                       In the
                  Court of Appeals
          Second Appellate District of Texas
                   at Fort Worth
               ___________________________
                    No. 02-18-00261-CV
               ___________________________

            SAMMY JO KRESSENBERG, Appellant

                               V.

 NATIONSTAR HECM ACQUISITION TRUST 2015-2, WILMINGTON
SAVINGS FUND SOCIETY, FSB NOT INDIVIDUALLY, BUT SOLELY AS
                   TRUSTEE, Appellee




             On Appeal from the 96th District Court
                    Tarrant County, Texas
                Trial Court No. 096-287991-16


              Before Kerr, Birdwell, and Bassel, JJ.
             Memorandum Opinion by Justice Bassel
                           MEMORANDUM OPINION

                                    I. Introduction

      This is an appeal from the trial court’s grant of summary judgment in favor of

Appellee Nationstar HECM Acquisition Trust 2015-2, Wilmington Savings Fund

Society, FSB in its capacity as Trustee. Appellant Sammy Jo Kressenberg’s four issues

focus solely on the trial court’s failure to sustain objections to Appellee’s summary-

judgment evidence.     We hold that the trial court acted within its discretion by

overruling Appellant’s objections and that the failure to sustain the objections did not

probably cause the rendition of an improper judgment. We therefore affirm the

judgment of the trial court.

                      II. Factual and Procedural Background

      Appellee sought a nonjudicial foreclosure of a reverse mortgage through

declaratory judgment. The suit alleged two instances of default: Appellant’s failure to

pay taxes due on the property and her failure to insure it.

      Appellee filed a motion for summary judgment, which the trial court denied.

Appellee filed a second motion for summary judgment, which the trial court granted.

The trial court also signed an order overruling various objections Appellant had made

to Appellee’s summary-judgment evidence. Appellant filed a motion for new trial

that, in essence, reurged her prior objections to Appellee’s summary-judgment

evidence. The trial court overruled the motion for new trial and also specifically



                                            2
overruled the evidentiary objections that Appellant had reurged. Appellant then

perfected this appeal.

                               III. Standard of Review

      “We review the trial court’s decision to admit or exclude summary[-]judgment

evidence for an abuse of discretion.” Pettit v. Maxwell, 509 S.W.3d 542, 548 (Tex.

App.—El Paso 2016, no pet.). To reverse a matter, we must find the error to be

harmful. See Tex. R. App. P. 44.1(a)(1) (“No judgment may be reversed on appeal on

the ground that the trial court made an error of law unless the court of appeals

concludes that the error complained of . . . probably caused the rendition of an

improper judgment . . . .”).

    IV. Analysis of Rulings on Objections to Summary-Judgment Evidence

      Appellant’s first three issues deal with various objections to the summary-

judgment evidence relied on by Appellee.          The objections were as follows:

(1) Appellee failed to lay a proper predicate under the business-records hearsay

exception for certain third-party documents, (2) Appellee failed to establish that

proper notice of default had been given, and (3) Appellee supported its motion with

unreliable and unauthenticated documents.

A. Proof of Default

      In her first issue, Appellant makes the often-encountered objection that the

affiant failed to lay a business-records predicate for the admission of a third-party’s

documents. As explained below, what Appellant does not challenge is that the affiant

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laid a predicate for Appellee’s own documents and ignores that those documents

establish that Appellant had defaulted on the note by failing to pay insurance

premiums and taxes due on the property. Thus, even if there were a flaw in the

predicate for the prove-up of the third-party’s documents, the evidence derived from

Appellee’s own records was sufficient to sustain Appellee’s summary-judgment

burden.

      As the parties agree, a reverse mortgage is a nonrecourse obligation.1 See Tex.

