      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-04-00741-CV



                                Wesley Eugene Perkins, Appellant

                                                  v.

                      Chase Manhattan Mortgage Corporation, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
      NO. GN401164, HONORABLE CHARLES F. CAMPBELL, JR., JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Wesley Eugene Perkins appeals from the trial court’s orders granting

summary judgment in favor of appellee Chase Manhattan Mortgage Corporation and denying

Perkins’s motions to strike and for sanctions. We affirm the trial court’s orders.

               Initially, we note that Perkins is representing himself pro se. He asserts that as a pro

se litigant, he should be held to less stringent standards than an attorney. Perkins is correct that we

will attempt to read pleadings drafted by a pro se litigant liberally and with patience. See Haines v.

Kerner, 404 U.S. 519, 520 (1972) (holding that under Fed. R. Civ. P. 12, allegations in pro se

inmate’s pleadings are held “to less stringent standards than formal pleadings drafted by lawyers”).

However, a pro se litigant is held to the same procedural standards as attorneys; to allow otherwise
could give pro se litigants an unfair advantage over litigants represented by counsel. Mansfield State

Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); see Faretta v. California, 422 U.S. 806, 834

n.46 (1975) (in federal criminal trial, defendant’s “right of self-representation is not a license to

abuse the dignity of the courtroom” or to fail “to comply with relevant rules of procedural and

substantive law”). Therefore, we will attempt to read Perkins’s pleadings and other documents

liberally to discern the substance of his complaints. See Johnson v. McAdams, 781 S.W.2d 451, 452

(Tex. App.—Houston [1st Dist.] 1989, no writ) (citing Haines, 404 U.S. at 520). However, we will

not overlook a lack of supporting facts or a failure to meet procedural requirements in considering

Perkins’s claims. See Cohn, 573 S.W.2d at 184-85; Johnson, 781 S.W.2d at 452-53.


                              Factual and Procedural Background

               In 1997, Perkins bought a house in Austin, borrowing $82,413 from Chase. In

exchange for the loan, Perkins signed a deed of trust and adjustable rate note in favor of Chase.

After Perkins defaulted on the loan, Chase, acting through its attorneys at Barrett Burke Wilson

Castle Daffin & Frappier, L.L.P. (“Barrett Burke”), sent Perkins notice that he was in default.

Perkins responded by filing a “Private International Administrative Remedy Demand.” Perkins’s

“Demand” acknowledged his receipt of Barrett Burke’s notice of default and said that he was not

refusing to pay the “alleged debt,” but instead was giving notice that the debt was invalid, that the

claim was disputed, that Perkins did not dispute the amount of debt claimed, and that Barrett Burke

must cease all collection activity until it sent Perkins a “verification as required by the Fair Debt

Collection Practices Act.” See 15 U.S.C.A. § 1692g(b) (West 1998). Perkins stated that any future

communications by Barrett Burke, “absent the above-cited requisite ‘verification of the debt,’”

                                                  2
would constitute Barrett Burke’s “tacit admission, confession, and agreement” that it had “no lawful,

bona fide, verifiable claim.” Perkins attached a “Certified Promissory Note” stating that the note

was tendered “as full satisfaction” of the alleged debt and that the note constituted Perkins’s

“promise to pay this instrument upon presentment and indorsement,” citing the Uniform Commercial

Code (the “UCC,” codified at Tex. Bus. & Com. Code Ann. tit. 1 (West 1994 & 2002 & Supp.

