                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-12-00465-CV

                                       Muhammad R. KHAN,
                                            Appellant

                                                  v.

                                 FIRSTMARK CREDIT UNION,
                                         Appellee

                    From the 81st Judicial District Court, Wilson County, Texas
                                Trial Court No. 12-03-0077-CVW
                             Honorable Stella Saxon, Judge Presiding

Opinion by:      Patricia O. Alvarez, Justice

Sitting:         Catherine Stone, Chief Justice
                 Sandee Bryan Marion, Justice
                 Patricia O. Alvarez, Justice

Delivered and Filed: May 22, 2013

AFFIRMED

           This is an appeal from a summary judgment granted against Muhammad R. Khan, a pro

se litigant. Firstmark Credit Union foreclosed on Khan’s property, and Khan sued Firstmark for

damages based on an alleged wrongful foreclosure. Khan contends that at the time of the

foreclosure he was current in his payments and, therefore, was not in default. The trial court

granted Firstmark’s motion for summary judgment. Khan, who failed to file a response to

Firstmark’s motion for summary judgment, asserts on appeal that the trial court erred by granting
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Firstmark’s summary judgment motion without considering all the facts and evidence contained

in his original petition. We affirm the trial court’s judgment.

                                          BACKGROUND

       In August 2003, Khan borrowed $39,200.00 from Firstmark Credit Union to purchase

about 22.51 acres of real property in Wilson County. Khan executed a real estate lien note

payable to Firstmark, which included a vendor’s lien. The note included a provision that allowed

Firstmark to accelerate the payment due if it notified Khan he was in default and the default was

not timely cured.     Khan also executed a deed of trust that designated Firstmark as the

beneficiary. The deed of trust required Khan to make all note and tax-escrow fund payments on

time. If he failed to do so, after notification of the default and failure to cure the default, the

deed of trust authorized (1) Firstmark to accelerate the note and (2) the Trustee to foreclose the

lien and sell the property in accordance with the Texas Property Code.

       On April 17, 2009, Khan received Firstmark’s notice to him that he was in default on the

note because he failed to timely make his note payments. Firstmark demanded Khan pay the

past due amount of $4,332.73, which included past due principal, late fees, and tax escrow fund

arrearages. Firstmark also notified Khan that the note would be accelerated if his payment was

not received by May 18, 2009.

       On June 23, 2009, Khan received Firstmark’s notice advising him that his note had been

accelerated and demanding payment of $28,948.11 plus attorney’s fees. Firstmark also notified

Khan that its trustee was proceeding with a foreclosure sale. On August 4, 2009, the property

was sold to Firstmark at a foreclosure sale at the Wilson County Courthouse. In March 2012,

Khan sued Firstmark for “foreclos[ing] the property without any valid reason.” Khan’s original

petition was verified and contained several exhibits. In it, Khan alleged that the “payments on



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the land loan were made on time without any default.” Khan attached proof that some payments

on the loan were made.

         In its traditional motion for summary judgment, Firstmark contended that the summary

judgment evidence conclusively proved the foreclosure was proper in all respects and that it was

entitled to judgment as a matter of law. Khan did not file a response to Firstmark’s motion. The

trial court granted Firstmark’s traditional motion for summary judgment, and Khan appealed.

We construe Khan’s appellate points 1 as complaining that the trial court improperly granted

Firstmark’s summary judgment motion because the evidence in his petition shows Firstmark

conducted a wrongful foreclosure.

                                             STANDARD OF REVIEW

         We review the grant of a traditional summary judgment de novo. Mann Frankfort Stein

& Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). “We review the evidence presented in the motion

and response in the light most favorable to the party against whom the summary judgment was

rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding

contrary evidence unless reasonable jurors could not.” Mann Frankfort, 289 S.W.3d at 848; see

City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We “indulg[e] every reasonable

inference in favor of the nonmovant and resolv[e] any doubts against the [movant].” Goodyear

Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007) (per curiam); accord Nixon v.

Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). A defendant moving for traditional

summary judgment may prevail if he conclusively disproves at least one essential element of




1
  In his three-page pro se brief, Khan asserted the facts raise three questions, but he did not cite any authorities to
clarify the legal issue or issues raised by his questions.

