     Case: 10-11190     Document: 00511600940         Page: 1     Date Filed: 09/13/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        September 13, 2011

                                       No. 10-11190                        Lyle W. Cayce
                                                                                Clerk

AMERICAN HOME MORTGAGE CORPORATION, and its assigns;
AMERICAN HOME MORTGAGE SERVICING, INC., as Servicer for the
Master Adjustable Rate Mortgages Trust 2007-1

                                                  Plaintiffs-Appellants
v.

RUSCO COMPANY

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:07-CV-1907


Before KING, DAVIS, and GARZA, Circuit Judges.
PER CURIAM:*
        Plaintiffs, American Home Mortgage Corporation and its assigns, appeal
the judgment of the district court granting a right to a portion of the proceeds of
a foreclosure sale to a competing creditor, Rusco Company. Because we conclude
that the first priority vendor’s lien held by American Home Mortgage exceeds
the amount of the proceeds, precluding any recovery by Rusco, we reverse.


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                 No. 10-11190


                                       I.
      On August 16, 2006, John Felts and Zane Morris entered into a contract
for the purchase of property at 4706 S. Lindhurst Avenue in Dallas, Texas, from
J.P. Morgan Chase Bank for $2,050,000. Financing for the purchase came from
two sources.   Rusco Company provided a $400,000 loan evidenced by a
promissory note dated September 27, 2006 and secured by a deed of trust, which
was recorded on October 11, 2006, before the sale closed. Only $205,000 of this
loan was actually drawn upon to pay the earnest money for the transaction.
Felts dropped out of the transaction at some point prior to closing.
      Morris obtained two purchase money loans from American Home Mortgage
Corporation (AHM) for $1,547,050 and $400,000. Both were evidenced by
promissory notes and secured by deeds of trust. The $1,547,050 note and deed
of trust is primary and the $400,000 note and deed of trust created a secondary
lien. AHM was not aware of the Rusco loan. It did not show up in a title search
because it was recorded before Morris gained an interest in the property and
thus was not then reflected in the grantor or grantee index for the property.
      At closing, J.P. Morgan conveyed the property to Morris via a Special
Warranty Deed with Vendor’s Lien. The interpretation of that document is the
core of this case. Through the warranty deed J. P. Morgan assigned its superior
title and vendor’s lien to AHM as further security for the $1,547,050 note. An
Addendum for Second Lien added the $400,000 note as also being secured by the
vendor’s lien. The warranty deed (including the addendum) and both deeds of
trust were recorded on October 25, 2006.
      Morris defaulted on his obligations to AHM and Rusco. AHM assigned its
interest in the $1,547,050 note and the deed of trust to MARM 2007-1, a master
adjustable rate mortgage trust. MARM nonjudicially foreclosed on the property
under the first deed of trust and purchased the property for approximately $1.3

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                                  No. 10-11190

million. Subsequently, Rusco sought to nonjudicially foreclose on its deed of
trust. AHM and MARM (collectively “AHM”) sought to enjoin the foreclosure
leading to this lawsuit.
      The parties entered into a Stipulation and Agreement allowing AHM to
sell the property to a third party for $2 million and allow whatever rights the
parties have or had in the property to apply to the proceeds. The district court
on cross motions for summary judgment was asked to determine the priority
between AHM and Rusco to the proceeds. The court found that AHM’s vendor’s
lien was valid and superior to Rusco’s deed of trust; Rusco’s deed of trust was
superior to AHM’s first and second deeds of trust; and AHM did not foreclose its
vendor’s lien when it nonjudicially foreclosed pursuant to the AHM first deed of
trust. The court then judicially foreclosed the AHM vendor’s lien and granted
Rusco the excess proceeds over the amount required to satisfy the $1,547,050
vendor’s lien. AHM filed a motion to reconsider arguing that its vendor’s lien
secured both the $1,547,050 note and first deed of trust and the $400,000 note
and second deed of trust. The district court denied the motion. This appeal
followed.
                                       II.
      This case was decided on cross motions for summary judgment. Summary
judgment is proper if the pleadings, the discovery and disclosures on file, and
any affidavits show that there are no genuine issues of material fact and that the
movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56 (c). On
appeal, this court reviews the district court’s grant of summary judgment de
novo. Baton Rouge Oil & Chem. Workers Union v. ExxonMobil Corp., 29 F.3d
373, 375 (5th Cir. 2002).
                                      III.
      Although AHM raises three arguments in favor of its appeal of the district
court’s judgment, we need only consider the first. AHM asserts that the district

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                                No. 10-11190

court erred in concluding that AHM’s vendor’s lien secured only the amounts
owed under the AHM $1,547,050 Promissory Note and Deed of Trust, and that
the vendor’s lien did not also secure the AHM $400,000 Promissory Note and
Deed of Trust. AHM argues that the district court disregarded the Addendum
to the Warranty Deed and the express intent of the parties to the transaction
that the vendor’s lien cover all the purchase money advanced by AHM. We
agree.
     The face of the Special Warranty Deed with Vendor’s Lien references only
the $1,547,050 note to AHM. The document also states that
     It is expressly agreed that the Vendor’s Lien, as well as Superior
     Title in and to the above described premises, is retained against the
     above described property, premises and improvements until the
     above described note and all interest thereon are fully paid
     according to the face, tenor, effect and reading thereof,
     when this Deed shall become absolute.