2005)). The note stated that “[a]s an operation of law, [Chase] tacitly consents and agrees that there

is accord and satisfaction by use of this instrument to satisfy [Chase’s] claim and [Perkins] is hereby

discharged from liability on this alleged account and the obligation is suspended in accordance with

law as codified at UCC §§ 3-310(b), 3-311, and 3-603.” Perkins also attached a “disclosure

statement,” which he said Chase and Barrett Burke were required to complete, asking forty-four

questions such as the name and address of the debtor and debt collector, the “Alleged Account

Number” and amount owed, whether the debt had been purchased from an original creditor, whether

there was “verifiable evidence of an exchange of a benefit or detriment between Debt Collector and

alleged Debtor,” and whether “[a]t the time the alleged original contract was executed, . . . all parties

[were] advised of the importance of consulting a licensed legal professional before executing the

alleged contract.” The form stated that failure to complete and return the form with a verification

of the debt would constitute “tacit agreement that Debt Collector ha[d] no verifiable, lawful, bona

fide claim re the hereinabove-referenced alleged account” and would mean that Barrett Burke waived

all claims against Perkins and indemnified him against any and all fees and costs incurred.

                In 2004, Chase, still represented by Barrett Burke, filed suit seeking judicial review

of Perkins’s documents, which Chase alleged were fraudulent “Republic of Texas documents,



                                                   3
instruments, liens, and claims” made against the real property and filed by Perkins in public records,

including Travis County property records. Chase sought to clear the title of the land and extinguish

Perkins’s attempts to encumber Chase’s interests in the property. Chase also sought to foreclose on

the property, either judicially or under the terms of the contract and the property code. Chase asked

the trial court to declare that Perkins had defaulted on the note, that Perkins was divested of any

interest in the property, and that Perkins’s documents purporting to establish a lien against the

property were void. Chase further sought attorney’s fees and asked the court to order a writ of

possession should Perkins refuse to vacate the property.

                Perkins responded by filing a “Sworn Rule 12 Motion for Attorneys to Show

Authority,” asking that Barrett Burke show its authority to act for and represent Chase. Perkins

“demand[ed]” that the trial court require Chase’s attorneys to appear and produce “their bona fide

‘License to Practice Law’ issued by The State of Texas,” stating “[a]bsence thereof is tacit

admittance that none exist.” He stated that “a license to practice law is not a membership card

provided by the bar association” and that he had “made a careful search of the records and can find

no Texas State Office that issues licenses to practice law.”

                Chase filed a motion for summary judgment, contending that it held title through the

vendor’s lien, it was entitled to rescind the lien due to Perkins’s nonpayment of the loan, and the trial

court should annul the liens and other documents Perkins filed against Chase’s interest in the

property. As evidence, Chase produced an affidavit of Kay Walters, the foreclosure manager for

Barrett Burke. Walters explained that Perkins took out a loan from Chase in 1997 then ceased

making payments in August 2003. Walters attached the warranty deed, note, deed of trust, and a



                                                   4
payoff statement to show that Chase loaned Perkins the money and that Perkins still owed $76,590

in principal on the loan. The warranty deed, which was filed in the Travis County property records

in 1997, recites that Chase was granted a vendor’s lien and superior title in exchange for a $82,413

loan; the note provides that if Perkins failed to make the required payments, Chase could accelerate

the loan; and the deed of trust provides that in the event of default and acceleration of the note,

Chase could foreclose on the property.

               In response, Perkins filed a “Judicial Notice Pursuant to 201(d) Texas and Federal

Rules of Evidence,” demanding that the trial court “provide a written list of all presumptions that

the court will take notice of at any proceedings.” Perkins quoted case law to the effect that

statements of counsel made in briefs or arguments will not support summary judgment and that

evidence must be provided through affidavit, testimony, or admissible documentation. Perkins also

filed a “Sworn Motion to Strike Sham,” arguing that Chase’s petition should be struck entirely

because Chase refused to abide by his International Administrative Remedy Demand and opted “to

by-pass administrative remedy,” thus disposing of any genuine issues of fact remaining. Perkins

asserted that there was no proof that Perkins had filed his administrative lien documents in the public

record or “used the money evidenced by the Loan Agreement,” and argued that Chase was

attempting to “foist ‘Unofficial Documents’” and fraud upon the trial court. Perkins further filed a

motion for sanctions and an “Affidavit in Opposition to Summary Judgment.” Perkins’s affidavit

consists of 136 statements such as, “I am Wesley Eugene Perkins,” “I do not consent to this matter,”

and, “This court does not have jurisdiction in this matter.” Perkins asserted that Chase was offering

unofficial documents and that the matter was settled. Perkins complained that Chase should not have



