                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

                                                         §
    FRED VILLANOVA,                                                         No. 08-11-00361-CV
                                                         §
                                   Appellant,                                  Appeal from the
                                                         §
    v.                                                                  431st Judicial District Court
                                                         §
                                                                          of Denton County, Texas
    FEDERAL DEPOSIT INSURANCE                            §
    CORPORATION, AS RECEIVER FOR                                           (TC# 2010-50001-367)
    HOME SAVINGS OF AMERICA,1                            §
                                   Appellee.             §

                                                 OPINION

         In this wrongful-foreclosure proceeding, Fred Villanova appeals the trial court’s summary

judgment in favor of Home Savings of America (hereinafter, “HSOA”). In seventeen issues,

Villanova contends the trial court erred in granting summary judgment because: (1) the affidavits

supporting the award of damages and attorneys’ fees were fatally defective; and (2) HSOA failed

to prove its entitlement to summary judgment on his claims and on its counterclaims and

affirmative defense of third-party liability. We affirm in part and reverse and remand in part.

                         FACTUAL AND PROCEDURAL BACKGROUND

1
  After this appeal was docketed, Home Savings of America was placed in receivership and its assets, including the
mortgage at issue in this case, are now under the control of the Federal Deposit Insurance Corporation (hereinafter,
“FDIC”). We granted the FDIC’s motion to be substituted as the party in interest. For the sake of convenience, in
discussing the facts and arguments, the opinion refers to Home Savings of America as it is their (now past) practices
that are in issue.
          This lawsuit involves the foreclosure of two homes: one purchased by Villanova with a

loan obtained from HSOA (hereinafter, “the Frisco home”) and the other used by Villanova as

collateral for the loan (hereinafter, “the Corpus Christi home”). Villanova purchased the Frisco

home in August 2007, executing a $593,750.00 note and deed of trust in favor of HSOA. As part

of the transaction, Villanova executed an affidavit averring that he intended to occupy the property

as his principal residence and that he had not made any false, misleading, or inaccurate statements

in connection with the loan.2

          Covenants in the deed of trust required Villanova, among other obligations, to occupy the

Frisco home as his primary residence and not to transfer an interest in that property without

HSOA’s         approval.        Notwithstanding        these    covenants,     Villanova—without          HSOA’s

permission—executed a special warranty deed conveying the property to Christina Roth, a woman

he had met months earlier on an internet dating site named www.sugardaddyforme.com.3 In

exchange, Villanova received a note from Roth agreeing to pay him $66,532.20 at maturity.

Villanova never occupied, and had no intention to occupy, the Frisco home as his primary

residence, choosing instead to continue residing in the Corpus Christi home.

          After HSOA learned of this transaction, it began foreclosure proceedings against the Frisco

home.        Villanova averted foreclosure by executing a settlement agreement with HSOA.

Pursuant to their agreement, HSOA agreed to stay foreclosure proceedings so long as Villanova

complied with the terms of the settlement agreement and the deed of trust. The agreement

required Villanova to refinance the Frisco home and, if unable to do so, to list it for sale by


2
  Villanova also signed a document in which he represented that the statements in his loan application were true and
correct.
3
    Villanova executed the special warranty deed on the same day he purchased the property.
                                                          2
March 1, 2009 and sell it by September 1, 2009. The agreement further provided that if Villanova

placed four interest-only payments into an escrow account by September 1, 2009, he would

receive a six-month extension to sell the Frisco home. Unless and until that property was sold or

refinanced and the mortgage paid in full, HSOA would not release Villanova from any known

claim regarding the mortgage.

           When Villanova failed to obtain refinancing, list the home for sale by March 1, 2009, sell it

by September 1, 2009, and place funds into an escrow account by September 1, 2009,4 HSOA

provided Villanova with written notice of default and intent to accelerate the note. HSOA then

served Villanova with a written notice of acceleration and a notice of a Substitute Trustee’s Sale.

Before the scheduled foreclosure sale, Villanova sought and obtained a temporary restraining

order barring the foreclosure. At a subsequent hearing, the temporary restraining order was

dissolved, and HSOA subsequently sold the Frisco and Corpus Christi homes at a foreclosure sale

for $622,770.00.

           Villanova sued HSOA for fraud, negligence, breach of contract, usury, wrongful

foreclosure, and credit slander. HSOA answered, asserting a general denial, affirmative defenses,

and counterclaims for breach of settlement agreement, breach of contract, and fraud. After the

discovery period ended, HSOA moved for a no-evidence summary judgment on Villanova’s

claims and for a traditional summary judgment on its counterclaims and the affirmative defense of

third-party liability. In its hybrid motion, HSOA asserted it suffered $104,113.13 in damages and

incurred $26,248.10 in attorneys’ fees. In support of its request for damages, HSOA attached to

its motion the affidavit of Paula Chin, who was the Vice President of Loan Servicing and Default

Operations for HSOA at that time. Further, in support of its request for attorneys’ fees, HSOA
4
    Instead, Villanova placed the funds into his attorney’s escrow account.
                                                            3
attached to its motion the affidavits of its attorneys, Benjamin Idziak and Thomas L. Kapioltas.

