Affirmed and Opinion filed November 22, 2016.

In The

Fourteenth Court of Appeals

NO. 14-14-00861-CV

THERESA WASHINGTON-JARMON, Appellant

V.

ONEWEST BANK, FSB, Appellee

On Appeal from the 215th District Court

Harris County, Texas

Trial Court Cause No. 2012-24857

O P I N I O N

Appellant, Theresa Washington-Jarmon, sued appellee, OneWest Bank, FSB

(“OneWest”), based on its plan to foreclose on appellant’s home, after the death of 

her spouse, pursuant to a reverse mortgage previously obtained by the spouse. 

Relative to the claims involved on appeal, (1) foreclosure is permitted only upon 

the death of “All Borrowers,” and appellant contends she is a borrower, and (2) 

appellant alleges OneWest misrepresented the amount due to prevent foreclosure. 

The trial court granted summary judgment in favor of OneWest. We affirm. 
2

I. BACKGROUND

Appellant and her husband, Shelley Jarmon (“Jarmon”), purchased a home

in Spring, Texas. In 2005, the couple experienced financial difficulties because of 

Jarmon’s medical issues. They acquired a home equity loan for $165,000. When 

they had exhausted those proceeds in 2009, Jarmon obtained a Home Equity 

Conversion Mortgage, commonly known as a “reverse mortgage” from OneWest’s 

predecessor, to pay off the home equity loan.

1

A reverse mortgage allows homeowners, age 62 or older, to convert home 

equity into periodic payments or advances made by the lender over the life of the 

homeowners. See J. Alton Alsup, The New and Improved Texas Reverse 

Mortgage, 55 Consumer Fin. L.Q. Rep. 207, 209 (2001); see also Larsen v. 

OneWest Bank, FSB, No. 14-14-00485-CV, 2015 WL 6768722, at *4 (Tex. App.—

Houston [14th Dist.] Nov. 5, 2015, no pet.) (mem. op.) (citing Alsup when 

explaining features of a reverse mortgage). An initial advance typically is made at 

loan closing to cover closing costs and payoff any existing lien, and the balance of 

the credit is then advanced in periodic payments according to the plan. See Alsup,

supra, at 209. Interest accrues only on the amounts advanced over the term of the 

loan. See id. The homeowners have no obligation to repay any principal or 

interest during their lifetimes unless they sell or transfer the home, permanently 

cease occupying the home as their principal residence, or fail to properly maintain 

the property, timely pay property taxes and insurance premiums, or maintain the 

priority of the reverse mortgage lien. See id. A reverse mortgage is a non-recourse 

debt, meaning the lender may look only to the proceeds of the sale of the home for 

repayment when the debt becomes due, typically upon the death of the last of the 

 

1 OneWest was not the original lender but acquired the loan through subsequent 

transactions, which are not germane to the appellate issues. For ease of discussion, we will refer 

to OneWest throughout this opinion as though it were the original mortgagee.
3

homeowners to die or upon one of the other maturing events that permit the lender 

to accelerate the debt. See id. at 209–10. Neither a deceased homeowner’s estate 

nor his heirs are liable for any deficiency that may result after the sale. See id. at 

210. Since 1998, the Texas Constitution has expressly authorized a reverse 

mortgage as a type of debt that may be secured by a valid lien against homestead 

property. See Tex. Const. art. XVI, § 50(a)(7); see also Larsen, 2015 WL 

6768722, at *5.

Jarmon was age 66 at the time he obtained the reverse mortgage, but 

appellant had not reached age 62 and thus was not eligible to be a borrower on a 

reverse mortgage. On February 25, 2009, multiple documents, entitled as follows,

were executed to consummate the transaction:

Residential Loan Application for Reverse Mortgages

Although both spouses are shown on this application as title holders, only 

Jarmon’s name is included in the space designated for “Borrower’s Name.” The 

space for “Co-Borrower’s Name” is left blank. Only Jarmon signed the 

application. 

Texas Home Equity Conversion Loan Agreement

The loan agreement states it is made between Jarmon as “Borrower” and 

OneWest. Only Jarmon signed the agreement. 

Adjustable Rate Note (Home Equity Conversion)

At the outset, the note defines “Borrower” to mean “each person signing at 

the end of this Note.” Only Jarmon signed the note. The note permitted a 

maximum principal advance of $412,500, and Jarmon agreed to repay all amounts 

advanced plus interest. The note states that the promise to pay is secured by a deed 

of trust dated the same day. The note lists several different events upon which 
4

“Lender may require immediate payment in full of all outstanding principal and 

accrued interest,” including “if . . . All Borrowers die . . . .”

