                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00230-CV


JAMES SCOTT TRIMM AND WIFE                                        APPELLANTS
INGRID TRIMM

                                       V.

U.S. BANK, NATIONAL                                                  APPELLEE
ASSOCIATION, AS TRUSTEE OF
J.P. MORGAN MORTGAGE
ACQUISITION CORP. 2005-OPT1


                                    ----------

          FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 96-249211-10
                               ----------

                        MEMORANDUM OPINION1

                                    ----------

      Appellants James Scott and Ingrid Trimm appeal from a summary

judgment in favor of Appellee U.S. Bank, National Association, as Trustee of J.P.




      1
       See Tex. R. App. P. 47.4.
Morgan Mortgage Acquisition Corp. 2005-OPT1 (U.S. Bank). We reverse and

remand.

                                    Background

      The Trimms initiated this suit to contest U.S. Bank’s right to foreclose on

their home. The Trimms executed a home-equity, adjustable-rate note on April

5, 2005, payable to H&R Block Mortgage Corporation (H&R Block) in the

principal amount of $88,000 (the note). The note was secured by a deed of trust

on the Trimms’ home in Hurst, Texas (the deed of trust). By allonges also dated

April 5, 2005, H&R Block indorsed the note to Option One Mortgage Corporation

(Option One), and Option One indorsed the note in blank. In November 2005,

H&R Block transferred the deed of trust to Option One.

      The Trimms defaulted on the note. In July 2007, the Trimms and Option

One entered into a Forbearance Agreement under which Option One agreed to

postpone foreclosure proceedings to allow the Trimms to cure their default.

Under the terms of the repayment plan set forth in Forbearance Agreement, the

Trimms were required to make a payment of $2,500 by July 24, 2007, followed

by six monthly plan payments of $1,570.22 starting on August 25, 2007, and

ending on January 25, 2008. The Trimms also released Option One from any

and all claims, known or unknown, arising from or relating to the loan2 or to the

origination or servicing of the loan.


      2
       “The loan” refers to the note and its securing instrument, the deed of trust.

                                         2
      During the term of the Forbearance Agreement, the interest rate on the

loan changed.   U.S. Bank claims Option One sent notice of the interest-rate

increase to the Trimms by mail on or about October 17, 2007. The Trimms claim

they never received written notice of the rate increase. Even though the interest

rate increased, Option One did not increase the plan payments under the

Forbearance Agreement but opted to demand payment of the additional sums

accrued as a result of the interest-rate increase at the end of the term of the

Forbearance Agreement.     The Trimms made their final plan payment in late

January 2008. According to U.S. Bank, they refused to pay the additional sums

due as a result of the interest-rate increase and failed to make any additional

payments on the note.

      The Trimms filed suit against U.S. Bank in November 2010. According to

the Trimms’ first amended petition, U.S. Bank instituted three separate

foreclosure proceedings against them. The Trimms alleged that if U.S. Bank is

the owner and holder of the deed of trust and the Forbearance Agreement, U.S.

Bank breached those agreements. The Trimms further alleged that the terms of

the Forbearance Agreement are unconscionable and that U.S. Bank violated the

Fair Debt Collection Practices Act and committed common-law and statutory

fraud. The Trimms also sought a declaratory judgment to determine whether

U.S. Bank is the owner and holder of the note, the deed of trust, and the

Forbearance Agreement and to determine U.S. Bank’s and the Trimms’ rights



                                       3
and duties in connection with the note, deed of trust, and Forbearance

Agreement.3

      U.S. Bank filed a traditional motion for summary judgment, claiming it was

entitled to judgment on its affirmative defenses of release, waiver, and estoppel

based upon the release language in the Forbearance Agreement.               In the

alternative, U.S. Bank claimed that the statute of frauds barred the Trimms’ fraud

claims and that it was entitled to summary judgment on all of the Trimms’ claims

because its summary judgment evidence conclusively disproved one or more

essential elements of each of their claims.

      According to U.S. Bank’s summary judgment evidence, on or about April

30, 2008, American Home Mortgage Servicing, Inc. (AHMSI) acquired

“substantially all of the assets constituting the residential mortgage servicing

business of [Option One], including without limitation the servicing rights related

to the Loan . . . making AHMSI the servicer of the Loan.” On December 31,

2008, AHMSI, claiming to be the “successor-in-interest” to Option One, executed

an assignment/transfer of lien “memorializing” the transfer of the loan to U.S.



      3
      In their original petition, the Trimms also brought a claim under the Texas
Deceptive Trade Practices Act (DTPA). Because this claim was omitted from the
Trimms’ amended petition, which was the live pleading at the time of the
summary judgment hearing, the Trimms effectively nonsuited their DTPA claim.
See FKM P’ship, Ltd. v. Bd. of Regents of Univ. of Houston Sys., 255 S.W.3d
619, 632 (Tex. 2008) (“In civil causes generally, filing an amended petition that
does not include a cause of action effectively nonsuits or voluntarily dismisses
the omitted claims as of the time the pleading is filed.”).

                                         4
Bank. U.S. Bank appointed AHMSI as its servicer of the loan in April 2011. U.S.

Bank claims it is the current owner and holder of the note and deed of trust.