Const. art. XVI, § 50(k)(1), (3), (4), (6). “[A] nonrecourse note has the effect of


      1
       The mechanics of a reverse mortgage are described as follows:

      A reverse mortgage allows homeowners, age 62 or older, to convert
      home equity into periodic payments or advances made by the lender
      over the life of the homeowners. See J. Alton Alsup, The New and
      Improved Texas Reverse Mortgage, 55 Consumer Fin. L.Q. Rep. 207, 209
      (2001); see also Larsen v. OneWest Bank, FSB, No. 14-14-00485-CV, 2015
      WL 6768722, at *4 (Tex. App.—Houston [14th Dist.] Nov. 5, 2015, no
      pet.) (mem. op.) (citing Alsup when explaining features of a reverse
      mortgage). An initial advance typically is made at loan closing to cover
      closing costs and payoff any existing lien, and the balance of the credit is
      then advanced in periodic payments according to the plan. See Alsup,
      supra, at 209. Interest accrues only on the amounts advanced over the
      term of the loan. See id. The homeowners have no obligation to repay
      any principal or interest during their lifetimes unless they sell or transfer
      the home, permanently cease occupying the home as their principal
      residence, or fail to properly maintain the property, timely pay property
      taxes and insurance premiums, or maintain the priority of the reverse
      mortgage lien. See id. A reverse mortgage is a non-recourse debt,
      meaning the lender may look only to the proceeds of the sale of the
      home for repayment when the debt becomes due, typically upon the
      death of the last of the homeowners to die or upon one of the other
      maturing events that permit the lender to accelerate the debt. See id. at
      209–10. Neither a deceased homeowner’s estate nor his heirs are liable

                                           4
making the note payable out of a particular fund or source, namely, the proceeds of

the sale of the collateral securing the note, rather than having the maker of the note

personally guarantee repayment.” Melton v. CU Members Mortg., 586 S.W.3d 26, 33

(Tex. App.—Austin 2019, pet. denied). The events of default for a reverse mortgage

include “defaults on an obligation specified in the loan documents to repair and

maintain, pay taxes and assessments on, or insure the homestead property.” Tex.

Const. art. XVI, § 50(k)(6)(D)(i). The loan documents signed by Appellant create the

obligation to pay taxes and insure the property.       Thus, to establish its right to

summary judgment, Appellee did not have a burden to establish that a particular

amount was owed but that Appellant had failed to pay taxes on the property and to

insure it.

       Attached to Appellee’s summary-judgment motion are exhibits generated by a

number of entities with no explanation of how the entities interrelate. But there are

also a number of exhibits that Appellee generated, such as demand letters and notices

that inform Appellant of defaults for the nonpayment of taxes and insurance

premiums. Appellant’s summary-judgment response does not allege that she has paid


       for any deficiency that may result after the sale. See id. at 210. Since
       1998, the Texas Constitution has expressly authorized a reverse
       mortgage as a type of debt that may be secured by a valid lien against
       homestead property. See Tex. Const. art. XVI, § 50(a)(7); see also Larsen,
       2015 WL 6768722, at *5.

Washington-Jarmon v. OneWest Bank, FSB, 513 S.W.3d 103, 105 (Tex. App.—Houston
[14th Dist.] 2016, no pet.).

                                           5
the taxes or insurance premiums that Appellee’s letters contend that it had paid on her

behalf. Nor does Appellant’s response object to a lack of predicate for Appellee’s

letters. The supporting affidavit filed by Appellee relies on both the documents that

Appellant challenges and on the documents that Appellant does not challenge to

support its motion. Thus, the record contains unchallenged evidence that Appellant

defaulted on her obligations under the loan documents.

      Our question is whether the unchallenged evidence met Appellee’s summary-

judgment burden to establish that Appellant had defaulted by not paying taxes and

insurance. It does. Even when a party must establish that there was a default on an

obligation to pay under the terms of an instrument and that a specific amount is due,

a minimal amount of evidence will meet a party’s summary-judgment burden. See, e.g.,

Rogers v. Asset Lending, L.L.C., No. 14-16-00980-CV, 2018 WL 3118645, at *6–8 (Tex.

App.—Houston [14th Dist.] June 26, 2018, no pet.) (mem. op.) (holding that affidavit

merely stating amount due sufficed to meet summary-judgment burden); H&H Steel

Fabricators, Inc. v. Wells Fargo Equip. Fin., Inc., No. 02-15-00391-CV, 2016 WL 6277371,

at *4 (Tex. App.—Fort Worth Oct. 27, 2016, no pet.) (mem. op.) (“To establish the

amount owed, [movant’s] affidavit needed to state only the total amount due on the

note based on his personal knowledge as a bank officer; detailed proof of the balance

of the note was not required.”); Duarte-Viera v. Fannie Mae, 560 S.W.3d 258, 264–66

(Tex. App.—Amarillo 2016, no pet.) (holding that when note made a failure to pay an



                                           6
event of default, summary-judgment affidavit stating that there was a failure to pay

amounts due and owing established default for summary-judgment purposes).

