Affirmed and Opinion filed May 17, 2012.




                                        In The

                     Fourteenth Court of Appeals

                               NOS. 14-10-00821-CV
                                    14-10-00856-CV
                                    14-10-01145-CV


                           MILTON GARCIA, Appellant

                                          V.

 BANK OF AMERICA CORPORATION, BAC HOME LOAN SERVICING, LP,
          and NEWPORT INSURANCE COMPANY, Appellees


                      On Appeal from the 11th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2009-59268


                                  OPINION


      In this consolidated appeal, Milton Garcia appeals from the trial court’s grant of
summary judgments favoring appellees, Bank of America Corporation (―BOA‖), BAC
Home Loan Servicing, LP (―BAC‖), and Newport Insurance Co. (―Newport‖). BOA
owned the mortgage on Garcia’s home, BAC is a mortgage servicing company that
serviced Garcia’s mortgage, and Newport issued a lender-placed insurance policy to
BOA on Garcia’s property. Seeking compensation for damage his property sustained in
Hurricane Ike, Garcia alleged that he was a third-party beneficiary of the insurance policy
Newport issued to BOA, and raised a variety of claims against BOA and BAC related to
the procurement of insurance and management of an escrow account. We affirm.

                                             I. Background

        Garcia purchased a home in Harris County in 1998, with the aid of a home equity
loan. Pursuant to the mortgage agreement, Garcia was required to maintain insurance on
the property sufficient to protect the mortgagee’s interest in the property. If Garcia failed
to provide such insurance, the mortgagee was authorized to purchase insurance for the
property but was not required to purchase insurance which protected Garcia’s interest in
the property, i.e., any value in the property beyond the amount owed on the loan. Under
the escrow agreement contained within the loan documents, Garcia was to pay an amount
for insurance premiums into an escrow account, and the mortgagee was to use those
funds to pay for either the insurance provided by Garcia, or in the event he failed to
provide such insurance, for insurance placed by the mortgagee.

        In 2004, Countrywide Home Loans acquired Garcia’s mortgage. At the time,
Garcia had a homeowner’s insurance policy with National Lloyds Insurance. When
Garcia failed to renew this policy, Countrywide purchased a ―lender-placed‖ policy from
Newport Insurance.1 This new policy listed Countrywide as the only insured party.
According to appellees, the new policy was procured because Garcia failed to maintain
coverage on the property as required under the mortgage agreement.                           According to
Garcia, appellees should have either used escrow funds to pay premiums to renew the
insurance with National Lloyds or obtained other insurance that covered his interests as
well as those of Countrywide. Garcia also alleges that he is an intended third-party
beneficiary of the Newport policy.

        1
          Newport is sometimes referred to both in the briefs and in documents filed below as ―Balboa
Insurance.‖ It is not completely clear why different names are used, but at one point in his pleadings, Garcia
suggested that Balboa owns Newport. No issues turn on the distinction. Within this opinion, we will use the
name ―Newport‖ to encompass assertions made regarding both Newport and Balboa.

                                                      2
        When Hurricane Ike hit Texas in September 2008, Garcia’s house sustained
significant damage. Garcia subsequently sued Newport, alleging that while it paid him
some money to repair the damage to his house, it failed to adequately compensate him as
required under the insurance policy.2               Garcia later amended his pleadings to add
Countrywide, BOA (which had purchased Countrywide), and BAC (the mortgage
servicing arm of BOA) as defendants. Countrywide later was dismissed from the lawsuit.
Against BOA and BAC, which Garcia refers to as the ―Bank Defendants,‖ he alleged that
they improperly switched the insurance paid with the escrow funds to the lender-placed
policy with Newport. The Newport policy was designed to solely or primarily protect the
interests of the lender rather than the homeowner, as would have been the case under the
National Lloyds policy.3

        After the case was removed to federal court and then returned to state court, the
state trial court granted summary judgment favoring all three defendants without
specifying the grounds therefor. In its motion, Newport alleged that Garcia could not sue
under the insurance policy because he was neither a named insured nor a third-party
beneficiary. In its motion, BOA contended that it had no role in the ownership or
servicing of Garcia’s mortgage. Lastly, in its motion, BAC attempted to conclusively
disprove at least one element of each of Garcia’s claims against it.

                                       II. Standards of Review

        In proceedings on a traditional motion for summary judgment, the movant has the
burden to show that there is no genuine issue of material fact and he or she is entitled to
judgment as a matter of law. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28
S.W.3d 22, 23 (Tex. 2000) (per curiam). If the movant satisfies this requirement, the


        2
         Garcia’s causes of action against Newport included: breach of contract, violations of the Insurance
Code and Deceptive Trade Practices Act (DTPA), and breach of the duty of good faith and fair dealing.
        3
           The specific claims against BOA and BAC included: breach of the duty of good faith and fair
dealing, breach of fiduciary duty, negligence, breach of contract, DTPA violations, Insurance Code violations,
common law and statutory fraud, negligent misrepresentation, and conspiracy to commit fraud and breach of
fiduciary duty.

                                                      3
burden shifts to the non-movant to raise a fact issue sufficient to defeat summary
judgment. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996).