      In addition to a summary judgment response, the Trimms filed a motion to

strike portions of U.S. Bank’s summary judgment evidence and filed

supplemental evidence in support of their response. U.S. Bank made written

objections to the Trimms’ supplemental evidence, all of which the trial court

sustained. The trial court granted U.S. Bank’s motion without stating the grounds

upon which it based its rulings and denied the Trimms’ motion to strike. After

unsuccessfully seeking a new trial, the Trimms brought this appeal.

                              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 defendant who conclusively

negates at least one essential element of a cause of action is entitled to

summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d

494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c). Once the defendant

produces sufficient evidence to establish the right to summary judgment, the

                                        5
burden shifts to the plaintiff to come forward with competent controverting

evidence that raises a fact issue.    Van v. Pena, 990 S.W.2d 751, 753 (Tex.

1999).

      Also, a defendant is entitled to summary judgment on an affirmative

defense if the defendant conclusively proves all the elements of the affirmative

defense. Frost Nat’l Bank, 315 S.W.3d at 508–09; see Tex. R. Civ. P. 166a(b),

(c). To accomplish this, the defendant-movant must present summary judgment

evidence that conclusively establishes each element of the affirmative defense.

See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008).

                                   Discussion

I. Evidentiary Issues

      We construe the Trimms’ sixth issue as a challenge to the trial court’s

denial of their motion to strike U.S. Bank’s summary judgment evidence and its

rulings on U.S. Bank’s objections to the Trimms’ supplemental summary

judgment evidence.      We review a trial court’s ruling sustaining or overruling

objections to summary judgment evidence for an abuse of discretion.          See

Paciwest, Inc. v. Warner Alan Props., LLC, 266 S.W.3d 559, 567 (Tex. App.—

Fort Worth 2008, pet. denied). For the reasons explained below, we overrule the

Trimms’ sixth issue.

A. The Trimms’ motion to strike U.S. Bank’s summary judgment evidence

      U.S. Bank’s summary judgment evidence included the affidavit of Joseph

Kaminski, which provides, in relevant part, as follows:

                                         6
      12. On or about April 30, 2008, substantially all of the assets
      constituting the residential mortgage servicing business of [Option
      One], including without limitation the servicing rights related to the
      loan, were acquired by [AHMSI], making AHMSI the servicer of the
      loan.

      13. On or about December 31, 2008, AHMSI, as successor-in-
      interest to [Option One], executed an Assignment of Deed of
      Trust/Transfer of Lien memorializing the transfer of the loan to [U.S.
      Bank], who is the current owner and holder of the loan. A true and
      correct copy of this Assignment is attached hereto as Exhibit No. 1E
      and is incorporated herein for all purposes.

In their motion to strike, the Trimms objected to these two paragraphs,

complaining that (1) they are not based on Kaminski’s personal knowledge and

(2) they are conclusory.

      Rule 166a(f) requires that affidavits supporting or opposing summary

judgment must “be made on personal knowledge, shall set forth facts as would

be admissible in evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated therein.” Tex. R. Civ. P. 166a(f); see

Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). An affidavit must

disclose the basis on which the affiant has personal knowledge of the facts

asserted. 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 of facts and establish how the affiant learned of the facts. Valenzuela

v. State & Cnty. Mut. Fire Ins. Co., 317 S.W.3d 550, 553 (Tex. App.—Houston

[14th Dist.] 2010, no pet.) (stating that affidavits demonstrating personal

knowledge often state affiant’s knowledge through affiant’s position and


                                          7
specifically described job duties); Cooper v. Circle Ten Council Boy Scouts of

Am., 254 S.W.3d 689, 698 (Tex. App.—Dallas 2008, no pet.) (holding that

affiant’s testimony that, as Scout Executive and CEO of defendant organization,

he had knowledge concerning its operation and organization sufficient to

demonstrate manner in which he became familiar with facts at issue).

      Kaminski stated in his affidavit that he is employed by AHMSI, the current

servicer of the loan for U.S. Bank, as an “FC Special Asset Specialist.”         He

averred that in his capacity as an FC Special Asset Specialist, he has

“knowledge of the operations and actions of AHMSI and the transferring,

possession, and servicing of AHMSI’s loans, including the loan . . .” and that he

had “personal knowledge of each of the matters stated in [the] affidavit.”

Kaminski further averred that AHMSI is the custodian of records “with respect to

the indebtedness of [the Trimms] that is the subject of this suit,” that he reviewed

AHMSI’s records related to the loan, and that these records supported his

affidavit testimony.   Because Kaminski based his statements upon personal

knowledge gained from his position with AHMSI and his review of AHMSI’s

records, we conclude this is sufficient to meet the knowledge requirements of

rule 166a(f). See Valenzuela, 317 S.W.3d at 553; Cooper, 254 S.W.3d at 698;

Stucki v. Noble, 963 S.W.2d 776, 780 (Tex. App.—San Antonio 1998, pet.

denied) (personal knowledge requirement satisfied if affidavit sufficiently

describes relationship between affiant and case so that it may be reasonably

assumed that affiant has personal knowledge of facts stated in affidavit).