Villanova responded, raising objections to HSOA’s summary judgment evidence, asserting HSOA

failed to meet its burden of proof on its counterclaims and affirmative defenses, and maintaining

he produced evidence raising genuine issues of material fact on the challenged elements of his

causes of action. The trial court overruled Villanova’s evidentiary objections, granted summary

judgment in favor of HSOA without stating the basis for its ruling. The trial court further

awarded HSOA damages and attorneys’ fees in the amounts it had sought.5

                                  SUMMARY JUDGMENT EVIDENCE

           In six issues, numbers three through eight, Villanova argues the trial court erred in

overruling his evidentiary objections to affidavits used by Home Savings in support of its hybrid

motion for summary judgment.6 In particular, Villanova contends, in issues four, five, and eight,

that the trial court erred in awarding damages to HSOA because the only summary judgment

evidence supporting the award of damages—Chin’s affidavit—was defective. 7 According to

Villanova, Chin’s affidavit was defective because: (1) she lacked personal knowledge; (2) she

was not qualified; (3) her damage calculation was flawed; and (4) she failed to attach supporting

documents. We agree Chin lacked personal knowledge and therefore sustain issues four, five and

eight; however, we do not express any opinion on the legitimacy of the other grounds raised by

Villanova challenging the sufficiency of Chin’s affidavit.

                                                Standard of Review


5
    The trial court also awarded HSOA $20,000 in conditional appellate fees.
6
  Villanova’s third issue is a global objection: “The trial court erred in overruling [his] objections to . . . [HSOA’s]
summary judgment evidence . . . .”
7
  Villanova’s eighth issue is also global in scope: “The trial court erred in overruling [his] objections to . . . [Chin’s
affidavit].”
                                                            4
       We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.

See Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001); Barraza v. Eureka

Co., A Div. of White Consolid. Indust., Inc., 25 S.W.3d 225, 228 (Tex.App.--El Paso 2000, pet.

denied). A trial court abuses its discretion when it acts arbitrarily or unreasonably, or without

reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241-42 (Tex. 1985). To show the trial court abused its discretion in admitting

evidence, a complaining party must demonstrate that: (1) the trial court erred in admitting the

evidence; (2) the erroneously admitted evidence was controlling on a material issue dispositive of

the case and was not cumulative; and (3) the error probably caused rendition of an improper

judgment. See Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000).

                                        Applicable Law

       When affidavits are used as summary judgment proof, Rule 166a(f) of the Texas Rules of

Civil Procedure requires that they be made on personal knowledge, set forth facts that would be

admissible in evidence, and affirmatively show that the affiant is competent to testify about the

matters contained in the affidavit. TEX.R.CIV.P. 166a(f); Ryland Group, Inc. v. Hood, 924

S.W.2d 120, 122 (Tex. 1996)(per curiam). As regards to personal knowledge:

       [T]he affiant must swear the facts in the affidavit reflect his personal knowledge.
       But the mere recitation that the affidavit is based on personal knowledge is
       inadequate if the affidavit does not positively show a basis for the knowledge. The
       affidavit must explain how the affiant has personal knowledge. Statements
       represented in the affidavit need factual specificity such as place, time, and exact
       nature of the alleged facts. ‘The key is whether the affidavit clearly shows the
       affiant is testifying from personal knowledge.’
                The affidavit must ‘itself’ state the facts and demonstrate the affiant’s
       competency. An affiant’s position or job responsibilities can qualify him to have
       personal knowledge of facts and establish how he learned of the facts. Affidavits
       demonstrating personal knowledge often state the affiant’s knowledge is acquired
       through not only the person’s position, but also through his specifically described

                                                5
         job duties.
                 In addition to a person’s job title or position, affiants should also explain
         how they became familiar with the facts in the affidavit. Furthermore, courts
         sometimes review whether the affiant is able to obtain personal knowledge because
         he was employed during a particular time period.

Valenzuela v. State & Cnty. Mut. Fire Ins. Co., 317 S.W.3d 550, 553-54 (Tex.App.--Houston [14th

Dist.] 2010, no pet.)[Citations omitted]. The Valenzuela Court concluded an affiant who merely

states his job title without identifying his responsibilities or other basis for personal knowledge of

the facts he asserts has not demonstrated personal knowledge. Id. at 554. An affidavit showing

no basis for personal knowledge is legally insufficient. Humphreys v. Caldwell, 888 S.W.2d 469,

470 (Tex. 1994); Radio Station KSCS v. Jennings, 750 S.W.2d 760, 762 (Tex. 1988).

                                             Discussion

         Chin lacked personal knowledge to make the affidavit. In its entirety, Chin’s affidavit

reads:

         1. ‘My name is Paula Chin. I am over 18 years of age, of sound mind, and
         capable of making this affidavit. The facts stated in this affidavit are within my
         personal knowledge and are true and correct.

         2. I am a duly authorized representative of [HSOA] and currently hold the
         position of Vice President, Loan Servicing and Default Operations for [HSOA].

         3. Defendant [HSOA] originated a purchase money loan (loan number
         06-517874) to . . . Villanova on August 22, 2007 to purchase [the Frisco home].

         4. The loan was in the original principal amount of $593,750.00 and contained a
         negative amortization provision. At the time of the default, the total debt due from
         . . . Villanova to [HSOA] was $638,936.25.

         5. The loan secured by [the Frisco home] had a cross collateralization provision
         and was also secured by [the Corpus Christy home].

         6. [HSOA] incurred $5,511.36 in expenses related to maintaining and selling [the
         Frisco home] and [the Corpus Christi home].


                                                  6
         7. [HSOA] received $525,716.04 for the sale of [the Corpus Christi home] and
         [the Frisco home]. [HSOA] also received $14,618.45 in bond funds recovered in
         relation to . . . Villanova’s Motion for Temporary Injunction.

         8. After taking into account the total debt owed by . . . Villanova, expenses
         incurred by [HSOA] after foreclosing on [the Frisco home] and [the Corpus Christi
         home], proceeds received from the sale of [the Frisco home] and [the Corpus
         Christi home], and the recovered bond funds, [HSOA] still has an outstanding
         deficiency of $104,113.13 owed by . . . Villanova plus incurred attorney fees.

