AFFIRM; and Opinion Filed August 8, 2019.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00648-CV
KELLY POPE WORLEY AND KEVIN POPE, Appellants V. CHRYSANTHI AVINGER, Appellee
On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-00155-2015
MEMORANDUM OPINION Before Justices Whitehill, Partida-Kipness, and Pedersen, III Opinion by Justice Whitehill This is an equitable subrogation case involving a home equity loan lien in which property
owned by a deceased husband and wife was sold at a subordinate lienholder’s foreclosure sale for
far in excess of the junior creditor’s debt amount. The excess proceeds were deposited in the
court’s registry. An investor later bought out the senior home equity loan position and claimed
entitlement to those excess prior sale proceeds.
The main question is who gets the excess sales proceeds: (i) the investor asserting equitable
subrogation rights to stand in the home equity loan lender’s shoes or (ii) the prior homeowners’
heirs claiming through their parents who were the home equity loan borrowers. The trial court
rendered summary judgment for the investor, which we affirm primarily because the excess
proceeds represented equity in the home and were thus subject to the home equity lien’s reach. More specifically, Chrysanthi Avinger, bought the home at a home owners’ association
foreclosure sale by paying substantially more than the owners’ debt to the association. Avinger
then paid a bank’s superior home equity loan lien on the property and claimed the excess sale
proceeds in the court’s registry. Kelly Pope Worley and Kevin Pope (the Pope Children),
purported heirs of the deceased couple, also claimed entitlement to those funds. The trial court
granted summary judgment awarding Avinger the registry funds.
In four issues with multiple subparts, the Pope Children challenge the summary judgment
arguing that: (i) Avinger’s interest is in the real property and the registry funds are personality to
which she is not entitled; (ii) the funds are the Pope Children’s exclusive personal property because
they are the Popes’ heirs, Avinger has no standing to claim the excess proceeds, and even if she
did, her claim is time-barred; (iii) the bank’s foreclosure suit had nothing to do with Avinger’s and
the Pope Children’s property rights in the registry funds; and (iv) awarding Avinger the registry
funds provides her with “an unjust and impermissible windfall.” The Pope Children’s fifth issue
argues that fatally defective substituted service on the deceased couple in the underlying suit
renders that judgment (and hence this judgment) void.
As discussed below, we conclude that Avinger established as a matter of law that she is
entitled to the registry funds. We further conclude that the Pope Children did not meet their burden
to show that the judgment is void because of defective service. We thus affirm the trial court’s
judgment.
I. BACKGROUND Allen and Coeriene Pope were husband and wife. In 2002, the Popes purchased property
in Eldorado Heights in McKinney (the Property).
In 2005, the Popes secured a $132,000 home equity loan from First Franklin (the Bank).
The loan was secured by a lien on the Property.
–2– Coeriene died on June 7, 2009, and Allen died roughly three years later. Neither estate was
administered.
In January 2015, the Eldorado Heights Homeowners’ Association sued the Popes to
recover unpaid assessments due regarding the Property. When personal service on the Popes was
(not surprisingly) unsuccessful, the Homeowners’ Association’s counsel moved for substituted
service, and the court authorized such service. After substituted service, the Popes still did not
answer so the court entered a default judgment against them for $4,949.32 in delinquent
assessments, $4,000 in attorneys’ fees and interest on the judgment.
The Property subsequently sold at a Constable’s sale on May 15, 2015. Avinger purchased
the Property for $75,000, and the Property was conveyed to her by Constable’s Deed. And
$61,232.32 in excess sale proceeds (the difference between the amount due to the Homeowners’
Association and the purchase price) was deposited into the court’s registry.
At the time of the Constable’s sale, however, the Popes’ home equity loan had an
outstanding balance. The Bank filed a Rule 737 application seeking judicial foreclosure of the
loan (the Bank Suit). See TEX. R. CIV. P. 737.
The Bank Suit, filed and maintained under a separate cause number, named the Popes’
unknown heirs as defendants, and they were served by publication. Although the Popes’ heirs did
not appear in the Bank Suit, an ad litem was appointed to represent their interests. Avinger and
the Homeowners’ Association were also named defendants and were served and appeared.
The Bank Suit final judgment orders that:
The Bank’s lien is superior to the Homeowners’ Association’s lien;
The Bank’s lien is unaffected by the foreclosure of the Homeowners’ Associations’ subordinate lien;
The Popes’ heirs were immediately vested with the Popes’ interest in the Property when Mr. Pope died;
–3– The “statutory probate lien” in favor of the Bank would be enforced by a non- judicial foreclosure sale; and “One of the effects of the non-judicial foreclosure shall be that [the heirs] are divested and the purchaser of the Property at the non-judicial foreclosure sale is vested with all right, title, and interest to the Property. After the court entered judgment for the Bank, Avinger paid the amounts due under the
Popes’ home equity loan. The record is not specific, but Avinger swore that the amount paid
exceeded the amount held in the registry of the court.1
Then, the Pope Children intervened in this case requesting that the $61,232.32 in the court’s
registry be disbursed to them. Avinger subsequently intervened, claiming that she is entitled to
the registry funds.
