Wells Fargo Bank, N.A. v. Leath, Lonzie

Dissenting Opinion Filed March 21, 2014

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-11-01425-CV

WELLS FARGO BANK, N.A., AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN
TRUST 2006-1 ASSET-BACKED CERTIFICATES, SERIES 2006-1, Appellant
V.
LONZIE LEATH, Appellee

On Appeal from the 95th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 08-07290

OPINION DISSENTING FROM THE DENIAL OF
APPELLANT’S MOTION FOR REHEARING EN BANC
Before Justices Moseley, O’Neill, and Brown
Dissenting Opinion by Justice FitzGerald

I respectfully dissent from the Court’s denial of appellant’s motion for rehearing en banc.

I disagree with the panel’s conclusion that appellee gave appellant adequate notice of

appellant’s alleged failure to comply with the constitution. The purpose of the notice provision

is to give the lender enough detail about the alleged defect so that the lender can take advantage

of the 60-day cure period. See Curry v. Bank of Am., N.A., 232 S.W.3d 345, 353 (Tex. App.—

Dallas 2007, pet. denied). In this case, appellee notified appellant through a pleading of

appellee’s contention that the mortgage in question violated the constitution because the loan

amount exceeded 80% of the actual fair market value of the property at the time of closing.
Appellee gave appellant no other details. The information appellee provided was too conclusory

to inform appellant what it needed to do to cure the alleged defect. Thus, appellant could not

have cured the alleged defect without additional information—presumably from appellee, who

might or might not have cooperated with appellant to resolve the issue. We should not construe

the notice provision in such a way that makes the lender’s ability to cure within sixty days

contingent on the debtor’s cooperation.

An analogy may be drawn to the recovery of attorneys’ fees under Chapter 38 of the

Texas Civil Practice and Remedies Code. To recover attorneys’ fees, the claimant must have

presented its claim to the opposing party and given the opposing party thirty days to make

payment. TEX. CIV. PRAC. & REM. CODE ANN. § 38.002 (West 2008). Cases decided under that

statute illustrate that the presentment of the claim must be specific enough to inform the

opposing party of what it must do to discharge the claim. See W.G. Tufts & Son v. Herider

Farms, Inc., 485 S.W.2d 300, 303–04 (Tex. Civ. App.—Tyler 1972, writ ref’d n.r.e.) (no

presentment when claimant merely told defendant that claimant was holding defendant

responsible for death of claimant’s cattle and was looking to defendant to pay for them); see also

Sunbeam Envtl. Servs., Inc. v. Tex. Workers’ Comp. Ins. Facility, 71 S.W.3d 846, 851 (Tex.

App.—Austin 2002, no pet.) (sending of invoices constituted adequate presentment of claim).

By the same logic, in this case I would hold that appellee’s general pleading regarding the loan-

to-value ratio did not suffice as notice to Wells Fargo and did not trigger the running of the sixty-

day cure period.

I would grant rehearing en banc. Because the Court does not, I respectfully dissent.

111425DF.P05 KERRY P. FITZGERALD
JUSTICE

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