         9. Further Affiant sayeth not.’

Chin states in her affidavit that she is HSOA’s duly authorized representative and its current Vice

President of Loan Servicing and Default Operations. She also states “[t]he facts stated in this

affidavit are within my personal knowledge and are true and correct.” However, critically, the

affidavit contains no other statements affirmatively demonstrating how Chin has personal

knowledge of the statements contained in it. The affidavit does not state whether Chin was Vice

President of Loan Servicing and Default Operations during the relevant time period, how her job

duties in that role afforded her the knowledge about Villanova’s claim, or how she was familiar

with these two foreclosures. The affidavit is, therefore, incompetent to prove the facts about

which Chin testifies. See Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008); Valenzuela, 317

S.W.3d at 554.

         HSOA claims that Chin’s averment that the facts in the affidavit are within her personal

knowledge is, by itself, sufficient proof of her personal knowledge because that averment is not

controverted by other evidence.8 However, simply stating that the affiant has personal knowledge


8
  We note HSOA does not argue Chin’s position as Vice President of Loan Servicing and Default Operations
established she had personal knowledge. In some contexts, an affiant’s position within a company, by itself, is
sufficient proof of personal knowledge. See, e.g., Requipco v. Am-Tex Tank & Equipment, Inc., 738 S.W.2d 299, 301
(Tex.App.--Houston [14th Dist.] 1987, writ ref’d n.r.e.)(holding that a statement that the affiant is president of the
company asserting a claim on an account is sufficient to affirmatively show how the affiant has personal knowledge of
the affidavit statements regarding the account); M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403, 407
(Tex.App.--Corpus Christi 1999, no pet.)(holding that a statement that the affiant is senior vice-president and secretary
                                                           7
of the statements in the affidavit is inadequate unless the affidavit contains other statements that

affirmatively reveal how the affiant has personal knowledge. Valenzuela, 317 S.W.3d at 553.

As discussed above, Chin’s affidavit lacks these other statements.                        HSOA also mentions

Villanova did not cite case law or authority in arguing Chin did not have personal knowledge.

However, HSOA does not contend Villanova inadequately briefed the issue, and, in any event,

Villanova cites Rule 166(a)(f) of the Texas Rules of Civil Procedure—the rule governing the use

of affidavits in summary-judgment proceedings.

         Without Chin’s affidavit, HSOA failed to establish its entitlement to damages; therefore,

the trial court erred in awarding damages. The trial court also erred in awarding attorneys’ fees to

HSOA. Under Chapter 38 of the Civil Practice and Remedies Code, a prevailing party may

“recover reasonable attorney’s fees . . . if the claim is for . . . an oral or written contract.” See

TEX.CIV.PRAC.&REM.CODE ANN. § 38.001 (West 2008). In this case, HSOA sought attorneys’

fees for prosecuting its counterclaims for breach of contract and breach of the settlement

agreement. In order to recover attorneys’ fees under Chapter 38 for prosecuting these types of

counterclaims, a party must first prevail on the underlying claim and recover damages. MBM

Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 666 (Tex.2009). Here, HSOA has

not recovered damages. Accordingly, HSOA is not entitled to attorneys’ fees.9



of a corporation asserting a special appearance is sufficient to affirmatively show how the affiant has personal
knowledge of the affidavit statements regarding the corporation’s contacts with Texas). Because HSOA does not
raise this argument on appeal, we need not address it.
9
 In footnote number five, we mentioned that the trial court awarded HSOA $20,000 in conditional appellate fees.
With regard to these fees, we note that their award is not conditioned upon a successful outcome. Rather, the award is
unconditional:

         8. If this case is appealed to the Court of Appeals, [HSOA] is entitled to an additional amount of
         $10,000.00.

                                                          8
         Villanova’s fourth, fifth, and eighth issues are sustained. Given our disposition of these

issues, we need not address Villanova’s challenges to the affidavits supporting the award of

attorneys’ fees—issues six and seven—and Villanova’s global complaint contained in issue three.

(See footnote 6). See TEX.R.APP.P. 47.1 (requiring the court of appeals to hand down a written

opinion that is as brief as practicable but that addresses every issue raised and necessary to the

disposition of the appeal).

                                           SUMMARY JUDGMENT

         We now turn to the merits of HSOA’s motion for summary judgment, which presented

both traditional and no-evidence grounds for summary judgment. See TEX.R.CIV.P. 166a(c) and

166a(i).



                                                Standard of Review

         We review a trial court’s summary judgment de novo. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When, as here, the trial court grants

the motion for summary judgment without stating the basis for its ruling, we must affirm the trial

court’s judgment if any of the theories advanced is meritorious. See W. Invs., Inc. v. Urena, 162

S.W.3d 547, 550 (Tex. 2005).

         After an adequate time for discovery, a party may move for summary judgment on the

         9. If this case is appealed to the Texas Supreme Court, [HSOA] is entitled to an additional amount
         of $10,000.00.

An award of attorney’s fees that is unconditional has a chilling effect on the paying party’s exercise of legal rights. In
re Ford Motor Co., 988 S.W.2d 714, 722 (Tex. 1998)(orig. proceeding). Therefore, an award of appellate attorney’s
fees must be conditioned on the appeal being unsuccessful. See id. at 721. Had we upheld the award of attorney’s
fees on appeal, we would have modified the judgment so that the award was conditioned on the paying party’s lack of
success on appeal. See Hoefker v. Elgohary, 248 S.W.3d 326, 332 (Tex.App.--Houston [1st Dist.] 2007, no pet.).
However, since we did not uphold the award on appeal, there is no need to modify the judgment. That said, we
include this discussion for the trial court’s benefit should it award conditional appellate fees on remand.
                                                            9
ground that no evidence exists to support one or more essential elements of a claim.