Avinger moved for summary judgment, and the Pope Children responded. The trial court
granted Avinger’s motion, and entered a final judgment that she is entitled to the registry funds.
The Pope Children appeal from that judgment.
II. ANALYSIS
A. Issues One through Four: Did Avinger establish that she was entitled to the registry funds?
Yes, because the proceeds were home equity subject to the home equity lien that Avinger
became entitled to by equitable subrogation. See Patton v. Porterfield, 411 S.W.3d 147, 159–61
(Tex. App.—Dallas 2013, pet. denied).
The Pope Children’s first four issues argue that: (i) Avinger’s interest is in the real property
and the registry funds are personality to which she is not entitled; (ii) the funds are the Pope
Children’s exclusive personal property because they are the Popes’ heirs, Avinger has no standing
to claim the excess proceeds, and even if she did, her claim is time-barred; (iii) the Bank Suit had
1 The Bank’s delinquency notice shows the amount required to cure as of 6/20/2012 was $1,938.
–4– nothing to do with Avinger’s and the Pope Children’s property rights in the registry funds; and
(iv) awarding Avinger the registry funds provides her with “an unjust and impermissible windfall.”
All of these issues challenge the summary judgment. As discussed below, we are not
persuaded by these arguments.
1. Standard of Review
We review a trial court’s decision to grant summary judgment de novo. Schlumberger
Tech. Corp. v. Pasko, 544 S.W.3d 830, 833 (Tex. 2018). In a traditional motion for summary
judgment, the movant “bears the burden to show that no genuine issue of material fact exists and
that it is entitled to judgment as a matter of law.” Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 215–16 (Tex. 2003) (citing TEX. R. CIV. P. 166a(c)). If the movant meets its burden,
the burden shifts to the nonmovant to raise a genuine issue of material fact that is sufficient to
defeat the summary judgment. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23
(Tex. 2000). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could
differ in their conclusions in light of all the summary-judgment evidence. Goodyear Tire &
Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). In our review, “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.” Knott, 128 S.W.3d at 215.
When, as in this case, “the trial court's order does not specify the grounds for its summary
judgment, we must affirm the summary judgment if any of the theories presented to the trial court
and preserved for appellate review are meritorious.” Knott, 128 S.W.3d at 216.
2. Standing
The Pope Children rely on Estates Code § 22.018(1) to argue that Avinger has no standing
to assert a claim to the registry funds because she is not an heir, spouse, or creditor of the estate.
–5– This argument, however, relies on an incomplete reading of the statute. Specifically, § 22.018(1)
provides that:
“Interested person” or “person interested” means:
(1) an heir, devisee, spouse, creditor, or any other having a property right in or claim in or against an estate . . . .
See TEX. EST. CODE § 22.018(1) (emphasis added). In other words, an interested person is one
who “has some legally ascertained pecuniary interest, real or prospective, absolute or contingent,
which will be impaired or benefitted, or in some manner materially affected by [the proceeding].”
See In re Estate of York, 951 S.W.2d 122, 126 (Tex. App.—Corpus Christi-Edinburg 1997, writ
denied). Having paid the deficiency balance on the Popes’ home equity loan, Avinger is at least a
person interested in the Popes’ estate.
Conversely, Avinger maintains that the Pope Children do not have standing because there
was no administration of the Popes’ estate or determination of heirship. We also reject this
argument. At a minimum, the affidavits concerning the Popes’ heirs establish that the Pope
Children are also interested persons.
3. Equitable Subrogation
Avinger’s summary judgment motion was premised on equitable subrogation. Equitable
subrogation allows a party who discharges a lien on another’s property to step into the original
lienholder’s shoes and assume the lienholder’s right to the security interest against the debtor. La
Salle Bank Nat. Ass’n v. White, 246 S.W.3d 616, 619 (Tex. 2007). There are two key elements to
equitable subrogation: (i) the person whose debt was paid was primarily liable on the debt, and (ii)
the claimant paid the debt involuntarily. Bank of America v. Babu, 340 S.W.3d 917, 925 (Tex.
App.—Dallas 2011, pet. denied). Thus, when a third party pays in performance of a legal duty,
equity will substitute them in place of the existing creditor as a matter of course—no agreement
–6– between the parties is required. See E.Y. Chambers & Co. v. Little, 21 S.W.2d 17, 22 (Tex. App.—
Eastland 1929, writ denied).
