### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-11190

AMERICAN HOME MORTGAGE CORPORATION, and its assigns; AMERICAN HOME MORTGAGE SERVICING, INC., as Servicer for the Master Adjustable Rate Mortgages Trust 2007-1 Plaintiffs-Appellants
v. RUSCO COMPANY Defendant - Appellee

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:07-CV-1907

Before KING, DAVIS, and GARZA, Circuit Judges. PER CURIAM: * Plaintiffs, American Home Mortgage Corporation and its assigns, appeal the judgment of the district court granting a right to a portion of the proceeds of

a foreclosure sale to a competing creditor, Rusco Company. Because we conclude t h a t the first priority vendor’s lien held by American Home Mortgage exceeds the amount of the proceeds, precluding any recovery by Rusco, we reverse. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 1 3, 2 011 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-11190 Document: 00511600940 Page: 1 Date Filed: 09/13/2011No. 10-11190

I. On August 16, 2006, John Felts and Zane Morris entered into a contract for the purchase of property at 4706 S. Lindhurst Avenue in Dallas, Texas, from J.P. Morgan Chase Bank for $2,050,000. Financing for the purchase came from two sources. R u s c o C ompany provided a $400,000 loan evidenced by a promissory note dated September 27, 2006 and secured by a deed of trust, which

was recorded on October 11, 2006, before the sale closed. Only $205,000 of this loan was actually drawn upon to pay the earnest money for the t ransaction. Felts dropped out of the transaction at some point prior to closing. M orri s ob t ain e d two p urch a s e m o n ey lo an s f ro m Am erican Home Mortga ge Corporation (AHM) for $1 , 547,050 and $400,000. Both were evidenced by promissory notes and secured by deeds of trust. The $1,547,050 note and deed of trust is primary and the $400,000 note and deed of trust created a secondary lien. AHM was not aware of the Rusco loan. It did not show up in a title search because it was recorded before Morris gained an i n t e r est in the property and thus was not then reflected in the grantor or grantee index for the property. At closing, J.P. Morgan conveyed the property to Morris via a S p e cial Warranty Deed with Vendor’s Lien. The interpretation of that document is the

core of this case. Through the warranty deed J. P. Morgan assigned its superior title and vendor’s lien to AHM as further security for the $1 , 5 4 7,050 note. An Addendum for Second Lien added the $400,000 note as also being secured by the vendor’s lien. The warranty deed (including the addendum) and both deeds of trust were recorded on October 25, 2006. Morris defaulted on his obligations to AHM and Rusco. AHM assigned its interest in the $1,547,050 note and the deed of trust to MARM 2007-1, a master adjustable rate mortgage trust. MARM nonjudicially foreclosed on the property under the first deed of trust and purchased the property for approximately $1.3

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m i l l ion. Subsequently, Rusco sought to nonjudicially foreclose on its deed of trust. AHM and MARM (collectively “AHM” ) s o ught to enjoin the foreclosure leading to this lawsuit. Th e parties entered into a Stipulation and Agreement allowing AHM to sell the property to a third party for $2 mill i o n a n d allow whatever rights the parties have or had in the property to apply to the proceeds. The district court

on cr o s s m o tions for summary judgment was asked to determine the priority between AHM and Rusco to the proceeds. The court found that AHM’s vendor’s lien was valid and superior to Rusco’s deed of trust; Rusco’s deed of tru s t w as superior to AHM’s first and second deeds of trust; and AHM did not foreclose its vendor’s lien when it nonjudicially foreclosed pursuant to the AHM first deed of trust. The court then j u dicially foreclosed the AHM vendor’s lien and granted R u s c o t he excess proceeds over the amount required to satisfy the $1,547,050 vendor’s lien. AHM filed a motion to reconsider arguing that its vendor’s lien secured both the $1,547,050 note and first deed of trust and the $400,000 note

a n d s econd deed of trust. The district court denied the motion. This a p p e a l followed. II. This case was decided on cross motions for summary judgment. Summary judgment is proper if the pleadings, the discovery and disclosures on file, and any affidavits show that there are no genuine issues of material fact and that the movant is entitle d t o j u d g ment as a matter of law. F E D
. R. C IV
. P. 56 (c). On appeal, this court reviews the distr i c t c o u rt’s grant of summary judgment de

novo. Baton Rouge O i l & Ch em. Workers Union v. ExxonMobil Corp. , 29 F.3d 373, 375 (5th Cir. 2002). III. Although AHM raises three arguments in favor of its appeal of the district court’s judgment, we need only consider the first. AHM asserts that the district

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court erred in concluding that AHM’s vendor’s lien secured only the amounts owed under the AHM $1,547,050 Promissory Note and Deed of Trust, and that the vendor’ s l i e n did not also secure the AHM $400,000 Promissory Note and Deed of Trust. AHM argues that the district court disregarded the Addendum to the Warranty Deed a n d th e e x press intent of the parties to the transaction that the vendor’s lien cover all the purchase money advanced b y A H M