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each of the plaintiff’s claims. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999); Doe

v. Boys Clubs of Greater Dall., Inc., 907 S.W.2d 472, 476–77 (Tex. 1995).

       If the movant meets this burden, the burden of proof shifts to the nonmovant. See City of

Hous. v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). To oppose the motion on

grounds other than the legal sufficiency of the movant’s summary judgment evidence, the

nonmovant must file and serve its response and opposing affidavits no later than seven days

before the hearing. See TEX. R. CIV. P. 166a(c); Clear Creek Basin Auth., 589 S.W.2d at 678.

However, a response is not always required. Clear Creek Basin Auth., 589 S.W.2d at 678. If the

movant defendant does not conclusively meet its burden, the nonmovant does not need to file a

response. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per

curiam). Under these circumstances, the trial court may not grant the motion simply because of

the nonmovant’s default. Rhône–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Clear

Creek Basin Auth., 589 S.W.2d at 678. Instead, the trial court must determine whether the

movant’s summary judgment evidence is legally sufficient to support the grounds presented by

the movant. Clear Creek Basin Auth., 589 S.W.2d at 678; see McConnell v. Southside Indep.

Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993).

                                   WRONGFUL FORECLOSURE

       In his brief, Khan asserts the facts raise three questions: (1) whether Firstmark had “any

valid reason to foreclose,” (2) whether Firstmark “[chose] to resolve this matter amicably,” and

(3) whether the trial court “consider[ed] all the facts and evidences” in his original petition. We

evaluate Khan’s questions in the context of the judgment on appeal: the trial court’s grant of

Firstmark’s motion for summary judgment. Therefore, we first consider whether the trial court

erred in granting Firstmark’s motion for summary judgment on the ground that there was no



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genuine issue of any material fact pertaining to the legality of the foreclosure sale and Firstmark

was entitled to judgment as a matter of law.

A. Applicable Law

       An essential element of a wrongful foreclosure claim is “a defect in the foreclosure sale

proceedings.” See Sauceda v. GMAC Mortg. Corp., 268 S.W.3d 135, 139 (Tex. App.—Corpus

Christi 2008, no pet.) (citing Charter Nat’l Bank—Hous. v. Stevens, 781 S.W.2d 368, 371 (Tex.

App.—Houston [14th Dist.] 1989, writ denied)). A defect in the foreclosure proceedings may

occur when there is no default. See Slaughter v. Qualls, 162 S.W.2d 671, 675 (Tex. 1942)

(deciding that a foreclosure sale was void because, inter alia, the note was not in default at the

time of the sale); Lavigne v. Holder, 186 S.W.3d 625, 627–28 (Tex. App.—Fort Worth 2006, no

pet.) (reversing a summary judgment in favor of the creditor because, in the absence of default,

the creditor could not accelerate the debt or foreclose against the property). It may also occur

when the statutory foreclosure procedures are not followed. See Hous. First Am. Sav. v. Musick,

650 S.W.2d 764, 768 (Tex. 1983).

       “Section 51.002 [of the Texas Property Code] establishes the procedures for conducting a

foreclosure sale.” Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 569 (Tex. 2001);

see generally TEX. PROP. CODE ANN. § 51.002 (West Supp. 2012). Under section 51.002, if a

lender contends that a debtor is “in default under a deed of trust or other contract lien on real

property used as the debtor’s residence,” the mortgage servicer must give the debtor “written

notice by certified mail stating that the debtor is in default . . . and giv[e] the debtor at least 20

days to cure the default before notice of sale can be given.” TEX. PROP. CODE ANN. § 51.002(d);

see Powell v. Stacy, 117 S.W.3d 70, 73 (Tex. App.—Fort Worth 2003, no pet.). For real

property that is located wholly within a single county, if it is to be sold under a power of sale

created by a deed of trust or contract lien, the sale must be by public auction “held between 10

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a.m. and 4 p.m. on the first Tuesday of a month . . . [in the designated area] at the county

courthouse in the county in which the land is located.” TEX. PROP. CODE ANN. § 51.002(a);

Thompson v. Chrysler First Bus. Credit Corp., 840 S.W.2d 25, 31 (Tex. App.—Dallas 1992, no

writ). At least twenty-one days in advance of the sale, the public must be notified by posting a

written notice on the county courthouse door, with a copy of the written notice filed in the office

of the county clerk, and each debtor must be served with written notice by certified mail. TEX.