      In determining whether a fact issue exists precluding summary judgment, evidence
favorable to the non-movant is taken as true, and all reasonable inferences are carried in
the non-movant’s favor. See City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005).
We review a trial court’s grant of summary judgment de novo. Ferguson v. Bldg.
Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009). We must affirm a summary
judgment if any ground in the motion that would support the judgment is meritorious.
Progressive Cty. Mut. Ins. Co. v. Kelley, 284 S.W.3d 805, 806 (Tex. 2009).

      Resolution of the issues in this appeal involve interpretation of contract and
insurance policy language.     The interpretation or construction of an unambiguous
contract is a matter of law to be determined by the court. Am. Mfrs. Mut. Ins. Co. v.
Schaefer, 124 S.W.3d 154, 157 (Tex. 2003). When interpreting a contract, our primary
concern is to ascertain and give effect to the intent of the parties as expressed in the
agreement. Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex.
2006). To discern this intent, we examine and consider the entire writing in an effort to
harmonize and give effect to all of its provisions so that none will be rendered
meaningless. Id. No single provision taken alone will be given controlling effect; rather,
all the provisions must be considered with reference to the whole instrument.          Id.
Interpretation of an insurance policy is governed by the same rules of construction
applicable to other contracts. Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d
517, 520 (Tex. 1995).

                                III. Newport’s Motion

      As stated, Newport’s motion was based solely on its assertion that Garcia was
neither a named-insured nor an intended third-party beneficiary of the lender-placed
insurance policy. In his response below and on appeal, Garcia has focused on the third-
party beneficiary argument.


                                            4
                                  A. Third-Party Beneficiary Law

        A third party may recover on a contract made between other parties only if the
parties intended to secure some benefit to that third party, and only if the contracting
parties entered into the contract directly for the third party’s benefit. Stine v. Stewart, 80
S.W.3d 586, 589 (Tex. 2002). The mere fact that a person might receive an incidental
benefit from a contract does not give that person a right of action to enforce the contract.
Id. In determining whether a third party can enforce a contract, the intention of the
contracting parties is controlling. S. Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 306
(Tex. 2007). The intention to confer a direct benefit to a third party must be clearly and
fully spelled out, or enforcement by the third party must be denied. Id. Courts may not
create third-party beneficiary contracts by implication. Stine, 80 S.W.3d at 589. There is
a presumption in Texas against third-party beneficiary agreements. Tawes v. Barnes, 340
S.W.3d 419, 425 (Tex. 2011).

        Texas recognizes two forms of third-party beneficiary: creditor and donee. Garcia
contends only that he was a creditor beneficiary. A party is a creditor beneficiary if no
intent to make a gift appears from the contract (which would make the party a donee
beneficiary), but performance will satisfy an actual or asserted duty of the promisee to the
beneficiary. Lomas, 223 S.W.3d at 306; Esquivel v. Murray Guard, Inc., 992 S.W.2d
536, 543 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).4 This duty may be an
indebtedness, contractual obligation, or other legally enforceable commitment to the third
party. Esquivel, 992 S.W.2d at 544. The promisee must intend that the beneficiary will
have the right to enforce the contract. Id.

                                     B. Arguments and Analysis

        Newport relied on the insurance policy itself, as well as other documents, to
demonstrate that the parties to the policy, Newport and Countrywide, did not intend to

        4
           Garcia does not argue in the alternative that he was a donee beneficiary. Such would require a clear
intention to provide a gift to the beneficiary and would be rare in a business relationship. Esquivel, 992 S.W.2d
at 543.

                                                       5
provide any direct benefit to Garcia but merely contracted to protect Countrywide’s
secured interest in the property. Garcia is not listed as a primary or additional insured in
the policy. Although he is listed in the policy as the owner of the property, mere
identification by itself does not suggest that he was an intended third-party beneficiary.
See Union Pacific R.R. Co. v. Novus Intern., Inc., 113 S.W.3d 418, 422 n.1 (Tex. App.—
Houston [1st Dist.] 2003, pet. denied) (explaining that identification of a party in a
contract is not determinative of third-party beneficiary status).

       Garcia bases his contention that he was a creditor beneficiary primarily on
language in the policy (found in endorsement 001), indicating that in the event the
covered amount of a covered loss exceeded the value of Countrywide’s interest in the
property, payment for the loss would be made to Countrywide and Garcia.5 Garcia
argues that this language clearly indicates an intention to secure a benefit for him and
thus he could sue to enforce the policy provisions. The very same one-page endorsement,
however, contains language at the bottom explaining that ―Notwithstanding the
foregoing, nothing contained in this endorsement shall make a Mortgagor in legal
possession of the Insured Residential Property or Commercial Property an Insured or an
additional insured under this Policy.‖ This language indicates that contrary to Garcia’s
suggestion, there was no intent in endorsement 001 to provide a benefit to Garcia that he
would have the right to enforce; in other words, any benefit provided was incidental. Cf.
MCI Telecomms. Corp. v. Tex. Util. Elec. Co., 995 S.W.2d 647, 651 (Tex. 1999) (holding
that although contract in question provided certain benefits to third party, third party was
not an intended third party beneficiary where no contractual language indicated parties


       5
           The provision in question reads in full as follows:
       Loss or damage, if any, shall be adjusted with and made payable to YOU. In the event
       that the covered amount of a covered loss exceeds Your interest in the covered property
       and a mortgagor is in legal possession of the Insured Residential Property or Commercial
       Property at the time of payment for loss or damage payment, [sic] will be made to You
       and the mortgagor.
The policy explained that the terms ―you‖ and ―your‖ were used therein to refer to the named
insured, in this case, Countrywide.