Adjustable Rate Home Equity Conversion Deed of Trust

At the outset, the deed of trust states “The trustor is SHELLY JARMON and

THERESA WASHINGTON-JARMON, MARRIED whose address is [property 

address] (“Borrower”).” The deed of trust is signed by both Jarmon and appellant. 

Under each signature line is the word, “Borrower.” The deed of trust outlines

events upon which “Lender may require immediate payment in full of all sums 

secured by” the deed of trust and may invoke the power of sale, including “All 

Borrowers die . . . .” 

U.S. Department of Housing and Urban Development (“HUD”) 

Settlement Statement

This statement, which itemizes the loan disbursements, lists only Jarmon in 

the box for “Name & Address of Borrower.” Only Jarmon signed this document.

General Warranty Deed

Appellant signed this warranty deed, conveying her interest in the property 

to Jarmon, subject to all valid encumbrances.

Non-Borrower Spouse Ownership Interest Certification

This document, setting forth various acknowledgements, is signed by 

Jarmon as “Borrower” and appellant as “Non-Borrower Spouse” and includes the 

following statement:

[T]he non-borrowing spouse acknowledges . . . that . . . She 

understands that should [her] spouse predecease [her] . . . and unless 

another means of repayment is obtained, the home where [she] resides

may need to be sold to repay the reverse mortgage loan and [she] may 

be required to move from [her] residence.
5

Both spouses also acknowledge that they had been given ample opportunity to 

consult with independent legal and tax experts of their own choosing regarding 

“ownership or vesting of real property that will serve as collateral for the reverse 

mortgage” and the spouses determined, either on their own or after consultation 

with experts, that entering into a reverse mortgage was in their best interest.

Upon closing, the loan proceeds of $178,547.23 were disbursed, which 

included the amount to discharge the home equity loan and closing costs. Jarmon 

died on December 29, 2010. In early 2011, OneWest wrote to Jarmon’s estate, 

requesting that it advise OneWest within 30 days whether it intended to pay the 

loan balance, which was $192,086.16 at that time, and stating that absent a 

response, OneWest must institute foreclosure proceedings. When no arrangements 

to pay the balance had been made approximately a year later, OneWest initiated 

foreclosure proceedings. 

Appellant sued OneWest for breach of contract and violations of the Texas 

Debt Collection Act (“the Act”). Appellant alleged that she is a considered a 

borrower under the deed of trust and therefore the instrument permits foreclosure 

only after both spouses have died. Appellant claimed OneWest breached the deed 

of trust by (1) instituting foreclosure proceedings before appellant’s death, (2) 

failing to fund the full amount permitted under the loan, and (3) failing to give 

appellant an opportunity to sell the home or otherwise cure the default before 

instituting foreclosure proceedings. Appellant claimed that OneWest violated the 

Act by (1) declaring the loan in default and threatening to foreclose before the 

death of both spouses, and (2) misrepresenting that appellant owes more than the 

amount advanced under the loan. Appellant sought (1) declarations that the lien is 

invalid and OneWest must forfeit all amounts owed on the loan for failing to 

disburse all the loan funds or the “total amount owed be reduced to reflect the 
6

equity in the property to conform the loan with the requirements of the Texas 

Constitution,” and (2) damages of $234,000, representing the amount allegedly 

never disbursed but demanded against the home equity, and (3) damages for 

mental anguish. Appellant also sought temporary injunctive relief.

The trial court signed a temporary restraining order followed by a temporary 

injunction, precluding OneWest from foreclosing pending a final judgment. 

OneWest filed a traditional and no-evidence motion for summary judgment, to 

which appellant responded.

2

 Appellant also filed a motion for summary judgment. 

The trial court signed an order denying appellant’s motion, granting OneWest’s 

motion, and dismissing all of appellant’s claims with prejudice. Appellant filed a 

motion for new trial, which was overruled by operation of law.

II. ANALYSIS

In two issues, appellant contends the trial court erred by (1) granting 

OneWest’s motion for summary judgment,3and (2) failing to rule on appellant’s 

motion for judicial notice.

