AFFIRMED; Opinion Filed July 14, 2016.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-01057-CV
PAULA A. BONNEY, Appellant V. U.S. BANK NATIONAL ASSOCIATION, TRUSTEE, Appellee
On Appeal from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-12-04176-F
MEMORANDUM OPINION Before Justices Myers, Stoddart, and Whitehill Opinion by Justice Myers Paula A. Bonney appeals the trial court’s summary judgment that she take nothing on her
claims against U.S. Bank National Association, Trustee. Appellant brings two issues on appeal
contending (1) the trial court erred by overruling her objections to the bank’s evidence, and (2)
the trial court erred by determining the summary judgment evidence failed to present more than a
scintilla of evidence creating an issue of fact. We affirm the trial court’s judgment.
BACKGROUND
As appellant states in her brief, her “suit concerns the foreclosure of her house.” In 2007,
Paula Bonney and her then husband1 refinanced the purchase money for their home through
Washington Mutual Bank. The loan documents included an agreement that no escrow account 1 Appellant and her husband divorced at some point before the foreclosure of the property. Appellant was awarded the home in the division of marital property. The record does not contain the date of their divorce. would be set up at the beginning of the loan, that the Bonneys were responsible for paying for
the taxes and insurance, and that the lender could impose an escrow account at any time.
When Washington Mutual Bank was placed in receivership, the FDIC transferred the
loan to JPMorgan Chase Bank (“Chase”), which then assigned the loan to U.S. Bank. Chase is
the mortgage servicer for the loan.2
The bank believed the Bonneys failed to pay the 2007 and 2008 property taxes, and the
bank paid those taxes in September and December 2008.3 The bank then notified the Bonneys
that beginning January 1, 2009, they would be required to make monthly escrow payments for
payment of the current taxes and to reimburse the bank for the 2007 and 2008 taxes. The
Bonneys made six escrow payments through July 2009. The Bonneys then ceased making
escrow payments and insisted that the bank accept their payments of principal and interest
without the escrow payments. The bank refused to credit the account without the escrow
payment. About the same time, the Bonneys did not renew the hazard insurance for the home.
After notifying the Bonneys that it would purchase insurance for the home if the Bonneys did not
do so within thirty days, the bank purchased insurance for the home and has paid for the
insurance ever since. On April 3, 2012, U.S. Bank foreclosed on the property and purchased it at
the foreclosure sale.
In 2014, appellant filed suit against U.S. Bank alleging causes of action for breach of
contract, trespass to try title, suit to quiet title concerning the trustee’s deed and the deed of trust,
and violations of chapter 12 of the Civil Practice and Remedies Code (which prohibits filing
fraudulent documents as a lien or claim against property), the Deceptive Trade Practices Act, and
2 Except where necessary to identify the specific banking entity, we refer to the different banking entities simply as “the bank.” 3 Appellant testified in her deposition and affidavit that she and her husband paid the taxes for 2007 and 2008. The bank’s summary judgment evidence included a receipt from the Dallas County Tax Assessor’s office showing it paid the 2007 taxes. The receipt for the 2008 taxes showed the Bonneys paid the taxes for that year; the litigation manager for the Dallas County Tax Assessor’s office testified the 2008 taxes were paid by a tax service called Lereta LLC.
–2– the Texas Debt Collection Act. U.S. Bank moved for summary judgment on appellant’s claims.
The trial court granted U.S. Bank’s motion for summary judgment and ordered that appellant
take nothing on her claims.
STANDARD OF REVIEW
The standard for reviewing a traditional summary judgment is well established. See
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985); McAfee, Inc. v. Agilysys,
Inc., 316 S.W.3d 820, 825 (Tex. App.—Dallas 2010, no pet.). The movant has the burden of
showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter
of law. TEX. R. CIV. P. 166a(c). In deciding whether a disputed material fact issue exists
precluding summary judgment, evidence favorable to the nonmovant will be taken as true.
Nixon, 690 S.W.2d at 549; In re Estate of Berry, 280 S.W.3d 478, 480 (Tex. App.—Dallas 2009,
no pet.). Every reasonable inference must be indulged in favor of the nonmovant and any doubts
resolved in its favor. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). We review a
summary judgment de novo to determine whether a party’s right to prevail is established as a
matter of law. Dickey v. Club Corp., 12 S.W.3d 172, 175 (Tex. App.—Dallas 2000, pet. denied).