                                                         6
entered contract directly to benefit third party and provision indicated contract should not
be interpreted as conferring any benefits on third party).6

        Furthermore, Garcia fails to point out what duty Countrywide allegedly owed to
him that benefits under the insurance policy would have satisfied. The policy does not
demonstrate that any benefits thereunder were to satisfy any duty Countrywide owed to
Garcia.7 Unless Countrywide owed Garcia a duty that the promise to pay insurance
proceeds could satisfy, Garcia could not be a creditor beneficiary but was instead an
incidental beneficiary with no right to enforce the contract. See, e.g., MCI Telecomms.,
995 S.W.2d at 651.

        The trial court properly granted summary judgment favoring Newport because
Newport established as a matter of law that Garcia was neither an insured nor an intended
third-party beneficiary under the policy.8 Accordingly, we overrule Garcia’s first issue.


        6
          Garcia further notes that the same endorsement also authorized him to notify Newport of damage to
the insured property. Such permission, however, does not connote a clear intention to confer a direct benefit to
Garcia. See Lomas, 223 S.W.3d at 306. Furthermore, the admonishment in the endorsement that nothing
therein should be construed as making a mortgagor an insured or additional insured under the policy also
applied to this provision. Moreover, under the mortgage agreement between Garcia and Countrywide, Garcia
was obligated to promptly report any damage to the property to the insurer. In other words, this was a duty
owed by Garcia, not a benefit he was to receive.
         Garcia additionally cites a provision in the policy providing that ―No one‖ could bring legal action on
the policy unless there had been full compliance with the policy and the action was brought within two years of
the damage in question. Garcia suggests that the fact that this provision did not limit itself to the named insured
suggests the parties envisioned others might be able to bring suit to enforce the policy as well. However, that
this single provision uses somewhat indistinct language does not ―clearly and fully spell[] out‖ that the parties to
the policy intended to confer a direct benefit on Garcia under the policy. See Lomas, 223 S.W.3d at 306.
        7
          Additionally, the mortgage agreement between Countrywide and Garcia provided that in the event
Countrywide were to procure lender-placed insurance, it would not be obligated to purchase insurance that also
protected Garcia’s interest.
        That the premiums for the lender-placed policy were derived from funds provided by Garcia is no
evidence of an intent by Countrywide and Newport to insure Garcia’s interest. Garcia was obligated under the
mortgage agreement to pay for insurance; Countrywide was not obligated to procure insurance that protected
Garcia’s interest.
        8
           In support of his position that borrowers can be third-party beneficiaries of lender-placed policies,
Garcia cites numerous cases from other jurisdictions, principally federal district courts in Louisiana, Alabama,
and Mississippi. This authority is not binding on this court, but in any event, each of these cases is readily
distinguishable. See, e.g., Lee v. Safeco Ins. Co. of Am., No. 08-1100, 2008 WL 2622997, at *3-5 (E.D. La. Jul.
2, 2008) ) (applying Louisiana law, which is substantially dissimilar regarding third party beneficiaries, and
                                                         7
                                    IV. Bank of America’s Motion

        In his second issue, Garcia contends the trial court erred in granting summary
judgment favoring BOA. In its motion, the sole ground BOA asserted for summary
judgment was that it simply played no role in the ownership or servicing of Garcia’s
mortgage. In support, it attached an affidavit from one of its vice presidents, Devra
Lindgren, who averred as follows:

                My name is Devra Lindgren. I am a Vice President/Assistant
        Corporate Secretary with Bank of America Corporation. In that position I
        am familiar with the relationship between Countrywide Home Loans, Inc.
        and Bank of America Corporation. Bank of America Corporation did not
        assume ownership of any of the loans issued by Countrywide Home Loans,
        Inc. to borrowers at time of the purchase of Countrywide Home Loans, Inc.
        by Bank of America Corporation. Bank of America Corporation has never
        been involved in the servicing of any of the mortgage loans issued to
        borrowers by Countrywide Home Loans, Inc.
               As a result, Bank of America Corporation would not have had any
        involvement in either the ownership or servicing of the mortgage loan
        issued to Milton P. Garcia, Jr. by Countrywide Home Loans, Inc.

        A summary judgment may be based on uncontroverted testimonial evidence of an
interested witness ―if the evidence is clear, positive and direct, otherwise credible and

