Opinion issued December 22, 2022
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-21-00421-CV ——————————— LEROY GREER, Appellant V. RUSHMORE LOAN MANAGEMENT SERVICESAND J.P. MORGAN CHASE AQUISITION SERVICES, Appellees
On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Case No. 20-DCV-272813
MEMORANDUM OPINION
In this post-foreclosure lawsuit, appellant Leroy Greer filed a petition
seeking to prevent appellees Rushmore Loan Management Services (Rushmore)
and J.P. Morgan Chase Acquisition Services (Chase) (collectively, Appellees)
from evicting him and alleging that Appellees breached the terms of the Deed of Trust, committed fraud, and illegally converted Greer’s property. Appellees moved
for no-evidence and traditional summary judgment, which the trial court granted,
dismissing all of Greer’s claims. Greer now appeals, arguing in his sole issue that
the trial court erroneously granted summary judgment because the evidence in the
record establishes a genuine issue of material fact for all his claims. Because Greer
failed to present any evidence raising a fact issue on essential elements of each of
his claims, we conclude that the trial court properly granted Appellees’ motion for
summary judgment. We affirm.
Background
Greer executed a promissory note (the Note) with Appellee Chase in the
amount of $392,329.00 to obtain a loan to build his home at 8306 Kelsey Pass in
Missouri City, Texas (the Property). At the same time, Greer executed a Deed of
Trust that secured the mortgage by granting a security interest in the Property to
Chase. Chase contracted with Appellee Rushmore to manage the loan associated
with Greer and the Property. Greer was required to make monthly payments to
Appellees until the principal amount of the Note was paid off. If he failed to do so,
Greer would default on the loan for failing to tender payments according to the
payment schedule laid out in the Note.
Greer was incarcerated in June 2015 and subsequently defaulted on the loan.
Appellees sent the most recent notice of default on September 21, 2016. As the
2 Deed of Trust required, Appellees provided Greer with at least thirty days to cure
the default. After Greer failed to bring his loan current, Appellees sent Greer a
notice of acceleration on March 15, 2017.
After he was released from prison in September 2019, Greer attempted to get
the loan current. Appellees instructed Greer to file for a loan modification. On
January 28, 2020, Appellees notified Greer by letter that the loan modification
package he had sent was incomplete. The letter gave him thirty days to supplement
the incomplete package.
Greer claims that, on February 1, 2020, he supplemented the loan
modification application by sending a letter with the missing documents attached.
However, the record does not contain any of the attached documents themselves,
nor did Greer’s letter or other affidavit describe the documents purportedly sent by
Greer. The record contains only Greer’s one-page letter that states “17 pages” of
necessary documents were attached.
On February 7, 2020, Appellees sent Greer a foreclosure notice informing
him that the Property would be sold at a foreclosure sale on March 3, 2020. On
February 11, 2020, the notice of sale was filed with the Fort Bend County Clerk’s
office. On February 28, 2020, Appellees notified Greer that they were closing his
loan modification file because it was incomplete and had not been supplemented
3 properly within the given thirty days. On March 3, 2020, the Property was sold to
the highest bidder, Appellees.
On April 8, 2020, Greer filed this petition alleging that Appellees breached
the Deed of Trust, that Greer had performed all conditions precedent under the
Deed of Trust, that Appellees had committed fraud, and that Appellees committed
conversion of the Property by selling it in a foreclosure sale. Greer also requested a
temporary restraining order against Appellees to prevent them from forcibly
entering the home after the foreclosure sale. The trial court ultimately denied this
request.
Appellees moved for no-evidence and traditional summary judgment. They
contended that Greer had produced no evidence in support of his various claims.
Specifically, Appellees argued that Greer cannot produce any evidence that
Appellees breached the terms of the Deed of Trust or otherwise failed to comply
with the applicable law in foreclosing on the Property. They also argued that Greer
presented no evidence of one or more essential elements of his fraud and
conversion claims. In the alternative, Appellees maintained that the summary
judgment evidence produced by both parties established that there was no genuine
issue of material fact as to any of Greer’s claims.
Greer responded by filing summary judgment evidence, including his own
affidavit, a copy of all correspondence between Greer and Appellees, and Greer’s
4 response letter to Appellees to complete his loan modification request. He argued
in his response that this evidence established the elements of his breach of contract
and conversion claims. Additionally, Greer contended that the summary judgment
evidence shows that Appellees had no intention of granting Greer a loan
modification, establishing the elements of his fraud claim.
The trial court granted Appellees’ summary judgment without specifying the
grounds for granting the motion. Greer timely filed a notice of appeal.