As OneWest asserted in its motion, two of appellant’s claims on which she 

challenges summary judgment on appeal depend on her being classified as a 

borrower under the loan. OneWest moved for summary judgment on those claims 

and on appellant’s additional claim alleging a misrepresentation in violation of the 

Act irrespective of whether she is a borrower. We will analyze separately the two 

categories of claims because the summary-judgment grounds are different. 

 

2 OneWest previously filed another motion for summary judgment, which was denied. 

Our references to the motion for summary judgment mean the second one, which was granted.

3 Appellant challenges only the grant of OneWest’s motion for summary judgment and 

does not challenge denial of her own motion.
7

Further, we will address the contention regarding judicial notice as essentially a 

sub-issue relative to the first category of claims.

A. Claims Based on Appellant’s Alleged Status as a Borrower

On appeal, appellant challenges summary judgment on two of her claims 

that depend on her being classified as a borrower under the reverse mortgage: (1) 

breach of contract; and (2) violation of the Act by attempting to foreclose before 

the death of both spouses. Because the loan is due and payable upon the death of 

“All Borrowers,” OneWest could not have breached the deed of trust by 

foreclosing before the death of both spouses if appellant is not a borrower. 

Additionally, OneWest could not have violated the pertinent provision of the Act 

by threatening to foreclose before the death of both spouses if appellant is not a 

borrower. See Tex. Fin. Code Ann. § 392.301(a)(8) (West 2016) (prohibiting debt 

collector from threatening to take an action prohibited by law).4 

OneWest moved for summary judgment on these claims on both traditional 

and no-evidence grounds. When, as in this case, a trial court’s order granting 

summary judgment does not specify the ground relied on for its ruling, we affirm 

the summary judgment if any theory advanced is meritorious. Carr v. Brasher,

 

4 On appeal, appellant does not challenge summary judgment on her pleaded claims that 

OneWest breached the contract by failing to disburse all of the loan funds and failing to give 

appellant an opportunity to cure before initiating foreclosure proceedings; her focus is on the 

claims based on OneWest allegedly attempting to foreclose before the death of all borrowers. 

Appellant has waived any challenge to summary judgment on the claims that she fails to address 

in her brief. See Sonic Sys. Int’l, Inc. v. Croix, 278 S.W.3d 377, 384 (Tex. App.—Houston [14th 

Dist.] 2008, pet. denied) (holding appellant waived challenge to summary judgment on claim to 

the extent it was based on one alleged wrongdoing of defendant by advancing argument on 

appeal only with respect to a different alleged wrongdoing); San Saba Energy, L.P. v. Crawford, 

171 S.W.3d 323, 337 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (recognizing that, 

although we reasonably and liberally construe briefs, appellant must present some specific 

argument and analysis to attack summary-judgment ground). In fact, buried in appellant’s 

summary-judgment response was an assertion that she is nonsuiting her request for a declaratory 

judgment, which was based on the alleged failure to disburse all of the funds, although the record 

does not contain any separate non-suit.
8

776 S.W.2d 567, 569 (Tex. 1989). We conclude the trial court properly granted 

traditional summary judgment on these claims, so we set forth only that standard in 

this section.

A party moving for traditional summary judgment must establish there is no 

genuine issue of material fact and it is entitled to judgment as a matter of law. See 

Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 

211, 215–16 (Tex. 2003). If the motion and summary-judgment evidence facially 

establish the movant’s right to judgment as a matter of law, the burden shifts to the 

nonmovant to raise a genuine issue of material fact sufficient to defeat summary 

judgment. See Arguelles v. Kellogg Brown & Root, Inc., 222 S.W.3d 714, 723 

(Tex. App.—Houston [14th Dist.] 2007, no pet.). We review a summary judgment 

de novo. Provident Life, 128 S.W.3d at 215. We take all evidence favorable to the 

nonmovant as true and indulge every reasonable inference and resolve any doubts 

in its favor. Id.

In its motion, OneWest asserted that appellant is not a borrower when all of 

the documents comprising the transaction are considered together or alternatively, 

the note controls over the deed of trust. Appellant contends she is a borrower 

because (1) the deed of trust shows she is a borrower and it is the only document 

that should be considered when determining the rights between appellant and 

OneWest, and (2) under federal law, a lender may not foreclose on a reverse 

mortgage until the spouse who did not sign the note has also died.

1. Whether appellant is a borrower based on the loan documents

As OneWest asserts, the general rule is that separate instruments or contracts 

executed at the same time, for the same purpose, and in the course of the same 

transaction are to be considered as one instrument and construed together. Jones v. 