involving substantially dissimilar policy language); Jones v. Gen. Ins. Co. of Am., No. 07-0855-WS-C, 2009
WL 1537866, at *8-10 (S.D. Ala. May 29, 2009) (emphasizing a course of dealing between the parties and that
performance under the contract satisfied a duty by the promissee to the borrower); Turner v. Gen. Ins. Co. of
Am., No. 5:09cv00057-DCB-JMR, 2009 WL 3247302, at *2-4 (S.D. Miss. Oct. 7, 2009) (involving policy
which covered personal property of homeowner and required payment directly to homeowner and not
discussing requirement that performance be in satisfaction of a duty the promisee owed the borrower).
         In contrast to the cases Garcia cites, the policy in the present case required payment of any amount
above the value of the lender’s interest be paid to both the lender and the borrower, did not specifically require
compliance with policy terms by the borrower, did not cover the borrower’s personal property, and included
language stating that any amounts paid above the value of the lender’s interest in the property would not make
the borrower an insured or additional insured under the policy. Furthermore, Garcia presented no evidence of a
course of dealing that evidenced the parties’ intent to confer a direct benefit on him.
         We additionally note that a divided panel of the First Court of Appeals recently held that an insurer
under a lender-placed policy failed to prove entitlement to summary judgment against a homeowner’s claim to
be an intended third-party beneficiary of the policy. Alvarado v. Lexington Ins. Co., Nos. 01-10-00740-CV, 01-
10-01150-CV, 2012 WL 1355733, at *17 (Tex. App.—Houston [1st Dist.] Apr. 19, 2012, no pet. h.). Some of
the policy language at issue in that case, however, is not contained in the policy before us in the present case.
See id. at *12-16.

                                                        8
free from contradictions and inconsistencies, and could have been readily controverted.‖
Tex. R. Civ. P. 166a(c); see also Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310
(Tex. 1997). When an affidavit meets these criteria and the opposing party fails to
controvert the affidavit through deposition testimony, interrogatories, or other discovery,
the affidavit is competent summary judgment evidence. See Trico Techs., 949 S.W.2d at
310.

       Garcia’s appellate briefing regarding BOA is entirely a critique of Lindgren’s
affidavit. Garcia’s most salient points are that Lindgren (1) speaks only regarding loans
―issued‖ by Countrywide, while his loan was acquired by Countrywide after issuance by
another lender; (2) only negated an ownership interest at the time BOA purchased
Countrywide, not subsequent ownership or involvement; (3) did not negate any
supervision or control by BOA over Countrywide; (4) states BOA ―would not have had‖
involvement but does not say it ―did not have‖ involvement; and (5) did not affirmatively
establish personal knowledge or the truth or correctness of her testimony. Additionally,
Garcia questions how a different BOA officer, Stephen Grzeskowiak, could have
expressed considerable knowledge regarding Garcia’s loan when Lindgren denied BOA
had any involvement with the loan. We will consider each of these arguments in turn.

       First, Garcia points out that Lindgren states BOA had no involvement with any
loans ―issued‖ by Countrywide, but Countrywide did not issue Garcia’s loan, it acquired
it from another lender. While this distinction may be accurate, it is a semantic point at
best. Cf. Martinez v. City of San Antonio, 768 S.W.2d 911, 915 (Tex. App.—San
Antonio 1989, no writ) (refusing to participate in ―a semantical word game‖ while
interpreting affidavit). The fact that Lindgren intended the term ―issued‖ to be used in an
expansive way is demonstrated by the fact that she concludes from BOA’s lack of
involvement in loans ―issued‖ by Countrywide that BOA would not have had any
involvement with Garcia’s loan in particular. Furthermore, if Lindgren’s statement was
inaccurate, Garcia could have controverted it through the discovery and summary
judgment response processes. See Trico Techs., 949 S.W.2d at 310. He did not do so.

                                            9
        Next, Garcia asserts that Lindgren only negated an ownership interest at the time
BOA purchased Countrywide, not any subsequent ownership or involvement with
Garcia’s loan. However, Lindgren’s statements in the affidavit are not as limited as
Garcia suggests. Lindgren stated that BOA ―has never been involved in the servicing of
any of the mortgage loans‖ and ―would not have had any involvement in either the
ownership or servicing of‖ Garcia’s loan. This language was comprehensive enough to
negate any interest at the time of purchase or subsequent thereto.

        Garcia further points out that Lindgren did not specifically negate the possibility
that BOA exerted supervision or control over Countrywide in regard to Garcia’s loan.
However, as appellees point out, Garcia’s live pleading at the time judgment was granted
did not contain any allegations of supervision or control. A summary judgment movant
is not required to negate all potential bases for liability, only those actually pleaded. See
Smithkline Beecham Corp. v. Doe, 903 S.W.2d 347, 355 (Tex. 1995). Furthermore, even
if such theories had been pleaded, Lindgren’s affidavit statements were sufficient to
negate such involvement.            Lindren effectively denied any involvement by BOA in
regards to Garcia’s loan.

        Garcia additionally argues Lindgren did not affirmatively establish personal
knowledge of the matters she referenced in her affidavit. Lindgren, however, permissibly
explained that her knowledge came via her position as vice president and assistant
corporate secretary with BOA. See Valenzuela v. State & County Mut. Fire Ins. Co., 317
S.W.3d 550, 553 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (compiling cases
addressing similar statements in affidavits).9

            Next, Garcia points out that in her affidavit Lindgren stated that BOA ―would not
have had any‖ involvement with his loan and did not specifically say that BOA ―did not

        9
          To the extent Garcia urges that Lindgren’s affidavit cannot support summary judgment because in it
she did not expressly say that her statements are based on her ―personal knowledge‖ or that the facts recounted
are ―true and correct,‖ such argument raises a matter of form that Garcia waived by not making it in the trial
court. See, e.g., New AAA Apartment Plumbers, Inc. v. DPMC-Briarcliff, L.P., No. 14-05-00485-CV, 2006 WL
2827275, *2 (Tex. App.—Houston [14th Dist.] Oct. 5, 2006, no pet.).