Summary Judgment
In his sole issue, Greer challenges the trial court’s order granting summary
judgment in favor of Appellees on each of his three causes of action. Specifically,
Greer argues that he raised a fact issue that Appellees breached the Deed of Trust
by failing to provide notice of default and notice of foreclosure during the loan
modification process. Greer also argues that Appellees committed fraud by falsely
representing that they would review his loan modification request. Lastly, Greer
asserts that because the Appellees failed to provide proper notice, Appellees
committed conversion of his property when Appellees foreclosed on the Property.
A. Standard of Review
We review a trial court’s summary judgment ruling de novo. Sw. Bell Tel.,
L.P. v. Emmett, 459 S.W.3d 578, 583 (Tex. 2015). When the movant has combined
a traditional and no-evidence summary judgment into one motion, we start by
5 reviewing the trial court’s summary judgment ruling under the no-evidence
standard of Texas Rules of Civil Procedure 166a(i). Lightning Oil Co. v. Anadarko
E&P Onshore, LLC, 520 S.W.3d 39,45 (Tex. 2017); see Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
A party may move for summary judgment on the basis that there is no
evidence of one or more essential elements of a claim on which the adverse party
would have the burden of proof at trial. TEX. R. CIV. P. 166a(i). The non-movant
must produce at least a scintilla of evidence raising a genuine issue of material fact
as to the challenged elements in order to defeat a no-evidence motion for summary
judgment. Lightning Oil Co., 520 S.W.3d at 45; Nguyen v. Bank of America, N.A.,
506 S.W.3d 620, 623 (Tex. App.—Houston [1st Dist.] Nov. 29, 2016, pet. denied).
More than a scintilla of evidence exists if the evidence allows reasonable people to
differ in their conclusions. Ridgway, 135 S.W.3d at 601. We view the evidence in
the light most favorable to the non-movant and make all reasonable inferences in
favor of the non-movant. Lightning Oil Co., 520 S.W.3d at 45.
A party moving for traditional summary judgment bears the burden of
proving that no genuine issues of material fact exist on at least one essential
element of the cause of action asserted and that it is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c); Lightning Oil Co., 520 S.W.3d at 45. There
are no genuine issues of material fact when reasonable people could not differ in
6 their conclusions drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d
802, 816 (Tex. 2005). If the movant meets its burden, the burden then shifts to the
non-movant to raise a fact issue precluding summary judgment. Lujan v. Navistar,
Inc., 555 S.W.3d 79, 84 (Tex. 2018).
When the trial court’s summary judgment order does not state the grounds
on which it was granted, the appealing party must demonstrate that none of the
proposed grounds are sufficient to support the judgment. Sanchez v. Precision
Drilling Co., LP, No. 01-17-00913-CV, 2019 WL 6570064, at *2 (Tex. App.—
Houston [1st Dist.] Dec. 5, 2019, no pet.) (mem. op.). We will affirm a summary
judgment ruling if any of the grounds asserted in the motions are meritorious.
Lightning Oil Co., 520 S.W.3d at 45.
B. Analysis
Greer generally argues that he produced more than a scintilla of evidence on
all elements of each of his three claims against Appellees, precluding summary
judgment. After reviewing the record, we conclude that Greer failed to meet his
summary-judgment burden of raising a fact issue on the essential elements of his
claims for breach of contract, fraud, and conversion.
7 1. Breach of Contract
Appellees moved for summary judgment on Greer’s breach of contract
claim. Greer asserts that Appellees breached the terms of the Deed of Trust1 by
failing to provide proper notices of default, acceleration, and foreclosure. Greer
contends that Appellees breached the contract “when they had the Plaintiff relying
on their promises of modifying the mortgage loan and not accepting the payments
he was trying to make to keep his loan current.” Greer also adds that he was “never
sent notice of foreclosure . . . while they were attempting to modify his loan.”
Greer argues that because he was engaged in the loan modification process with
Appellees, they should have sent him a new notice of foreclosure when his
modification request was denied.
The elements of a breach of contract claim are (1) the existence of a valid
contract between the parties; (2) the plaintiff either tendered performance or was
excused; (3) the defendant breached the terms of the contract; and (4) the plaintiff
suffered damages due to the defendant’s breach. Pathfinder Oil & Gas, Inc. v.
Great W. Drilling, Ltd., 574 S.W.3d 882, 890 (Tex. 2019).
1 Although Greer made arguments about the conditions precedent at trial, on appeal, he makes only a passing mention of his right to relief based on his satisfaction of conditions precedent. He does not provide analysis or authority indicating how his purported satisfaction of conditions precedent entitled him to relief or otherwise precludes summary judgment on his breach of contract claim. We hold that Greer waived any such arguments by failing to adequately brief them. See TEX. R. APP. P. 38.1(i).