Kelley, 614 S.W.2d 95, 98 (Tex. 1981); see Fort Worth Indep. Sch. Dist. v. City of 
9

Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000). More specifically, a deed of trust is 

construed along with the note it is intended to secure. Fin. Freedom Senior

Funding Corp. v. Horrocks, 294 S.W.3d 749, 753 (Tex. App.–Houston [14th Dist.] 

2009, no pet.). Further, if there are conflicting terms in a note and a deed of trust, 

the terms of the note control. See Larsen, 2015 WL 6768722, at *12; Pentico v. 

Mad–Wayler, Inc., 964 S.W.2d 708, 715 (Tex. App.—Corpus Christi 1998, pet. 

denied) (citing Odell v. Commerce Farm Credit Co., 80 S.W.2d 295, 297 (Tex.

1935)); see also In re Tucker, 391 B.R. 404, 409 (Bankr. S.D. Tex. 2008).

Additionally, “[w]ords used by the parties in a contract do not necessarily control 

the substance of the relationship, nor do the terms used by the parties in referring 

to the arrangement.” Stephanz v. Laird, 846 S.W.2d 895, 899 (Tex. App.—

Houston [1st Dist.] 1993, writ denied). When the record demonstrates the actual 

effect of the arrangement resulting from an agreement is to create a status different 

from that stated in the language of the contract, the parties’ designation will not 

control. Coastal Plains Dev. Corp. v. Micrea, Inc., 572 S.W.2d 285, 287 (Tex.

1978).

As mentioned above, other than the deed of trust, all documents expressly 

show only Jarmon as a borrower. Significantly, the note which creates the debt 

identifies only Jarmon as a borrower and provides that the debt becomes due and 

payable upon the death of “All Borrowers.” We recognize that the deed of trust 

uses the term “Borrower” to refer to both spouses—after identification of the 

trustors at the outset of the instrument and under the signature lines. The deed of 

trust also provides the debt is due and the property subject to foreclosure upon the 

death of “All Borrowers.” But, construing the deed of trust together with the rest 

of the loan documents, the references on the deed of trust do not make appellant a 

borrower.
10

Unlike the loan application, the loan agreement, and the note, which 

expressly define Jarmon as a borrower, the parenthetical “(“Borrower”)” after 

identification of both spouses as trustors on the deed of trust seems to be used as a 

shorthand term to refer to them, and then the signature lines are consistent by using 

the same term to refer to the signators. Nonetheless, the note is the instrument 

creating Jarmon’s debt whereas the deed of trust is the document securing 

performance of the debt. Consequently, we look to the note as the instrument 

defining the parties to the obligation. In fact, the deed of trust states,

Borrower has agreed to repay to Lender amounts which Lender is 

obligated to advance, including future advances, under the terms of a 

Home Equity Conversion Loan Agreement dated the same date as this 

Security Instrument (“Loan Agreement”). The agreement to repay is 

evidenced by Borrower’s Adjustable Rate Note dated the same date as 

this Security Instrument (“Note”). This Security Instrument secures 

to Lender: (a) the repayment of the debt evidenced by the Note, with 

interest, and all renewals, extensions and modifications of the Note, 

up to a maximum principal amount of . . . $412,500.00 . . . .”

Therefore, the deed of trust’s own terms negate that the appellant is a borrower, 

despite the shorthand references therein, because that instrument looks to the note

to define the debt; the deed of trust references the actual borrower as the party to 

the note—only Jarmon. Alternatively, to the extent the deed of trust may be 

construed as identifying appellant as a borrower, it conflicts with the terms of the 

note, which control. See Larsen, 2015 WL 6768722, at *12; Pentico, 964 S.W.2d 

at 715.

In fact, appellant even signed a document acknowledging she is not a 

borrower and the loan would become due and payable and she might be required to 

leave the home upon the death of Jarmon. Moreover, due to her age, appellant did 

not even qualify as a borrower on a reverse mortgage. Additionally, as part of the 
11

transaction, appellant conveyed her interest in the property to Jarmon, further 

negating that she is a borrower of funds secured by a lien against the property.