       Undoubtedly, Appellee’s summary-judgment proof could have been more

precise. But the question is whether the affidavit it filed and the attachments to that

affidavit—excluding the evidence that Appellant objected to—presented enough

evidence to establish that Appellant had an obligation to pay taxes and insurance on

the mortgaged property and that she had defaulted on that obligation. Appellee’s

business records—in the form of the various letters—contain unchallenged evidence

that Appellant had not paid taxes due on the property or insurance premiums.

Appellant does not challenge the fact that she bore the obligation to make the

payments or that it was an event of default not to pay them. Thus, any error in the

failure to authenticate the third-party documents was harmless. See Tex. R. App. P.

44.1(a)(1).

       We overrule Appellant’s first issue.

B. Notice of Default

       Appellant argues that the summary-judgment evidence establishes two

deficiencies in how she was given notice of default: (1) Appellee sent a notice of

default and opportunity to cure by certified mail when the deed of trust at issue

specified notice was to be sent by first-class mail, and (2) Appellant did not actually

receive the notice because “[t]he USPS Tracking Information would appear to

indicate that [Appellant] was left a notice and did not pick up the letter.” However, as

                                              7
explained below, neither the proviso of the deed of trust nor the Texas Property Code

require actual receipt of a notice of default.              Also, the deed of trust provision

specifying service by first-class mail defers to applicable law, and the Property Code

mandates the use of certified mail as the means of transmitting notice.

      Appellant relies on the following provision of the deed of trust to support her

arguments claiming deficiencies in the transmission and receipt of notice:

      17. Notices. Any notice to Borrower provided for in this Security
      Instrument shall be given by delivering it or by mailing it by first[-]class
      mail unless applicable law requires use of another method. The notice
      shall be directed to the Property Address or any other address all
      Borrowers jointly designate. Any notice to Lender shall be given by
      first[-]class mail to Lender’s address stated herein or any address Lender
      designates by notice to Borrower. Any notice provided for in this Security
      Instrument shall be deemed to have been given to Borrower or Lender when given as
      provided in this Paragraph 17. [Emphasis added.]

      The first flaw in Appellant’s argument is that the quoted paragraph does not

mandate that she actually receive notice. Based on the italicized portions of the

paragraph above, properly mailing the notice satisfies the obligation to provide notice.

      And Appellee responds to Appellant’s argument that she had to actually receive

the notice by noting that the provision of the Texas Property Code dealing with

notice is to the contrary because the Property Code requires only proper transmission

of the notice and not its actual receipt. The Property Code bears out Appellee’s

contention:

      (e) Service of a notice under this section by certified mail is complete when the notice is
      deposited in the United States mail, postage prepaid and addressed to the debtor at
      the debtor’s last known address. The affidavit of a person knowledgeable of

                                                  8
       the facts to the effect that service was completed is prima facie evidence
       of service.

Tex. Prop. Code Ann. § 51.002(e) (emphasis added); see Ebrahimi v. Caliber Home Loans,

Inc., No. 05-18-00456-CV, 2019 WL 1615356, at *7 (Tex. App.—Dallas Apr. 15, 2019,

pet. denied) (mem. op.) (stating that Section 51.002(e) “makes it clear that service is

completed upon deposit in the mail, not actual receipt; there is no requirement that a

plaintiff physically receive the notice in order for service to be valid and effective”);

King v. Bank of N.Y., No. 13-07-00069-CV, 2008 WL 2764523, at *2 (Tex. App.—

Corpus Christi–Edinburg July 17, 2008, no pet.) (mem. op.) (“Whether the debtor

actually receives the notice is irrelevant for statutory purposes. To show a violation,

the debtor must show that the mortgage holder did not mail the required notice by

certified mail to the debtor’s last known address.”).

