                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-12-00104-CV


KENNETH P. GROSS AND BETSY                                    APPELLANTS
L. GROSS

                                       V.

FIRST TEXOMA NATIONAL BANK                                       APPELLEE


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         FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

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                       MEMORANDUM OPINION 1

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                                  Introduction

     Appellants Kenneth P. Gross and Betsy L. Gross appeal the trial court’s

order granting summary judgment in favor of First Texoma National Bank

(Texoma). We affirm.



     1
      See Tex. R. App. P. 47.4.
                               Background Facts

      On May 23, 2007, Kenneth P. Gross and Betsy L. Gross executed a

promissory note for $600,000 payable to Texoma and a deed of trust for the

property to secure the debt. On November 22, 2008, Texoma sent the Grosses

a “Change in Terms Agreement,” which modified the note’s maturity date, the

payment terms, and the interest rate. Texoma sent a second change agreement

in February 2009, which changed the maturity date and the payment terms. At

some point in 2009, the Grosses notified Texoma of a change of their address.

      The Grosses defaulted on the loan, and Texoma foreclosed on the

property.   In June 2011, Texoma sent the Grosses a letter stating that the

Grosses owed $52,978.31 under the note, plus post-maturity interest. After the

Grosses failed to make payment, Texoma sued them for a deficiency judgment.

Texoma then moved for summary judgment. The Grosses responded, claiming

that there were genuine issues of material fact regarding the validity of the

Trustee’s Deed, whether Texoma provided proper notice, and the value of the

property at the time of the foreclosure.    The Grosses claim that they never

received notice of Texoma’s intent to foreclose or of the foreclosure sale because

the notices were sent to the Grosses’ old address.       The trial court granted

summary judgment in favor of Texoma for the principal balance due of

$52,978.31, $3,108.28 in past interest due, post-judgment interest, and

attorney’s fees. The Grosses then filed this appeal.




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                               Standard of Review

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).          A plaintiff is entitled to

summary judgment on a cause of action if it conclusively proves all essential

elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710

S.W.2d 59, 60 (Tex. 1986).

                                   Discussion

      In their sole issue on appeal, the Grosses argue that summary judgment

was improper because Texoma did not provide them with proper notice of its

intent to accelerate their loan. The right to notice of intent to accelerate and a

notice of acceleration are separate rights. Shumway v. Horizon Credit Corp., 801

S.W.2d 890, 894 (Tex. 1991). Both of those notices are also distinct from a

notice of foreclosure. The Grosses’ issue on appeal lacks much needed clarity

because they seem to apply these terms interchangeably and it is difficult to

discern which arguments they make regarding which type of notice. To further

complicate matters, the notice of acceleration and the notice of foreclosure in this


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case were combined into one document titled “Notice of Acceleration and

Foreclosure.” Texoma argues that in the trial court, the Grosses only complained

that they did not receive notice of Texoma’s intent to foreclose, and thus, the

Grosses waived any complaint regarding notice of intent to accelerate and notice

of foreclosure.

      In response to Texoma’s motion for summary judgment, the Grosses

complained that they “never received notice of [Texoma’s] intent to foreclose and

foreclosure sale.”   In their motion for new trial, they again complained that

Texoma had sent “all notices of the foreclosure sale to an old address.”

However, in their response to the motion for summary judgment, in a paragraph

regarding the sale price of the house at the foreclosure sale, the Grosses also

argued that notice of intent to accelerate “was not given in accordance with

applicable law and according to the terms of the Note and Deed of Trust.” On

appeal, they explain that the notices they received were deficient because they

were not postmarked and were mailed to the wrong address.            Although the

Grosses did not clearly or artfully raise the issue of the notice of intent to

accelerate to the trial court, we will address the Grosses’ arguments regarding all

three notices.

      Proper notice is served when a letter is sent by certified mail to a debtor

who is obligated to pay.    Tex. Prop. Code Ann. § 51.002(b)(3) (West Supp.

2012); see Stanley v. CitiFinancial Mortg. Co., Inc., 121 S.W.3d 811, 817 (Tex.