                                                  5
entered into evidence the original documents he sent as his Administrative Remedy Demand, stating

that the “one time functioning” documents were now commercially inaccessible. Perkins stated that

“[s]hould it be discovered that this court may have jurisdiction,” the court “is rendered crippled,”

“incapable of rendering justice,” and incompetent. Perkins asserted that because Chase and its

attorneys did not act on his demands, Chase accepted his documents as true. Perkins attacked the

veracity and competence of Kay Walters and Peggy Heller, Chase’s lead attorney, and stated that

Chase’s summary judgment evidence was altered and incomplete; Perkins did not explain how the

documents were unreliable. Perkins also stated without explanation that Chase’s petition, motion

for summary judgment, and affidavit in support of summary judgment were erroneous and

unreliable. Finally, Perkins stated that he wanted “to examine the bond of this matter,” the

“underwriting of this matter,” and the bonds and liability limits of all actors involved, and asserted

that “summary judgment in this matter is not appropriate.”

               Chase responded to Perkins’s various motions, stating that Perkins’s pleadings and

affidavit were not competent summary judgment evidence and did not raise a fact issue because they

made unsupported legal conclusions and constituted inadmissible hearsay. Chase provided an

affidavit by Charlie Wightman, Default Resolution Supervisor for Chase. Wightman averred that

he retained Barrett Burke to handle Perkins’s default and authorized Peggy Heller to retain an

additional attorney to assist in representing Chase.




                                                  6
                 Following a hearing, the trial court denied Perkins’s motion to strike, motion for

sanctions, and motion to show authority. The court granted Chase’s motion for summary judgment.1

Perkins appeals in fourteen issues and several additional arguments, attacking the trial court’s orders.

Having read Perkins’s brief carefully, it appears that he (1) disputes whether Chase’s attorneys

showed they had authority to act in the case, (2) argues that the trial court was incompetent and

lacked jurisdiction over the cause, (3) attacks whether the trial court was bonded, under oath, and

“in the office,” (4) asserts that Chase tacitly admitted to the truth of Perkins’s motions and pleadings,

(5) complains that the trial court should have granted his motions to strike and for sanctions, (6)

argues that the trial court should have filed findings of fact and conclusions of law, (7) contends that

the trial court forfeited its jurisdiction by taking certain facts as true, (8) maintains that Chase

destroyed valuable property by introducing the original promissory note into the record, (9) asserts

that his debt was discharged when he tendered his promissory note, and (10) contends that the trial

court erred in refusing to consider his affidavit and rendering judgment for Chase.


            Issues Related to Jurisdiction and Attorneys’ Authority to Represent Chase

                 We will first address Perkins’s issues related to whether Chase’s attorneys showed

themselves authorized to represent Chase. Perkins filed a motion demanding that Chase’s attorneys

show their authority to represent Chase by way of licenses to practice law issued by a state office.

In response, Chase filed Wightman’s affidavit stating that he had hired Barrett Burke to represent




        1
         The trial court also granted Chase’s motion for sanctions, but did not award attorney’s fees
or monetary sanctions. Similarly, in its order granting summary judgment, the court granted Chase’s
motion in all respects, but did not address Chase’s request for attorney’s fees.