TEX.R.CIV.P. 166a(i) & cmts. The non-movant bears the burden to produce more than a scintilla

of evidence raising a genuine issue of material fact on the challenged elements. See id. More

than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable

and fair-minded people to differ in their conclusions. King Ranch, Inc. v. Chapman, 118 S.W.3d

742, 751 (Tex. 2003). If the non-movant fails to meet his burden, the trial court must grant the

motion for summary judgment. TEX.R.CIV.P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d

598, 600 (Tex. 2004).

       A traditional summary judgment is proper only when the movant establishes that there is

no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.

TEX.R.CIV.P. 166a(c). A defendant who conclusively negates a single essential element of a

cause of action or conclusively establishes an affirmative defense is entitled to summary judgment

on that claim. Frost Nat. Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). Unlike a

no-evidence motion, a traditional motion for summary judgment must stand on its own merits;

there is no right to a traditional summary judgment by default. See City of Houston v. Clear

Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

       In determining whether the non-movant has raised a genuine issue of material fact, we

review the evidence presented by the motion and response in the light most favorable to the

non-movant, crediting evidence favorable to that party if reasonable jurors could, and disregarding

contrary evidence unless reasonable jurors could not. Timpte Industries, Inc. v. Gish, 286 S.W.3d

306, 310 (Tex. 2009).

                TRADITIONAL MOTION FOR SUMMARY JUDGMENT


                                                10
        We begin our discussion by addressing Villanova’s challenges to the trial court’s grant of

summary judgment in favor of HSOA on its counterclaims and the “affirmative defense of third

party liability.”

     1. HSOA’s Counterclaims for Breach of Contract, Breach of Settlement Agreement,
                                        and Fraud

        In his twelfth, fourteenth, and fifteenth issues, Villanova argues HSOA was not entitled to

summary judgment on its counterclaims for breach of settlement agreement, breach of contract,

and fraud, respectively, because HSOA failed to prove, among other matters, that it suffered

damages. We agree.

                                         Applicable Law

        A settlement agreement is a contract. Doe v. Tex. Ass’n of Sch. Bds., Inc., 283 S.W.3d

451, 458 (Tex.App.--Fort Worth 2009, pet. denied). To succeed on a breach-of-contract claim, a

plaintiff must prove: (1) the existence of a valid contract between the plaintiff and the defendant;

(2) the plaintiff performed or tendered performance; (3) the defendant breached the contract; and

(4) the plaintiff suffered damages as a result of the breach.         Killeen v. Lighthouse Elec.

Contractors, L.P., 248 S.W.3d 343, 349 (Tex.App.--San Antonio 2007, pet. denied).

        The elements of common-law fraud are that: (1) a material representation was made; (2)

the representation was false; (3) when the representation was made, the speaker knew it was false

or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the

representation was made with the intention that it be acted upon by the other party; (5) the party

acted in reliance upon the representation; and (6) the party suffered injury. T.O. Stanley Boot Co.,

Inc. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex. 1992); Eagle Properties, Ltd. v. Scharbauer,

807 S.W.2d 714, 723 (Tex. 1990). An injured party may recover direct damages for the actual

                                                11
injury it suffered as a result of the defendant’s fraud. Formosa Plastics Corp. USA v. Presidio

Eng’rs & Contrs., Inc., 960 S.W.2d 41, 49 (Tex. 1998).

                                                 Discussion

        HSOA was not entitled to summary judgment on its counterclaims for breach of contract,

breach of settlement agreement, and fraud because it failed to prove that, as a matter of law, it

suffered damages.10 HSOA relied exclusively on Chin’s affidavit to prove damages. However,

Chin’s affidavit is fatally defective and cannot support an award of damages. Because HSOA

failed to demonstrate its right to judgment as a matter of law on its counterclaims, the trial court

could not have granted judgment as a matter of law on the counterclaims. Accordingly, the trial

court erred in granting summary judgment on this basis.

        Villanova’s twelfth, fourteenth, and fifteenth issues are sustained.

                   2. HSOA’s “Affirmative Defense” of Third-Party Liability

        In his sixteenth issue, Villanova argues HSOA failed to prove that its “affirmative defense

of third party liability” “constituted a defense to any of the four causes of action that it cited (usury,

wrongful foreclosure, breach of contract and fraud).” We agree.

                                               Applicable Law

        Villanova correctly points out in his brief that HSOA did not set forth the elements of its

“affirmative defense of third party liability” in its motion for summary judgment. Instead, HSOA

claimed, without citation to any authority:

                This [c]ourt should deny Villanova’s claim for Usury, Wrongful
        Foreclosure, Breach of Contract, and Fraud based on HSOA’s affirmative defense
        that the occurrences made the basis of Villanova’s claims, and all the injuries or
        damages alleged to have been sustained by Villanova, were caused in whole or in

10
  We do not address whether HSOA carry its burden to establish Villanova’s liability on its counterclaims. While
HSOA may have proved liability without difficulty, we cannot so presume given that Villanova contested the issue.
                                                       12
       part by third persons or parties (namely Villanova himself and Roth) over whom
       HSOA had no control, and for whose acts and/or omissions it was not responsible,
       in fact or in law, and said actions of such third parties was the proximate cause of
       the occurrences made the basis of this lawsuit and the injuries and damages alleged
       to have been sustained by Villanova.

As best as we can surmise, HSOA is invoking the inferential rebuttal defense of sole proximate

cause, which is not an affirmative defense.            In re Nance, 143 S.W.3d 506, 513 n.7

(Tex.App.--Austin 2004, no pet.); Walzier v. Newton, 27 S.W.3d 561, 563 (Tex.App.--Amarillo

2000, no pet.).

       Inferential rebuttals are defensive theories that operate to rebut an essential element of the

plaintiff’s case or the existence of a prima facie case by establishing the truth of a positive factual

theory that is inconsistent with some factual element of the ground of recovery. Montes v.

