Carter v. PennyMac Loan Svcs, 5th Circuit, Dec. 21, 2022
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam:*
Sandy Carter obtained a mortgage loan that granted a lien against a property that she owned in Houston, Texas. PennyMac Loan Services, LLC owned and serviced the loan.
After Carter defaulted on the loan, PennyMac initiated foreclosure proceedings and sold the property at auction.
A few years later, Carter sued PennyMac in Texas state court.
She asserted two causes of action: negligence and wrongful foreclosure.
Carter argued that the foreclosure was wrongful both because there was “no default” and because the property sold “for a price far below its appraised value.”
PennyMac removed to federal court based on diversity of citizenship.
The district court granted summary judgment for PennyMac, and it ordered that Carter take nothing on her claims.
In her sole issue on appeal, Carter argues that the district court ignored fact issues and thus erred “by granting summary judgment with respect to [her] wrongful foreclosure claim based on ‘no default’ at the time of foreclosure.”
We disagree.
“The three elements of wrongful foreclosure. . . are
(1) a defect in the foreclosure sale proceedings;
(2) a grossly inadequate selling price;
and
(3) a causal connection between the two.”
Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 256 (5th Cir. 2013)
(citing Charter Nat’l Bank—Hous. v. Stevens, 781 S.W.2d 368, 371 (Tex. App.—Houston [14th Dist.] 1989, writ denied)).
The district court concluded that the property “was not sold at an inadequate price.”
Because Carter does not challenge that holding, she cannot show that the district court erred by dismissing her claim for wrongful foreclosure.
Even if we were to view Carter’s claim for “wrongful disclosure based on ‘no default’” as a cause of action for recovery of title, or to set aside the foreclosure sale, she still could not succeed.
“Tender of whatever sum is owed on the mortgage debt is a condition precedent to the mortgagor’s recovery of title . . . [following] a void foreclosure sale.”
Fillion v. David Silvers Co., 709 S.W.2d 240, 246 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e)
(citing Willoughby v. Jones, 251 S.W.2d 508 (Tex. 1952)).
“The party asserting valid tender bears the burden of proving it.”
Saravia v. Benson, 433 S.W.3d 658, 663 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
Here, undisputed evidence shows that Carter was (at least) delinquent when the foreclosure sale occurred.
Carter did not present any evidence indicating that she tendered the payments that were due when the foreclosure sale occurred, and thus there is no basis on which the district court could have “set[] aside the foreclosure sale.”
Bauder v. Alegria, 480 S.W.3d 92, 99 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
We AFFIRM.
Carter v. PennyMac Loan Services, LLC
(4:21-cv-03216)
District Court, S.D. Texas – Judge Lynn Nettleton Hughes
OCT 4, 2021 | REPUBLISHED BY LIT: DEC 22, 2022
From Judge Hughes opinion;
Appraisal value: $114,000
Sold at foreclosure for the sum of $88,000 (77% of Appraisal)
It’s only a grossly inadequate sales price in Texas if sold for 50% or less of appraised value.
Carter received $56k from sale. End of story – not quite.
Catamount purchased home for $88,000 and Zillow shows they flipped it for around $175,000 only 8 months later.
Even assuming, looking at the pictures that Catamount ‘upgraded’ the inside, let’s allow $20,000 for improvements.
That’s $108,000 against a sale of $175,000 equating to $67,000 gross profit, achieved in only 8 months.
Today the home is valued at $223,000.
LIT can only wonder how many ‘bidders’ were at the foreclosure auction and we’ve not investigated who the auctioneers (substitute trustees) were at this sale, at this time.
202157288
CARTER, SANDY vs. PENNYMAC LOAN SERVICES LLC
SEP 7, 2021 | REPUBLISHED BY LIT: DEC 22, 2022
From EvictorBook.com
Catamount Properties 2018, LLC is a Washington Foreign Limited-Liability Company filed on February 28, 2019. The company’s filing status is listed as Active and its File Number is 604410830.
The Registered Agent on file for this company is Cogency Global Inc. and is located at 1780 Barnes Blvd Sw, Tumwater, WA 98512.
The company’s principal address is 2015 Manhattan Beach Blvd Ste 100, Redondo Beach, CA 90278-1230 and its mailing address is 2015 Manhattan Beach Blvd Ste 100, Redondo Beach, CA 90278-1230.
Credit; Bizpedia.
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