Myra A. Abendschein and Gerry A. Abendschein v. GE Capital Mortgage Services, Inc.

• Court: Court of Appeals of Texas
• Decided: December 12, 2007
• Docket: 10-06-00247-CV
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00247-CV

Myra A. Abendschein and

Gerry A. Abendschein,

                                                                                    Appellants

 v.

GE Capital Mortgage Services, Inc.,

                                                                                    Appellee

From the 74th District Court

McLennan County, Texas

Trial Court No. 2001-1426-3

MEMORANDUM  Opinion

        Abendschein appeals the trial court’s summary judgment in favor of GE.  We affirm.

        In Abendschein’s one issue, she contends that the trial court erred in granting GE’s no-evidence summary-judgment motion.

[A] party without presenting summary judgment evidence 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. . . .  The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

Tex. R. Civ. P. 166a(i).  “We review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.”  Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).  “The reviewing court considers only the evidence before the trial court at the time of the summary judgment motion hearing.”  Williamson v. Williamson, 986 S.W.2d 379, 380 (Tex. App.—El Paso 1999, no pet.); see Mathis v. Restoration Builders, Inc., 231 S.W.3d 47, 52 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

        When “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.”  Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); accord Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

        Abendschein sued for a declaratory judgment to the effect that GE’s foreclosure of its security interest in real property was barred by limitations.  The trial court’s order granting GE’s motion for summary judgment did not state the grounds on which the court granted the motion.  One ground of GE’s motion was that Abendschein was not in privity with GE’s third-party debtors, and thus could not assert the defense of limitations.

       As a general rule, . . . the defense of limitation may not be interposed by one not in the position of the debtor.  Columbia Ave. Saving Fund, etc. v. Strawn (1899), 93 Tex. 48, 53 S.W. 342; and is a personal privilege which may be asserted or waived at the election of the debtor or those in privity.  Cases cited, 37 Tex.Jur.2d, Limitation of Actions, Sec. 25.

Gallaher v. American-Amicable Life Ins. Co., 462 S.W.2d 626, 628 (Tex. Civ. App.—Waco 1971, writ ref’d n.r.e.); accord Miller, Hiersche, Martens & Hayward, P.C. v. Bent Tree Nat’l Bank, 894 S.W.2d 828, 829 (Tex. App.—Dallas 1995, no writ); see Columbia Ave. Sav. Fund, Safe Deposit, Title & Trust Co. v. Strawn, 93 Tex. 48, 49-50, 53 S.W. 342, 342-43 (1899); Woodside Assurance, Inc. v. N.K. Res., Inc., 175 S.W.3d 421, 425-26 (Tex. App.—Houston [1st Dist.] 2005, no pet.).  “Privity, in this connection, means the mutual or successive relationship to the same rights of property.”  Amstadt v. United States Brass Corp., 919 S.W.2d 644, 653 (Tex. 1996) (quoting Kirby Lumber Corp. v. S. Lumber Co., 145 Tex. 151, [154,] 196 S.W.2d 387, 388 (1946)).        

        In Abendschein’s response to GE’s motion, she points only to GE’s deemed admissions concerning a loan by GE’s predecessor in interest to third parties.[1]  Abendschein does not point to evidence that she was in privity with the third-party debtors.

        The evidence being viewed in the light most favorable to Abendschein, the trial court did not err in granting GE’s motion for summary judgment.  We overrule Abendschein’s issue.

        Having overruled Abendschein’s sole issue, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

        Justice Vance, and

        Justice Reyna

Affirmed

Opinion delivered and filed December 12, 2007

[CV06]           

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          [1] Abendschein’s requests for admissions were as follows:

1.       You accelerated maturity of a debt owed to you by John David Walts and Rhonda Faye Walts on or before March 19, 2001.

2.       The debt described in Request No. 1 was secured by a deed of trust encumbering Lot 20 of the Cedar Ridge Estates, Part 1, a subdivision to McLennan County, Texas, according to the amended plat of said subdivision recorded in Volume 1180, page 651 of the Deed Records of McLennan County, Texas.

3.       John David Walts and Rhonda Faye Walts did not sign a reinstatement agreement concerning the debt described in Request No. 1 after March 19, 2001.

4.       The document attached as Exhibit 1 is a true and correct copy of a Notice of Acceleration and Notice of Posting & Foreclosure that you sent to John D. Walts.

5.       The document attached as Exhibit 2 is a true and correct copy of a Notice of Trustee’s Sale that you sent to John D. Walts.

6.       On or before April 10, 2001, you filed with the County Clerk of McLennan County, Texas a notice of trustee’s sale giving notice of a trustee’s sale on May 1, 2001 of the property described in Request Number 2.     

(I C.R. at 100.)  A Notice of Acceleration and Notice of Posting & Foreclosure, and a Notice of Trustee’s Sale were attached.