8 The Deed of Trust provides that “[a]ny notice to Borrower [Greer] in
connection with this Security Instrument shall be deemed to have been given to
Borrower when mailed by first class mail” to the “Property Address” identified in
the Deed of Trust. The Deed of Trust further requires the lender to “give notice to
Borrower prior to acceleration following Borrower’s breach of any covenant or
agreement in this Security Instrument.” Among other things, the notice must
inform the Borrower of the right to cure the default and provide “a date, not less
than 30 days from the date the notice is given to Borrower, by which the default
must be cured.” The Deed of Trust provides that, “[i]f the default is not cured on or
before the date specified in the notice, Lender at its option may require immediate
payment in full of all sums secured by this Security Instrument without further
demand and may invoke the power of sale and any other remedies permitted by
Applicable Law.” Finally, the Deed of Trust states that, if the Lender invokes the
power of sale, it shall give notice “at least 21 days prior to the sale as provided by
Applicable Law.”
Texas Property Code section 51.002(d) requires that the mortgagor “serve a
debtor in default under a deed of trust . . . with written notice . . . and [give] the
debtor at least 20 days to cure the default before notice of sale can be given.” TEX.
PROP. CODE § 51.002(d). Under this section, service is complete when “by certified
mail . . . the notice is deposited in the United States mail, postage prepaid and
9 addressed to the debtor at the debtor’s last known address.” TEX. PROP. CODE
§ 51.002(e).
In their motion for summary judgment, Appellees argued that Greer
provided no evidence that Appellees breached any terms of the Deed of Trust
regarding proper notice of default, acceleration, and foreclosure. They assert that it
is uncontested that Greer was in default under the terms of the Deed of Trust for
failure to make the required payments. The Deed of Trust required Appellees to
send Greer notice that he was in default and provide at least thirty days for him to
cure the default. After that time passed, Appellees were entitled under the Deed of
Trust to accelerate the loan, and they were required to provide at least twenty-one
days’ notice prior to exercising their contractual power of sale.
Appellees provided summary judgment evidence showing that they
complied with these terms of the Deed of Trust. They provided uncontroverted
evidence that Greer defaulted on his payments. On September 21, 2016, Appellees
sent notice by certified mail that stated Greer had defaulted on the loan and gave
Greer thirty-five days to cure. Then, several months after the notice of default, on
March 15, 2017, Appellees sent notice by certified mail that the Note’s maturity
date had been accelerated due to Greer’s failure to cure. Almost three years later,
Appellees sent notice by certified mail of the foreclosure sale on February 7, 2020,
which stated that the foreclosure sale would take place more than twenty-one days
10 later, on March 3, 2020. Thus, Appellees provided notice to Greer by giving him
notice of default, an opportunity to cure in 2016, and notice of sale in 2020, as
required by the Deed of Trust and applicable law.
Greer nevertheless argues that Appellees were required to provide new
notices during the loan modification process. Greer does not point to any provision
in the Deed of Trust requiring loan modification or providing for different notice
procedures while an application for loan modification was pending. Greer does not
cite any legal authority supporting his contention that “renewed” notice was
required under the circumstances of this case. Rather, the summary-judgment
evidence demonstrates that Appellees complied with the relevant notice
requirements from the Deed of Trust, and Greer has presented no summary-
judgment evidence raising a fact question on the sufficiency of the notices
provided by Appellees.
Because Greer has failed to present a scintilla of evidence supporting each
element of his breach of contract claim, the trial court properly granted summary
judgment in favor of Appellees on this claim.
11 2. Fraud
Greer asserts that he raised more than a scintilla of evidence on his fraud
claim2 by presenting evidence that he provided Appellees with all the necessary
paperwork for loan modification and that Appellees led Greer to believe that his
loan was in the process of being modified. Greer argues that Appellees made a
material representation of fact by telling him he would be considered for a loan
modification if he submitted all the required paperwork. Greer alleges that this
representation was false because Appellees closed his case file, even though he
claims to have submitted all the requested paperwork. Greer claims that Appellees
had no intention of granting the loan modification and that he relied on their
representation to his detriment.
The elements of a fraud claim are:
(1) the defendant made a false, material representation; (2) the defendant “knew the representation was false or made it recklessly as a positive assertion without any knowledge of its truth”; (3) “the defendant intended to induce the plaintiff to act upon the representation”; and (4) the plaintiff justifiably relied on the representation, which caused the plaintiff injury.
Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 590 S.W.3d 471, 496 (Tex.
2019) (citing JP Morgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C., 546
S.W.3d 648, 653 (Tex. 2018)).