Avinger’s summary judgement evidence includes a copy of the equity loan security
instrument, the Bank’s petition the Bank Suit, the Popes’ death certificates, the Bank Suit’s final
judgment, and Avinger’s affidavit. Her affidavit states that she had to pay the amounts due under
the Popes’ home equity loan after the Bank Suit to prevent losing the Property. She further says
that the amount she had to pay exceeded the amount in the court’s registry. Based on the preceding
authorities, this evidence establishes Avinger’s right to equitable subrogation.
The Pope Children did not raise any material fact issues about this evidence. Instead, they
argued that: (i) the money in the court’s registry is their personal property, (ii) the Bank Suit has
nothing to do with whether Avinger is entitled to the funds, and (iii) it would be “unfair” to allow
Avinger a “windfall.”2 Significantly, the Pope Children’s summary judgment response also states
that, “In paying off [the] mortgage lien, Avinger obtained a title clear of [the] lien to the Property.”
The Pope Children’s evidence included: (i) affidavits concerning the identity of the Popes’
heirs; (ii) Avinger’s discovery responses admitting she did not receive an assignment of interest in
the Property or to any of the Popes’ personal property, and (iii) a copy of the Constable’s deed
provided to Avinger when she purchased the Property.
The essence of the Pope Children’s argument in the court below and on appeal is that the
excess sale proceeds became personal property the minute the funds were deposited in the court’s
registry. To this end, they argue that Avinger’s subrogated right can be no greater than the Bank’s
right and the Bank had no right to their personal property.
2 Although the Pope Children also argue that Avinger’s claim is time-barred because it is for personal property subject to a two-year statute of limitations, they adduced no summary judgment evidence to establish this defense as a matter of law. See Pollard v. Hanschen, 315 S.W.3d 636, 639 (Tex. App.—Dallas 2010, no pet.) (a defendant urging summary judgment on an affirmative defense is in the same position as a plaintiff urging summary judgment on a claim; he must plead and prove it).
–7– The Pope Children offer no case authority for the proposition they assert. Instead, they
rely on Estates Code sections 22.012 and 22.018. See TEX. EST. CODE §§ 22.012, 22.018. Neither
provision, however, informs our analysis.
Section 22.012(1) provides that an estate “means a decedent’s property, as that property:
exists originally and as the property changes form by sale, reinvestment, or otherwise.” Id.
§22.012(1). Section 22.028(1) provides that “personal property involves an interest in . . . money.”
Id. §22.028(2). These provisions, however, alone or in combination, do not establish that the
excess proceeds from the Property’s sale morphed into the Pope Children’s personal property when
the funds were deposited.
The source of the registry funds further undermines the argument that the funds are simply
personal property. The home equity loan is nonrecourse. Generally, a nonrecourse note has the
effect of making the note payable out of a particular fund or source, namely, the proceeds of the
collateral securing the note. Fein v. R.P.H., Inc., 68 S.W.3d 260, 266 (Tex. App.—Houston [14th
Dist.] 2002, pet. denied). Thus, while the maker of a nonrecourse note risks losing the collateral
securing the note, he has no personal liability on the note. Id.
In Patton v. Porterfield, 411 S.W.3d 147, 159 (Tex. App.—Dallas 2013, pet. denied), we
considered whether excess cash proceeds from a purchase money first lien foreclosure on
homestead property collateralizing a home equity loan were subject to a junior home equity loan
lien. We held that the home equity note’s non-recourse nature meant that it was payable out of the
collateral and the foreclosure sale proceeds could be delivered to the home equity loan’s servicer.
Id. at 160. In so doing, we said that “just as the cash proceeds of exempt property, including a
homestead, retain an exempt character under certain circumstances, the cash proceeds from the
sale of a homestead retain the character of a homestead for purposes of satisfying a home equity
lien.” Id. at 161.
–8– Likewise, the registry funds here are distinct from ordinary cash held in a bank account;
the funds are excess proceeds from the sale of property securing a nonrecourse home equity loan.
Although now in the form of cash, the registry funds were generated by the real property collateral.
As the Property’s lienholder, the Bank would have been entitled to those funds had Avinger not
paid the loan. Avinger now stands in the Bank’s shoes as subrogee, and as the Pope Children
noted, is entitled to the same rights the Bank once enjoyed.
The Pope Children also seem to suggest that Avinger has no subrogation rights because
her payment was voluntary. We disagree.
“A payment is voluntary when the payor acts without any assignment or agreement for
subrogation, without being under any legal obligation to make payment, and without being
compelled to do so for the preservation of any rights or property.” Frymire Eng. Co., Inc. v. Jomar
Intern., Ltd., 259 S.W.3d 140, 145 (Tex. 2008). As reflected in the Bank Suit judgment, all right,
title, and interest in the Property vested in Avinger. The Property was encumbered by the Bank’s
lien. Thus, Avinger had to pay the Bank to preserve her interest in the Property. See Conversion
Props. v. Kessler, 994 S.W.2d 810, 813 (Tex. App.—Dallas 1999, pet. denied) (successful bidder
at junior lien foreclosure sale takes title subject to prior liens).
