David Savage and Linda Savage v. Texstar Bank, Branch of First National Bank of Monahans

• Court: Court of Appeals of Texas
• Decided: September 25, 2009
• Docket: 07-08-00384-CV
• Status: Published

Opinion

NO. 07-08-0384-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

SEPTEMBER 25, 2009 ______________________________

DAVID SAVAGE and LYNDA J. SAVAGE,

Appellants

v.

TEXSTAR BANK, BRANCH OF FIRST NATIONAL BANK OF MONAHANS,

Appellee _________________________________

FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2007-541,311; HON. RUBEN REYES, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

David and Lynda Savage appeal from a summary judgment granted in favor of

TexStar Bank. TexStar sued the Savages to recover a deficiency on a note once the realty

securing the instrument’s payment was sold at foreclosure. The Savages assert various

grounds on appeal all of which are premised on their purported affirmative defense of

mitigation and the presence of a material question of fact regarding that defense. We

affirm the judgment. A creditor attempting to collect upon a note secured by a deed of trust has no duty

to mitigate his damages under Texas law. Cocke v. Meridian Sav. Assoc., 778 S.W.2d

516, 520 (Tex. App.–Corpus Christi 1989, no writ) (stating there is no duty to mitigate in

property law). Thus, there can be no material issue of fact relating to the Savages’

mitigation defense since their purported defense is inapplicable here as a matter of law.

Accordingly, the judgment is affirmed.

Brian Quinn Chief Justice