(emphasis added) (the Release Language). However, the document includes an
addendum that references the $400,000 note to AHM. It reads -
           The property described in this deed is also being conveyed for
     further consideration of the execution and delivery by Grantee of
     that one certain Real Estate Lien Note of even date herewith in the
     original principal sum of $400,000.00 payable to the order of
     American Home Mortgage (“Second Lien Lender”) as therein
     provided, which Note is secured by a Vendor’s Lien retained herein
     upon the herein described property for the benefit of the Holder’s
     thereof and as additionally secured by a subordinate and inferior
     Deed of Trust of even date herewith to Andrew Valentine, Esq.,
     Trustee upon the property conveyed hereby.

           For good and valuable consideration paid to Grantor by
     Second Lien Lender, the receipt and adequacy of which is hereby
     acknowledged, Grantor assigns, without recourse, the Vendor’s Lien
     retained herein to Second Lien Lender, and Second Lien Lender is
     hereby subrogated to all of Grantor’s rights under the Vendor’s Lien
     retained in this addendum.


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                                       No. 10-11190

The addendum is not dated or signed but was recorded with the Special
Warranty Deed with Vendor’s Lien.
       In its original order, the district court assumed from AHM’s complaint and
summary judgment motion that it was seeking foreclosure of the vendor’s lien
only to the extent that it covered the $1,547,040 promissory note.1 In its order
in response to AHM’s motion for reconsideration, the district court noted that it
was unclear when and under what circumstances the addendum was executed,
but elected not to consider the validity of the addendum because it found that
the Release Language quoted above in bold released the vendor’s lien upon
payment of the $1,547,050 note alone.                The district court held that the
addendum did not alter the Release Language.
       We agree with the district court that the Warranty Deed and Addendum
are less than clear in their meaning. However, based on our reading of Texas
case law, the district court erred by looking solely to the Warranty Deed to
determine the intentions of the parties with regard to this transaction. Under
Texas law, when separate documents related to a single transaction are executed
contemporaneously and for the same purpose they “are to be considered as
though they are in fact a single instrument.” Donie State Bank v. Parker, 554
S.W.2d 858, 860 (Tex. App. Waco 1977), citing Pacific Mutual Life Ins. Co. v.
Westglen Park, Inc., 325 S.W.2d 113, 116 (Tex. 1959) and Board of Ins. Com’rs
v. Great Southern Life Ins. Co., 239 S.W.2d 803, 809 (Tex. 1951).


       1
         Based on our review of the record, we reject Rusco’s argument that the plaintiffs did
not adequately plead or argue in the district court that the vendor’s lien covered both notes.
The Second Amended Complaint names both AHM and MARM as plaintiffs. It lays out the
details of both notes and deeds of trust as well as the Warranty Deed. It also requested relief
on the basis of the Warranty Deed in favor of the plaintiffs (plural), which would necessary
refer to the vendor’s lien covering both notes as each plaintiff held one. AHM’s Motion for
Summary Judgment gave the same background. The Warranty Deed with Addendum was
attached as an exhibit to the motion, which requested judgment in favor of American, which
referred collectively to AHM and MARM. The pleadings and motions adequately plead and
argued that the plaintiffs were seeking relief under the vendor’s lien as to both notes.

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                                       No. 10-11190

       In Donie State Bank, Edward Parker conveyed property to Alton Parker,
Jr. as evidenced by a Warranty Deed. 554 S.W.2d at 859. The Warranty Deed
with reserved vendor’s lien referenced the purchase money promissory note
given in exchange for the property. The Warranty Deed did not reference the
Deed of Trust securing the promissory note. The Deed of Trust did not refer to
the Warranty Deed or vendor’s lien and although it did reference the note, it did
not indicate that it was given as purchase money.                    The promissory note
referenced all the documents. Id. at 860. The Warranty Deed was recorded at
the time of the conveyance. Id. at 859. Before the Deed of Trust was recorded,
Donie State Bank recorded a judgment in its favor against Alton Parker. Id.
When Alton Parker defaulted on his obligations under the promissory note, the
trustee under the Deed of Trust foreclosed on the Deed of Trust and Edward
Parker purchased the property. Id. Later, Donie State Bank purchased Alton
Parker’s interest in the property at a Sheriff’s Sale. Id. The issue in the case
was whether Edward Parker or Donie State Bank held superior title in the
property. Id. at 858. Donie State Bank argued that foreclosure of the Deed of
Trust did not also foreclose on Edward Parker’s superior vendor’s lien because
the Deed of Trust did not indicate that it secured the vendor’s lien. Id. at 860.
The Texas Court of Civil Appeals looked at the instruments documenting the
sale from Edward Parker to Alton Parker as a whole and held that the
instruments plainly showed that the Deed of Trust was intended to secure
payment of Edward Parker’s vendor’s lien expressed in the Warranty Deed and
the vendor’s lien was superior to the bank’s judgment lien. Id. at 860-61.2