Accordingly, we agree with OneWest’s explanation that the reason for 

requiring appellant’s signature on the deed of trust (albeit on a signature line with 

the designation “Borrower” and with a parenthetical reference to “Borrower” after 

identifying appellant as a trustor) was to comply with the law, requiring that 

appellant be made a party to the deed of trust. Specifically, under Texas statutory 

law, “Whether the homestead is the separate property of either spouse or 

community property, neither spouse may sell, convey, or encumber the homestead 

without the joinder of the other spouse.” Tex. Fam. Code Ann. § 5.001 (West 

2006). And, the Texas Constitution defines “Reverse mortgage” as “an extension 

of credit” that, among other features, “is secured by a voluntary lien on homestead 

property created by a written agreement with the consent of each owner and each 

owner’s spouse.” Tex. Const. art. XVI, § 50(k)(1). 

After briefing in the present case, our court concluded a spouse was not a 

borrower on a reverse mortgage in a case with facts and documents substantially 

similar to those in the present case, where OneWest was also the lender: Husband 

obtained the reverse mortgage on a home he and his wife owned, but she was too 

young to qualify; only Husband, as borrower, signed the loan application and the 

note, which made the obligation due and payable upon the death of “All 

Borrowers”; both spouses signed the deed of trust, which had a reference to Wife 

as a “Borrower,” and provided the lender may require immediate payment of all 

sums secured by the instrument if “All Borrowers die”; Wife executed a warranty 

deed conveying her interest in the home to Husband; and both spouses signed a 

“Non-Borrower Spouse Ownership Interest Certification,” with Wife 

acknowledging that the home may need to be sold to repay the debt and she may 
12

be required to move from the home if Husband predeceases Wife. See Larsen, 

2015 WL 6768722, at *1–2.

After Husband’s death, OneWest (which acquired the loan after closing) 

sought the balance due on the loan and announced its intent to foreclose. See id. 

Wife sued OneWest alleging, inter alia, that OneWest could not foreclose because 

Wife was a borrower under the deed of trust and that instrument required 

immediate payment only if all borrowers have died. See id. The trial court granted 

OneWest’s motion for summary judgment, which contended that Wife was not a

borrower under the reverse mortgage. See id. at *3–4.

Like the present case, OneWest asserted Wife was not a borrower because 

only Husband was a borrower in the loan agreement and note, all documents must 

be construed together, and the note controlled over the deed of trust. See id. at *9. 

We rejected Wife’s appellate contentions that the deed of trust was determinative 

as to borrower status, that she was a borrower under the reverse mortgage, and that 

OneWest could not foreclose before Wife’s death. See id. at *9–12. 

We recited the principle that the note controls over the deed of trust. See id.

at *12. Wife argued the principle did not apply because the deed of trust complied 

with federal law by listing Wife as a borrower whereas the note violated federal 

law by not listing Wife as a borrower. See id. at *9–12. Wife asserted that under 

federal law, a reverse-mortgage loan does not become due until the death of both 

homeowner spouses. See id. at *10. Appellant in the present case makes a similar

argument, and thus we will later discuss the Larsen court’s analysis. However, 

after rejecting the federal-law argument, the Larsen court remarked that on appeal, 

Wife failed to otherwise challenge OneWest’s arguments that Wife was not a 

borrower when all documents are construed together or present any other reason 

that the note should not control over the deed of trust. See id. at *12. 
13

However, in the present case, appellant proffers additional reasons to 

challenge OneWest’s arguments. Therefore, we will conduct an independent 

analysis of appellant’s contentions while recognizing that Larsen is precedent that 

the note controls over the deed of trust and demonstrates appellant is not a 

borrower unless one of appellant’s arguments (not raised in Larsen) has merit. See 

id.

Appellant contends the cases relied on by OneWest in its summaryjudgment motion are distinguishable, as they involve different facts than the 

present case. However, we conclude the general principles discussed in those 

cases are applicable in the present case despite those courts applying the principles 

to different facts. Specifically, in the present case, all instruments were executed 

on the same day. Although the note defines the debt and the deed of trust secures 

payment of the debt, these instruments necessarily constitute one transaction. It is 

axiomatic that OneWest would not have lent the money if there were no deed of 

trust securing the loan and OneWest would have no deed of trust if there were no 

debt. As mentioned above, the deed of trust looks to the loan agreement and the 

note to define the obligation secured by the deed of trust, and the note refers to the 

deed of trust as the security for the loan. Consequently, all instruments were 

necessary to effectuate a reverse mortgage. All of the instruments construed 

together reflect the only borrower was Jarmon despite the label on the deed of 

trust. Or, even if appellant may be read as a borrower under the deed of trust, the 

note controls over the deed of trust.

