Opinion
No. 04-02-00320-CV.
Delivered and Filed: March 26, 2003.
Appeal From the 37th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CI-16200, Honorable Janet P. Littlejohn, Judge Presiding.
AFFIRMED.
Sitting: Alma L. LOPEZ, Chief Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
Johnson and Magdalena Vasquez appeal the trial court's summary judgment against them on their wrongful foreclosure, DTPA, and fraud claims against Paul C. Macias, from whom the Vasquezes bought the house that was the subject of the foreclosure suit, and Michael R. Hedges, Macias' foreclosure attorney. We affirm.
1. In his first point of error, Vasquez complains the trial court erred in overruling his objections to Macias' summary judgment evidence. We disagree.
a. Vasquez first argues the trial court erred in overruling his objection to the statement in Macias' affidavit that "`Plaintiffs almost never make payments on time,' yet attaches the affidavit of Danny Petri in which payments are recorded." However, Macias' statement is not inconsistent with Petri's affidavit, which explains how Petri calculated the principal and interest due under the terms of Vasquez's note and compared it to the principal and interest that would have been due if one assumed the truth of Vasquez's statement of his payment history — a statement that establishes Vasquez never once made a payment by the first of the month, as required by the note.
b. Vasquez next argues the trial court erred in overruling his objection to the statement in Macias' affidavit that Vasquez was "not keeping the property in good repair." However, Macias' affidavit explains that, because Vasquez did not make his payments at the place specified in the note, Macias "had to go to [the house] to collect the payments from them when [he] could catch them there. While at [the house], [he] saw that [Vasquez was] not keeping the property . . ., [his] collateral on the Note, in good repair and condition." This statement is thus based on first-hand knowledge; and, while it is made by an interested witness, it is readily controvertible. See Tex.R.Civ.P. 166a(c), 166a(f).
c. Vasquez next argues the trial court erred in overruling his objection to statements in Macias' affidavit that Vasquez was behind on his payments and in default. However, even if the trial court erred in overruling this objection, the error is not reversible because Vasquez's own payment history establishes he was behind on his payments; and Petri's affidavit, which assumes the truth of Vasquez's statement — establishes Vasquez was in default at least by August 2001.
d. Vasquez next argues the trial court erred in overruling his objection to Petri's affidavit "because nowhere does it state or reflect when the payments were actually received by Paul C. Macias or credited to [Vasquez's] account and said affidavit does not purport to be a record of the noteholder or an accurate record of payments actually received and the dates on which these payments were received." All of this may be true. But, as explained above, Petri's affidavit assumes the truth of Vasquez's own statement of his payment history. Vasquez thus benefitted from this and can ask for no more.
2. Vasquez next argues he produced sufficient evidence of "payment and acceptance" to defeat the motion for summary judgment. We again disagree. Vasquez's own statement of his payment history establishes that he did not make the payments by the date specified in the note; and Vasquez admitted no further calculations were made to determine whether the payments, made in the amount and on the date reflected in Vasquez' statement, paid the then-accrued principal and interest. And Petri's affidavit — which assumes the truth of Vasquez's statement of his payment history — establishes the late payments put Vasquez in default at least by August 2001, at least three months before the foreclosure sale.
The fundamental flaw in Vasquez's reasoning is his assumption that the reason he was in default under the note is because he paid late. But late payment was not the basis for the foreclosure; it was in large measure Vasquez's failure to pay the amounts due under the note at any point in time. As Macias states in his brief: "Because payments were not made on the dates contemplated by the Note, additional interest was owed by the time that each payment was actually made." As a result, for instance, by November 5, 2001, Vasquez actually owed $14,378.34, when — if the payments had been made timely — he would have owed only $11,399.40.
3. In his third point of error, Vasquez contends the trial court erred in granting summary judgment because the "record affirmatively established the existence of material issues of fact on [Vasquez's] claims, requiring submission of the case to a jury." Vasquez specifically contends he presented "ample circumstantial evidence . . . that they were current in their obligations . . . and that foreclosure was wrongful and that [Vasquez] had been damaged by said wrongful conduct." We again disagree. The summary judgment record conclusively establishes that, at least by August 2001, Vasquez was in default under the note; Vasquez expressly waived notice of demand, presentment, notice of intent to accelerate maturity, and notice of acceleration, see Parker v. Frost Nat'l Bank, 852 S.W.2d 741, 745 (Tex.App.-Austin 1993, writ dism'd); as a matter of law, the notices that were sent were complete when deposited in the United States mail, postage prepaid, and addressed to Vasquez at his last known address, see Tex. Prop. Code Ann. § 51.002(e) (Vernon 1995); and the foreclosure was not otherwise wrongful.
4. In his fourth point of error, Vasquez argues he was entitled to a jury trial on waiver and estoppel. However, because the foreclosure was not based on the fact that Vasquez's payments were late, his argument that Macias accepted his late payments and has waived or is estopped from asserting late payment as a basis for foreclosure is without merit. There is no issue for a jury's determination regarding Vasquez's fourth point of error that he was entitled to a jury trial on waiver and estoppel.
5. Vasquez also states he established his DTPA claim and unconscionable conduct. This assertion presents nothing for our review.
The judgment is affirmed.