Foreclosure Finding Challenged in Texas

Debtor Challenges Foreclosure Finding in Texas

HOANG T. TEACHOUT, Appellant v. SLYVIANNE S. KITCHEN and JAMES R. KITCHEN, Appellees
NO. 14-03-00215-CV

Case Law
COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON
2004 Tex. App. LEXIS 3409

April 15, 2004, Judgment Rendered

Facts: The debtor and her husband entered into a contract with the sellers to purchase a home. The debtor's husband died. The debtor repeatedly failed to make timely payments on the note. The sellers sent the debtor a notice of default and intent to accelerate. A foreclosure sale was scheduled. Debtor contended that there was no evidence to support the jury's findings that the sellers did not wrongfully foreclose on the property, and that the sellers did not fail to comply with the terms of the deed of trust.

Issue: Was debtor correct in his contention

Ruling: No. Language in the notice of acceleration clearly indicated that the note was being accelerated, although the sum owed was incorrect. This irregularity did not render the foreclosure invalid. There was evidence to support the jury's finding that the debtor was not in compliance with the note at the time of foreclosure.

Lesson Learned:When a party challenges the legal sufficiency of a finding on which she has the burden of proof, she must demonstrate that the evidence establishes all vital facts in support of the issue as a matter of law. In reviewing the challenge, the reviewing court must first determine whether any evidence supports the finding. If there is no evidence to support the finding, the reviewing court must then determine whether the contrary position was established as a matter of law. Only if the contrary position was established as a matter of law should the reviewing court sustain the challenge.

Written by Kevin Levonas and Jerry L.