                                         8
         The Trimms’ argument that the affidavit was conclusory is likewise without

merit.     Affidavits containing conclusory statements that fail to provide the

underlying facts to support the conclusions are not proper summary judgment

evidence. Dolcefino v. Randolf, 19 S.W.3d 906, 930 (Tex. App.—Houston [14th

Dist.] 2000, pet. denied). A statement is conclusory if it expresses a subjective

belief and gives no factual support for that belief.     Ryland Group, Inc., 924

S.W.2d at 122; Hawthorne v. Star Enter., Inc., 45 S.W.3d 757, 759 (Tex. App.—

Texarkana 2001, pet. denied).

         We conclude that Kaminski’s statements in paragraphs twelve and thirteen

concerning (1) AHMSI’s acquisition of Option One’s assets constituting the

residential mortgage servicing business of Option One, (2) AHMSI becoming the

servicer of the loan, (3) AHMSI’s execution of the assignment of deed of

trust/transfer of lien to U.S. Bank, and (4) U.S. Bank being the owner and holder

of the loan are not conclusory. See Cannon v. Tex. Indep. Bank, 1 S.W.3d 218,

225 (Tex. App—Texarkana 1999, pet. denied) (finding affiant’s statements

“concerning execution and delivery of the note, a copy of which was attached to

and incorporated in the affidavit, and concerning [bank] being the holder and

owner of the documents, are statements of fact and not mere expressions of

opinion”).

         The Trimms also objected to paragraphs twelve and thirteen because

Kaminski was an interested witness. That an affiant is an interested witness is

not a basis for excluding the affiant’s statements from evidence. To support

                                          9
summary judgment, however, an interested witness’s affidavit must be “clear,

positive, and direct, otherwise credible and free from contradictions and

inconsistencies, and could have been readily controverted.”     Tex. R. Civ. P.

166a(c); see Trico Tech. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997).

The phrase “could have been readily controverted” does not mean that the

summary judgment evidence could have been easily and conveniently rebutted;

it means that the testimony was of a nature that could have been effectively

countered by opposing evidence. Trico Tech., 949 S.W.2d at 310 (citing Casso

v. Brand, 776 S.W.2d 551, 558 (Tex. 1989)).          Kaminski’s statements in

paragraphs twelve and thirteen are free from contradiction and could have been

readily controverted if, in discovery, the Trimms had inquired about AHMSI’s

acquisition of Option One’s assets and the transfer of the loan from AHMSI to

U.S. Bank.

      But Kaminski’s statements in paragraph thirteen regarding the transfer of

the loan to U.S. Bank from AHMSI, purportedly as successor-in-interest to Option

One, so as to support the copy of the “Assignment of Deed of Trust/Transfer of

Lien”4 attached to Kaminski’s affidavit as exhibit 1E, are inconsistent with his


      4
        The Trimms objected to the “Assignment of Deed of Trust/Transfer of
Lien” because it was signed by Linda Green, “a known and notorious robo-
signer.” The Trimms argued that Green was not a vice president of AHMSI and
that it was doubtful that Green actually signed the assignment or that a notary
was present when the document was signed. The Trimms offered no evidence
supporting these factual allegations, and therefore, we reject these arguments.
See Chance v. CitiMortgage, Inc., 395 S.W.3d 311, 315–16 (Tex. App.—Dallas
2013, no pet.) (rejecting argument that indorsement was suspect because it is a
                                      10
statements in paragraph twelve that Option One only assigned the assets

constituting the residential mortgage servicing business, including the servicing

rights related to the loan, to AHMSI. An assignment of the residential mortgage

servicing business, however, would not necessarily include assignment of the

loan.   Because Kaminski’s affidavit is internally inconsistent and there is no

documentation corroborating Kaminski’s assertion that AHMSI is the successor-

in-interest to Option One entitled to transfer the loan to U.S. Bank, standing

alone, the affidavit fails to establish the chain of title to U.S. Bank as a matter of

law. See First Gibraltar Bank, FSB v. Farley, 895 S.W.2d 425, 428—29 (Tex.

App.—San Antonio 1995, writ denied) (stating that “an issue of material fact is

present on the issue of ownership of a note when there is an unexplained gap in

the chain of title”). Nevertheless, because Kaminski’s affidavit establishes that

the note is a “bearer” instrument in U.S. Bank’s possession and that U.S. Bank is

the holder of the note and the deed of trust, his affidavit and its exhibits are

sufficient to establish U.S. Bank’s standing to foreclose as a matter of law. See

Tex. Bus. & Com. Code Ann. § 3.205(b) (West 2002) (stating that when indorsed

in blank, “an instrument becomes payable to bearer and may be negotiated by

transfer of possession alone”); Campbell v. Mortg. Elec. Registration Sys. Inc.,

No. 03-11-00429-CV, 2012 WL 1839357, at *4 (Tex. App.—Austin May 18, 2012,


“robotic mark” and not indicative of the signatory’s name, as “mere speculation or
conjecture regarding the authenticity of the signature [that] cannot defeat
competent summary judgment evidence”).

                                         11
pet. denied) (mem. op.) (“[W]hen a mortgage note is transferred, the mortgage or

deed of trust is also automatically transferred to the note holder by virtue of the

common-law rule that ‘the mortgage follows the note.’” (quoting J.W.D., Inc. v.

Fed. Ins. Co., 806 S.W.2d 327, 329–30 (Tex. App.—Austin 1991, no writ))).