                                                   7
Chase’s interests in this matter and that he authorized Heller to hire an additional attorney to assist

in the case. At the hearing, Perkins asserted that the affidavit should be disregarded because the

pleading to which it was attached had some apparent typographical errors; although the motion stated

that Wightman’s affidavit was attached as “Exhibit ‘A,’” the affidavit was not actually labeled as

such; Wightman did not produce tangible proof that he was authorized to speak for Chase; and Chase

never produced proof that it existed as a corporation. Perkins also argued that the affidavit was

insufficient because it did not establish that the attorneys were properly licensed and authorized to

practice law. On appeal, he contends that the attorneys did not establish their authority to represent

Chase or practice law and, therefore, the trial court lacked jurisdiction over the matter. Perkins

further demanded that the trial court, “being of and under proper oath and bond of and in the office,”

issue an order requiring the attorneys to show their authority, and he asserts on appeal that because

the trial court did not satisfy that demand, the court was without jurisdiction. Finally, although it is

not entirely clear, he seems to argue that the trial judge was not authorized to proceed because he was

not elected to the particular trial court in question and did not show that he was both a United States

citizen and licensed to practice law in Texas. See Tex. Const. art. V, § 7.

               The rules of civil procedure allow a party to challenge whether a lawsuit is being

prosecuted without authority. Tex. R. Civ. P. 12. If a motion is filed under rule 12, the challenged

attorney must appear and show her authority to act. Id. At the hearing on Perkins’s motions and

Chase’s motion for summary judgment, attorney Mark Hopkins produced Wightman’s affidavit, in

which he averred that he retained Peggy Heller to handle Perkins’s default and that he authorized




                                                   8
Heller to retain Hopkins to serve as local counsel and assist with the litigation. Wightman averred

that Heller and Hopkins were authorized to act on Chase’s behalf in the proceeding against Perkins.

                Chase’s response stated that “Exhibit A,” an “Affidavit of Representative of Chase

Manhattan Mortgage Corporation,” was attached as proof. However, Wightman’s affidavit was not

labeled “Exhibit A,” although it was the only exhibit attached. Perkins argued that the affidavit was

a sham and should not be considered because it was not labeled “Exhibit ‘A’” and because the

motion contained several errors. Perkins also quotes the trial court’s statement agreeing with Perkins

that the affidavit was “unacceptable” because of typographical errors in the response to which the

affidavit was attached, arguing that the court recognized the defective nature of the affidavit but

wrongfully accepted it as evidence nonetheless. In agreeing with Perkins, the trial court did not

agree that the document was unacceptable as evidence and should be ignored. Instead, the court

noted the errors and admonished counsel to be more careful in the future when preparing such

documents. The court explicitly stated that the response and affidavit, although not perfect, were

adequate to show that the attorneys had authority to represent Chase. The fact that the affidavit did

not bear the label referenced in the response is of no matter because Wightman’s affidavit was

attached to the response, was the only document attached, and clearly stated that the attorneys were

authorized to represent Chase in this case. By considering the documents and ruling that the

attorneys had proven their authority, the trial court did not err or in any way “forfeit” its jurisdiction

over the case. We overrule Perkins’s eleventh issue.

                Perkins also attacks the attorneys’ authority, arguing that they did not prove that they

were licensed to practice law in Texas. Rule 12 does not require an attorney to produce a physical



                                                    9
license to practice law issued by a state agency; it requires an attorney to show “sufficient authority

to prosecute or defend the suit on behalf of the other party.” Tex. R. Civ. P. 12. The legislature

established the State Bar of Texas as an administrative agency authorized to assist the judiciary in

governing the practice of law in Texas. See Tex. Gov’t Code Ann. §§ 81.011, .012 (West 2005).

Attorneys licensed to practice in Texas must enroll in the State Bar. Id. § 81.051 (West 2005). The

supreme court has the exclusive jurisdiction to determine rules governing the admission to the

practice of law in Texas. Id. § 81.061 (West 2005). A membership card issued by the State Bar is

“evidence of membership” and thus, of a person’s license to practice law. Tex. State Bar. R. art. III,

§§ 2, 4, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. (West 2005). In their pleadings,

Chase’s attorneys listed their names, law firm names, and bar card numbers. Perkins did not argue

that the attorneys had been disbarred or had never been licensed by the supreme court to practice law.