Pendergrass, 61 S.W.3d 505, 508 (Tex.App.--San Antonio 2001, no pet.); Buls v. Fuselier, 55

S.W.3d 204, 211 (Tex.App.--Texarkana 2001, no pet.). Affirmative defenses, on the other hand,

relieve a defendant of liability even if all the elements of the plaintiff’s cause of action are

established. Montes, 61 S.W.3d at 508; Buls, 55 S.W.3d at 211. “In effect, the evidence offered

to prove such a defense does not rebut the factual propositions uttered by the plaintiff, but instead

serves to establish an independent reason for denying the plaintiff any recovery.” Walzier, 27

S.W.3d at 563.

                                             Discussion

       HSOA was not entitled to summary judgment on its inferential rebuttal defense of sole

proximate cause because it failed to conclusively prove this defense as a matter of law. For

HSOA to obtain summary judgment on the basis of sole proximate cause, it had to disprove at least

one element of each of Villanova’s causes of action or prima facie case. As the party relying on


                                                  13
an inferential rebuttal defense, HSOA bore the burden to produce sufficient evidence establishing

the defense as a matter of law. See David F. Johnson, Can A Party File A No-Evidence Motion for

Summary Judgment Based Upon an Inferential Rebuttal Defense?, 53 BAYLOR L.REV. 763, 775,

779 (2001)(explaining that party relying on inferential rebuttal defense bears the initial burden of

production to produce some evidence to support that defense). Here, HSOA asserted in its

motion for summary judgment that Villanova’s judicial admissions that his damages were caused

by Roth’s actions relieved it “from the burden of proving the admitted fact.” Except judicial

admissions are not considered summary judgment proof, but rather a waiver of proof. Galvan v.

Public Utilities Bd., 778 S.W.2d 580, 583 (Tex.App.--Corpus Christi 1989, no writ). Thus,

HSOA cannot rely on Villanova’s judicial admissions as evidence to establish its inferential

rebuttal defense.

       HSOA also asserted in its motion that that Villanova fraudulently misrepresented that he

would occupy the Frisco home and that he would not transfer an interest in the home without

obtaining HSOA’s prior approval.        However, we do not understand, and HSOA has not

explained, how evidence of alleged fraudulent misrepresentations disproves at least one element of

Villanova’s causes of action for wrongful foreclosure, usury, breach of contract, and fraud.

Indeed, HSOA fails to identify in its motion for summary judgment the specific elements of

Villanova’s causes of action it sought to negate and how the defense of sole proximate cause acted

to negate those elements.

       On appeal, HSOA re-urges these same arguments, but also contends “Villanova’s

challenge to HSOA’s third party liability defense should be dismissed for failure to brief the

issue.” However, HSOA is the party moving for traditional summary judgment on the inferential


                                                14
rebuttal defense of sole proximate cause, and a traditional motion for summary judgment must

stand on its own merits; there is no right to a traditional summary judgment by default. See City

of Houston, 589 S.W.2d at 678.

       Because HSOA failed to demonstrate its right to judgment as a matter of law on its

inferential rebuttal defense of sole proximate cause, the trial court could not have granted

judgment as a matter of law on the counterclaims. Accordingly, the trial court erred in granting

summary judgment on this basis.

       Villanova’s sixteenth issue is sustained.

           HSOA’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

       We now turn to Villanova’s challenges to the trial court’s grant of summary judgment on

no-evidence grounds.

                                  1. Villanova’s Usury Claim

       In his ninth issue, Villanova argues the trial court erred in granting summary judgment on

his usury claim because there was more than a scintilla of evidence that “there was a loan of money

and there was a demand or charge for money not owed.” We disagree.

                                         Applicable Law

       Usury is any charged interest, “in excess of the amount allowed by law.” First Bank v.

Tony’s Tortilla Factory, Inc., 877 S.W.2d 285, 287 (Tex. 1994). To prevail on a claim of usury, a

party must prove: (1) a loan of money; (2) an absolute obligation to repay the principal; and (3)

the exaction of greater compensation than is allowed by law for the borrower’s use of the money.

Id. A “loan” is an advance of money made to or on behalf of an obligor, “the principal amount of

which the obligor has an obligation to pay the creditor.” TEX.FIN.CODE ANN. § 301.002(a)(10)


                                                   15
(West 2006).     “Interest” is compensation for the use, forbearance, or detention of money.

TEX.FIN.CODE ANN. § 301.002(a)(4). “Usurious interest” is interest that exceeds the applicable

maximum amount allowed by law. Id. at § 301.002(a)(17).

                                                Discussion

       Villanova contends Home Saving charged usurious interest by “demand[ing] payment of

the monies put in escrow pursuant to settlement agreement when it was not entitled to those

payments and when he was not in default under the note.” However, “a settlement agreement

such as this one, freely entered into by parties to litigation to compromise and settle their dispute,

does not involve a lending or credit transaction and is not the type of agreement the usury laws

were intended to govern.”        Starr v. Dart, No. 14-07-00673-CV, 2008 WL 2841685, *4

(Tex.App.--Houston [14th Dist.] July 24, 2008, pet. denied)(mem. op.), citing Wiley-Reiter Corp.

v. Groce, 693 S.W.2d 701, 703 (Tex.App.--Houston [14th Dist.] 1985, no writ). Villanova does

not acknowledge, let alone distinguish Starr, nor does he direct us to any authority to the contrary.

Instead, Villanova argues HSOA actually demanded payment under the loan, not under the

settlement agreement. As evidentiary support for this argument, Villanova directs our attention to

the affidavit he executed and attached to his response to HSOA’s no-evidence motion. In that

affidavit, Villanova avers in pertinent part:

       I had paid $13,660.32 in the registry of the Court in an attempt to comply with the
       December 2, 2008 settlement agreement. I had previously given this money to my
       attorney to put in his trust account since we were unable to reach an agreement with
       the defendant as to where to escrow the money by September of 2009. The
       defendant demanded payment of this money to be paid on my loan before I paid it
       to my attorney’s trust account despite the fact that my loan was current at that time.