      The Trimms also argued that the best evidence of the transfer of assets

from Option One to AHMSI as described in paragraph twelve of Kaminiski’s

affidavit would be the documents transferring those assets, not Kaminski’s

testimony regarding the transfer. The best evidence rule states, “To prove the

content of a writing, recording, or photograph, the original writing, recording, or

photograph is required except as otherwise provided in these rules or by law.”

Tex. R. Evid. 1002. The rule does not apply unless a party is seeking to prove

the contents of a document. DeSoto Wildwood Dev., Inc. v. City of Lewisville,

184 S.W.3d 814, 828 (Tex. App.—Fort Worth 2006, no pet.). Because U.S. Bank

is not attempting to prove the contents of a document, the best evidence rule

does not apply. See id.

      The Trimms objected to exhibit 1H to the Kaminski Affidavit, which is a

copy of the electronically stored copy of the letter Option One sent to the Trimms

in October 2007 notifying them of the interest-rate increase, on the ground that

the exhibit violated the best evidence rule. The Trimms argued that a copy of the

original letter sent to the Trimms would be the best evidence of the notice of the

interest-rate increase.    See Tex. R. Evid. 1002, 1003 (addressing the

admissibility of duplicates). An original is not required, and other evidence of the

                                        12
writing is admissible if the original has been lost or destroyed, is not obtainable

by judicial process or procedure, or is under the control of the party against

whom it is offered. See Tex. R. Evid. 1004(a), (b), (d). U.S. Bank claimed it no

longer had the original notice letter because the original was sent to the Trimms.

The Trimms claimed they never received written notice of the rate increase. In

light of the inferences that could be drawn from the conflicting testimony

regarding whether the notice letter was sent, the trial court did not abuse its

discretion by determining that that exhibit 1H was admissible under rule of

evidence 1004.

      We conclude that the trial court did not abuse its discretion by overruling

each of the Trimms’ objections and, therefore, did not err by denying the Trimms’

motion to strike U.S. Bank’s summary judgment evidence.

B. U.S. Bank’s objections to the Trimms’ supplemental summary judgment
evidence

      After filing their summary judgment         response, the Trimms        filed

supplemental summary judgment evidence that they claimed called into question

the authenticity and genuineness of the affidavits, assignments, and other

summary judgment evidence submitted by U.S. Bank. Among other grounds,

U.S. Bank objected to the Trimms’ supplemental summary judgment evidence

because the Trimms did not timely file their supplemental summary judgment

evidence in accordance with the parties’ rule 11 agreement.




                                        13
      According to U.S. Bank, the hearing on its motion for summary judgment

was originally scheduled for February 24, 2012. The Trimms requested that the

hearing be rescheduled, and the parties entered into a rule 11 agreement in

which they agreed to reset the hearing for March 2, 2012, but they agreed that

the Trimms’ deadline to file and serve a response to U.S. Bank’s motion for

summary judgment, including any supporting evidence, would remain February

17, 2012. See Tex. R. Civ. P 166a(c), (d). The Trimms filed their supplemental

evidence on February 27, 2012. Because the Trimms filed their supplemental

evidence after the deadline set forth in the rule 11 agreement, we conclude the

trial court did not abuse its discretion by sustaining U.S. Bank’s objection to the

Trimms’ supplemental summary judgment evidence. See Fraud-Tech, Inc. v.

Choicepoint, Inc., 102 S.W.3d 366, 377 (Tex. App.—Fort Worth 2003, pet.

denied) (“[P]arties may alter the deadline for filing a [summary judgment]

response by Rule 11 agreement.”).

II. U.S. Bank’s Waiver, Release, and Estoppel Affirmative Defenses

      U.S. Bank moved for summary judgment on its waiver, release, and

estoppel affirmative defenses, arguing that the Trimms voluntarily released all of

their claims against Option One and its successors under paragraph fourteen of

the Forbearance Agreement.        U.S. Bank urges us to affirm the summary

judgment on procedural grounds because the Trimms have not asserted a

general issue complaining that the trial court erred by granting U.S Bank’s motion

for summary judgment nor have they asserted as one of their six specific issues

                                        14
that the trial court erred in granting summary judgment on U.S. Bank’s affirmative

defenses of release, waiver, and estoppel. See Malooly Bros., Inc. v. Napier,

461 S.W.2d 119, 121 (Tex. 1970) (stating that summary judgment “must stand,”

because “it may have been based on a ground not specifically challenged by the

plaintiff” and because “there was no general assignment that the trial court erred

in granting summary judgment” (supporting citations omitted)).

      U.S. Bank is correct that in the “Issues Presented” section of their brief, the

Trimms specifically assert six issues, none of which challenge the propriety of the

summary judgment against them based upon U.S. Bank’s affirmative defenses.

Before enumerating these issues, however, the Trimms assert generally in an

introductory question, “Were there genuine matters of fact at issue requiring an

inquiry for the finder of fact?” In light of our responsibility to construe briefs

liberally, we construe this statement as a general assignment of error by the

Trimms, which permits them to argue all the reasons the trial court erred by

granting summary judgment in favor of U.S. Bank. See Tex. R. App. P. 38.9;

Malooly Bros., Inc., 461 S.W.2d at 121.