. W e agree. The face of the Special Warranty Deed with Vendor’s Lien references only the $1,547,050 note to AHM. The document also states that It is expressly agreed that the Ve n d o r ’s Lien, as well as Superior Title in and to the above described premises, is retained against the above described property, p r e m i ses and improvements until the above described note and all interest thereon are fully paid accordi n g to the face, tenor, effect and reading thereof, when this Deed shall become absolute. (emphasis added) (the Release Language). However, the document includes an addendum that references the $400,000 note to AHM. It reads -

The property described in this deed is also being conveyed for further consideration of the execution an d delivery by Grantee of that one certain Real Estate Lien Note of even date herewith in the original principal sum of $400,000.00 payab le to the order of American Home Mortgag e ( “ S econd Lien Lender”) as therein provided, which Note is secured by a Vendor’s Lien retained herein upon the herein des c rib e d property for the benefit of the Holder’s thereof and as additionally secured b y a subordinate and inferior Deed of Trust of even date herewith to Andrew V a l e n t ine, Esq., Trustee upon the property conveyed hereby.
F o r good and valuable consideration paid to Grantor b y Second Lien Lender, the receipt a n d adequacy of which is hereby ackno wl e d ge d , Gr antor assigns, without recourse, the Vendor’s Li e n retained herein to Second Lien Lender, and Second Lien Lender is hereby subrogated to all of Grantor’s rights under the Vendor’s Lien retained in this addendum.

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The addendum is n o t dated or signed but was recorded with the Special Warranty Deed with Vendor’s Lien. In its original order, the district court assumed from AHM’s complaint and

summary judgment motion that it was seeking foreclosure of the vendor’s lien only to the extent that it covered the $1,547,040 promissory note. In its order 1 in response to AHM’s motion for reconsideration, the district court noted that it

was unclear when and under what circumstances the addendum was executed, but elected not to consider th e v a l idity of the addendum because it found that the Release Language quoted above in bold released the vendor’s lien upon payment of the $1,547,050 note alone. The district court held that the addendum did not alter the Release Language. We agree with the district court that the Warranty Deed and Addendum

are less than clear in their m e a ning. However, based on our reading of Texas

case law, the district court erred by looking solely to the Warranty Deed to determine the intentions of the parties with regard to this transaction. Under Texas law, when separate documents relate d to a s in gl e tr ansaction are executed contemporaneously and for the s a m e p u rpose they “are to be considered as though they ar e i n f

a ct a single instrument.” Donie State Bank v. Parker , 554 S.W.2d 858, 860 (Tex. App. Waco 1977) , c i t i ng P a cific Mutual Life Ins. Co. v. Westglen Park, Inc. , 325 S.W.2d 113, 116 (Tex. 1959) and Board of Ins. Com’rs v. Great Southern Life Ins. Co. , 239 S.W.2d 803, 809 (Tex. 195 1).

Base d on our review of the rec ord , we rejec t Rusc o’s argum ent that the plai ntif fs did 1 not ade quate ly p leadorar gue i n the dis tri ct cour t thatt he vendo r’s lien cover ed bothno tes

. The Sec ond Ame nded Com plai nt nam es both AHMandMARM as plai ntif fs

. It lays out the det ails of both note s and dee ds of tru st as we ll as the Warr anty De ed. It als o requ es ted reli ef on the bas is of the Warr anty De ed in favor of the plai ntif fs (p lural), wh ich wo u l d n e c e s s a ry ref er t o t h e vendo r’s lien cover ing both note s as each plai ntif f held one. AHM ’s Mo tio n for Sum mar y Judgm ent gave the sam e back groun d

. The Warr anty De ed wi th Add endu m wa s att ache d as an exhibi t to themot ion, whic h requ es ted judgm ent in favor of Americ an, which ref err ed coll ect ively to AHM and MARM

. The ple adin gs and mo tio ns ade quate ly ple ad and arguedt hat the plai ntif fs w eres eek ing r elie f unde r the vendo r’s li en as to bothno tes

.

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In Donie State Bank , Edward Parker conveyed property to Alton Parker, Jr. as evidenced by a Warranty Deed. 554 S.W.2d at 859. The Warranty Deed with reserved vendor’s lien referen ced the purchase money promissory note given in exchange for the property. The Warranty Deed did not reference the Deed of Trust securing the promissory note. The Deed of Trust did not refer to the Warranty Deed or vendor’s lien and although it did reference the note, it did not indicate that it was given as purc h a s e m o ney. The promissory note referenced all the documents. Id