Appellant also contends that the principle regarding construing instruments 

together does not apply here because this case involves separate contracts, with 

separate parties. But, the Texas supreme court has stated that instruments may be 

construed together or treated as one contract although they are not between the 
14

same parties. See Jones, 614 S.W.2d at 98. In the deed of trust, to which appellant 

was a party, she agreed that the obligation secured by the instrument was the 

obligation defined in the note (again, the debt on which only Jarmon was a 

borrower) although appellant was not a party to the note. Thus, by signing the 

deed of trust, appellant essentially agreed that the documents must be construed 

together to effectuate the reverse mortgage. Therefore, we disagree that the fact 

Jarmon, but not appellant, was a party to all the instruments precludes construing 

them together to determine the identity of the borrower.

Finally, appellant argues that one case cited by OneWest supports 

appellant’s position. In Bierworth v. BAC Home Loans Servicing, L.P., the Austin 

Court of Appeals stated, “this Court [has] rejected the argument that a note and its 

security are inseparable by recognizing that the note and the deed-of-trust lien 

afford distinct remedies on separate obligations—the note against the borrower and 

the lien against the real property.” No. 03–11–006444–CV, 2012 WL 3793190, at 

*3 (Tex. App.—Austin Aug. 30, 2012, no pet.) (mem. op.) (citing Stephens v. LPP 

Mortg., 316 S.W.3d 742, 747 (Tex. App.—Austin 2010, pet. denied)). We 

disagree that Bierworth failed to apply the general rule of construction. In that 

case, the debtor challenged the current lender’s authority to foreclose pursuant to a 

deed of trust after the debtor’s default on a note, claiming the party that 

purportedly assigned the instruments to the current lender had no right to assign the 

note. See id. at *1–3. The assignor was expressly identified in the deed of trust 

but not in the note containing the right of transfer. See id. The court of appeals, in 

the language quoted above, rejected the argument that the lender therefore was 

precluded from exercising its remedies under the deed of trust. See id. at *3

(“‘roundly reject[ing]’ the ‘show-me-the-note’ theory”). The court affirmed the 

general rule—the note and deed of trust must be read together in evaluating the 
15

authority to assign the note and the deed of trust. See id. at *4. Accordingly, we 

reject appellant’s contentions that OneWest failed to negate appellant’s status as a 

borrower under the applicable principles for construing the instruments. 

2. Appellant’s contention regarding federal law

Appellant also contends that pursuant to 12 U.S.C. § 1715z-20(j), a lender 

may not foreclose under a reverse mortgage until the spouse who did not sign the 

note has also died and that this interpretation of federal law is supported by Bennett 

v. Donovan, 703 F.3d. 582 (D.C. Cir. 2013). As mentioned above, the Larsen

Wife made a similar argument when arguing that the deed of trust complied with 

federal law by making Wife a borrower and thus controlled over the note. See 

Larsen, 2015 WL 6768722, at *10. Wife asserted that 12 U.S.C. § 1715z-20(j)

provides that a reverse mortgage loan does not become due until the homeowner’s 

death and homeowner includes a spouse. See id.

We recognized that 12 U.S.C. § 1715z-20, entitled “Insurance of home 

equity conversion mortgages for elderly homeowners,” authorizes the Secretary of 

HUD to implement a program for insuring reverse mortgages. See id. at *11 

(citing 12 U.S.C. § 1715z-20(a)–(r)). The statute provides that the “Secretary may 

not insure a home equity conversion mortgage under this section unless such 

mortgage provides that the homeowner’s obligation to satisfy the loan obligation is 

deferred until the homeowner’s death, the sale of the home, or the occurrence of 

other events specified in regulations of the Secretary. For purposes of this 

subsection, the term ‘homeowner’ includes the spouse of a homeowner.” 12 

U.S.C. § 1715z–20(j). However, we emphasized that subsection (j) focuses only 

on insurance and nothing in the statute speaks to when a lender is allowed to 

foreclose. See Larsen, 2015 WL 6768722, at *11 (citing 12 U.S.C. § 1715z-20(j)).
16

We also held that Bennett did not support Wife’s contention that 12 U.S.C. § 

1715z–20(j) precluded foreclosure until both she and her husband died. See 

Larsen, 2015 WL 6768722, at *11–12. We concluded that Bennett neither 

addressed nor negated a lender’s right to foreclose on a surviving spouse’s home

after the death of the spouse who was the borrower under a reverse mortgage. See

id. (citing Bennett, 703 F.3d at 586–90). Because we are bound by our court’s 

construction of 12 U.S.C. § 1715z20(j) and Bennett, we reject appellant’s 

contention that federal law precludes foreclosure until both Jarmon and appellant 

have died.

