Opinion
No. 10-02-00298-CV
Opinion delivered and filed May 19, 2004.
Appeal from the 13th District Court, Navarro County, Texas, Trial Court # 98-00-0869-CV.
Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
In 1998 Combined Financial Corporation (Combined) foreclosed under a deed of trust on property owned by Merrimac Properties, Inc. (Merrimac) securing a $320,000 note that had been signed by Merrimac and others. The trustee conveyed the property to Mid-American Properties, Inc. (Mid-American), and Combined gave Merrimac credit for $229,000 on the note. Merrimac sued Combined, Mid-American, and the trustee to set the conveyance aside and for damages. A bench trial resulted in a take-nothing judgment, from which Merrimac appeals, asserting (1) the trustee's sale was invalid because the successful bidder, Mid-American, (a) did not bid during the sale hours and (b) did not give any formal consideration at the time of the sale, and (2) a finding by the trial judge is not supported by legally or factually sufficient evidence.
Merrimac's first issue complains that the trustee's sale was "deficient" in that it "strayed from the requirements" of the deed of trust, the notice of sale, and the requirements of the Property Code in two respects.
First, it says there was no "bid" for the property at the sale. The undisputed evidence is that Mid-American's bid of $229,000 was communicated to the trustee prior to the sale and that no other bidder was present or offered a competing bid. Pointing to section 51.002 of the Property Code, Merrimac says that the procedure followed here did not strictly comply with the statute.
We believe that Merrimac places undue emphasis on the absence of any bidder at the trustee's sale. We find no requirement in the Property Code that a bidder who has communicated a bid to a trustee be present at the sale. TEX. PROP. CODE ANN. § 51.002 (Vernon Supp. 2004). It is undisputed that Mid-American's bid had been communicated to the trustee prior to the sale and that it was the only bid that the trustee received. The absence of an individual representing Mid-American in no way detracts from the validity of its bid.
Second, Merrimac says that the "credit" of $229,000 given it by the holder of the note, Combined, does not satisfy the requirement that the trustee receive the consideration from the purchaser of the property at the trustee's sale. It further points to a lack of documentation of the credit transaction in evidence and requirements that a non-creditor bidder who is successful must pay the trustee "cash" during the bid hours. We reject these contentions.
Merrimac does not challenge the adequacy of the consideration, i.e., that the amount of credit it received was not the "fair market value" of the property at that time.
The trial court found that the sale price was credited against Merrimac's indebtedness. Credit arrangements at trustees' sales have been upheld, even where the deed of trust required a sale for cash. Valley Int'l Properties Inc. v. Ray, 586 S.W.2d 898, 901 (Tex.Civ.App. — Corpus Christi 1979, no writ) (no defect where mortgagee extended credit to purchaser at foreclosure sale while requiring all others to pay cash).
We find that the record reveals that the trustee conducted a "public sale at auction," as required by section 51.002. Tex. Prop. Code Ann. § 51.002. We overrule Merrimac's first issue.
Merrimac's second issue asserts that the trial court's finding — that the property "likely would have been struck off to the owner of the note, Combined" — is not supported by legally or, alternatively, factually sufficient evidence. In light of our disposition of Merrimac's first issue, this finding is immaterial. See Miller v. Presswood, 743 S.W.2d 275, 280 (Tex. App.-Beaumont 1987, no writ). Because the trustee sold the property at a public sale at auction, it does not matter what might have occurred in the absence of Mid-American's bid. We do not reach issue two.
We affirm the judgment.