Dennis Kirchner v. Deutsche Bank Natl Trust
Opinion
In 2007, Plaintiff-Appellant Dennis Kirchner signed a Texas Home Equity Note in the amount of $304,000. Only Mr. Kirchner signed the Note. He and his wife, Plaintiff-Appellant Debra Kirchner, both signed a Texas Home Equity Security Instrument securing payment on the Note with real property in Lakehills, Texas. The Security Instrument provides, in pertinent part, " any person who signs this Security Instrument but does not execute the Note ... agrees that this Security Instrument establishes a voluntary lien on the homestead and constitutes the written agreement evidencing the consent of each owner and each owner's spouse ." Over the subsequent years, Mr. Kirchner continually defaulted on his payment obligations under the terms of the loan. And ultimately, in March 2017, Defendant-Appellee Deutsche Bank National Trust Company ("Deutsche Bank") obtained a judicial order for foreclosure. 1 The Kirchners thereafter filed this action in Texas state court, seeking to stay the foreclosure.
Deutsche Bank removed the action to federal court, and later filed a motion for
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summary judgment. The Kirchners failed to timely respond; they and their counsel also failed to appear at a court-ordered status conference, during which the district court heard argument on and orally granted Deutsche Bank's motion. The Kirchners later filed a document, which the district court construed as an untimely response to the motion for summary judgment, a timely motion to reconsider the order granting the motion for summary judgment, a motion to consider the district court's previous denial of remand, or a motion to dismiss (despite the fact that the Kirchners are the Plaintiffs in the action and Deutsche Bank asserted no claims against them). Reviewing this document, the district court rejected all of the Kirchners' arguments and reaffirmed its grant of summary judgment. The Kirchners timely appeal, and we have jurisdiction.
We review a district court's grant of summary judgment
de novo
, applying the same standards as the district court.
Ezell v. Kan. City S. Ry. Co.
,
The Kirchners' principal contention is that the loan is invalid under the Texas Constitution because the Note was signed by Mr. Kirchner but not Mrs. Kirchner, which renders the loan involuntary. The Texas Constitution requires that a homestead lien be voluntary, and protects a homestead from forced sale "for the payment of all debts except for ... an extension of credit that ... is secured by a voluntary lien on the homestead under a written agreement with the consent of each owner and each owner's spouse." Tex. Const. art. XVI, § 50 (a)(6)(A). A lien is voluntary if "[a]n owner or an owner's spouse who is not a maker of the note ... consent[s] to the lien by signing a written consent to the mortgage instrument."
In
Wilmington Trust, N.A. v. Blizzard
,
The judgment of the district court is AFFIRMED .
Reference
- Full Case Name
- Dennis KIRCHNER; Debra J. Kirchner, Plaintiffs-Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee FOR HSI ASSET SECURITIZATION CORPORATION TRUST 2007-WFI, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-WFI, Defendant-Appellee.
- Cited By
- 1 case
- Status
- Unpublished