      Moreover, even though the Trimms do not set out a separate issue worded

as challenging the summary judgment based on these affirmative defenses, the

Trimms argue in the substance of their brief that U.S. Bank failed to prove that it

had the right to enforce the Forbearance Agreement and, alternatively, that the

release provisions of the Forbearance Agreement are unconscionable.              We

construe these arguments as a challenge to the summary judgment on U.S.

                                          15
Bank’s waiver, release, and estoppel affirmative defenses. See Weeks Marine,

Inc. v. Garza, 371 S.W.3d 157, 162 (Tex. 2012) (holding that an appellant may

preserve error in the “body” of his brief even if it is not separately listed as an

issue); Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (“Appellate briefs are to

be construed reasonably, yet liberally, so that the right to appellate review is not

lost by waiver.”).

      Paragraph fourteen of the Forbearance Agreement provides as follows:

             By their execution and delivery to Lender of this Agreement,
      the Borrowers acknowledge that the Arrearage is the Borrowers’ full
      responsibility and was produced solely by the actions or inactions of
      the Borrowers. Furthermore, Borrowers agree that they have no
      defense, setoff or counterclaim related to the loan or the Property, or
      to the Lender’s activities relating to the loan or the Property, and
      Borrowers hereby voluntarily release, discharge and agree not to
      sue Lender for any and all claims, demands, controversies,
      damages, actions, causes of action, liabilities, rights, costs (including
      attorney fees and court and litigation costs and expenses),
      indemnities, obligations or losses of any kind or nature whatsoever,
      whether at this time known or unknown, for or by reason of any act,
      omission, event, transaction, matter or cause, arising from or relating
      to the loan, the origination of the loan or the servicing of the loan, or
      any dispute arising from or relating to the loan, the origination of the
      loan or the servicing of the loan, or any of the facts upon which any
      such dispute it based.

      U.S. Bank asserts it offered uncontested, competent summary judgment

evidence establishing that Option One transferred the right to enforce the

Forbearance Agreement to U.S. Bank.5 Thus, U.S. Bank argues, it is entitled to

enforce paragraph fourteen of the Forbearance Agreement for its benefit.


      5
        U.S. Bank argues that the Trimms judicially admitted in their first amended
petition that the Forbearance Agreement is a valid, enforceable agreement
                                         16
      Viewing the evidence in the light most favorable to the Trimms and

indulging every reasonable inference and resolving any doubts in their favor, we

conclude that U.S. Bank did not establish as a matter of law that Option One

transferred its rights under the Forbearance Agreement to U.S. Bank.        Even

though Kaminski’s affidavit states that AHMSI acquired “all of the assets

constituting the residential mortgage servicing business, including without

limitation the servicing rights related to the Loan” and that AHMSI, as successor-

in-interest to Option One, transferred the loan to U.S. Bank, U.S. Bank’s

summary judgment evidence does not establish as a matter of law that U.S Bank

acquired Option One’s rights under the Forbearance Agreement or that Option

One assigned its rights under the Forbearance Agreement to U.S. Bank.

      The Forbearance Agreement is between the Trimms and Option One. The

term “Lender” in the Forbearance Agreement is defined to include only Option

One and does not include Option One’s successors-in-interest. Thus, under the

Forbearance Agreement’s express terms, even if U.S. Bank were Option One’s

successor-in-interest, contrary to U.S. Bank’s motion for summary judgment, the



between the Trimms and U.S. Bank, subject only to U.S. Bank proving that it was
Option One’s successor. The Trimms pled as follows: “The Texas Home Equity
Security Instrument and Forbearance Agreements are valid and binding
agreements between Plaintiffs and Defendant, if Defendant is indeed the true
owner of and holder of said agreements and the Deed of Trust.” [Emphasis
added.] Because this statement is not unequivocal, it is not a judicial admission.
See Warnke v. Nabors Drilling USA, L.P., 358 S.W.3d 338, 344 (Tex. App.—
Houston [1st Dist.] 2011, no pet.) (“An admission in a pleading must be
deliberate, clear, and unequivocal to constitute a judicial admission.”).

                                       17
Trimms only released Option One, not its successors. If the trial court granted

summary judgment on U.S. Bank’s waiver, release, and estoppel affirmative

defenses, the trial court erred in doing so because U.S. Bank failed to

conclusively establish as a matter of law that it was entitled to summary judgment

on these defenses.      Accordingly, we sustain the Trimms’ challenge to the

summary judgment on these affirmative defenses.6

III. Breach of Contract

      In their second, third, and fourth issues, the Trimms assert there are

genuine issues of material fact precluding summary judgment against them on

their claim that U.S. Bank and its predecessors breached the deed of trust and

the Forbearance Agreement. In their amended petition, the Trimms alleged U.S.

Bank breached the deed of trust and the Forbearance Agreement by not giving

proper notices to the Trimms; by demanding payment of charges, fees, and other

monies the Trimms claim they did not owe; and by proceeding with foreclosure

proceedings.

      The essential elements of a breach of contract claim are (1) a valid

contract exists between the plaintiff and the defendant; (2) the plaintiff performed

or tendered performance or was excused from doing so; (3) the defendant


      6
       Because we determine that U.S. Bank failed to establish as a matter of
law that it was entitled to summary judgment on its waiver, release, and estoppel
affirmative defenses, we do not address the Trimms’ argument that the release
provisions in the Forbearance Agreement are unconscionable. See Tex. R. App.
P. 47.1.