. at 860. The Warranty Deed was recorded at the time of the conveyance. Id. at 859. Before the Deed of Trust was recorded, Donie State Bank recorded a judgm e n t i n i t s favor against Alton Parker. Id. When Alton Parker defaulted on his obligations under the promissory note, the trustee under the Deed of Trust foreclosed on the Deed o f Trust and Edward Parker purchased the property. Id. Later, Donie State B a n k purchased Alton Parker’s interest in the property at a Sher i f f ’ s S a l e. Id. The issue in the case
was whether E d w a r d Parker or Donie State Bank held superior title in the property. Id. at 858. Donie State Bank argued that foreclosure of the Deed of Trust did not also foreclose on Edward Parker’s superior vendor’s lien because the Deed of Trust did not indicate that it secured the vendor’s lien. Id. at 860. The Texas C o u r t of Civil Appeals looked at the instruments documenting the sale from Edward Parker to Alton Parker as a whole a n d h eld that the instruments plainly show e d t h a t the Deed of Trust was intended to secure payment of Edward Parker’s vendor’s lien expressed in the Warranty Deed and the vendor’s lien was superior to the bank’s judgment lien. Id. at 860-61. 2

AHM als o rel i e s on Do nie State Bank in sup port of its alte rnat ive argum ent that 2 for eclo sur e on the $1,5 47,0 50 dee d of tru st als o eff ect ively for eclo se d on the vendo r’s lien and beca use the pr oce eds fr om the for eclo sur e ($1. 3 mi llion) we re les s than the lien, extingui she d the inte rvenin g lien of Rusc o. Base d on our dis pos itio n of the cas e, we need not dec i d e that ques tio n. 6 Case: 10-11190 Document: 00511600940 Page: 6 Date Filed: 09/13/2011No. 10-11190

Applying Donie State Bank to this case, the documents evidencing the transaction at issue in this case are as follows: (1) Special Warranty Deed with Vendor’s Lien from J.P.Morgan Chase Bank to Zane Morris, Vendee. In this document J.P. Morgan expressly retains

a Vendor’s Lien and Superior Title in favor of AHM until t h e “ ab o ve described note and all interest thereon are fully paid.” As described above, this deed references only the $1,547,050 note on its face, but incorporates the $400,000 note in the addendum. (2) $1,547,050 Deed of Trust in favor of AHM. There is no express purchase money lien or vendor’s lien granted in this deed of trust. (3) $ 4 0 0 , 0 0 0 D e e d o f T r u s t i n f avor of AHM. This document is titl e d “Purchase Money Deed of Trust” and in para. 23 grants a vendor’s lien to the lender. 23. Purchase Money Deed of Trust; Vendor’s Lien. The funds lent to Borrower under the Note secured hereby were used to pay all or part of the purchase price of the Property. The Note secured hereby also is primarily secured by the Vendor’s Lien retained in the deed of even date herewith conveying the p ro p e rty to the Borrower, which Vendor’s Lien has been assigned to Lender, this Deed of Trust being additional security therefor.

All of the above documents were dated effective October 19, 2006 and recorded October 25, 2006. Read as a “sin gl e instrument”, the above documents support AHM’s contention that its Vendor’s Lien covered both notes. AHM provided purchase money to Morris in two parts documented by two promissory notes and deeds of t r u s t. The $400,000 Deed of Trust expressly documents that the fun d s a r e purchase money funds and grants a vendor’s lien t o A H M

. The Special Warranty Deed with Vendor’s Li e n gr ants superior title to AHM who is the lender under both notes. The addendum to the Special W a r r a n ty Deed

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i n corporates the $400,000 loan as a note covered by the lien. Rea d i n conjunction with the deeds of trust, the vendor’s lien reserved in the Warranty Deed was clearly intended to cover both t h e $ 1 ,547,050 note and the $400,000 note. Rusco argues that the addendum is ineffective to convey superior title to AHM for the $400,000 note because superior title had already been conveyed in full to AHM for the $1,547,050 note by the body of the S p e c i al Warranty Deed before the addendum was attach e d. Essentially, Rusco is reading the documents

as created a two step transact i o n – first, superior title and vendor’s lien was conveyed to AHM in conjunction with the $1,547,050 note, leaving nothing to be conveyed by the addendum to cover the $400,000 note. This is a very restricted reading of the Warranty Deed and adde n du m and inconsistent with the intention of the parties as expressed in the related deeds of trust. The documents are part of a single transaction in which the Special Warranty Deed with Vendor’s Lien creates a vendor’s lien in favor of AHM covering both notes. Under this interpretation, the reference in the Special Warranty Deed t o “the above described note” or the “hereinabove described Note” would incorporate not only the $1,547,040 note referenced on the face of the Warranty Deed, but also the $400,000 note referenced as par t of the consideration for the deed in the Addendum. Under this reading o f t h e d ocuments, the judicial foreclosure of the

v e ndor’s lien ordered by the district court entitles AHM and MARM to a l l th e proceeds from the third party to satisfy the balance of both notes, which exceeds the $2 million received. IV. For the foregoing reasons, we reverse the j u d g ment of the district court granting a portion of the proceeds to Rusco and remand wi t h i n s t ructions to

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render judgment in favor of AHM for the $2 million proceeds from the sale of the subject property. REVERSED and REMANDED.

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