       With respect to Appellant’s challenge to the use of certified rather than first-

class mail, the deed of trust provision that she relies on states that first-class mail is to

be used “unless applicable law requires use of another method.” Here, applicable law

provides for another method because the Property Code mandates service by certified

mail. Specifically, the Property Code provides that “the mortgage servicer of the debt

shall serve a debtor in default under a deed of trust or other contract lien on real

property used as the debtor’s residence with written notice by certified mail.” Tex.

Prop. Code Ann. § 51.002(d). Thus, Appellee followed the applicable law dictating

the method of service.


                                             9
      We overrule Appellant’s second issue.

C. Signature on the Note and Approval to Foreclose

      Appellant contends in her third issue that the trial court erred by not sustaining

her objection that Appellee had failed to authenticate the note at issue by proving that

she had executed it. The objection was invalid because Appellant did not file a

verified denial of execution under Texas Rule of Civil Procedure 93(7), and the failure

to file that denial freed Appellee from having to prove execution of the note. See Tex.

R. Civ. P. 93(7) (listing matters in pleadings that must be verified by affidavit,

including “[d]enial of the execution by [plaintiff] or by his authority of any instrument

in writing, upon which any pleading is founded, in whole or in part and charged to

have been executed by him or by his authority, and not alleged to be lost or

destroyed”); Lissiak v. SW Loan OO, L.P., 499 S.W.3d 481, 494 (Tex. App.—Tyler

2016, no pet.) (“Absent a verified denial [filed pursuant to Rule 93(7)], the document

is received into evidence as fully proved.”).

      Next, Appellant challenges whether Appellee showed the pieces fit together on

the issue of whether it had obtained approval from the Secretary of the Department

of Housing and Urban Development to foreclose. Though no one explains to us why

HUD approval might be necessary, the deed of trust has a provision stating that

“Lender may require immediate payment-in-full of all sums secured by this Security

Instrument, upon approval of the Secretary [of Housing and Urban Development].”

Appellant’s argument holds no sway; as discussed below, she had no right to complain

                                            10
even if HUD had not given permission to foreclose. Also, her objections are invalid

because the evidence was not, as she claims, speculative or conclusory.

      The affidavit filed by Appellee in support of its motion for summary judgment

contains the following recitations about the approval process:

      On March 28, 2016, Nationstar requested the loan-servicing contractor
      for The Department of Housing and Urban Development to call the
      loan due and payable as corporate funds were advanced on behalf of
      Borrower to pay for delinquent taxes and insurance. (See Due and
      Payable request with supporting documentation[,] a copy of which is
      attached to this Affidavit as Exhibit “A-5”[.)]

            On April 6, 2016, Nationstar received approval from Novad
      Management Consulting, the loan-servicing contractor for The
      Department of Housing and Urban Development[,] to call the loan due
      and payable as corporate funds were advanced on behalf of Borrower to
      pay for delinquent taxes and insurance. (See HUD Approval Letter[,] a
      copy of which is attached to this Affidavit as Exhibit “A-6”[.)]

      As we construe Appellant’s argument, the quoted paragraphs and the

documents they reference are allegedly flawed because they are conclusory and

speculative. The basis for these objections is that the evidence fails to show that the

approval request was directed to an entity with the authority to act on behalf of HUD.

Specifically, the evidence did not establish that Novad Management Consulting acted

as servicer for HUD or “had the authority to call the loan.” Appellant also sees a flaw

in the approval given by Novad because it was not directed to Appellee but to an

entity named Celink.

      But no one ever explains to us why the question of whether Appellee had

received approval from HUD for foreclosure is not much ado about nothing. We

                                          11
have previously held that a mortgagor “has no private right of action regarding any

alleged failure by [mortgagee] to follow HUD regulations, even those incorporated in

the deed of trust.” Hornbuckle v. Countrywide Home Loans, Inc., No. 02-09-00330-CV,

2011 WL 1901975, at *5 (Tex. App.—Fort Worth May 19, 2011, no pet.) (mem. op.)

(per curiam). In Hornbuckle, we held that the mortgagor could not complain about the

failure of the mortgagee to obtain approval from HUD before foreclosing. Id. Thus,

whether Appellee obtained authorization from HUD gave Appellant no grounds to

object to the foreclosure. Id. Consequently, even if the trial court erred by overruling

an objection to the evidence, that error is harmless because Appellant did not

demonstrate that the error probably caused the rendition of an improper judgment.