                                        18
breached the contract; and (4) the plaintiff incurred damages as a result of the

defendant’s breach. West v. Triple B Servs., LLP, 264 S.W.3d 440, 446 (Tex.

App.—Houston [14th Dist.] 2008, no pet.). In its motion for summary judgment,

U.S. Bank attempted to negate the second, third, and fourth elements of the

Trimms’ claim.

A. Breach of the Deed of Trust and the Forbearance Agreement

      In its motion, U.S. Bank argued that neither it nor its predecessors

breached the deed of trust or the Forbearance Agreement. It further argued that

the Trimms could not maintain their breach of contract claim because they

defaulted on their obligations under the deed of trust and the Forbearance

Agreement by failing to pay the additional sums due as a result of the note’s

interest rate increasing during the term of Forbearance Agreement and defaulted

on their obligations under the deed of trust and the note by failing to make any

payments on the loan since January 2008.

      The Trimms did not dispute that they have failed and refused to pay any

additional sums allegedly due as a result of the interest-rate increase and have

not made any payments on the note since making their final plan payment.

Instead, they contended that Option One breached the deed of trust and

Forbearance Agreement first by failing to provide, prior to the final plan payment

due date, written notice that they were not current on their plan payments and

that the interest rate on the note would be increased.



                                        19
      On appeal, U.S. Bank admits it has never contended that the Trimms were

not current on their plan payments and do not contest the Trimms’ affidavit

testimony that they timely made each plan payment required by the Forbearance

Agreement. U.S. Bank contends, however, that Option One was not required to

give the Trimms notice of the interest-rate increase under the terms of the deed

of trust or the Forbearance Agreement.

      According to U.S. Bank, when the interest rate on the note increased

during the term of the Forbearance Agreement, Option One chose not to

increase the amount of the plan payment pursuant to the following provision in

paragraph seven of the Forbearance Agreement:

      If the Note is an adjustable rate instrument, the Plan Payment may
      be subject to increase pursuant to interest rate adjustments as
      dictated by the terms of the Note. If the Plan Payment is not
      increased despite an interest rate increase pursuant to the Note, the
      sums accrued but unpaid due to the interest rate increase
      (“Additional Sums Due Per Rate Change”) must also be paid to
      satisfy the terms and conditions of this Agreement and bring the loan
      current. . . . In order to ensure payment by Borrowers of such
      Additional Sums Due Per Rate Change and in Lender’s sole and
      absolute discretion, the Plan Payment amount may be subject to
      increase, upon written notice by Lender to Borrowers, to an amount
      necessary to bring the loan current by the final Plan Payment due
      date under this Agreement.

Relying on this provision, Option One chose to demand the additional sums

accrued but unpaid as a result of the interest-rate increase after the final plan

payment was made in January 2008. We agree that neither this provision nor

any other provision in the Forbearance Agreement expressly required Option

One to provide notice, written or otherwise, of the interest-rate increase. Under

                                         20
paragraph seven, Option One was only required to give the Trimms written notice

if it increased the plan payment amount, which it chose not to do.

      However, the Forbearance Agreement provides that “[a]ll of [the Trimms’]

rights and responsibilities under, and all of the terms and conditions of the note

and [deed of trust] shall remain in full force and effect except as expressly

modified by this Agreement.” The deed of trust requires that Option One give the

Trimms notice of the interest-rate increase: “The Note Holder will deliver or mail

[the Trimms] a notice of any changes in [the] interest rate and the amount of [the]

monthly payment before the effective date of any change.”

      According to Kaminski’s affidavit and exhibit 1H thereto, on or about

October 17, 2007, Option One notified the Trimms by mail that the interest rate

would increase, effective December 1, 2007. James Trimm, however, testified in

his affidavit that he never received written notice of the interest-rate increase.

Thus, because a genuine issue of material fact remains as to whether Option

One sent notice as required by the deed of trust, U.S. Bank failed to conclusively

prove that it or Option One did not breach the deed of trust and the Forbearance

Agreement or that the Trimms did breach the deed of trust and the Forbearance

Agreement.7 See Sauceda v. GMAC Mortg. Corp., 268 S.W.3d 135, 139–40

      7
       U.S. Bank never argued that even if failure to provide notice constituted a
default under the deed of trust and the Forbearance Agreement, such a failure
was not a material breach excusing the Trimms’ nonperformance. U.S. Bank
also never argued that the breach of the deed of trust and the Forbearance
Agreement as alleged by the Trimms was by Option One and that Option One’s
breach should not be attributed to U.S. Bank.

                                        21
(Tex. App.—Corpus Christi 2008, no pet.) (holding that in an action to set aside

foreclosure and quiet title, affidavit of homeowner stating that notice of

foreclosure was never received created a genuine issue of material fact).

B. The Trimms’ damages

      U.S. Bank also argued in its summary judgment motion that even if U.S.