Finally, without reference to legal authority, the Pope Children insist that awarding the
funds to Avinger is “unfair,” and a “windfall.” We reject this argument. The summary judgment
evidence establishes that Avinger is entitled to the registry funds because she satisfied the Bank
lien on the Property that generated those funds. We find no legal or equitable rationale for
characterizing Avinger’s reimbursement as unfair.
Avinger’s summary judgment evidence establishes that she is equitably subrogated to the
Bank’s rights, satisfied the Bank’s lien, and is entitled to the registry funds. The Pope Children
–9– failed to raise a material fact issue on Avinger’s claim. Therefore, the trial court’s judgment is not
in error. We resolve the Pope Children’s first, second, third, and fourth issues against them.
B. Fifth Issue: Is the judgment for the homeowners’ association in the underlying case void because the court lacked jurisdiction?
The Pope Children’s fifth issue argues that the Homeowners’ Association’s underlying
judgment is void because the trial court lacked jurisdiction. Specifically, the Pope Children argue
that the deceased Popes were never served and the Homeowners’ Association’s substituted service
was based on “incomplete and incorrect factual representations” which violated the Popes’ due
process rights.3 This is a collateral attack on that judgment. See Dallas Cnty. Tax Collector v.
Andolina, 303 S.W.3d 926, 930 (Tex. App.—Dallas 2010, no pet.) (collateral attack is an attempt
to avoid the effect of a judgment in a proceeding not instituted for the purpose of correcting,
modifying, or vacating the judgment, but in order to obtain some specific relief that the judgment
currently bars).
Only a void judgment may be collaterally attacked. Browning v. Prostok, 165 S.W.3d 336,
346 (Tex. 2005). A judgment is void when the court rendering judgment had no jurisdiction of
the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular
judgment, or no capacity to act. PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 272 (Tex. 2012).
When attacked collaterally, a judgment is presumed valid. Id. at 273. The party
challenging the judgment has the burden to show it is void. Stewart v. USA Custom Paint & Body
Shop, Inc., 870 S.W.2d 18, 20 (Tex. 1994).
First, the Pope Children challenge the substituted service on the Popes because the affidavit
supporting the substituted service motion did not mention that service had only been attempted
3 We assume without deciding that the Pope Children are entitled to raise this argument on the deceased Popes’ behalf.
–10– once. But the rule does not require multiple service attempts or a recitation that such attempts
were made. TEX. R. CIV. P 106.
Rule 106, which governs substituted service, provides in part that:
(b) Upon motion supported by affidavit stating the location of the defendant’s usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service
(1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or
(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.
Id.
The process server’s affidavit supporting the substituted service motion said that personal
service had been attempted, but the Popes could not be served. The server further said that he did
not believe the Popes lived at that address anymore because the address was vacant.
The affidavit for the homeowners’ association’s attorney was also attached to the motion
and stated that the address of record the Popes left with the homeowners’ association was “5217
Spicewood Drive,” (the same address the process server found vacant).
Thus, the motion requested and the court ordered that substituted service be affected by
securing a copy of the citation and petition to the front door of the residence and by mailing a copy
of the same to the Property’s mailing address. The record reflects that service was affected in
accordance with the terms of the order authorizing substituted service. See Dolly v. Aethos
Commc’n Sys. Inc., 10 S.W.3d 384, 388 (Tex. App.—Dallas 2000, no pet.) (substituted service
requirements in order must be strictly followed).
–11– Next, the Pope Children argue that the motion and affidavits were incomplete and
inaccurate because neither mentioned that the Popes were deceased. But there is nothing in the
record to establish that the homeowners’ association or its counsel knew that fact.
Therefore, on this record, we conclude that the Pope Children have not established that
fatally defective substituted service rendered the underlying proceeding (and thus the summary
judgment) void and resolve their fifth issue against them.
III. CONCLUSION
Having resolved all of the Pope Children’s issues against them, we affirm the trial court’s
/Bill Whitehill/ BILL WHITEHILL JUSTICE
180648F.P05
–12– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KELLY POPE WORLEY AND KEVIN On Appeal from the 366th Judicial District POPE, Appellants Court, Collin County, Texas Trial Court Cause No. 366-00155-2015. No. 05-18-00648-CV V. Opinion delivered by Justice Whitehill. Justices Partida-Kipness and Pedersen, III CHRYSANTHI AVINGER, Appellee participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee CHRYSANTHI AVINGER recover her costs of this appeal
from appellants
Judgment entered this 8th day of August, 2019.
–13–