                                                      10
have any‖ involvement. But these phrases are substantial equivalents. Moreover, this is
again an overly restrictive reading of the affidavit. Lindgren stated BOA ―did not assume
ownership‖ and ―has never been involved in the servicing‖ of Countrywide’s loans, thus
it ―would not have had any involvement‖ with Garcia’s specific loan. In context, the
―would not have had any‖ language does not suggest Lindgren was attempting to hide
behind semantics as Garcia suggests.

       Lastly, Garcia questions how another BOA officer, Senior Vice President Stephen
Grzeskowiak, could have expressed considerable knowledge regarding Garcia’s loan in
his affidavit when Lindgren denied BOA had any involvement with the loan in hers. As
appellees point out, however, Grzeskowiak’s affidavit was not based on his experience
with Garcia’s loan while at BOA. Grzeskowiak stated in his affidavit that his knowledge
of lender-placed insurance policies in general and Garcia’s situation in particular was
based upon (1) previous employment ―where [his] responsibilities included lender placed
policies,‖ and (2) a review of Garcia’s ―loan file.‖ Contrary to Garcia’s suggestion, there
is no apparent discrepancy between Lindgren’s and Grzeskowiak’s affidavits.

       We find all of Garcia’s challenges to Lindgren’s affidavit to be without merit.
Because Garcia does not raise any other arguments attacking the grant of summary
judgment favoring BOA, we conclude the trial court did not err in granting that judgment.
Garcia’s second issue is overruled.

                       V. BAC Home Loan Servicing’s Motion

       Garcia’s third issue challenges the summary judgment favoring BAC. BAC is the
mortgage servicing arm of BOA. BAC and BOA filed a joint motion for summary
judgment, making separate arguments for each entity. In contrast to the portion of the
motion concerning BOA, in which BOA denied any connection to Garcia’s mortgage,
BAC acknowledges involvement in the servicing of Garcia’s mortgage. BAC primarily
argues instead that it properly performed any obligations it had to Garcia and did not
breach any duties it may have owed him. Although the motion does not specify whether
it was a traditional motion or a no-evidence motion, the specific arguments made are of

                                            11
the traditional variety. See Tex. R. Civ. P. 166a(c). Thus, the initial burden was on BAC
to demonstrate that there is no genuine issue of material fact and it is entitled to judgment
as a matter of law. See M.D. Anderson, 28 S.W.3d at 23.

        Garcia’s extensive claims against BAC included the following: (1) breach of the
duty of good faith and fair dealing; (2) breach of fiduciary duty; (3) negligence; (4)
breach of contract; (5) violations of the Deceptive Trade Practices Act (DTPA); (6)
common law fraud; (7) statutory fraud; (8) violations of the Texas Insurance Code; (9)
negligent misrepresentation; and (10) conspiracy to commit fraud and breach of fiduciary
duty.10 In its motion, BAC addressed each of Garcia’s causes of action. BAC also
attached Grzeskowiak’s affidavit to the motion, in which he stated that he had reviewed
Garcia’s loan file, ―was previously employed in a position where [his] responsibilities
included lender placed policies,‖ and had personal knowledge of the facts presented.
Grzeskowiak further averred that Countrywide acquired Garcia’s mortgage in 2004,
Garcia was consistently in default on the loan, and Countrywide had worked with him to
get the payments current. At the time Countrywide acquired the loan, Garcia had his own
insurance policy with National Lloyds Insurance, but that policy came up for renewal in
September 2004 and was not renewed by Garcia.11 According to Grzeskowiak, because
Garcia did not fulfill his obligation under the mortgage agreement to maintain insurance
on the subject property, a lender-placed policy was purchased and multiple notices were
sent to Garcia before and after placement of the policy.12 The ―loan file‖ Grzeskowiak
relied upon in making his affidavit was not attached as such to the affidavit; however,
included as attachments to the affidavit were copies of various notices Grzeskowiak said


        10
           Garcia’s petition actually addressed each of the causes of action discussed in this section against three
entities (BOA, BAC, and Countrywide) that he called ―the Bank Defendants.‖ However, in this section, we will
examine each cause of action only as it pertained to BAC.
        11
           Grzeskowiak stated that Countrywide contacted Garcia’s agent when a renewal of the policy was not
submitted, but the agent was unable to produce a renewal policy.
        12
            Grzeskowiak did not specify who procured the lender-placed policy, sent notices to Garcia, or later
renewed the lender-placed policy. Countrywide was the named insured on the policy, and the return address on
the notices is for Countrywide.

                                                        12
had been sent to Garcia, as well as a copy of the master insurance policy that was issued
to Countrywide (i.e., the lender-placed policy).

