LIT UPDATE; Nov. 2, 2020
It didn’t fare well for Wease v Ocwen post 5th Circuit. See order below.
It appears that the Fifth Circuit Court of Appeals has a New Years Resolution in relation to review of foreclosure cases by homeowners….we’ll watch and see if it’s an enthusiastic start that chokes out of breath or if they have the lung strength to keep it going….
OCWEN BREACH OF CONTRACT – COUNT I
A contract is ambiguous if it “is subject to two or more reasonable interpretations.” Nat’l Union Fire Ins. Co. of Pitt., PA v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995).
Given the two plausible readings above, the deed of trust is ambiguous. And because ambiguity precludes summary judgment, El Paso, 389 S.W.3d at 806, Wease was entitled to proceed to trial on his claim that Ocwen breached the contract by paying his 2010 taxes before the tax lien attached and before they became delinquent.
OCWEN BREACH OF CONTRACT – COUNT II
The second breach-of-contract issue is whether Ocwen failed to provide adequate notice of its actions. Section 3 provides that “Lender may revoke the [escrow] waiver as to any or all Escrow Items at any time by a notice given in accordance with Section 14.”
Section 14 simply requires that a notice be given “in writing” and delivered to the borrower. The record reflects, and Ocwen acknowledged at oral argument, that Ocwen did not provide notice that it would begin collecting taxes through an escrow account until June 6, 2011.
But the record is also clear that Ocwen had paid Wease’s 2010 taxes six months before that notice was sent. Indeed, the June letter informed Wease that his (presumably already-existent) escrow account had a shortage of $4,740.64, which Ocwen would collect over the following twelve-month period.
With these facts in the record, it was error for the district to conclude as a matter of law that Ocwen had provided contractually adequate notice of its revocation of the Waiver Agreement.
We REVERSE summary judgment on the breach-of-contract claim and VACATE and REMAND for reconsideration of the foreclosure counterclaim. On all other claims, we AFFIRM.