Gonzalez v. Temple-Inland Mortgage Corp.

28 S.W.3d 622, 2000 Tex. App. LEXIS 7113, 2000 WL 1568781
CourtCourt of Appeals of Texas
DecidedAugust 9, 2000
Docket04-99-00300-CV
StatusPublished
Cited by11 cases

This text of 28 S.W.3d 622 (Gonzalez v. Temple-Inland Mortgage Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gonzalez v. Temple-Inland Mortgage Corp., 28 S.W.3d 622, 2000 Tex. App. LEXIS 7113, 2000 WL 1568781 (Tex. Ct. App. 2000).

Opinions

[624]*624OPINION

Opinion by:

PHIL HARDBERGER, Chief Justice.

Gilbert G. Gonzalez and Consuelo S. Gonzalez (the “Gonzalezes”) appeal a “no evidence” summary judgment in favor of Temple-Inland Mortgage Corp. (“Temple-Inland”), Curt Spicher (“Spicher”), and Bankers’ Trust Company (“Bankers’ Trust”). The Gonzalezes assert twenty-one issues in their brief, including that the trial court erred in granting the summary judgment because they raised genuine issues of material fact, with regard to the elements of their causes of action. We affirm the trial court’s judgment in part and reverse the trial court’s judgment in part.

Background

In December of 1995, the Gonzalezes were notified that their mortgage was “severely past due.” The notice stated that the Gonzalezes’ October, November, and December payments were past due. The notice further stated that the Gonalezes owed $3,594.08 as of January 1, 1996, and $3,670.53 if received after January 11, 1996.

On January 18, 1996, the Gonzalezes received a notice of acceleration. The notice stated that the amount necessary to cure the default was $5,868.06 as of January 16, 1996. The notice further stated that if the default was not cured within twenty days, Bankers’ Trust would accelerate the maturity date of the note and have the Gonzalezes’ home sold at a public foreclosure sale.

On February 3, 1996, the Gonzalezes responded to the notice of acceleration. The Gonzalezes asserted that the $5,868.06 amount was incorrect. The Gonzalezes stated that they only owed $3,670.53 and that they intended to pay that amount within the next week. The Gonzalezes requested a correct summary of the payments owed.

On February 9, 1996, the Gonzalezes received notice of acceleration and foreclosure. The notice stated that the property was scheduled for foreclosure on March 5, 1996. By letter dated February 23, 1996, the Gonzalezes paid the $5,868.06 under protest. ■ The Gonzalezes disputed the amount of the delinquency, but they wanted to prevent the foreclosure.

By letter dated February 27, 1996, Bankers’ Trust acknowledged the Gon-zalezes’ payment and stated that the payment had been forwarded to Temple-Inland. The letter stated that Temple-Inland had been requested to research the Gonzalezes’ dispute regarding the amount of the delinquency. The letter further stated that the foreclosure process had been stopped.

In July of 1996, the Gonzalezes contacted Temple-Inland. Spicher responded to the Gonzalezes’ letter. Spicher enclosed a payment history and asked the Gonzalezes to “shed some further light on this subject as to what exactly is being disputed.” Spicher further asked the Gonzalezes how they believed the payment was to be posted.

On April 9, 1997, the Gonzalezes filed suit asserting various causes of action, including violations of the Debt Collection Act, unreasonable and negligent debt collection practices, duress, and violations of the DTPA. On January 29,1999, the appel-lees filed a no evidence motion for summary judgment asserting twenty-two grounds for summary judgment. The ap-pellees’ motion basically contends that there was no evidence that the appellees misrepresented the amount of the debt due, which was the basis for each of the Gonzalezes’ causes of action. In addition, the appellees’ motion contends that there was no evidence that their conduct caused the Gonzalezes to suffer mental anguish or actual damages.

The Gonzalezes responded to the appel-lees’ motion contending that there was evidence that the appellees misrepresented the debt due and that the Gonzalezes suf[625]*625fered mental anguish and actual damages. In addition to the demand letters and notices of acceleration and foreclosure, the Gonzalezes attached a copy of an interrogatory answer from Temple-Inland to their response. The interrogatory inquired into the manner in which the $5,868.06 payment was applied. Temple-Inland responded as follows:

Temple-Inland Mortgage Corporation received the $5,868.06 payment on February 29, 1996. On October 16, 1996,
the funds were applied as follows:
Principal Interest Escrow Total
10/95 payment $26.39 §768.23 —0— $ 794.62
11/95 payment 8.79 755.69 —0— 764.48
12/95 payment 8.90 755.58 —0— 764.48
01/96 payment 9.02 755.46 $273.58 1,038.06
02/96 payment 9.13 755.35 273.58 1,038.06
03/96 payment 9.25 755.23 273.58 1,038.06
Suspense 430.30
TOTAL $5,868.06

The Gonzalezes also attached affidavits to their response, stating that they sustained damages for mental anguish in that they “personally experienced a substantial disruption in [their] daily routine as a result of mental sensations of painful emotions, in the form of grief, indignation, stress, fear, loss of sleep, depression, and duress.”

On April 6, 1999, the trial court granted the appellees’ motion and dismissed the Gonzalezes’ causes of action. The Gonza-lezes appealed.

Standard op Review

A party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i); Cole v. Central Valley Chemicals, Inc., 9 S.W.3d 207, 210 (Tex.App.—San Antonio 1999, pet. denied). The trial court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. See Cole, 9 S.W.3d at 210. In reviewing a no-evidence summary judgment, we apply the same legal sufficiency standard of review as applied to a directed verdict. See id. at 210-11. We must consider all the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered. See id. at 211. A no-evidence summary judgment is properly granted if the respondent fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the respondent’s case. See id. 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. See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997).

Discussion

The notice of acceleration states that the amount necessary to cure the default as of January 16, 1996, was $5,868.06.

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Gonzalez v. Temple-Inland Mortgage Corp.
28 S.W.3d 622 (Court of Appeals of Texas, 2000)

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28 S.W.3d 622, 2000 Tex. App. LEXIS 7113, 2000 WL 1568781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzalez-v-temple-inland-mortgage-corp-texapp-2000.