See Keller Indus., Inc. v. Blanton, 804 S.W.2d 182, 185 (Tex. App.—Houston [14th Dist.] 1991, no

writ) (“The practice of law is not a right bestowed upon an individual; rather, it is a license granted

by the state subject to rules and regulations. However, once those rules and regulations are complied

with by an individual, one who chooses his or her counsel should not be denied that choice by the

courts except for compelling reasons.” (citation omitted)). Wightman’s affidavit showed that Heller

and Hopkins had authority to represent Chase. See Boudreau v. Federal Trust Bank, 115 S.W.3d

740, 741-42 (Tex. App.—Dallas 2003, pet. denied); Spigener v. Wallis, 80 S.W.3d 174, 184 (Tex.

App.—Waco 2002, no pet.). The trial court did not err in ruling that Chase’s attorneys proved their

authority to represent their client. We overrule issues one, two, seven, and twelve.




                                                  10
               Although in issue three Perkins seems to attack the trial judge’s authority to preside

over the hearing and make rulings on the various motions, he did not raise any such issues before

the trial court and did not file any objections to the judge. Therefore, he has waived any issues

related to the trial judge’s qualifications. We overrule issue three.

               In several issues, Perkins contends that the trial court lacked or lost jurisdiction over

the proceeding. We disagree.

               Contrary to Perkins’s assertions, the trial court did not lose jurisdiction over the

matter as a result of Perkins’s challenge to the attorneys’ authority. The Texas Constitution grants

district courts exclusive original jurisdiction over suits involving the title to land. See Tex. Const.

art. V, § 8. Perkins admits that the property in question is located in Travis County, and thus, the

Travis County district court gained subject matter jurisdiction over the cause when Chase filed its

suit. See Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 708 (Tex. 2003) (Enoch, J.,

dissenting) (“When the trial court obtained jurisdiction, which it did when Collins filed suit, it had

the authority to decide the merits of the entire controversy.”); see also Haley v. Tax Appraisal Dist.,

No. 03-00-00179-CV, 2001 Tex. App. LEXIS 170, at *3-4 (Tex. App.—Austin Jan. 11, 2001, no

pet.) (not designated for publication) (holding that trial court had subject matter over delinquent tax

proceeding because district courts have exclusive jurisdiction over such suits, property was located

in Bell County, and suit was filed in Bell County). Perkins admitted in his affidavit that he was

domiciled in Travis County, and the court’s docket sheet states that service of process was made on

Perkins. Therefore, the court had personal jurisdiction over Perkins. See Haley, 2001 Tex. App.




                                                  11
LEXIS 170, at *3. Although Perkins asserted in his various filings that the pleadings did not

constitute an answer to Chase’s petition and that he did not concede the issue of personal

jurisdiction, Perkins did not file a special appearance under rule 120a and he sought affirmative

determinations and actions by the trial court. See Tex. R. Civ. P. 120a. Thus, Perkins waived any

issue related to the trial court’s exercise of personal jurisdiction. See id.; Dawson-Austin v. Austin,

968 S.W.2d 319, 322 (Tex. 1998) (party makes general appearance if he invokes trial court’s

judgment on question other than jurisdiction, recognizes that action is properly pending before court,

or seeks affirmative action from court). Perkins did not show grounds to support his assertion that

the trial court lacked jurisdiction over the subject matter or the parties. We overrule issues number

four and five.


                             Perkins’s Remaining Procedural Issues

                 Perkins next asserts that Chase did not respond to his motions to strike or for

sanctions and did not object to his affidavit in opposition to summary judgment and, therefore,

admitted to the truth and validity of all matters asserted in those documents. Contrary to Perkins’s

assertions, Chase responded to Perkins’s motions to strike and for sanctions by way of a reply to

Perkins’s response to the motion for summary judgment and a response to his motion to show

authority and for sanctions. Chase further objected to Perkins’s pleadings and affidavit filed in

response to the motion for summary judgment, arguing that the documents were improper summary

judgment evidence. Chase did not act or fail to act so as to ratify any of Perkins’s pleadings or

purported evidence. We overrule Perkins’s sixth, eighth, and ninth issues.