We review a no-evidence summary judgment under the same legal sufficiency standard
used to review a directed verdict. See TEX. R. CIV. P. 166a(i); Flood v. Katz, 294 S.W.3d 756,
762 (Tex. App.—Dallas 2009, pet. denied). Thus, we must determine whether the nonmovant
produced more than a scintilla of probative evidence to raise a fact issue on the material
questions presented. See Flood, 294 S.W.3d at 762. When analyzing a no-evidence summary
judgment, we consider all the evidence in the light most favorable to the nonmovant, indulging
every reasonable inference and resolving any doubts against the movant. Sudan v. Sudan, 199
S.W.3d 291, 292 (Tex. 2006) (per curiam) (quoting City of Keller v. Wilson, 168 S.W.3d 802,
824 (Tex. 2005)). A no-evidence summary judgment is improperly granted if the respondent
–3– brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact.
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “More than a scintilla of
evidence exists when the evidence rises to a level that would enable reasonable, fair-minded
persons to differ in their conclusions.” Id. (quoting Merrell Dow Pharms., Inc. v. Havner, 953
S.W.2d 706, 711 (Tex. 1997)). “Less than a scintilla of evidence exists when the evidence is ‘so
weak as to do no more than create a mere surmise or suspicion’ of a fact.” Id. (quoting Kindred
v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
SUMMARY JUDGMENT EVIDENCE
In her first issue, appellant contends the trial court erred by overruling her objections to
U.S. Bank’s summary judgment evidence, the unsworn declaration of Yolanda Gardner.
Appellant objected that the declaration did not comply with requirements of section 132.001 of
the Civil Practice and Remedies Code. Appellant also objected that the declaration failed to lay
a proper foundation for admission of the exhibits attached to the declaration.
We review a trial court’s decision to admit or exclude summary judgment evidence under
an abuse of discretion standard. Holloway v. Dekkers, 380 S.W.3d 315, 320 (Tex. App.—Dallas
2012, no pet.). We must uphold the trial court’s ruling if the record shows any legitimate basis
supporting that ruling. Id.
Unsworn Declarations
Section 132.001 of the Civil Practice and Remedies Code provides that an unsworn
declaration may be used in lieu of an affidavit in most situations. TEX. CIV. PRAC. & REM. CODE
ANN. § 132.001(a), (b) (West Supp. 2015). The declaration “must be: (1) in writing; and (2)
subscribed by the person making the declaration as true under penalty of perjury.” Id. §
132.001(c). The provision states that the declaration “must include a jurat in substantially the
following form:
–4– “My name is ___________ _________ _________, (First) (Middle) (Last) my date of birth is , and my address is
(Street) (City) (State) (Zip Code) and . (Country) I declare under penalty of perjury that the foregoing is true and correct. Executed in County, State of , on the day of , . (Month) (Year)
Declarant”
Id. § 132.001(d).
Gardner’s declaration contained the following:
14. “I declare under penalty of perjury that the foregoing factual statements are true and correct, based on my review of the business records of [Chase].”
Executed in Franklin County, State of Ohio, on this 4th Day of March, 2015.
JPMorgan Chase Bank, N.A.
/s/ Yolanda Gardner 3-4-15 Yolanda Gardner Authorized Signer
Appellant asserts the declaration is fatally defective because the required elements of the jurat
are missing. The jurat does not list Gardner’s middle name, date of birth, and street address.
Under section 132.001, the main requirements are that the declaration be in writing and
“subscribed by the person making the declaration as true under penalty of perjury.” See
Dominguez v. State, 441 S.W.3d 652, 658 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (“The
inclusion of the phrase ‘under penalty of perjury’ is the key to allowing an unsworn declaration
to replace an affidavit.”). If those requirements are met, courts have found the jurat substantially
complies with the statute. In United Rentals, Inc. v. Smith, the declaration under section 132.001
included the declarant’s name and the perjury attestation, but it omitted the declarant’s date of
–5– birth and address. United Rentals, Inc. v. Smith, 445 S.W.3d 808, 813 (Tex. App.—El Paso
2014, no pet.). The court of appeals concluded that the omission of the declarant’s date of birth
and address was “a formal defect having no effect on whether a false statement would render the
declarant liable for perjury.” Id. The court found “the jurat was sufficient to allow the
declaration to substitute for a notarized affidavit under the Civil Practice and Remedies Code.”
Likewise, in this case, we conclude that Gardner’s declaration substantially complied with
section 132.001 even though Gardner omitted her middle name, address, and date of birth.