2 In his petition, Greer alleged fraud, fraudulent inducement, and fraud by nondisclosure. However, his brief on appeal addresses only common law fraud, and so that is the only claim we address on appeal. 12 In their motion for summary judgment, Appellees claim that Greer has
provided no evidence to support any of the required elements, specifically
contending that Greer cannot show that Appellees made a false misrepresentation
or that he justifiably relied on any such representation. We agree with Appellees
that Greer has presented no evidence raising a fact issue on these elements of his
fraud claim.
Greer alleged that Appellees represented that they would consider modifying
Greer’s loan. There is no evidence in the record of any other representations by
Appellees to Greer. The summary-judgment record further demonstrates that
Appellees reviewed Greer’s application for loan modification, and on January 28,
2020, Appellees notified Greer that his loan modification request was incomplete.
In this notice, Appellees requested that Greer provide the missing documents
within thirty days. Greer’s summary-judgment evidence included a letter
responding to this notice dated February 1, 2020.
Greer claimed at the hearing on the summary-judgment motion that the
requested pages were attached to this letter. However, nothing in the summary
judgment record supports his contention. For purposes of summary judgment
evidence, “oral testimony cannot be adduced in support of or opposition to a
motion for summary judgment.” Martin v. Martin, Martin & Richards, Inc., 989
S.W.2d 357, 359 (Tex. 1998). Instead, courts may only consider written evidence,
13 such as pleadings, transcripts, and affidavits. See TEX. R. CIV. P. 166a(c). The
exhibit admitted as part of the summary-judgment record does not show any of the
alleged “17 pages” that he claims to have sent to supplement his incomplete loan
modification. Instead, the one-page exhibit consists only of his letter bearing a
notation at the bottom that “17 pages” of documents were attached.
While Greer argued at the hearing that he submitted all the required
documents, thereby raising a fact issue, neither his documents nor his own affidavit
supports his contention. The affidavit only states that “he submitted all paperwork
to [Appellees]” and that “the last communication [Greer] received from
[Appellees] was on February 28 . . . when they informed [Greer] that they did not
have all of the paperwork.” The affidavit does not dispute the accuracy of the
January 28 notice that his modification application was incomplete, nor does his
affidavit state that his February 1 supplement contained all the required documents.
An affidavit is only sufficient summary-judgment evidence when it gives a detailed
account of the facts or “it provides supporting documents” that support the
statements made. Rogers v. RREF II CB Acquisitions, LLC, 533 S.W.3d 419, 436
(Tex. App.—Corpus Christi–Edinburg 2016, no pet.) (quoting Brown v. Mesa
Distribs., Inc., 414 S.W.3d 279, 287 (Tex. App.—Houston [1st Dist.] 2013, no
pet.)).
14 Because he has failed to demonstrate that he properly completed the
modification application, Greer cannot show that Appellees knowingly or
recklessly misrepresented an intention to review his modification application. Nor
can he show that he justifiably relied on any such representation. We conclude that
the trial court properly granted summary judgment on Greer’s fraud claim.
3. Conversion
Finally, Greer claims that he raised more than a scintilla of evidence
concerning his conversion claim because he presented summary-judgment
evidence that Appellees unlawfully exercised dominion and control of his property.
Conversion is a tort claim that requires:
(1) the plaintiff owned or had possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised control over the property to the exclusion of, or inconsistent with, the plaintiff’s rights as an owner; (3) the plaintiff demanded return of the property; and (4) the defendant refused to return the property.
Scott Pelley P.C. v. Wynne, No. 05-15-01560-CV, 2017 WL 3699823, at *11 (Tex.
App.—Dallas Aug. 28, 2017, pet. denied) (mem. op.). Appellees assert that Greer
specifically failed to produce evidence for each of the four elements of a
conversion claim.
Greer argues that his summary-judgment evidence raises more than a
scintilla of evidence on the elements of his conversion claim because the
foreclosure sale was illegal due to Appellees’ failure to provide proper notice. We
15 have already concluded that Appellees did not fail to provide proper notice under
the Deed of Trust and applicable law. As discussed above, Appellees provided
Greer with proper notice of default, acceleration, and foreclosure sale under the
terms of the Deed of Trust and the relevant statutes. See TEX. PROP. CODE
§ 51.002(d), (e). Thus, Appellees’ actions in selling the Property at the foreclosure
sale were not illegal. Greer has failed to produce a scintilla of evidence that he was
entitled to possession of the Property or that Appellees unlawfully exercised
control over the Property.
We conclude that the trial court properly granted summary judgment on this
claim.
We overrule Greer’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Richard Hightower Justice
Panel consists of Chief Justice Radack and Justices Landau and Hightower.