See Tex. R. App. P. 44.1(a)(1); Grace Interest, LLC v. Wallis State Bank, 431 S.W.3d 110,

125 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (“Even if the trial court errs

by considering conclusory evidence at summary judgment, however, we will not

reverse unless the party requesting reversal can demonstrate that the error probably

caused the rendition of an improper judgment.”).

      But even if the failure to obtain authorization was a matter that impacted

Appellant, we do not conclude that the trial court abused its discretion by failing to

sustain Appellant’s objections on the grounds that the statements—that Novad was

HUD’s servicer and had authority to act on its behalf—were conclusory and

speculative. “A conclusory statement is one that ‘does not provide the underlying

facts to support the conclusion.’” Hobson v. Francis, No. 02-18-00180-CV, 2019 WL

                                           12
2635562, at *6 (Tex. App.—Fort Worth June 27, 2019, no pet.) (mem. op.). The

letter requesting authorization to foreclose was a document drafted by Appellee. The

letter was directed to a particular entity seeking approval from HUD for the

foreclosure, and that entity gave the requested authorization. And Novad responded

in a way that indicated that it was acting as the loan servicer. These documents give a

factual basis for the statement that Novad was acting on behalf of and had the

authority to act on behalf of HUD.

      If Appellant’s objection based on speculation is that the affiant lacked personal

knowledge of the role of Novad, that objection is also invalid. Appellant does not

attack the affiant’s claim that he had personal knowledge of the statements made in

his affidavit. Even if that objection had been made, it would have been invalid. The

affiant demonstrated personal knowledge based on his recitation of his job title and

his statement that he had reviewed the records attached to the affidavit and that he

was the custodian of such records. Garcia v. Bank of Am. Corp., 375 S.W.3d 322, 330

(Tex. App.—Houston [14th Dist.] 2012, no pet.) (“[Affiant], however, permissibly

explained that her knowledge came via her position as vice president and assistant

corporate secretary with BOA.”); Hinojosa v. Citibank (S.D.), N.A., No. 05-07-00059-

CV, 2008 WL 570601, at *1–2 (Tex. App.—Dallas Mar. 4, 2008, pet. denied) (mem.

op.) (holding that affiant’s statement explaining the content of three attached

documents was not conclusory and that records custodian’s personal knowledge of

records was sufficient to provide factual support for her statement).

                                          13
      Next, Appellant challenges the admissibility of the letter Novad sent

authorizing foreclosure by rehashing the same arguments that the evidence regarding

Novad’s role as HUD’s servicer was speculative and conclusory. Our prior two

paragraphs resolve why these objections were invalid. Appellant embellishes the

objections by asserting that the letter from Novad contains a flaw that contradicts the

affiant’s statement that Novad gave Appellee approval to foreclose. That alleged flaw

is that the letter from Novad is addressed to Celink. We do not see the fatal

contradiction that Appellant does. Novad’s letter is dated nine days after Appellee

requested authorization to foreclose, it specifically mentions Appellant’s name as the

borrower, and the letter from Appellee requesting permission to foreclose contains a

Celink loan number. In the face of these facts, it is perhaps a flaw in the exchange of

communications about approval, but it does not rise to the level of a “contradiction”

of Appellee’s claim that HUD gave approval to foreclose.

      We overrule Appellant’s third issue.

D. Request to Reverse Judgment

      In her fourth issue, Appellant requests that we reverse the judgment if we

sustain any of her previous three issues. Because her fourth issue is contingent on our

sustaining one of her first three issues and because we have not done so, we overrule

Appellant’s fourth issue.




                                          14
                                  V. Conclusion

      Having overruled Appellant’s four issues, we affirm the trial court’s judgment.

                                                     /s/ Dabney Bassel

                                                     Dabney Bassel
                                                     Justice

Delivered: April 9, 2020




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