Bank breached the deed of trust and the Forbearance Agreement, the Trimms

were not damaged as a result. In support of this argument, U.S. Bank asserted

that the Trimms have enjoyed a significant benefit from residing in their home

without making any payments on the loan since January 2008. U.S. Bank further

argued that the Trimms’ expenses to defend against foreclosure and bring this

lawsuit were a result of their breach of the deed of trust and their bad faith pursuit

of an action they knew or should have known they released in the Forbearance

Agreement.

      In order to properly obtain summary judgment on this ground, U.S. Bank

was required to conclusively negate the causation element of the Trimms’ breach

of contract claim. See Tex. R. Civ. P. 166a(c). The Trimms pled for actual,

consequential, incidental, and mental anguish damages. James Trimm stated in

his affidavit that the Trimms are seeking money damages for the damage done to

their credit scores by U.S. Bank and for the emotional distress caused by U.S.

Bank’s attempts to foreclose on their home.          The only summary judgment

evidence U.S. Bank points to is Kaminski’s affidavit testimony that the Trimms

have not made any payments on the loan since they made the last plan payment

                                         22
in January 2008. This is insufficient to conclusively prove that the Trimms were

not damaged by U.S. Bank’s alleged breach.8

      Because U.S. Bank failed to conclusively negate at least one element of

the Trimms’ breach of contract claim, the trial court erred by granting summary

judgment against the Trimms on this claim. Accordingly, we sustain the Trimms’

second, third, and fourth issues.

IV. Fair Debt Collection Practices Act

      Although not raised as a separate issue, the Trimms assert that there is a

genuine issue of material fact as to the amount they owed at the end of the

Forbearance Agreement, and that by attempting to collect additional amounts on

the loan accrued as a result of the increased interest rate—which the Trimms

contend they do not owe—U.S. Bank violated the Fair Debt Collection Practices

Act (FDCPA). In their amended petition, the Trimms alleged U.S. Bank violated

the FDCPA by attempting to collect more than the amount of the debt, by

attempting to wrongfully foreclose on the Trimms’ home, and by trying to force

the Trimms into loan modifications with incorrect amounts due. See 15 U.S.C.A.

§ 1692f (West 2009). U.S. Bank moved for summary judgment on the Trimms’

FDCPA claim, asserting that because it never attempted to collect more than was

due under the note and the deed of trust and it only sought to foreclose eighteen

      8
      Because U.S. Bank moved for summary judgment on the grounds that the
Trimms were not damaged as a result of U.S. Bank’s alleged breach, we do not
address whether the types of damages the Trimms seek are available. See G.H.
Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (noting that a court
cannot grant summary judgment on grounds not presented in the motion).
                                       23
months after the end of the Forbearance Agreement because the Trimms did not

make any payments during that period, U.S. Bank did not violate the FDCPA as

alleged by the Trimms. U.S Bank argued that at the end of the Forbearance

Agreement, it only attempted to collect the amounts due as a result of the

interest-rate increase during the term of the Forbearance Agreement and that it

only continued to seek amounts properly collectible under the loan, including

principal, interest, and various fees and expenses.

         U.S. Bank presented no evidence to establish the amounts it alleged were

properly due under the note, the deed of trust, and the Forbearance Agreement

or of the amounts it attempted to collect from the Trimms. And, as discussed

above, it failed to establish that it gave the Trimms notice of the interest-rate

increase as required by the deed of trust.            Because U.S. Bank has not

conclusively negated at least one element of the Trimms’ FDCPA claim, the trial

court erred by granting summary judgment on this claim. Accordingly, we sustain

the Trimms’ challenge to the trial court’s summary judgment on their FDCPA

claim.

V. Fraud

         In their fifth issue, the Trimms argue that the trial court erred by granting

summary judgment on their statutory and common-law fraud claims. The Trimms

allege that prior to entering into the loan in April 2005, Option One represented to

the Trimms that if they maintained a good payment history, they could refinance

the loan at a fixed interest rate after two years through an internal program

                                           24
offered by Option One. The Trimms claim they entered into the loan in reliance

on this promise. The Trimms further claim that when they attempted to refinance

the loan in the spring of 2007, they had a good payment record, but contrary to

its promise, Option One had changed its qualification standards and would not

refinance the loan at a fixed rate.

      In its motion for summary judgment, U.S. Bank argued that the statute of

frauds, as codified in business and commerce code section 26.02, barred the

Trimms’ fraud claims. See Tex. Bus. & Com. Code Ann. § 26.02(b)–(d) (West

2009). Section 26.02(b) provides that “[a] loan agreement in which the amount

involved in the loan agreement exceeds $50,000 in value is not enforceable

unless the agreement is in writing and signed by the party to be bound or by that

party’s authorized representative.” Tex. Bus. & Com. Code Ann. § 26.02(b). The

term “loan agreement” includes any promise, agreement, undertaking, or

commitment “pursuant to which a financial institution loans or delays repayment

of or agrees to loan or delay repayment of money, goods, or another thing of

value or to otherwise extend credit or make a financial accommodation.” Tex.