        We will discuss each cause of action raised by Garcia; however, as will be seen,
several of the claims can be analyzed together because the grounds on which summary
judgment was granted against them are similar.13

                 A. Breach of Duty of Good Faith and Fair Dealing Claims

        Under his cause of action alleging a breach of the duty of good faith and fair
dealing, Garcia asserted that BAC created a ―special relationship‖ when it procured the
lender-placed insurance policy on Garcia’s property with funds he placed in escrow.
Garcia acknowledges that a duty of good faith does not ordinarily arise between parties to
a mortgage agreement, see Federal Deposit Insurance Corp. v. Coleman, 795 S.W.2d
706, 709 (Tex. 1990); however, he insists that such a duty arose here when BAC
procured the lender-placed policy. See generally Hudspeth v. Enter. Life Ins. Co., 358
S.W.3d 373, 389-90 (Tex. App.—Houston [1st Dist.] 2011, no pet. h.) (discussing
creation of a special relationship and duty of good faith and fair dealing in the insurance
context). According to Garcia, because of this special relationship, BAC had a duty to
insure that all of the benefits under the policy were paid to him, and BAC violated that
duty by not making sure he received the proceeds.

        In its motion, BAC explained, inter alia, that as authorized by the mortgage
agreement, the lender-placed policy was procured solely for the mortgage company and
solely to protect the secured interest of the mortgage company, and Garcia was not
entitled to any proceeds from the policy under the terms of the mortgage agreement or the
policy itself. Therefore, according to BAC, procurement of the policy did not create any


        13
           Garcia spent a considerable portion of his brief arguing that BAC’s motion was too conclusory to
support the judgment and failed to provide sufficient citation to authority and the summary judgment evidence.
While not a model of exposition, we find BAC’s motion sufficient. It provided proper citation to legal authority
in key places and referenced particular key documents in the record. Moreover, as will be discussed in detail
below, a number of Garcia’s causes of action were based on very similar allegations that could properly be
addressed through shorthand references to arguments already made in the motion.

                                                      13
special relationship between BAC and Garcia and there was no breach of a duty for good
faith and fair dealing in such a relationship by not insuring that Garcia received proceeds
from the policy.

       We agree with BAC. As described in detail above, the lender-placed policy was
procured pursuant to the mortgage agreement, which permitted such a policy to be
obtained under certain circumstances and specified that the policy would not necessarily
cover Garcia’s interest in the property. Furthermore, the policy itself did not provide any
direct benefit to Garcia for which he was entitled to sue. Consequently, BAC did not sell
Garcia insurance or purchase insurance for him, and BAC’s procurement of the policy
did not create any duty for it to ensure that Garcia received proceeds under the policy.
See Hudspeth, 358 S.W.3d at 389-90; see also Barrand, Inc. v. Whataburger, Inc., 214
S.W.3d 122, 139 (Tex. App.—Corpus Christi 2006, pet. denied) (holding that regardless
of whether a duty of good faith and fair dealing arose under parties’ agreement, party was
not obligated by that duty to perform acts counter to agreement provisions). Moreover,
since no such duty existed, no such duty was subsequently breached. Accordingly, the
trial court did not err by granting summary judgment favoring BAC on Garcia’s claim of
breach of the duty of good faith and fair dealing.

                          B. Breach of Fiduciary Duty Claim

       In his breach of fiduciary duty cause of action, Garcia alleged that a fiduciary duty
existed because BAC was (1) ―the agent to insure that [Garcia] received all benefits he
was entitled to under the policy‖ and (2) the escrow agent for the insurance premium
payments. Garcia asserted BAC breached these alleged fiduciary duties by failing to
ensure Garcia received all payments due him under the policy, failing to procure non-
lender-placed insurance on the property, and failing to timely and properly pay insurance
premiums from the escrow account for renewal of the National Lloyds policy.

       Relying primarily on the mortgage documents and the escrow agreement, BAC
asserted that it owed no fiduciary duties to Garcia and breached no such duties. As
discussed in the immediately prior section of this opinion, BAC had no duty (agency–

                                             14
based or otherwise) to insure Garcia received any benefits under the lender-placed policy,
so no fiduciary duty could be based on such an alleged duty or agency relationship.
Thus, the first basis Garcia provided for creation of a fiduciary duty is without merit.

        BAC has not expressly denied that it was the escrow agent for Garcia’s insurance
premiums. Cases in which courts have described escrow agents as owing fiduciary duties
to both parties to an escrow agreement have considered the issue in the context of
closings on real property wherein the agent has a fiduciary duty to both sides in the
transaction. See Shoalmire v. U.S. Title of Harrison County, No. 06-09-00034-CV, 2010
WL 271302, at *5 (Tex. App.—Texarkana 2010, no pet.) (mem. op.).; Gary E. Patterson
& Assocs., P.C. v. Holub, 264 S.W.3d 180, 203 (Tex. App.—Houston [1st Dist.] 2008,
pet. denied); Trahan v. Lone State Title Co. of El Paso, Inc., 247 S.W.3d 269, 286 (Tex.
App.—El Paso 2007, pet. denied). Other cases have explained that when the escrow
agreement simply provides for the payment of funds by the mortgagor into an account for
the mortgagee’s use to meet tax, insurance, and other obligations—as appears to be the
case here—no fiduciary relationship is created. See Monumental Life Ins. Co. v. Hayes-
Jenkins, 403F.3d 304, 318-10 & n.27 (5th Cir. 2005); White v. Mellon Mortg. Co., 995
S.W.2d 795, 801 (Tex. App.—Tyler 1999, no pet.) (citing Wesson v. Jefferson Sav. &
Loan Ass’n, 641 S.W.2d 903, 905 n.2 (Tex. 1982)).14

