Rosalind Kelly and Rafael De Los Santos v. Ocwen Loan Servicing, LLC, and MacKie Wolf Zeintz & Mann, PC

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-14-00232-CV

ROSALIND KELLY AND RAFAEL APPELLANTS DE LOS SANTOS

V.

OCWEN LOAN SERVICING, LLC, APPELLEES AND MACKIE WOLF ZEINTZ & MANN, PC

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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 2014-05258-158

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MEMORANDUM OPINION1

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Appellants Rosalind Kelly and Rafael De Los Santos appeal the trial

court’s orders granting summary judgment in favor of Appellees Ocwen Loan

Servicing, LLC and Mackie Wolf Zeintz & Mann, PC. In two points, Appellants

1 See Tex. R. App. P. 47.4. argue that they had insufficient notice of a summary judgment hearing, that the

trial court abused its discretion by denying their motion for continuance, and that

the trial court erred by granting summary judgment. We will affirm.

In 2002, Appellants executed a deed of trust in favor of a lender to secure

the repayment of a promissory note used to purchase real property. In January

2012, Mackie Wolf, a law firm retained by Ocwen, the loan servicer, notified

Appellants that they had defaulted on the note, that the note’s maturity was being

accelerated, and that the property would be sold at a foreclosure sale in March

2012. Kuk Hwan Jung purchased the property at a non-judicial foreclosure sale

on March 6, 2012, but after learning that Kelly had paid funds to reinstate the

note on the morning of the sale, Ocwen rescinded the sale and refunded the

proceeds to Jung, and no foreclosure deed was executed, delivered to Jung, or

recorded.

Appellants later sued Ocwen, Mackie Wolf, and Jung, alleging that Ocwen

and Mackie Wolf had violated the Texas Debt Collection Practices Act (TDCPA)

and claiming that Jung had invaded their privacy. See Tex. Fin. Code Ann.

§§ 392.301(a)(8), 392.303(a)(2), 392.304(a)(8) (West 2006). The trial court

ultimately (i) denied Appellants’ motion to continue the hearing on Ocwen’s no-

evidence motion for partial summary judgment, (ii) granted Ocwen’s no-evidence

motion for partial summary judgment, (iii) granted Mackie Wolf’s combined

traditional and no-evidence motion for summary judgment, (iv) severed the

2 claims against Ocwen and Mackie Wolf from the claim against Jung, and

(v) signed a final judgment in the severed cause that Appellants take nothing.

In part of their first point, Appellants argue that the trial court erred by

granting summary judgment in favor of Ocwen because they did not receive

twenty-one days’ notice of the hearing on Ocwen’s motion.

A nonmovant is entitled to twenty-one days’ notice of a hearing on a

motion for summary judgment. Tex. R. Civ. P. 166a(c). When service is by mail,

three days are added to the notice period. Tex. R. Civ. P. 21a(c). A notice may

be served on a party by delivering a copy via certified or registered mail to the

party’s last known address. Tex. R. Civ. P. 21a(a). A certificate by a party or an

attorney of record is prima facie evidence of the fact of service. Id.; see

McQuade v. Berry, No. 02-12-00099-CV, 2012 WL 6049012, at (Tex. App.—

Fort Worth Dec. 6, 2012, no pet.) (mem. op). (“Multiple courts of appeals have

held, based on rule 21a, that a certificate of service is prima facie evidence not

only of the fact that a document was served but also of the date of service

included in the certificate.”). In fact, “notice properly sent pursuant to Rule 21a

raises a presumption that notice was received.” Mathis v. Lockwood, 166

S.W.3d 743, 745 (Tex. 2005). The opposing party may rebut this presumption by

offering proof that the notice or document was not actually received. Cliff v.

Huggins, 724 S.W.2d 778, 780 (Tex. 1987); cf. In re E.A., 287 S.W.3d 1, 5 (Tex.

2009).

3  Ocwen gave Appellants notice of the hearing on its motion for partial

summary judgment when it filed the motion. The separate notice stated that the

motion was set for a hearing on April 16, 2014, at 1:30 p.m., and the certificate of

service recited that the notice was mailed to Appellants on March 21, 2014, via

certified mail, return receipt requested and regular mail. Thus, a presumption

arose that Appellants received twenty-six days’ notice of the hearing. Appellants

direct us to no evidence to rebut the presumption of notice, nor do they otherwise

offer any such argument on appeal.2 Therefore, we must presume that

Appellants received sufficient notice of the hearing on Ocwen’s motion for

summary judgment. See Waggoner v. Breland, No. 01-10-00226-CV, 2011 WL

2732687, at (Tex. App.—Houston [1st Dist.] July 14, 2011, no pet.) (mem. op.)

(reasoning similarly); Hosack v. Citibank (S.D.), N.A., No. 12-05-00173-CV, 2006

WL 870331, at (Tex. App.—Tyler Apr. 5, 2006, no pet.) (mem. op.) (same).