       2
         AHM also relies on Donie State Bank in support of its alternative argument that
foreclosure on the $1,547,050 deed of trust also effectively foreclosed on the vendor’s lien and
because the proceeds from the foreclosure ($1.3 million) were less than the lien, extinguished
the intervening lien of Rusco. Based on our disposition of the case, we need not decide that
question.

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                                    No. 10-11190

         Applying Donie State Bank to this case, the documents evidencing the
transaction at issue in this case are as follows:
(1)      Special Warranty Deed with Vendor’s Lien from J.P.Morgan Chase Bank
         to Zane Morris, Vendee. In this document J.P. Morgan expressly retains
         a Vendor’s Lien and Superior Title in favor of AHM until the “above
         described note and all interest thereon are fully paid.” As described above,
         this deed references only the $1,547,050 note on its face, but incorporates
         the $400,000 note in the addendum.
(2)      $1,547,050 Deed of Trust in favor of AHM. There is no express purchase
         money lien or vendor’s lien granted in this deed of trust.
(3)      $400,000 Deed of Trust in favor of AHM.            This document is titled
         “Purchase Money Deed of Trust” and in para. 23 grants a vendor’s lien to
         the lender.
         23. Purchase Money Deed of Trust; Vendor’s Lien. The funds lent
         to Borrower under the Note secured hereby were used to pay all or
         part of the purchase price of the Property. The Note secured hereby
         also is primarily secured by the Vendor’s Lien retained in the deed
         of even date herewith conveying the property to the Borrower, which
         Vendor’s Lien has been assigned to Lender, this Deed of Trust being
         additional security therefor.

All of the above documents were dated effective October 19, 2006 and recorded
October 25, 2006.
         Read as a “single instrument”, the above documents support AHM’s
contention that its Vendor’s Lien covered both notes. AHM provided purchase
money to Morris in two parts documented by two promissory notes and deeds of
trust. The $400,000 Deed of Trust expressly documents that the funds are
purchase money funds and grants a vendor’s lien to AHM.                 The Special
Warranty Deed with Vendor’s Lien grants superior title to AHM who is the
lender under both notes.         The addendum to the Special Warranty Deed


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                                  No. 10-11190

incorporates the $400,000 loan as a note covered by the lien.           Read in
conjunction with the deeds of trust, the vendor’s lien reserved in the Warranty
Deed was clearly intended to cover both the $1,547,050 note and the $400,000
note.
        Rusco argues that the addendum is ineffective to convey superior title to
AHM for the $400,000 note because superior title had already been conveyed in
full to AHM for the $1,547,050 note by the body of the Special Warranty Deed
before the addendum was attached. Essentially, Rusco is reading the documents
as created a two step transaction – first, superior title and vendor’s lien was
conveyed to AHM in conjunction with the $1,547,050 note, leaving nothing to be
conveyed by the addendum to cover the $400,000 note. This is a very restricted
reading of the Warranty Deed and addendum and inconsistent with the
intention of the parties as expressed in the related deeds of trust.         The
documents are part of a single transaction in which the Special Warranty Deed
with Vendor’s Lien creates a vendor’s lien in favor of AHM covering both notes.
Under this interpretation, the reference in the Special Warranty Deed to “the
above described note” or the “hereinabove described Note” would incorporate not
only the $1,547,040 note referenced on the face of the Warranty Deed, but also
the $400,000 note referenced as part of the consideration for the deed in the
Addendum.
         Under this reading of the documents, the judicial foreclosure of the
vendor’s lien ordered by the district court entitles AHM and MARM to all the
proceeds from the third party to satisfy the balance of both notes, which exceeds
the $2 million received.
                                       IV.
        For the foregoing reasons, we reverse the judgment of the district court
granting a portion of the proceeds to Rusco and remand with instructions to



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                                 No. 10-11190

render judgment in favor of AHM for the $2 million proceeds from the sale of the
subject property.
      REVERSED and REMANDED.




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