) (mem. op.)
(declining to address whether lender may unilaterally waive acceleration over
objection of debtor “because the filing of suit itself may constitute notice of
acceleration”); see Florey v. U.S. Bank Nat’l Ass’n, Tr. for RMAC Tr., Series 2016-
CCT, No. 05-20-00306-CV, 2021 WL 2525457, at *5 (Tex. App.—Dallas June 21,
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2021, pet. denied) (mem. op.) (“The applications for expedited foreclosure by
themselves constituted notices of acceleration.”); Burney v. Citigroup Glob. Markets
Realty Corp., 244 S.W.3d 900, 904 (Tex. App.—Dallas 2008, no pet.) (“[N]otice of
filing an expedited application for foreclosure after the requisite notice of intent to
accelerate is sufficient to constitute notice of acceleration.”); see also Smither v.
Ditech Fin., L.L.C., 681 Fed. Appx. 347, 352 (5th Cir. 2017) (citing Burney, 244
S.W.3d at 903–04).
Therefore, the trial court did not err in granting summary judgment for NRZ
on its claim for judicial foreclosure. We overrule OGB’s fourth issue.
CONCLUSION
We sustain OGB’s first and second issues. The trial court’s July 10, 2020
final judgment is affirmed in part and reversed and remanded in part. The portion
of the judgment ordering OGB to pay NRZ $21,139.06 in damages based on NRZ’s
claims against OGB for tortious interference, quantum meruit, and money had and
received is reversed, and the case remanded for further proceedings. The remainder
of the judgment is affirmed.
/Lana Myers//
200881f.p05 LANA MYERS
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
OHIO GRAVY BISCUIT, INC. AS On Appeal from the 401st Judicial
TRUSTEE FOR THE District Court, Collin County, Texas
WOODHAVEN DRIVE 1401 Trial Court Cause No. 401-04848-
LAND TRUST, Appellant 2019.
Opinion delivered by Justice Myers.
No. 05-20-00881-CV V. Justices Molberg and Garcia
participating.
NRZ PASS-THROUGH TRUST X,
US BANK NATIONAL
ASSOCIATION AS TRUSTEE,
Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED in part and REVERSED and REMANDED in part. We
REVERSE that portion of the trial court’s judgment ordering appellant OHIO
GRAVY BISCUIT, INC., AS TRUSTEE FOR THE WOODHAVEN DRIVE 1401
LAND TRUST, to pay appellee NRZ PASS-THROUGH TRUST X, US BANK
NATIONAL ASSOCIATION AS TRUSTEE, $21,139.06 in damages. In all other
respects, the trial court’s judgment is AFFIRMED. We REMAND this cause to
the trial court for further proceedings consistent with this opinion. It is ORDERED
that each party bear its own costs of this appeal.
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Judgment entered this 20th day of April, 2022.
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