Dean Wael Dabbasi v. PNC Bank National Association

• Court: Court of Appeals of Texas
• Decided: August 4, 2022
• Docket: 01-20-00857-CV
• Status: Published

Opinion

Opinion issued August 4, 2022

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00857-CV ——————————— DEAN WAEL DABBASI, Appellant V. NEWREZ MORTGAGE LLC D/B/A SHELLPOINT MORTGAGE SERVICING, SUCCESSOR-IN-INTEREST TO PNC BANK, NATIONAL ASSOCIATION, Appellee

On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Case No. 19-DCV-261678

MEMORANDUM OPINION

NewRez Mortgage LLC d/b/a Shellpoint Mortgage Servicing, as successor-

in-interest to PNC Bank, National Association, brought suit against Dean Wael

Dabbasi for breach of contract and sought judicial foreclosure on a home equity note. NewRez filed a motion for traditional summary judgment on its claim. After a

hearing, the trial court granted the motion, determined the amount of NewRez’s lien

on the property, and authorized NewRez to commence foreclosure proceedings.

In his sole issue on appeal, Dabbasi argues that the trial court committed

reversible error by basing its summary judgment ruling solely on arguments

presented at the hearing and not on the summary judgment motion itself or on the

evidence. We affirm.

Background

In 2003, Dean Dabbasi executed a home equity note and deed of trust in favor

of National City Mortgage Co., d/b/a Accubanc Mortgage, on a parcel of real

property located in Missouri City, Texas. The deed of trust required Dabbasi to

maintain property insurance and provided that if he did not do so, the lender could

obtain insurance coverage on the property through a “force-placed” policy at

Dabbasi’s expense. Any amounts expended by the lender to obtain force-placed

insurance coverage would become “additional debt” of Dabbasi secured by the deed

of trust.

Dabbasi maintained property insurance for nearly a decade, but in 2012, his

insurance coverage lapsed. Several months later, PNC Bank, as assignee of the deed

of trust, sent Dabbasi a series of letters notifying him of the lapse in coverage and

warning him that if he did not cure the problem, the bank would obtain a force-

2 placed insurance policy for the property at Dabbasi’s expense. Dabbasi did not

respond to PNC Bank’s letters. The bank obtained a force-placed insurance policy

and charged the premium to Dabbasi’s escrow account. PNC Bank then recalculated

and increased Dabbasi’s monthly payment to account for the premium expenditure,

and it debited the higher monthly payment from Dabbasi’s bank account. This action

caused Dabbasi to contact PNC Bank and dispute the higher amount.

After PNC Bank renewed the force-placed insurance policy and during the

parties’ ongoing discussions about the monthly payment amount, Dabbasi obtained

insurance coverage in late September 2013. PNC Bank ultimately did not charge

him for the force-placed policy’s renewal premium, but it insisted on a higher

monthly payment amount to cover the premium of the first force-placed policy. For

several months, Dabbasi attempted to pay the monthly payment amount set out in

his initial loan documents, but PNC Bank did not accept these payments because

they were not for the recalculated higher amount. It is undisputed that Dabbasi did

not make or attempt to make any payments after September 2014.

In 2019, PNC Bank accelerated the balance of the note. It then filed suit

against Dabbasi and alleged that he had defaulted on the note by failing to make the

required payments as they came due. PNC Bank asserted a claim for breach of

contract and sought judicial foreclosure. During the course of the litigation, NewRez

Mortgage LLC d/b/a Shellpoint Mortgage Servicing (“NewRez”) became PNC

3 Bank’s successor-in-interest, and it is the current holder of the note on Dabbasi’s

property.

NewRez moved for traditional summary judgment on its own claim. It argued

that Dabbasi defaulted on the note by failing to maintain insurance coverage and

then, after a force-placed policy was imposed and the cost of its premium added to

Dabbasi’s monthly payment, he defaulted by failing to pay the recalculated payment

amount. It argued that the note had been in arrears since September 2014, and

Dabbasi owed a total of $193,480.50 on the note, including unpaid principal,

interest, fees, and penalties. As summary judgment evidence, NewRez attached

documents including the note, the deed of trust, the 2013 letters from PNC Bank

concerning insurance coverage, the notice of acceleration, and a loan history

showing charges and missed payments.

Dabbasi responded to the motion for summary judgment and argued that he

did not breach the contract, but if he did, PNC Bank materially breached the contract

first by increasing his monthly payments without authorization. He argued that PNC

Bank refused to provide an explanation for the increase and then refused to accept

his tender of the monthly payments in the amount required in the note and initial

loan documents. In an affidavit, Dabbasi claimed that he never received the letters

that PNC Bank sent in early 2013 concerning the problem with insurance coverage.