                                                  12
                In issue thirteen, Perkins seems to argue that the trial court made a statement that

showed that the court was so incompetent that the court no longer had authority to proceed.2 We

cannot discern exactly what Perkins is contending by this issue. We do, however, note that the trial

court was correct in its statement that courts are appropriate venues for determining the propriety of

private agreements and settlements when those alleged settlements are disputed. Perkins has

presented nothing for our review by this issue, and we overrule issue thirteen.

                In his fourteenth issue, Perkins asserts that the trial court failed to file findings of fact

and conclusions of law when requested to do so by Perkins. “The only cogent conclusion that can

be reached from this lack of Findings of Fact and Conclusions of Law,” Perkins argues, is that the

trial court “has come to know that he was indeed without jurisdiction in this matter, incompetent in

this matter, incompetent to hear this case, [and] incompetent to render judgment.” Initially, we note

that findings of fact and conclusions of law “have no place in a summary judgment proceeding” and

therefore are not required to be filed. Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994);




       2
           Perkins argues in full:

           As found in recorder’s Record page 36, lines 3, 4 where recorded as said, by MR.
           PERKINS, “they’re trying to bring a private settled matter into court.”
           Whereupon the court responded, line 5, “That’s what this court is for.” To which
           MR. PERKINS says, “Right.” (the reporter’s Record fails to show the tone of the
           response as it seems to have been a question), and the court responds in lines 7,
           8, “That’s what all these courts are for.” (Emphasis added.)

           Goes to show a level of incompetent that removes judge actor from any position
           of competent authority in this matter.

                                                    13
Golden v. McNeal, 78 S.W.3d 488, 495 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). Further,

although the trial court signed its order granting summary judgment on November 3, Perkins did not

file his request for findings and conclusions until November 29, twenty-six days later. Perkins’s

request, therefore, was not timely filed. See Tex. R. Civ. P. 296 (request must be filed within twenty

days of signing of judgment). Finally, Perkins did not file a notice of past due findings and

conclusions as required by rule 297. See Tex. R. Civ. P. 297. Therefore, any error in the trial court’s

failure to make findings of fact and conclusions of law is waived. See In re A.I.G., 135 S.W.3d 687,

694 (Tex. App.—San Antonio 2003, no pet.); American Realty Trust, Inc. v. JDN Real

Estate-McKinney, L.P., 74 S.W.3d 527, 530 (Tex. App.—Dallas 2002, pet. denied). We overrule

issue number fourteen.

               In issue ten, Perkins asserts that the trial court showed it was biased against him when

it allowed Chase’s attorney to make statements explaining the posture of the case and Chase’s

arguments. At the hearing, Perkins frequently objected to the attorney’s statements, asking whether

the attorney was testifying. The trial court explained that the attorney was allowed to explain his

position, much the same way Perkins had explained his positions before being sworn under oath to

testify. Perkins is correct that an attorney’s statements do not constitute evidence or support the

granting of summary judgment. However, an attorney may speak in a hearing to summarize the

evidence and arguments presented, which is what Chase’s attorney did here. The trial court did not

exhibit bias against Perkins. To the contrary, the court was quite patient during the proceeding,

attempting to explain procedure and its decisions. Nor did the court grant summary judgment based

on counsel’s statements, rather than proper evidence. We overrule Perkins’s tenth issue.



                                                  14
                                Propriety of Summary Judgment

               In addition to the fourteen issues set out above, Perkins also makes a broad attack on

the propriety of the trial court’s granting of summary judgment, arguing that by his International

Remedy Demand, he made a good faith effort to verify and settle Chase’s claim. He again attacks

the trial court’s jurisdiction and argues that Chase did not establish that it had standing to bring or

that the court had subject matter jurisdiction over the cause. Perkins further complains that Chase

destroyed the commercial value of the promissory note he provided in response to the notification

that he was in default.