It is evident that the “money” to which Villanova refers in his affidavit is the sum of the four

escrow payments Villanova was to have made pursuant to the Settlement Agreement, not the loan.

                                                   16
Accordingly, the trial court did not err in granting HSOA’s no-evidence motion on this basis.

        Villanova’s ninth issue is overruled.

                             2. Villanova’s Wrongful Foreclosure Claim

        In his tenth issue, Villanova contends the trial court erred in granting summary judgment

on his wrongful-foreclosure claim. By six sub-issues, Villanova asserts summary judgment was

improper because: (1) HSOA failed to identify in its motion what elements of his claim were

allegedly not met; (2) HSOA committed fraud by foreclosing pursuant to settlement agreement

and not the deed of trust; (3) HSOA’s agents were complicit in the fraud perpetrated against him

by Roth; (4) HSOA lacked the capacity to enforce the terms of the deed of trust, since

MERS11—not HSOA—is the beneficiary under the deed of trust; (5) HSOA obtained a grossly

inadequate selling price at foreclosure; and (6) HSOA made unauthorized inquiries into, and

falsely reported, his credit. We disagree.

                                               Applicable Law

        The elements of a wrongful-foreclosure claim are: (1) a defect in the foreclosure sale

proceedings; (2) a grossly inadequate selling price; and (3) a causal connection between the defect

and the grossly inadequate selling price. Sauceda v. GMAC Mortg. Corp., 268 S.W.3d 135, 139

(Tex.App.--Corpus Christi 2008, no pet.); Charter Nat’l Bank-Houston v. Stevens, 781 S.W.2d

368, 371 (Tex.App.--Houston [14th Dist.] 1989, writ denied).

        A “defect” or “irregularity” occurs in the foreclosure process if property is sold for “an

unfair” price because third parties were deterred from bidding. Pentad Joint Venture v. First

Nat’l Bank of La Grange, 797 S.W.2d 92, 96 (Tex.App.--Austin 1990, writ denied). A mortgagee

11
  MERS stands for Mortgage Electronic Registration Systems, which is “an electronic mortgage registration system
and clearinghouse that tracks beneficial ownerships interests in, and servicing rights to, mortgage loans.” In re
Mortg. Elec. Registration Sys. (MERS) Litig., 659 F.Supp.2d 1368, 1370 (J.P.M .L. 2009).
                                                       17
therefore has a duty to avoid affirmatively deterring prospective bidders by acts or statements

made before or during a foreclosure sale. Pentad Joint Venture, 797 S.W.2d at 96. However, “a

mortgagee is under no duty to take affirmative action, beyond that required by statute or the deed

of trust, to ensure a ‘fair’ sale.” Id.

         Section 51.002 of the Texas Property Code governs a foreclosure sale of real property

pursuant to a deed of trust. See TEX.PROP.CODE ANN. § 51.002 (West 2007). The statute sets

out specific requirements as to the time and place a foreclosure sale must be held and as to the

notice requirements that must be met. 12 See TEX.PROP.CODE ANN. §§ 51.002(a)-(e). For a

trustee to lawfully undertake a foreclosure on real property, the trustee must comply with the

notice requirements set forth in the deed of trust and as otherwise required by law. Stanley v.

CitiFinancial Mortg. Co., Inc., 121 S.W.3d 811, 817 (Tex.App.--Beaumont 2003, pet. denied).

                                                      Discussion

         HSOA was entitled to summary judgment on Villanova’s wrongful-foreclosure claim

because Villanova failed to produce any evidence of an irregularity or defect in the foreclosure sale

proceeding. A “defect” or “irregularity” occurs in the foreclosure process if property is sold for

“an unfair” price because third parties were deterred from bidding. Pentad Joint Venture, 797

S.W.2d at 96. A mortgagee therefore has a duty to avoid affirmatively deterring prospective

bidders by acts or statements made before or during a foreclosure sale. Id. However, “a

12
  Under the statute, notice must be given at least twenty-one days before the date of the sale. TEX.PROP.CODE
ANN. § 51.002(b). Proper notice can be accomplished by “serving written notice of the sale by certified mail on
each debtor who, according to the records of the mortgage servicer of the debt, is obligated to pay the debt.”
TEX.PROP.CODE ANN. § 51.002(b)(3). Section 51.002(d) provides: “Notwithstanding any agreement to the
contrary, the mortgage servicer of the debt shall serve a debtor in default under a deed of trust . . . with written notice
by certified mail stating that the debtor is in default under the deed of trust or other contract lien and giving the debtor
at least twenty days to cure the default before notice of sale can be given under Subsection (b). TEX.PROP.CODE
ANN. § 51.002(d). Subsection (e) provides that “[t]he affidavit of a person knowledgeable of the facts to the effect
that service was completed is prima facie evidence of service. TEX.PROP.CODE ANN. § 51.002(e).
                                                            18
mortgagee is under no duty to take affirmative action, beyond that required by statute or the deed

of trust, to ensure a ‘fair’ sale.” Pentad Joint Venture, 797 S.W.2d at 96. Here, Villanova

produced no evidence HSOA affirmatively deterred third parties from bidding on the Frisco and

Corpus Christi homes. Indeed, Villanova did not raise that allegation in his petition or responses

to HSOA’s motion for summary judgment.