        Regardless of whether an escrow agent owes a fiduciary duty, the duties of the
agent are limited and defined by the escrow agreement itself. See Shoalmire, 2010 WL
271302, at *5; Trahan, 247 S.W.3d at 286; White, 995 S.W.2d at 801. The escrow
agreement in the present case did not require BAC to insure that Garcia received all
payments due him under any insurance policy or to procure any insurance policy for
Garcia; to the contrary, the burden of procuring insurance under the mortgage documents

        14
            Garcia asserts in his brief that the supreme court in Wesson suggested that a fiduciary relationship
would be created if an escrow agreement required the mortgagee to pay insurance premiums from escrow funds.
641 S.W.2d at 905 n.2. This is not a reasonable reading of Wesson. The court therein stated: ―The escrow
relationship does not in itself impose a duty to acquire insurance in the absence of an agreement to do so.‖ Id.
As fully discussed in this opinion, the mortgage agreement at issue in this case did not require any of appellees
to acquire insurance protecting Garcia’s interest in the property.

                                                       15
was on Garcia. Therefore, summary judgment was properly granted against claims based
on these alleged fiduciary duty breaches.

        As stated, Garcia additionally asserted that BAC failed to timely and properly pay
the insurance premiums from funds in the escrow account. The escrow agreement did, in
fact, require timely payments be made for insurance premiums. Garcia’s specific claim,
as explained in his briefing to this court, is that BAC failed to send the premiums to
Garcia’s former insurance carrier, National Lloyds, ―to renew the policy.‖ But nothing in
the mortgage documents, including the escrow agreement, placed a duty on BAC to
renew a policy originally procured by Garcia. To the contrary, the duty to provide and
maintain insurance for the property was squarely on Garcia.15 Accordingly, the trial court
properly granted summary judgment against Garcia’s breach of fiduciary duty claims.

                                    C. Failure to Pay Premiums

        Similar to the last claim discussed under fiduciary duty above, several of Garcia’s
other causes of action were also premised on allegations that BAC either failed to pay
premiums to renew the policy and was obligated to do so or misrepresented that it would
make such payments.             Garcia alleged: breach of contract,16 common law fraud,17
statutory fraud,18 negligence,19 negligent misrepresentation,20 DTPA violations,21 and
violations under chapter 541 of the Insurance Code.22



        15
            Paragraph 5 of the agreement states that Garcia ―shall keep the improvements now existing or
hereafter erected on the Property insured against loss,‖ and ―[t]his insurance shall be maintained . . . .‖
        16
          In his breach of contract cause of action, Garcia asserts that BAC had a duty under the escrow
agreement to pay the insurance premiums and failure to do so was a breach of contract.
        17
           Under his common law fraud cause of action, Garcia alleged that BAC represented it would
perform under the escrow agreement and pay the insurance premiums timely, and such representation was
material, false, and made with the intent for Garcia to rely on it.
        18
          In his statutory fraud cause of action, Garcia alleged that BAC violated section 27.01 of the Texas
Business and Commerce Code by making a false representation that it would perform under the escrow
agreement. Tex. Bus. & Comm. Code § 27.01.
        19
           In his claim for negligence, Garcia alleged that as escrow agent, BAC had a duty to timely pay
insurance premiums out of the escrow account and failing to do so caused him damages.

                                                     16
          The mortgage agreement makes clear that BAC had no duty to renew the National
Lloyds policy; the duty to provide and maintain insurance under the agreement was
always on Garcia. Grzeskowiak explained in his affidavit that because Garcia did not
fulfill his obligation to maintain insurance, a lender-placed policy was obtained to protect
the mortgagee’s interest in the property.                  Grzeskowiak further identified numerous
notices sent to Garcia apprising him of the issue both before and after placement of the
policy.

          In his responsive affidavit, Garcia asserted that ―I was under the impression that I
had full insurance coverage and that every month when I made my mortgage payment, I
paying [sic] toward an insurance premium for a policy that my bank was purchasing on
my behalf.‖ He further stated that Countrywide never instructed him that he needed to
get his own insurance policy, and it was his belief that ―he paid money into an escrow
account every month and Countrywide chose the insurance policy which was the
[Newport] policy.‖         Additionally, he averred that ―It is not true that I allowed an
insurance policy to lapse and therefore the mortgage company procured a force placed
policy on my residence.‖

          At no point in his affidavit, however, did Garcia allege that any representations
were made by BAC regarding payment of the insurance premiums. Garcia’s beliefs and
impressions, in light of the unambiguous terms of the mortgage agreement placing the
burden on him to provide and maintain insurance, are of no legal significance. This case
is therefore unlike the situation addressed by the Amarillo Court of Appeals in Pankow v.

          20
           Under his negligent representation cause of action, Garcia alleged that BAC supplied false
information for his guidance in that it represented it would timely pay premiums and thereby caused him
damages.
          21
          In regards to his DTPA claims, for which he did not cite specific sections of the act, Garcia alleged
that he was a consumer of BAC’s escrow agent services. He further asserted that BAC made representations
about those services in order to induce Garcia into using those services, and he was subsequently damaged by
BAC’s failure to pay the insurance premiums in accordance with the escrow agreement.
          22
           Lastly, in his Insurance Code claims under chapter 541, Garcia alleged that BAC violated sections
541.051, .052, and .061 in making misrepresentations regarding timely payment of insurance premiums, thus
inducing Garcia into allowing a policy to lapse. Tex. Ins. Code §§ 541.051, .052, .061.