PROP. CODE ANN. § 51.002(b); see Thompson, 840 S.W.2d at 31. “The sale must begin at the

time stated in the notice of sale or not later than three hours after that time.” TEX. PROP. CODE

ANN. § 51.002(c); see Sanders v. Shelton, 970 S.W.2d 721, 724 (Tex. App.—Austin 1998, pet.

denied).

B. Analysis

       1. Firstmark’s Summary Judgment Evidence

       In its motion for summary judgment, Firstmark asserted the loan was in default and that it

fully complied with all the terms of the applicable documents and all applicable laws regarding

the foreclosure sale.   It provided sworn affidavits from Edward Muñoz, Firstmark’s vice

president for loan servicing, and Robert P. Sims, a Texas attorney with experience in real

property foreclosure sales. Muñoz’s affidavit averred that after Khan was in default, he was

given notice of the default and an opportunity to cure. Muñoz’s affidavit included exhibits

containing documents pertaining to Khan’s loan records, default and cure notices, and the

foreclosure sale. Sims’s affidavit cited the exhibits in Muñoz’s affidavit, and averred that

Firstmark complied with all the terms of the applicable documents as well as all of the

foreclosure sale provisions required by Texas law.




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       2. Did Firstmark Conclusively Disprove an Element of Khan’s Cause of Action?

       We now review Firstmark’s summary judgment evidence to determine if it conclusively

disproved Khan’s implied contention that there was a defect in the foreclosure sale proceedings.

See Clear Creek Basin Auth., 589 S.W.2d at 678.

       Firstmark’s summary judgment evidence included Muñoz’s sworn affidavit, which

included a copy of the Real Estate Lien Note and Deed of Trust, both signed by Khan. The

affidavit also included a Warranty Deed with Vendor’s Lien showing Khan as grantee. The note

and deed of trust show that Firstmark had a power of sale against Khan’s property. Firstmark’s

affidavit from Muñoz averred that Khan was in default for failure to make timely note payments

and for failure to make timely escrow fund payments.

       The exhibits to Muñoz’s affidavit further show Firstmark gave Khan notice that he was in

default, advised him that he could cure his default, and gave him at least twenty days to do so

before it gave him notice of the foreclosure sale. See TEX. PROP. CODE ANN. § 51.002(d);

Powell, 117 S.W.3d at 73; see also Teachout v. Kitchen, No. 14-03-00215-CV, 2004 WL

794383, at *2 (Tex. App.—Houston [14th Dist.] Apr. 15, 2004, no pet.) (mem. op.). The

warranty deed shows that his property was wholly located in Wilson County, and the exhibits

show that, more than twenty-one days before the sale, a copy of the public written notice of the

auction was filed with the Wilson County clerk, and Khan received notice of the foreclosure sale

by certified mail. See TEX. PROP. CODE ANN. § 51.002(b); Thompson, 840 S.W.2d at 31; see

also Stanley v. CitiFinancial Mortg. Co., 121 S.W.3d 811, 817 (Tex. App.—Beaumont 2003,

pet. denied). The Substitute Trustee’s Deed shows that the public auction sale was held on

August 4, 2009, the first Tuesday of August, on the porch and steps of the Wilson County

courthouse as stated in the written notices. See TEX. PROP. CODE ANN. § 51.002(a); Thompson,

840 S.W.2d at 31. The deed shows the sale was transacted at 11:36 a.m.—which was within

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three hours of the time stated in the notice of sale. See TEX. PROP. CODE ANN. § 51.002(c);

Sanders, 970 S.W.2d at 725–26.

       Having reviewed Firstmark’s summary judgment evidence in the light most favorable to

Khan, we nevertheless determine that the evidence conclusively proves as a matter of law that

Khan was in default and that Firstmark complied with the foreclosure sale requirements. See

TEX. PROP. CODE ANN. § 51.002; Holy Cross Church of God in Christ, 44 S.W.3d at 569. The

burden then shifted to Kahn to controvert Firstmark’s evidence. See M.D. Anderson Hosp. &

Tumor Inst., 28 S.W.3d at 23.