         In arguing why the trial court erred in granting summary judgment on his

wrongful-foreclosure claim, Villanova asserts in his first sub-issue that HSOA failed to identify in

its hybrid motion the reasons why he could not prevail on this claim. Villanova is mistaken. As

identified by HSOA, these reasons why Villanova could not prevail were because it was

authorized to foreclose on the properties based on Villanova’s breaches of the deed of trust and the

settlement agreement and because Villanova failed to raise “any technical deficiency with the

foreclosure itself.”

         As for the complaints raised by Villanova in his second through sixth sub-issues, they are

inadequately briefed for our consideration.13 Under the Texas Rules of Appellate Procedure, a

brief submitted by an appellant must contain “a clear and concise argument for the contentions

made, with appropriate citations to authorities and to the record.” TEX.R.APP.P. 38.1(i). An

appellate issue unsupported by argument or citation to the record or legal authority presents
13
   As mentioned earlier, these five sub-issues encompass Villanova’s complaints that: (1) HSOA committed fraud
by foreclosing pursuant to settlement agreement and not the deed of trust; (2) HSOA’s agents were complicit in the
fraud perpetrated against him by Roth; (3) HSOA lacked the capacity to enforce the terms of the deed of trust, since
MERS—not HSOA—is the beneficiary under the deed of trust; (4) HSOA obtained a grossly inadequate selling price
at foreclosure; and (5) HSOA made unauthorized inquiries into, and falsely reported, his credit. Most, if not all, of
the grounds raised in these sub-issues concern HSOA’s allegedly inequitable behavior. See Elizabeth Renuart,
Toward a More Equitable Balance: Homeowner and Purchaser Tensions in Non-Judicial Foreclosure States, 24 LOY.
CONSUMER L. REV. 562, 564 (2012)(identifying the following as some of the types of deficiencies or fraudulent
behavior that can occur in the foreclosure process: (1) failure to provide contractually or legally required notices; (2)
lack of authority to foreclose; (3) fraud in the process; (4) rigging the sale; (5) grossly inadequate sale price; and (6)
other irregularity or unfairness). Though some of these grounds are valid bases for prosecuting a wrongful
foreclosure suit, e.g., grossly inadequate sale price, the fact remains Villanova failed to produce any evidence of an
irregularity or defect in the foreclosure process as required by Texas law.
                                                           19
nothing for review. Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.

2004); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.App.--El Paso 2007, no pet.). As we noted in

Valadez:

              It is the Appellant’s burden to discuss her assertions of error. An appellate
       court has no duty—or even right—to perform an independent review of the record
       and applicable law to determine whether there was error. Were we to do so, even
       on behalf of a pro se appellant, we would be abandoning our role as neutral
       adjudicators and become an advocate for that party.

Valadez, 238 S.W.3d at 845 [Citations omitted].

       Here, Villanova failed to cite any pertinent authority in support of his arguments. See

TEX.R.APP.P. 38.1. Further, although Villanova did cite a single authority for the proposition that

a non-judicial foreclosure is a harsh remedy and must be strictly construed, he thereafter provided

no discussion or argument of the case cited nor an explanation of how that case supported his

specific contentions.

       The trial court did not err in granting HSOA’s no-evidence motion on this basis.

       Villanova’s tenth issue is overruled.

                          3. Villanova’s Breach-of-Contract Claim

       In his eleventh issue, Villanova asserts HSOA was not entitled to summary judgment on

his breach-of-contract claim because he was excused from performing his obligations under the

settlement agreement due to supervening impossibility. We disagree.

       HSOA moved for summary judgment on Villanova’s breach-of-contract claim on the

grounds that there was no evidence Villanova performed the contract and HSOA breached the

contract. In his response, Villanova asserted, “[HSOA] moves for summary judgment alleging

that there is no evidence that [he] performed the contract or was excused from performing his


                                                20
contractual obligation and [HSOA] breached the contract.” According to Villanova, “[he] . . .

presented more than a scintilla of evidence showing that he was excused from performing his

obligations under the settlement agreement in that he could not list the property or sell it within the

timeline since he did not have it in his possession.” However, contrary to Villanova’s assertion,

HSOA never sought summary judgment on the basis that Villanova could not show he was

excused from performing his obligations under the settlement agreement due to supervening

circumstances. Rather, it was Villanova who raised that issue in his response. Villanova,

however, cannot rely on the affirmative defenses of impossibility of performance and excused

performance to defeat HSOA’s no-evidence motion because he failed to assert these defenses in

his petition. See Hewitt v. Biscaro, 353 S.W.3d 304, 308-09, 311 (Tex.App.--Dallas 2011, no

pet.)(impossibility of performance and excused performance are affirmative defenses);

TEX.R.CIV.P. 94 (“In pleading to a preceding pleading, a party shall set forth affirmatively . . . any

other matter constituting an avoidance or affirmative defense”). Accordingly, the trial court did

not err in granting HSOA’s no-evidence motion on this basis.

       Villanova’s eleventh issue is overruled.

                                   4. Villanova’s Fraud Claim

       In his thirteenth issue, Villanova asserts the trial court erred in granting summary judgment

on his fraud claim because HSOA made a false representation to him by failing to follow its own

guidelines to ensure that the signature on the loan application was his and by failing to notify him

that his signature had been forged. In other words, Villanova claims that, even though he signed

the closing documents to purchase the Frisco home, he was nonetheless defrauded by HSOA’s

failure to ensure that all the documentation involved in the transaction was signed by him in the


                                                  21
presence of its agents.14 We disagree.

                                                 Applicable Law

         As stated previously, the elements of common-law fraud are that:                          (1) a material

representation was made; (2) the representation was false; (3) when the representation was made,

the speaker knew it was false or made it recklessly without any knowledge of the truth and as a

positive assertion; (4) the representation was made with the intention that it be acted upon by the

other party; (5) the party acted in reliance upon the representation; and (6) the party suffered

injury. T.O. Stanley Boot Co., 847 S.W.2d at 222; Eagle Properties, Ltd., 807 S.W.2d at 723.