Gardner’s Capacity as U.S. Bank’s Agent
Appellant contends Gardner’s affidavit failed to lay a predicate for the admission of the
exhibits attached to the affidavit, which included the note, the deed of trust, and communications
by the banking entities with the Bonneys. Appellant asserts there was no foundation laid to
support Gardner’s capacity.
Affidavits in support of a motion for summary judgment must be made on the affiant’s
personal knowledge. TEX. R. CIV. P. 166a(f). The affidavit must show how the affiant became
familiar with the facts set forth in the affidavit. See Radio Station KSCS v. Jennings, 750 S.W.2d
760, 762 (Tex. 1988). An affiant’s position or job responsibilities can qualify the affiant to have
personal knowledge and establish how the affiant learned the facts set forth in the affidavit.
Valenzuela v. State & Cty. Mut. Fire Ins. Co., 317 S.W.3d 550, 553 (Tex. App.—Houston [14th
Dist.] 2010, no pet.).
Gardner stated in her declaration that she was “an Authorized Signer for JPMC [Chase]
and duly authorized to make this declaration on its behalf.” She stated she was “responsible for
executing sworn documents and reviewing, confirming, and researching business records for
loans in litigation.” She stated she had personal knowledge of the facts in the declaration “based
on my review of the business records of JPMC as servicer for U.S. Bank.” These statements
–6– explain how she had personal knowledge of the facts in the declaration: she reviewed Chase’s
records as part of her position of “Authorized Signer.”
Appellant argues the affidavit had to present evidence that Chase was U.S. Bank’s
authorized servicer. Appellant cites two cases in support of this argument, Robinson v.
Timberjack, 175 S.W.3d 528 (Tex. App.—Texarkana 2005, no pet.); and Lyons v. Lindsey
Morden Claims Management, Inc., 985 S.W.2d 86 (Tex. App.—El Paso 1998, no pet.).
In Lyons, Lyons worked in a community college lab where she was injured. Lyons, 985
S.W.2d at 88. She settled her worker’s compensation claim with the college. Id. at 89. The
college “engaged” Lindsey Morden Claims Management to provide adjusting services. When
Lindsey Morden denied Lyons’s claims for medical care, Lyons sued Lindsey Morden. Lindsey
Morden moved for summary judgment asserting it shared in the college’s governmental
immunity because it was the college’s agent. Therefore, Lindsey Morden had the burden of
proving as a matter of law that it was the college’s agent and not an independent contractor.
That case did not concern the affiant’s personal knowledge to make the statements in the
affidavit and to provide the predicate for admission of attached documents. Therefore, it is not
applicable to the issue before us.
In Robinson, Timberjack sued Robinson when Robinson failed to make payments for
equipment he purchased. Robinson, 175 S.W.3d at 529. In its motion for summary judgment,
Timberjack relied on the affidavit of Tony Damron, who stated he had personal knowledge of the
facts contained in the statement of account and that he was Timberjack’s authorized agent. Id. at
531. The court of appeals concluded this affidavit was insufficient because it provided no factual
basis for Damron’s knowledge. Id. (“The affidavit does not show how Damron acquired his
personal knowledge of the facts presented in the affidavit.”). Although Damron stated he was
Timberjack’s agent, the affidavit “does not state whether he was an agent during the relevant
–7– periods or how his status as an agent put him in a position to gain such knowledge.” Id. Nor
was it “readily apparent that Damron’s status as an agent” put him in a position to gain the
knowledge. Id. In this case, however, Gardner’s affidavit identified her position with Chase,
described her job responsibilities that gave her access to the relevant documents, and set forth her
actions that gave her personal knowledge of those documents. This case contains none of the
uncertainties present in Damron’s affidavit. Robinson is distinguishable.
We conclude appellant has not shown the trial court abused its discretion by overruling
her objections to Gardner’s affidavit. We overrule appellant’s first issue.
EVIDENCE TO SUPPORT APPELLANT’S BREACH OF CONTRACT CAUSE OF ACTION
In her second issue, appellant contends the trial court erred by “finding that the Summary
Judgment Evidence failed to raise more than a scintilla of evidence creating an issue of fact.”
Appellant’s statement of the issue misstates the trial court’s implicit ruling. When a court grants
a motion for summary judgment, the court does not find that there is no issue of fact; instead, the
court finds “there is no genuine issue as to any material fact.” TEX. R. CIV. P. 166a(c). A fact is
material if it affects the ultimate outcome of the lawsuit under the governing law. Henning v.
OneWest Bank FSB, 405 S.W.3d 950, 957 (Tex. App.—Dallas 2013, no pet.).