               A motion for summary judgment is properly granted if, when the evidence is viewed

in the light most favorable to the non-movant, a movant establishes itself entitled to judgment as a

matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We review de

novo a trial court’s decision to grant summary judgment. Natividad v. Alexsis, Inc., 875 S.W.2d 695,

699 (Tex. 1994).

               Perkins invokes the UCC to argue that he attempted to tender performance under the

deed and note by sending Chase his “Certified Promissory Note.” However, real estate contracts are

not governed by the UCC; the UCC applies only to sales of goods. See Tex. Bus. & Com. Code

Ann. § 2.102 (West 1994); Gupta v. Ritter Homes, Inc., 633 S.W.2d 626, 627 (Tex. App.—Houston

[14th Dist.] 1982) (cause of action under UCC was “unfounded because sales of realty . . . are not

within the scope of the Code”), rev’d on other grounds, 646 S.W.2d 168 (Tex. 1983); see also Tex.

Bus. & Com. Code Ann. § 9.109(d)(11) (West 2005) (chapter 9 of UCC does not apply to creation

or transfer or interest in or lien on real property); Vogel v. Travelers Indem. Co., 966 S.W.2d 748,



                                                  15
753 (Tex. App.—San Antonio 1998, no pet.) (discussing former UCC § 9.104, now § 9.109, and

stating that because “Deed of Trust places a lien on real property, it is not governed by the UCC”);

Long v. NCNB-Texas Nat’l Bank, 882 S.W.2d 861, 864 (Tex. App.—Corpus Christi 1994, no writ)

(same). Thus, Perkins’s attempt to discharge his loan obligations through a promissory note under

the UCC was not a defense to Chase’s claim.3

               Chase produced evidence in the form of affidavits and documentation showing that

Perkins borrowed $82,413 from Chase to purchase a house. In exchange for the loan, Perkins signed

a deed of trust granting Chase a security interest in the property and the right to accelerate the loan

upon default. Perkins also signed a note promising that he would repay the loan amount over time

and with interest. Chase produced a payoff statement setting out the balance due and an affidavit

by Barrett Burke’s foreclosure manager swearing that the payoff statement was a true and correct

statement of the amount owed and averring that Perkins had not made any payments in the last year.

Chase, therefore, established that it had a security interest in the property and that Perkins had

defaulted on the loan.

               Perkins did not answer Chase’s motion with any evidence raising a genuine question

of material fact. Perkins produced an “affidavit,” which he argues established his defenses as a

matter of law. We have already held that his averments were not deemed admitted or otherwise

ceded by Chase. In his affidavit, Perkins did not raise any issues as to whether he took out the

mortgage loan or had ceased making payments or whether Chase had a right to accelerate the loan


       3
           We further note that Perkins already signed a promissory note when he took out the
mortgage loan from Chase. His Adjusted Rate Note states that Perkins promised to repay the loan
as specified in the terms of the note, and Perkins defaulted on those promises.

                                                  16
and foreclose upon the property. Instead, his affidavit consists of conclusory statements that he had

been harmed by Chase’s pleadings, that Chase had tacitly admitted that it had no claim, and that he

had paid the loan through his promissary note. Such conclusory statements of fact or law are not

competent summary judgment evidence. See McIntyre v. Ramirez, 109 S.W.3d 741, 749-50 (Tex.

2003); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); see also Walls Reg’l Hosp. v.

Bomar, 9 S.W.3d 805, 807 (Tex. 1999) (“characterizations of Boyett’s conduct and motives were

conclusory and do not create a fact issue”). The trial court did not err in granting summary judgment

in favor of Chase.


                                            Conclusion

               Chase established its right to summary judgment through competent evidence.

Perkins did not produce contrary evidence raising a fact issue as to whether Chase had a right to

foreclose on the property. We have overruled Perkins’s fourteen issues and have held that the trial

court properly granted summary judgment for Chase. We therefore affirm the trial court’s order.




                                              __________________________________________

                                              David Puryear, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: June 16, 2006




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