                                                      17
Colonial Life Insurance Co. of Texas, 932 S.W.2d 271, 277-78 (Tex. App.—Amarillo
1996, writ denied). In Pankow, the plaintiff sued her mortgage lender and the insurer
under a credit life policy that had not been renewed. Id. at 273. She was able to defeat
summary judgment on certain of her causes of action with evidence that her lender
represented that sums from an escrow account would be used to renew the credit life
policy but such sums were never transferred as promised. Id. at 277-78.

      Here, BAC demonstrated it had no duty to under the mortgage agreement to pay
premiums to renew the policy and the notices it sent to Garcia contain no such promises.
In response, Garcia did not specifically allege any promise was made by BAC to renew
the policy. Accordingly, the trial court did not err in granting judgment against claims
premised on allegations BAC either failed to pay premiums to renew the policy or
misrepresented that it would make such payments.

                                      D. Negligence

      In his claim for negligence, Garcia additionally asserted that BAC owed him a
legal duty to insure that he received all of the benefits and payments he was due for
damage from Hurricane Ike. In its motion, BAC again asserted, based primarily on the
mortgage documents, that it had no legal duty to insure that Garcia received all benefits.
As fully discussed above, BAC had no duty to insure Garcia received any benefits.
Accordingly, the trial court properly granted judgment on Garcia’s negligence claim.

                               E. Insurance Code Claim

      Garcia further alleged that BAC violated section 556.051 of the Texas Insurance
Code by requiring that Garcia purchase insurance from a company affiliated with BAC.
Section 556.051 reads as follows:

      556.051. Unfair Method of Competition or Unfair Practice: Tying

      (a) A depository institution engages in an unfair method of competition or
      an unfair practice in the sale of insurance by the depository institution if the
      depository institution:


                                            18
              (1) is an agent and, as a condition of extending or renewing credit,
              leasing or selling property, or furnishing services, requires the
              purchase of insurance from the depository institution or a subsidiary
              or affiliate of the depository institution, or from or through a
              particular agent, insurer, or any other person or entity;
              (2) conditions the terms of credit or the sale or lease of property on
              acquisition of insurance from or through the depository institution, a
              subsidiary or affiliate of the depository institution, or any other
              particular person or entity;
              (3) rejects a required policy solely because the policy has been
              issued or underwritten by a person or entity that is not associated
              with the depository institution; or
              (4) imposes a requirement on an agent or broker who is not
              associated with the depository institution that is not imposed on an
              agent or broker who is associated with the depository institution or a
              subsidiary or affiliate of the depository institution.

        (b) This section does not prevent a person who lends money or extends
       credit from placing insurance on property if the mortgagor, borrower, or
       purchaser fails to provide required insurance in accordance with the terms
       of the loan or credit document.

Tex. Ins. Code § 556.051.

       As BAC explained in its motion for summary judgment, the record demonstrates
that Garcia had the option under the mortgage agreement to provide his own insurance,
and a lender-placed policy was obtained, pursuant to the mortgage agreement, only after
Garcia failed to renew the prior policy or otherwise provide insurance. Moreover, there
is no indication in the record that Garcia was required to obtain insurance from a
company affiliated with the lender as a condition of extending credit.

       BAC additionally relies on subsection 556.051(b), which specifically states that
the section should not be read as preventing a lender from placing insurance on a
property when the mortgagor fails to provide required insurance. This is precisely the
situation in the present case. Nonetheless, Garcia contends that subsection (b) does not
authorize a purchase of insurance in such a situation from an affiliated company.
However, if Garcia were correct, then it would be difficult to discern what role subsection

                                            19
(b) played in section 556.051. See Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242
S.W.3d 1, 19 (Tex. 2007) (explaining that in interpreting the meaning of a statute, it must
be read as a whole and construed in such a manner as to harmonize all of its provisions).
We interpret this subsection to mean that a depository institution’s placement of
insurance on property would not violate prohibitions of subsection (a), without regard to
whether the insurance was purchased from an affiliate or subsidiary of the depository
institution, after a purchaser’s failure to provide required insurance. In short, BAC
demonstrated as a matter of law that it did not violate Insurance Code section 556.051.
Accordingly, the trial court did not err in granting judgment on this cause of action.

                                      F. Conspiracy

       Lastly, Garcia alleged that BAC conspired with all of the other named defendants
to commit fraud and breach of fiduciary duty. Specifically, Garcia complained that the
defendants unlawfully required him to purchase insurance coverage from entities
―affiliated with a lending institution who [sic] extended credit to‖ Garcia. As explained
above in regard to Garcia’s allegations under the Insurance Code, the summary judgment
record demonstrates that BAC did not, in fact, require Garcia to purchase insurance from
an entity affiliated with a lending institution extending credit to Garcia. Therefore, the
trial court did not err in granting judgment regarding conspiracy.

                                     VI. Conclusion

       The trial court did not err in granting summary judgment favoring Newport, BOA,
or BAC. Consequently, we affirm the trial court’s judgment.




                                          /s/     Martha Hill Jamison
                                                  Justice



Panel consists of Justices Frost, Seymore, and Jamison.

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