Appellant asserted the bank breached the loan documents by imposing an escrow account
on the loan, demanding she make escrow payments that were not owed, refusing a payment in
July 2009 that did not include any amount for escrow, and subsequently accelerating the note and
foreclosing on the property.
One of the bank’s grounds for summary judgment was that it proved as a matter of law
that appellant failed to perform under the loan documents because she did not make the escrow
payments for the property taxes and hazard insurance that the bank paid. See Case Corp. v. Hi-
Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 769 (Tex. App.—Dallas 2005, pet. denied) –8– (elements of cause of action for breach of contract include that the plaintiff performed or
tendered performance).
Appellant asserts the bank cannot prove she failed to perform when she did not make the
escrow payment in July 2009 because a fact question exists whether she owed any amount for
escrow on that date. She argues a fact question exists that the bank breached the loan documents
by demanding she make escrow payments that were not owed and by refusing her July 2009
payment that did not include an escrow payment because no amount for escrow was owed.
Appellant appears to assert that the fact question concerning the bank’s breach of the loan
documents created a genuine issue of material fact of her obligation to perform under the loan
documents after the bank’s breach. See Mustang Pipeline Co., Inc. v. Driver Pipeline Co., Inc.,
134 S.W.3d 195, 196 (Tex. 2004) (“It is a fundamental principle of contract law that when one
party to a contract commits a material breach of that contract, the other party is discharged or
excused from further performance.”).
For a fact question to prevent a motion for summary judgment, the fact question must
involve a material fact. Henning v. OneWest Bank FSB, 405 S.W.3d 950, 957 (Tex. App.—
Dallas 2013, no pet.). Any fact question regarding whether any amount of escrow was owed in
July 2009 and whether the bank breached the loan documents was not a material fact question.
The deed of trust provided, “No offset or claim which Borrower might have now or in the future
against Lender shall relieve Borrower from making payments due under the Note and this
Security Instrument or performing the covenants and agreements secured by this Security
Instrument.” Thus, even if the bank did breach the loan documents by refusing appellant’s
payment in July 2009, that breach did not excuse appellant’s further performance under the note
and deed of trust, including the requirement to make escrow payments. Therefore, the fact
–9– questions concerning these alleged breaches do not affect the outcome of the case, and they are
not material fact issues.
The bank asserted appellant failed to perform under the loan documents because she
failed to make the escrow payments to pay for the hazard insurance the bank purchased for the
property. The bank’s Escrow Transaction History shows there were payments for hazard
insurance beginning in December 2009, but there were no deposits to the escrow account after
July 2009 and before the foreclosure sale on April 3, 2012. Appellant presented no evidence that
she tendered or made escrow payments after July 2009. Therefore, the evidence is undisputed
that appellant failed to perform or tender performance required by the loan documents, namely,
payment of the escrow for the hazard insurance.
Because the bank conclusively disproved one of the elements of appellant’s cause of
action for breach of contract and appellant failed to raise a genuine issue of material fact
concerning that element, the trial court did not err by granting the bank’s motion for summary
judgment on appellant’s breach of contract cause of action.
APPELLANT’S OTHER CAUSES OF ACTION
The bank asserts in its brief that appellant’s brief does not present any argument that the
trial court erred by granting summary judgment on appellant’s other causes of action. In her
reply brief, appellant asserts she pleaded the other causes of action in the alternative, but she
does not explain how the asserted fact questions constitute material fact questions under her
other causes of action. We conclude appellant’s failure to brief those causes of action has
waived any error in the trial court’s granting the motion for summary judgment on those other
causes of action. McAfee, Inc. v. Agilysys, Inc., 316 S.W.3d 820, 824 n.2 (Tex. App.—Dallas
2010, no pet.).
–10– CONCLUSION
We overrule appellant’s issue on appeal. We affirm the trial court’s judgment.
/Lana Myers/ LANA MYERS JUSTICE
151057F.P05
–11– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
PAULA A. BONNEY, Appellant On Appeal from the 116th Judicial District Court, Dallas County, Texas No. 05-15-01057-CV V. Trial Court Cause No. DC-12-04176-F. Opinion delivered by Justice Myers. Justices U.S. BANK NATIONAL ASSOCIATION, Stoddart and Whitehill participating. TRUSTEE, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee U.S. BANK NATIONAL ASSOCIATION, TRUSTEE recover its costs of this appeal from appellant PAULA A. BONNEY.
Judgment entered this 14th day of July, 2016.
–12–