4 The trial court held a hearing on the motion in September 2020. At the

beginning of the hearing, the court stated, “You want summary judgment. Tell me

why.” NewRez’s counsel then summarized the arguments in its summary judgment

motion, pointed to specific exhibits that supported its arguments, and addressed

arguments that Dabbasi had made in his response. Counsel stated that NewRez’s

records showed that Dabbasi had not made any payments after 2014 and the note

was “now six years behind.” Dabbasi argued that he raised a fact issue on whether

he had received the 2013 letters from PNC Bank, and he was unaware of the

insurance coverage issue before PNC Bank increased his monthly payments.

At the close of the hearing, the trial court stated, “I’m going to grant the

motion for summary judgment. I think it’s well founded.” To Dabbasi’s counsel, the

court stated, “I can’t believe that your client has not made a payment in all that time

and would like more time—would like us to wait for a jury trial, a trial that may not

happen in this—in these courts for over a year.”

The court signed a final judgment granting NewRez’s summary judgment

motion. The judgment stated:

After consideration of the Traditional Motion for Final Summary Judgment of NewRez Mortgage LLC d/b/a Shellpoint Mortgage Servicing, successor-in-interest to PNC Bank, National Association, (“Plaintiff”), against Dean Wael Dabbasi, the response, argument of counsel, pleadings, evidence, admissions, affidavits, stipulations of the parties, authenticated or certified public records, if any, on file at the time of the hearing, the Court finds that the Motion should be GRANTED. 5 The court ordered that NewRez is the holder of the note, it holds a valid security

interest in the property, and Dabbasi defaulted under the note. The court ordered that

the amount of the lien held by NewRez is $193,480.50, and it awarded NewRez trial-

level and conditional appellate-level attorney’s fees. The court also authorized

NewRez to engage in foreclosure proceedings.

Dabbasi filed a motion “for new hearing” on NewRez’s summary judgment

motion. This motion was overruled by operation of law, and this appeal followed.

Permissible Considerations in Granting Summary Judgment

In his sole issue on appeal, Dabbasi argues that the trial court erred by granting

NewRez’s summary judgment motion based on the arguments that counsel presented

at the hearing and not on the motion itself and the summary judgment evidence. He

argues that the court “made no indication that it had reviewed the pleadings or the

evidence and instead indicated that the ruling was made by argument.”

A. Standard of Review

We review a trial court’s summary judgment ruling de novo. Odyssey 2020

Acad., Inc. v. Galveston Cent. Appraisal Dist., 624 S.W.3d 535, 540 (Tex. 2021). In

a traditional summary judgment motion, the movant bears the burden to establish

that no genuine issue of material fact exists and it is entitled to judgment as a matter

of law. TEX. R. CIV. P. 166a(c). When a plaintiff moves for summary judgment on

its own cause of action, it must conclusively prove all essential elements of his claim

6 as a matter of law. Leonard v. Knight, 551 S.W.3d 905, 909 (Tex. App.—Houston

[14th Dist.] 2018, no pet.). If the summary judgment movant establishes his

entitlement to judgment, the burden shifts to the nonmovant to present evidence

sufficient to raise a genuine issue of material fact. Id.; see Lujan v. Navistar, Inc.,

555 S.W.3d 79, 84 (Tex. 2018).

Summary judgment is improper if the nonmovant brings forth more than a

scintilla of probative evidence to raise a fact issue. King Ranch, Inc. v. Chapman,

118 S.W.3d 742, 751 (Tex. 2003). 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. Id. When reviewing a summary judgment ruling, we take

as true all evidence favorable to the nonmovant, and we indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor. Hillis v. McCall, 602

S.W.3d 436, 440 (Tex. 2020) (quoting Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005)).

B. Analysis

A motion for summary judgment shall state the specific grounds for the ruling.

TEX. R. CIV. P. 166a(c). The trial court shall render the judgment sought by the

movant if:

(i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any, on file at the time

7 of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response.

Id. A trial court’s decision in a summary judgment proceeding must be based on the

written motion, response, and attached proof. See id.; Hollywood Park Humane

Soc’y v. Town of Hollywood Park, 261 S.W.3d 135, 139 n.2 (Tex. App.—San

Antonio 2008, no pet.).