                                                    Discussion

         HSOA was entitled to summary judgment on Villanova’s fraud claim because there is no

evidence that HSOA made a representation and, if made, that it was false.

         Villanova argues HSOA’s silence is equivalent to a false representation and cites Smith v.

Nat’l Resort Communities, Inc., 585 S.W.2d 655 (Tex. 1979), for this proposition. Villanova is

correct that silence may be equivalent to a false representation, but Smith makes clear this is true

only when the particular circumstances impose a duty on the party to speak and he deliberately

remains silent. Smith, 585 S.W.2d at 658; SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347,

353 (Tex. 1995). Those circumstances do not exist here. This Court has held that lenders owe

no fiduciary duties to their borrowers. Jones v. Thompson, 338 S.W.3d 573, 583 (Tex.App.--El

Paso 2010, pet. denied); Wil-Roye Inv. Co. II v. Washington Mut. Bank, FA, 142 S.W.3d 393, 410

(Tex.App.--El Paso 2004, no pet.).

14
   Villanova also contends—in one sentence in his brief—that “the pursuit of foreclosure for an alleged breach of the
settlement agreement constituted fraud.” Villanova cites no authority for this proposition, nor does he pause to
explain how breaching a settlement agreement constitutes fraud. Accordingly, Villanova has inadequately briefed
this issue and, thus, waived it. See TEX.R.APP.P. 38.1(i)(“The brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.”).
                                                         22
       Further, Villanova has now shown he and HSOA enjoyed the type of “special relationship”

giving rise to duties of good faith and fair dealing. He merely assumes that such a duty exits.

Although when a special relationship between a borrower and lender has been found, it has rested

on extraneous facts and conduct, such as excessive lender control over, or influence in, the

borrower’s business activities. Wil-Roye Inv. Co. II, 142 S.W.3d at 410. Here, Villanova has not

alleged facts nor produced evidence demonstrating that HSOA had excessive control over or

influence in his business activities. Accordingly, we have no reason to conclude that Villanova’s

relationship with HSOA was anything other than an ordinary, arm’s-length, lender-borrower

relationship. In that type of relationship, the duty of good faith and fair dealing does not arise.

See Formosa Plastics Corp. USA, 960 S.W.2d at 52 (the duty of good faith and fair dealing does

not arise in ordinary commercial transactions); see also English v. Fischer, 660 S.W.2d 521, 522

(Tex. 1983)(rejecting contention that an implied duty of good faith and fair dealing exists in every

contract).

       The trial court did not err in granting HSOA’s no-evidence motion on this basis.

       Villanova’s thirteenth issue is overruled.

                    5. Villanova’s Credit Slander and Negligence Claims

       In his seventeenth issue, Villanova argues the trial court erred in granting summary

judgment on his credit slander and negligence claims because HSOA “never filed an amended or

supplemental motion seeking summary judgment on either of those claims.”              Villanova is

mistaken.

       HSOA addressed these claims in several pleadings filed with the trial court. In its reply to

Villanova’s response to its motion for summary judgment, HSOA specifically excepted to these


                                                23
claims, asserting they were not sufficiently pled and that credit slander was not a cognizable claim

in Texas. Further, HSOA argued summary judgment was appropriate as to these claims because

Villanova’s fraud in obtaining the mortgage and his breach of the settlement agreement

“conclusively negate[d] a common element of Plaintiff’s the [sic] newly and previously pleaded

claims.” In a subsequently filed reply to Villanova’s response to the afore-mentioned reply,

HSOA contended summary judgment on Villanova’s negligence claim was appropriate because

his claim was barred by limitations. Yet, in its briefing to the trial court seeking clarification of

the trial court’s pronouncement that it was granting summary judgment, HSOA reiterated

Villanova’s negligence claim was barred by limitations and Villanova’s credit-slander claim failed

to state a cause of action under Texas law. Accordingly, the trial court did not err in granting

HSOA’s no-evidence motion on this basis.

       Villanova’s seventeenth issue is overruled.

                                         CONCLUSION

       We reverse the portion of the trial court’s judgment awarding damages and attorneys’ fees

and granting summary judgment on HSOA’s counterclaims and inferential rebuttal defense of sole

proximate cause. Because damages are unliquidated and Villanova has contested liability, we

remand these causes on all issues—including liability—to the trial court for further proceedings

consistent with this opinion. See TEX.R.APP.P. 44.1(b); Natural Gas Clearinghouse v. Midgard

Energy Co., 23 S.W.3d 372, 380 (Tex.App.--Amarillo 2000, pet. denied)(op. on reh’g)(relying on

Rule 44.1(b) of the Texas Rules of Procedure to remand the cause on all issues, including liability,

because damages were unliquidated and appellant contested liability). In all other respects, we




                                                 24
affirm the trial court’s judgment.15




June 25, 2014
                                                          YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.




15
     Because of our disposition of the issues raised by Villanova, we need not address his first and second issues:

           [(1)] The trial court erred in granting appellee’s motion for traditional summary judgment since
           genuine issues of material fact existed and appellee failed to prove that it was entitled to judgment as
           a matter of law.

           [(2)] The trial court erred in granting appellee’s no-evidence motion for summary judgment since
           appellant presented more than a scintilla of evidence on each of the grounds on which the appellee
           alleged that there was no evidence.

See TEX.R.APP.P. 47.1.
          Further, given our disposition of this appeal, we deny as moot the FDIC’s motion to strike the letter brief filed
by Villanova on January 6, 2014. In that letter brief, Villanova cited additional authority in support of his argument
that the amount of the alleged deficiency he owed HSOA was calculated incorrectly.
                                                             25