Finally, appellant complains the trial court failed to take judicial notice of 

the above-cited federal law upon appellant’s request. However, any error in failing 

to take judicial notice was harmless because the law does not support appellant’s 

position, for the reasons discussed above. See Magee v. Ulery, 993 S.W.2d 332, 

336 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (applying harmless error 

analysis to trial court’s refusal to take judicial notice).

In summary, because appellant is not a borrower under the reverse mortgage

as a matter of law, the trial court did not err by granting summary judgment on all 

claims that depended on appellant being classified as a borrower.

B. Claim Based on Alleged Misrepresentation 

Appellant pleaded that OneWest violated the Act by misrepresenting that 

appellant must pay $412,5005to avoid foreclosure, which exceeded the amount 

due on the loan. See Tex. Fin. Code Ann. § 392.304(a)(8) (West 2016) (forbidding 

debt collector from misrepresenting the character, extent, or amount of a consumer 

 

5

In her petition, summary-judgment response, and appellate brief, appellant refers to 

$410,500 but the document purportedly showing the misrepresentation references $412,500. 

Thus, we will refer to the alleged misrepresentation as involving $412,500. 
17

debt); id. (a)(19) (West 2016) (forbidding debt collector from using any other false 

representation or deceptive means to collect a debt); id. § 392.403 (West 2016) 

(providing that a person may sue for injunctive relief and damages based on a debtcollection practice prohibited under the Act). 

OneWest moved for summary judgment on this claim on both no-evidence 

and traditional grounds. We conclude the trial court properly granted no-evidence 

summary judgment. 

After adequate time for discovery, a party may move for summary judgment 

on the ground there is no evidence of one or more essential elements of a claim or 

defense on which an adverse party would have the burden of proof at trial. Tex. R. 

Civ. P. 166a(i); W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). Unless 

the respondent produces summary-judgment evidence raising a genuine issue of 

material fact, the trial court must grant the motion for summary judgment. Tex. R. 

Civ. P. 166a(i); Urena, 162 S.W.3d at 550.

In its motion for summary judgment, OneWest asserted there is no evidence

that it violated the Act, specifically that it ever claimed appellant must pay 

$412,500 to satisfy the debt.6 In her response and on appeal, appellant relies on (1) 

the Notice of Substitute Trustee’s Sale prepared in April 2012, purportedly 

showing an amount due of $412,500, and (2) the August 2012 statement for the 

loan, showing a balance of $207,861.75. According to appellant, these documents 

constituted evidence that OneWest represented an amount greater than the actual 

balance was owed.

 

6 Appellant suggests the trial court could not grant the no-evidence motion because it 

previously denied a no-evidence motion on the same issues. However, the trial court is not 

precluded from granting a motion for summary judgment after denying another. See Hunte v. 

Hinkley, 731 S.W.2d 570, 571 (Tex. App.-Houston [14th Dist.] 1987, writ ref’d n.r.e.).
18

However, the Notice of Substitute Trustee’s Sale does not state that the 

balance is $412,500. Rather, the notice references $412,500 as the total amount 

secured by the deed of trust, which is consistent with that instrument showing it 

secures the maximum principal amount of $412,500, although the full amount 

permitted under the loan was never disbursed. Nothing on the notice states 

$412,500 is the amount that must be paid to satisfy the debt. Rather, the 

correspondence to Jarmon’s estate enclosing the Notice of Substitute Trustee’s 

Sale advised that the amount necessary to prevent foreclosure could be ascertained 

by contacting the attorneys handling the foreclosure proceeding. Because the only 

evidence presented by appellant does not raise a fact issue on whether there was a 

misrepresentation regarding the amount of the debt, the trial court did not err by 

granting summary judgment on appellant’s claim for a violation of the Act.

In summary, the trial court did not err by granting summary judgment in 

favor of OneWest on all of appellant’s claims or commit harmful error by any 

refusal to take judicial notice of federal law. Accordingly, we overrule both of 

appellant’s issues and affirm the trial court’s judgment.

/s/ John Donovan

Justice

Panel consists of Justices Jamison, Donovan, and Brown.