App.—Beaumont 2003, pet. denied); Lambert v. First Nat’l Bank of Bowie, 993


                                        4
S.W.2d 833, 835 (Tex. App.—Fort Worth 1999, pet. denied). Service of notice by

certified mail is complete when the notice is deposited in the United States mail

and addressed to the debtor at the debtor’s last known address. Tex. Prop.

Code Ann. § 51.002(e); see Stanley, 121 S.W.3d at 817; Lambert, 993 S.W.2d at

835. A party who accomplishes service under this rule establishes a rebuttable

presumption of service. See Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex.

2005) (quoting Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987)).

      Here, Texoma sent notice of acceleration and the foreclosure sale by

certified mail with return receipts, which Kenneth Gross signed.      The return

receipts are sufficient proof that the Grosses received actual notice of the

acceleration and foreclosure. Contrary to the Grosses’ proposition, nothing in the

property code requires the receipts to bear a postmark. See Tex. Prop. Code

Ann. § 51.002.   That the receipts do not bear a postmark is relevant as to

whether a presumption of service existed. Because the Grosses received actual

notice, no presumption was necessary.       See Ne. Tex. Staffing v. Ray, 330

S.W.3d 1, 4 (Tex. App.—Texarkana 2010, no pet.) (noting that when attempted

service achieves actual timely delivery to the proper party in a manner that

accomplishes the objective of the rule, and no harm is shown, courts have found

adequate service) (quoting Spiegel v. Strother, 262 S.W.3d 481, 483–84 (Tex.

App.—Beaumont 2008, no pet.)); Goforth v. Bradshaw, 296 S.W.3d 849, 854

(Tex. App.—Texarkana 2009, no pet.) (“The rule’s purpose is to achieve actual

notice.”); Childers v. Childers, No. 14-03-01266-CV, 2004 WL 3557381, at *1 n.3


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(Tex. App.—Houston [14th Dist.] 2004, no pet.) (mem. op.) (noting that the court

“ha[d] no need” for a presumption of service because there was actual proof of

service). The address to which Texoma mailed the notice is also irrelevant to our

analysis, even though it was not the address listed on the deed of trust, because

the record conclusively establishes that the Grosses received actual notice at the

address to which Texoma mailed the notices. See Goforth, 296 S.W.3d at 854.

For these reasons, we hold that it is unnecessary to determine if Texoma met its

burden to prove a rebuttable presumption of service because the Grosses

received actual notice. 2

      As to the notice of intent to accelerate, the Grosses argue that the notice

was not sent according to the terms of the deed of trust. The deed of trust

states,

             Any notice required to be given under this Deed of Trust,
      including without limitation any notice of default and any notice of
      sale shall be given in writing, and shall be effective . . . if mailed,
      when deposited in the United States mail, as first class, certified or
      registered mail postage prepaid, directed to the addresses shown
      near the beginning of this Deed of Trust.

      The Grosses argue that the notices they received were sent to a different

address than the one on the deed of trust. The paragraph cited above, however,

expressly applies only to notices required to be given. The promissory note

      2
       The Grosses’ reliance on Zeller v. Univ. Sav. Assoc., 580 S.W.2d 658
(Tex. Civ. App.—Houston [14th Dist.] 1979, no writ), is misplaced. The Grosses
claim that the certified mail receipt in Zeller was not postmarked. However,
Zeller clearly states that the receipt “reflect[ed] the date of delivery and
postmark.” Id. at 660.


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contains the following waiver: “I and any other person who signs, guarantees[,]

or endorses this Note, to the extent allowed by law, waive presentment, demand

for payment, notice of dishonor, notice of intent to accelerate the maturity of this

note, and notice of acceleration on the maturity of the Note.”            The two

subsequent change-in-terms agreements contain almost identical provisions.

Such clear and unequivocal language is effective to waive the right to notice of

intent to accelerate. See Shumway, 801 S.W.2d at 892. Because the Grosses

waived their right of notice of intent to accelerate, such notice was not required

under the deed of trust. Accordingly, we overrule the Grosses’ issue.

                                   Conclusion

      Having overruled the Grosses’ sole issue on appeal, we affirm the trial

court’s judgment.



                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DELIVERED: July 11, 2013




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