We overrule this part of Appellants’ first point.

Appellants argue in their second point and in part of their first point that the

trial court abused its discretion by denying their motion to continue the hearing on

2 We observe that Appellants did not raise this issue in their motion to continue the hearing on Ocwen’s motion for summary judgment, which Appellants filed on April 11, 2014, several days before the hearing.

4 Ocwen’s no-evidence motion for summary judgment because an adequate time

for discovery had not elapsed.3

We review a trial court’s ruling on a motion for continuance for an abuse of

discretion. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex.

2002). When a party argues that it has not had an adequate opportunity for

discovery before a summary judgment hearing, it must file either an affidavit

explaining the need for further discovery or a verified motion for continuance.

Tex. R. Civ. P. 166a(g), 251, 252; Tenneco, Inc. v. Enter. Prods. Co., 925

S.W.2d 640, 647 (Tex. 1996). The party must describe the evidence sought,

explain its materiality, and set forth facts showing the due diligence used to

obtain the evidence. D.R. Horton-Tex., Ltd. v. Savannah Props. Assocs., L.P.,

416 S.W.3d 217, 222 (Tex. App.—Fort Worth 2013, no pet.).

Appellants’ motion for continuance—which is included in the appendix to

Appellants’ brief but not in the clerk’s record—was neither verified nor supported

by an affidavit explaining what evidence was sought, why it was material, and

what due diligence they had used to obtain it. On appeal, Appellants point out

that the case had been removed to federal court for a period of time and that

there was no discovery deadline or trial date set, but they make no attempt to

3 Appellants filed a motion to continue the hearing on Ocwen’s motion for summary judgment, not Mackie Wolf’s motion for summary judgment. We therefore construe Appellants’ argument to be directed at Ocwen, not Mackie Wolf.

5 explain what evidence they needed and why. Under these circumstances, we

cannot conclude that the trial court abused its discretion by denying Appellants’

motion for continuance. See Landers v. State Farm Lloyds, 257 S.W.3d 740,

747 (Tex. App.—Houston [1st Dist.] 2008, no pet.). We overrule Appellants’

second point and this part of their first point.

In another part of their first point, Appellants appear to challenge the trial

court’s grant of summary judgment in favor of Mackie Wolf, arguing that they

“submitted a copy of the deed of trust and the paragraph relating to borrower’s

rights to refute Mackie Wolf’s claim.”4

After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground

that there is no evidence to support an essential element of the nonmovant’s

claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the

elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286

S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the

nonmovant produces summary judgment evidence that raises a genuine issue of

4 Insofar as Appellants direct this argument at Ocwen, the trial court properly granted summary judgment in its favor because Appellants did not file a response to Ocwen’s no-evidence summary judgment motion. See Imkie v. Methodist Hosp., 326 S.W.3d 339, 343 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (explaining that absent a timely response, a trial court must grant a noevidence motion for summary judgment that meets the requirements of rule 166a(i)).

6 material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d

425, 426 (Tex. 2008).

The TDCPA provides remedies for various wrongful debt collection

practices arising out of a debtor-creditor relationship. Ford v. City State Bank of

Palacios, 44 S.W.3d 121, 135 (Tex. App.—Corpus Christi 2001, no pet.). In the

no-evidence portion of its motion for summary judgment (which Mackie Wolf

raised in the alternative to the traditional portion of its motion), Mackie Wolf

argued in part that Appellants had no evidence that Mackie Wolf took an action

prohibited by law or that Appellants were injured as a result of any acts by

Mackie Wolf. The only evidence that Appellants attached to their response was

a copy of the deed of trust that they executed in 2002 to secure the promissory

note used to purchase their residence; Appellants did not attach an affidavit or

other evidence to support their TDCPA claims, nor are any of the statements

contained in their response summary judgment evidence. See Watson v. Frost

Nat’l Bank, 139 S.W.3d 118, 119 (Tex. App.—Texarkana 2004, no pet.) (“Neither

pleadings nor responses to summary judgment motions constitute summary

judgment evidence.”). We fail to see, and Appellants do not even attempt to

explain, how the deed of trust raises a fact issue on any of the grounds

challenged by Mackie Wolf and set out immediately above. We hold that the trial

court did not err by granting summary judgment for Mackie Wolf. We overrule

this part of Appellants’ first point.

7  In what we construe as the final part of its first point, Appellants contend

that the trial court “granted the No evidence Summary Judgment on all points,

even points that were not argued in the Partial no evidence motion.” Appellants

provide no further explanation or citation to any authorities. The argument is

therefore waived as inadequately briefed. See Tex. R. App. P. 38.1(i) (requiring

brief to contain a clear and concise argument for the contentions made).

Having overruled all of Appellants’ points, we affirm the trial court’s orders

granting summary judgment in favor of Ocwen and Mackie Wolf.

/s/ Bill Meier BILL MEIER JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DELIVERED: January 14, 2016

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