National City Bank of Indiana and National City Home Loan Services, Inc. v. Albert Ortiz

• Court: Court of Appeals of Texas
• Decided: May 16, 2013
• Docket: 14-10-01125-CV
• Status: Published

Opinion

May 16, 2013

JUDGMENT

The Fourteenth Court of Appeals NATIONAL CITY BANK OF INDIANA AND NATIONAL CITY HOME LOAN SERVICES, INC., Appellants/Cross-Appellees

NO. 14-10-01125-CV V.

ALBERT ORTIZ, Appellee/Cross-Appellant ________________________________

The court today heard appellee Albert Ortiz’s amended motion for rehearing. The court has duly considered the motion and found it meritorious in part. We therefore order that the motion be granted in part and this court’s former judgment of November 20, 2012, be vacated, set aside, and annulled. We further order this court’s opinion of November 20, 2012 withdrawn. We deny appellants’ motion for rehearing as moot.

This cause, an appeal from the judgment signed August 18, 2010 in favor of appellee, Albert Ortiz, was heard on the transcript of the record. We have inspected the record and find error in the judgment. We therefore

A. REVERSE the portions of the judgment

1. holding National City liable to Ortiz for actual damages, interest, and attorneys’ fees;

2. providing that National City takes nothing by its claims; 3. denying National City’s request for judicial foreclosure; 4. declaring that the “Note and the Deed of Trust are fully, completely, and finally satisfied and no past, present, or further obligations or sums are or shall become due and owing under said Note and Deed of Trust”;

5. providing that “all partial and/or interlocutory judgments heretofore granted in this case are hereby made final and incorporated into this Final Judgment”; and 6. specifying the amount of the actual damages awarded against HLS;

B. AFFIRM the portions of the judgment that were neither challenged on appeal nor affected by our disposition of the issues as set forth in this court’s opinion, that is, Ortiz’s claims for fraud, common-law unreasonable debt-collection, statutory debt-collection violations, statutory deceptive trade-practice violations, breach of oral contract, promissory estoppel, theft, breach of bailment, invasion of privacy, and defamation per se; and

C. REMAND the case with instructions to the trial court to

(1) retry Ortiz’s claim against National City for breach of contract and National City’s claims against Ortiz for breach of contract and judicial foreclosure, and, with the exception of Ortiz’s limitations defense discussed in this court’s opinion, permitting the parties to assert defenses to these claims;

(2) after applying the one-satisfaction rule and any settlement credits, determine the total amount of HLS’s liability to Ortiz for actual damages and the amounts, if any, that are owed by National City to Ortiz or by Ortiz to National City; and

(3) render a final judgment that is consistent with this court’s opinion.

We order appellee Albert Ortiz to pay all costs incurred in this appeal.

We further order this decision certified below for observance.