       3. Did Khan Controvert Firstmark’s Summary Judgment Evidence?

       On appeal, Khan argues that the trial court should have considered all the facts and the

evidence attached to his original petition as his summary judgment evidence. However, Khan

did not file a response to Firstmark’s motion for summary judgment.

       Rule 166a of the Texas Rules of Civil Procedure, which governs summary judgments,

authorizes the trial court to grant summary judgment if

       the pleadings . . . [and summary judgment evidence] . . . on file at the time of the
       hearing, or filed thereafter and before judgment with permission of the court,
       show that . . . there is no genuine issue as to any material fact and the moving
       party is entitled to judgment as a matter of law on the issues expressly set out in
       the motion or in an answer or any other response. Issues not expressly presented
       to the trial court by written motion, answer or other response shall not be
       considered on appeal as grounds for reversal.

TEX. R. CIV. P. 166a(c) (emphasis added); see Huddleston v. Tex. Commerce Bank—Dall., N.A.,

756 S.W.2d 343, 346–47 (Tex. App.—Dallas 1988, writ denied). Rule 166a requires a movant

to express its summary judgment contentions in a written motion for summary judgment.

Hammond v. Katy Indep. Sch. Dist., 821 S.W.2d 174, 176 (Tex. App.—Houston [14th Dist.]

1991, no writ). A response, likewise in writing, must fairly appraise the movant and the trial



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court of the issues the nonmovant contends defeat the motion. Clear Creek Basin Auth., 589

S.W.2d at 678.

       Khan’s verified petition does not meet Rule 166a’s requirements of a written response to

a motion for summary judgment. See TEX. R. CIV. P. 166a(c); Baker v. John Peter Smith Hosp.,

Inc., 803 S.W.2d 454, 457 (Tex. App.—Fort Worth 1991, writ denied); Terminal-Hudson Realty

Corp. v. Weingarten Realty, Inc., 605 S.W.2d 626, 627 (Tex. Civ. App.—Houston [1st Dist.]

1980, writ ref’d n.r.e.). Likewise, the documents attached to the petition are not competent

summary judgment evidence because they are not part of a summary judgment response and they

are not authenticated or verified. See TEX. R. CIV. P. 166a(c), (f); Laidlaw Waste Sys. (Dall.),

Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); Clear Creek Basin Auth., 589 S.W.2d

at 678. Khan simply did not meet his burden under Rule 166a. Therefore, the trial court was

correct in not considering Khan’s original petition and its attachments as his response and

evidence controverting Firstmark’s motion for summary judgment.

       4. Summary Judgment Was Proper

       Firstmark’s evidence conclusively proves that Khan’s loan was in default and that there

was no defect in the foreclosure sale proceedings.      See TEX. PROP. CODE ANN. § 51.002;

Sauceda, 268 S.W.3d at 139. As a matter of law, Firstmark met its burden to disprove an

essential element of Khan’s wrongful foreclosure claim. See Elliott-Williams Co., 9 S.W.3d at

803. The burden then shifted to Khan to present evidence controverting Firstmark’s contentions.

See Clear Creek Basin Auth., 589 S.W.2d at 678. However, Khan did not meet this burden

because he failed to file a response to Firstmark’s motion. See TEX. R. CIV. P. 166a(c). There




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being no controverting evidence, the trial court properly granted Firstmark’s motion for

summary judgment. Therefore, we overrule Khan’s appellate issues. 2

                                                 CONCLUSION

        As required, we have reviewed the competent summary judgment evidence in the light

most favorable to Khan. See Mann Frankfort, 289 S.W.3d at 848; City of Keller, 168 S.W.3d at

827. We conclude that the summary judgment evidence conclusively proves that there were no

defects in the foreclosure sale proceedings and that Firstmark was entitled to judgment as a

matter of law; the trial court did not err in granting Firstmark’s motion. Therefore, we affirm the

trial court’s judgment.

                                                         Patricia O. Alvarez, Justice




2
  In his brief, Khan contended Firstmark “chose not to solve this problem amicably.” He provides no argument or
authority to show that Firstmark had any duty to do so. To the extent that Khan’s statement identifies an appellate
issue, the issue is waived. See TEX. R. APP. P. 38.1(i); In re Blankenship, 392 S.W.3d 249, 259 (Tex. App.—San
Antonio 2012, no pet.).

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