Bus. & Com. Code Ann. § 26.02(a)(2) (West 2009). The statute further provides

that “the rights and obligations of the parties to an agreement subject to

Subsection (b) of this section shall be determined solely from the written loan

agreement, and any prior oral agreements between the parties are superseded

by and merged into the loan agreement” and that “an agreement subject to

Subsection (b) of this section may not be varied by any oral agreements or

                                       25
discussions that occur before or contemporaneously with the execution of the

agreement.”    Id. § 26.02(c), (d).   Section 26.02(e) requires that each loan

agreement that is subject to subsection (b) must notify the debtor or obligor about

section 26.02(d)’s prohibition against oral modifications.   Id. § 26.02(e) (West

2009). If the notice required by subsection (e) is not given on or before execution

of the loan agreement or is not conspicuous, section 26.02 does not apply to the

loan agreement. Id. § 26.02(d).

      U.S. Bank argued that because the Trimms’ fraud claims are based on an

alleged oral promise made prior to the execution of the loan that Option One

would allow the Trimms to refinance the loan at a fixed rate, it is subject to the

statute of frauds and fails as a result. We disagree. Neither the note nor the

deed of trust nor any other document in U.S. Bank’s summary judgment

evidence contains the notice required by section 26.02(e). Therefore, U.S. Bank

cannot take advantage of section 26.02. See id. § 26.02(d); see also Comiskey

v. FH Partners, LLC, 373 S.W.3d 620, 641 n.25 (Tex. App.—Houston [14th Dist.]

2012, pet. denied) (stating that in order to take advantage of business and

commerce code section 26.02, the financial institution must give notice as

required by section 26.02(e)).

      If the trial court granted summary judgment on the Trimms’ fraud claim

based upon U.S. Bank’s statute of frauds defense under section 26.02, the trial

court erred in doing so because U.S. Bank failed to establish this defense as a

matter of law. Accordingly, we sustain the Trimms’ fifth issue.

                                        26
VI. Request for Declaratory Judgment

      We construe the Trimms’ first issue as a challenge to the summary

judgment on their declaratory judgment claims. In their amended petition, the

Trimms asked the trial court to determine U.S Bank’s and the Trimms’ rights and

duties in connection with the note, the deed of trust, the and Forbearance

Agreement, specifically (1) who was the current owner and holder of the note; (2)

whether the owner and holder of the note approved any mortgage servicer to

collect payments under the deed of trust and Forbearance Agreement; (3)

whether the collection of payments was in violation of the agreements previous

owners and holders of these instruments had with the Trimms; (4) who was the

owner of the deed of trust and the Forbearance Agreement; (5) what amounts

were owed by the Trimms to U.S. Bank; and (6) how the Trimms’ payments were

applied.

      U.S Bank moved for summary judgment on the Trimms’ request for a

declaration as to who was the current owner and holder of the note, who was the

current owner of the deed of trust, what amounts were owed by the Trimms to

U.S. Bank, and how the Trimms’ payments were applied. Because U.S. Bank

did not move for summary judgment on the Trimms’ request for declarations as

to whether the owner and holder of the note approved any mortgage servicer to

collect payments under the deed of trust and the Forbearance Agreement,

whether the collection of payments was in violation of the agreements that

previous owners and holders of these instruments had with the Trimms, and who

                                       27
was the owner of the Forbearance Agreement, the trial court erred by granting

summary judgment on these requests for declaratory relief. See G.H. Towing

Co., 347 S.W.3d at 297 (“Granting a summary judgment on a claim not

addressed in the summary judgment motion . . . is, as a general rule, reversible

error.”); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.

1993) (holding that a motion for summary judgment “must stand or fall on the

grounds expressly presented in the motion”); see also Double Diamond, Inc. v.

Van Tyne, 109 S.W.3d 848, 852 (Tex. App.—Dallas 2003, no pet.) (where

traditional summary judgment motion did not address claim for declaratory

judgment, trial court erred in granting summary judgment on declaratory

judgment cause of action).

      U.S. Bank argued it was entitled to summary judgment because its

summary judgment evidence proved that it was the owner and holder of the note

and the deed of trust and, therefore, was entitled to enforce them. U.S. Bank

further argued it was entitled to summary judgment because the specific amounts

owed and how the payments were applied is irrelevant because it is indisputable

that the loan was in default as the Trimms had not made any payments on the

loan since January 2008. The purpose of a declaratory judgment action is to

“declare [the] rights, status, and other legal relations whether or not further relief

is or could be claimed.” Tex. Civ. Prac. & Rem. Code Ann. § 37.003(a) (West

2008). By granting U.S. Bank’s motion for summary judgment, the trial court

effectively entered a take-nothing judgment against the Trimms on their request

                                         28
for declaratory relief, thereby denying the Trimms a determination by declaratory

judgment.    But U.S. Bank did not move for summary judgment on the grounds

that the Trimms were not entitled to declaratory relief. Therefore, the trial court

erred by granting summary judgment on the Trimms’ claims for declaratory relief.

See G&H Towing Co., 347 S.W.3d at 297 (noting that a court cannot grant

summary judgment on grounds not presented in the motion). Accordingly, we

sustain the Trimms’ first issue.

                                   Conclusion

      We overrule the Trimms’ sixth issue. Having sustained all of the Trimms’

remaining issues, we reverse the trial court’s summary judgment and remand this

case to the trial court for further proceedings. See Tex. R. App. P. 43.2(d).



                                                    /s/ Anne Gardner
                                                   ANNE GARDNER
                                                   JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: July 17, 2014




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