“Longstanding case law only permits the appellate court to look to the trial

court’s formal summary-judgment order to determine the trial court’s grounds, if

any, for its ruling.” Gonzales v. Thorndale Coop. Gin & Grain Co., 578 S.W.3d 655,

657 (Tex. App.—Houston [14th Dist.] 2019, no pet.); Mattox v. Cnty. Comm’rs Ct.,

389 S.W.3d 464, 469 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (“The

trial court’s rulings are contained in the summary-judgment orders signed by the trial

court.”). Additionally, we presume the regularity of judgments, absent controverting

evidence in the record. State Off. of Risk Mgmt. v. Berdan, 335 S.W.3d 421, 424

(Tex. App.—Corpus Christi–Edinburg 2011, pet. denied); S. Ins. Co. v. Brewster,

249 S.W.3d 6, 13 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (“Well-settled

law compels that we presume that proceedings in the trial court, as well as its

judgment, are regular and correct.”). The presumption of validity is rebuttable, but

the burden to rebut the presumption is upon the party challenging the judgment.

8 Garza v. Tex. Alcoholic Beverage Comm’n, 83 S.W.3d 161, 166 (Tex. App.—El

Paso 2000), aff’d, 89 S.W.3d 1 (Tex. 2002).

In the related context of determining whether a trial court has considered late-

filed summary judgment evidence in making its ruling, appellate courts look to

whether an “affirmative indication” of consideration of this evidence appears in the

record. See, e.g., Auten v. DJ Clark, Inc., 209 S.W.3d 695, 702 (Tex. App.—Houston

[14th Dist.] 2006, no pet.). An example of such an “affirmative indication” includes

a recital in the summary judgment order that the court considered “the evidence”

without any qualification. See, e.g., B.C. v. Steak N Shake Operations, Inc., 598

S.W.3d 256, 262 (Tex. 2020) (per curiam) (“Because the trial court recited that it

had considered ‘the pleadings, evidence, and arguments of counsel,’ the court of

appeals should have considered that evidence as well in its review of the trial court’s

summary judgment.”); Stavron v. SureTec Ins. Co., No. 02-19-00125-CV, 2019 WL

6768125, at *6 (Tex. App.—Fort Worth Dec. 12, 2019, no pet.) (mem. op.) (stating

that summary judgment order “makes clear” that trial court considered supplemental

evidence attached to reply when order stated that court considered motion, response,

and replies).

Here, Dabbasi acknowledges that the trial court recited in the final judgment

that it considered NewRez’s summary judgment motion and the supporting

evidence. Indeed, the final judgment stated that the court considered the motion for

9 summary judgment, “the response, argument of counsel, pleadings, evidence,

admissions, affidavits, stipulations of the parties, authenticated or certified public

records, if any, on file at the time of the hearing, [and] the Court finds that the Motion

should be GRANTED.”

Dabbasi argues, however, that at the summary judgment hearing, the trial

court gave no indication that it had read the motion, reviewed the evidence, or made

its decision based on the evidence, and instead the record reflected the contrary.

Specifically, Dabbasi points to the court’s statement, made to NewRez’s counsel at

the beginning of the hearing, that “[y]ou want summary judgment. Tell me why.”

He also points to the court’s statement, after hearing argument from both parties,

that it was “going to grant the motion for summary judgment” and that it believed

the motion was “well founded.” The court further addressed Dabbasi’s counsel and

stated, “I can’t believe that your client has not made a payment in all that time and

would like more time—would like us to wait for a jury trial, a trial that may not

We do not agree that these statements made during the hearing are indications

that the trial court failed to review the summary judgment motion or the attached

evidence. Rather, the court’s statements during the hearing are consistent with

simply requesting that NewRez begin the hearing by summarizing its arguments

stated in the motion for why it believed it was entitled to summary judgment. The

10 court also asked questions during the hearing that were consistent with points

contained in the written motion and response, as well as during oral arguments.1

Furthermore, the written final judgment recites that the trial court considered,

among other things, NewRez’s summary judgment motion, Dabbasi’s response,

arguments of counsel, and evidence in determining that the summary judgment

motion should be granted. Dabbasi points to nothing in the appellate record that

contradicts this recital. See Garza, 83 S.W.3d at 166 (stating that presumption of

regularity of judgments is rebuttable, but party challenging judgment bears burden

to rebut presumption). We therefore conclude that Dabbasi has not demonstrated that

the trial court committed reversible error in granting NewRez’s motion for summary

judgment. See TEX. R. CIV. P. 166a(c).

We overrule Dabbasi’s sole issue.

1 For example, the trial court asked NewRez’s counsel what Dabbasi’s monthly payments were on the loan and the address to which PNC Bank sent the 2013 letters concerning the insurance coverage issue. 11 Conclusion

We affirm the judgment of the trial court.

April L. Farris Justice

Panel consists of Chief Justice Radack and Justices Countiss and Farris.