Moses Kovalchuk v. Wilmington Savings Fund Society, FSB, as Trustee of Upland Mortgage Loan Trust A

• Court: Court of Appeals of Texas
• Decided: June 30, 2022
• Docket: 02-21-00388-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-21-00388-CV ___________________________

MOSES KOVALCHUK, Appellant

V.

WILMINGTON SAVINGS FUND SOCIETY, FSB, AS TRUSTEE OF UPLAND MORTGAGE LOAN TRUST A, Appellee

On Appeal from County Court at Law No. 2 Denton County, Texas Trial Court No. CV-2020-00993-JP

Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION

Moses Kovalchuk appeals from a forcible-detainer judgment awarding

possession of foreclosed-on property to Wilmington Savings Fund Society, FSB, as

Trustee of Upland Mortgage Loan Trust A. Because Kovalchuk does not challenge

the propriety of the underlying summary judgment––he challenges only alleged error

independent of the summary-judgment ruling––and does not show harm, we affirm.

Procedural Background

Wilmington sued Kovalchuk and his wife in the Denton County Justice of the

Peace Court to recover possession of residential property after Wilmington had

exercised its nonjudicial power of sale according to the deed of trust and then

purchased the property at the later foreclosure sale. The JP court awarded possession

to Wilmington, and the Kovalchuks appealed to Denton County Court at Law No. 2.

The Kovalchuks included with their county-court answer a plea in abatement;

they contended that Moses had raised a title issue in a concurrent district-court suit

that he had later removed to federal court. Although Wilmington responded that the

trial court should not abate because its right to immediate possession could be

determined separately from the federal-case issues, the trial court nevertheless abated

the forcible-detainer case “as long as” the Kovalchuks made timely monthly $3,500

payments and “as long as” the federal case was “pending and being prosecuted in

good faith.”

2 The Kovalchuks faithfully deposited $3,500 monthly with the trial court from

June 2020 through October 2021. Then, on October 13, 2021, Wilmington filed a

Motion to Set Trial on the Merits, but its motion did not mention the abatement. The

next day, the trial court signed an order setting trial for December 1, 2021. The

Kovalchuks filed a response opposing “any trial[-]setting requests until” the trial court

lifted the abatement order. Their sole reason was that the abatement was still

effective. But the Kovalchuks asked for a jury trial and opportunity to pay a jury fee if

the trial court “deemed that the [a]batement [o]rder ha[d] been vacated.”

On October 26, 2021, Wilmington filed a motion for summary judgment, in

which it likewise did not reference the abatement or pending federal suit. Instead, it

sought summary judgment on a single ground: that as the grantee of a substitute

trustee’s deed after a nonjudicial foreclosure sale, it was entitled to possession as a

matter of law. Wilmington attached the substitute trustee’s deed, original deed of

trust, and notice of foreclosure. Wilmington served on the Kovalchuks’ counsel a

notice that the summary-judgment motion had been set for a hearing “by submission”

on November 19, 2021.

The Kovalchuks filed a response to the summary-judgment motion in which

they contended that they had complied with the abatement order by making timely

monthly deposits and by prosecuting the federal case in good faith “while [it was] on

appeal” in the United States Court of Appeals for the Fifth Circuit. They attached a

Fifth Circuit docket sheet showing that the Fifth Circuit had affirmed the district

3 court’s ruling against Moses and that Moses had––on November 17, 2021––filed a

motion for rehearing.

On November 19, 2021, the trial court granted Wilmington’s summary-

judgment motion and awarded Wilmington possession of the premises. The order

includes the following two handwritten additions: (1) “The court also believes that its

order of abatement should be lifted.” (2) “[T]he abatement in this case is lifted.”

Moses filed a notice of appeal, and the trial court ordered monthly $4,500

payments be made to supersede the judgment.

Summary Judgment Proper Despite Abatement

Moses has not challenged the propriety of the trial court’s ruling on the

summary-judgment motion’s merits. See, e.g., Matney v. Harbor Gardens Condos. (Phase II)

Ass’n of Owners, No. 02-16-00272-CV, 2017 WL 5494252, at *2 (Tex. App.—Fort

Worth Nov. 16, 2017, no pet.) (mem. op.) (“When an argument is not made

challenging every ground on which the summary judgment could be based, we are

required to affirm the summary judgment, regardless of the merits of the

unchallenged ground.”). Nor does he argue that the trial court’s rendering judgment

despite the abatement harmed him other than to challenge the mere fact that the trial

court did so. See Tex. R. App. P. 44.1(a)(1).

A trial court’s actions during abatement––including simultaneously lifting an

abatement and granting summary judgment––are not void. In re C.A. Walker, Inc.,

No. 10-21-00342-CV, 2022 WL 711138, at *2 (Tex. App.––Waco Mar. 9, 2022, orig.

4 proceeding) (mem. op.); In re Gen. Motors Corp., 296 S.W.3d 813, 825 (Tex. App.––

Austin 2009, orig. proceeding) (describing permissible trial-court actions during

abatement and noting that “[w]hether an act by the court during abatement is error is

a different question” from the trial court’s authority to act). Moses fails to explain why

the trial court should have continued the abatement after both the federal district

court and Fifth Circuit had ruled against him. Nor does the record contain any

evidence showing that the Fifth Circuit granted his rehearing motion or any additional

relief. See Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006)

(noting that forcible-detainer action “is intended to be a speedy, simple, and

inexpensive means to obtain immediate possession of property”).

We therefore overrule Moses’s sole issue and affirm the trial court’s judgment.

/s/ Elizabeth Kerr Elizabeth Kerr Justice

Delivered: June 30, 2022