Bank Did Not Alter Right To Foreclose By Agreeing To Work With The Debtor After Bankruptcy Dismissal

by Winstead PC
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In Branch Banking and Trust Company v. TCI Luna Ventures, LLC, BB&T appealed a temporary injunction order prohibiting it from foreclosing on two properties owned by TCI Luna. No. 05-12-00653-CV, 2013 Tex. App. LEXIS 1745 (Tex. App. – Dallas, February 21, 2013, no pet. history). The bank owned a $10 million promissory note that was secured by deeds of trust on twelve properties, including the two that were subject of the temporary injunction order. TCI Luna went into default. BB&T foreclosed on three of TCI Luna's properties and sent notices of foreclosure for six more before TCI Luna filed for bankruptcy. While in bankruptcy, TCI Luna and BB&T discussed TCI Luna voluntarily requesting a dismissal of its bankruptcy with prejudice, deeds in lieu of foreclosure for some properties in return for lien releases on other properties, and BB&T obtaining and delivering to TCI Luna appraisals on each property as part of BB&T's foreclosure on any property. After TCI Luna obtained a voluntary dismissal of its bankruptcy, BB&T foreclosed on two properties and sent notices of foreclosure on four more properties, including the two made the basis of the injunction order.

TCI Luna responded by filing a lawsuit contending that the parties formed an enforceable agreement that limited BB&T's right to foreclose on the properties in exchange for TCI Luna requesting a dismissal of its bankruptcy proceeding. At the injunction hearing, TCI Luna's representative consistently stated that the parties agreed to meet after dismissal of the bankruptcy to try to resolve disputes that arised regarding property values. The parties never agreed to the amount of credit against the outstanding loan balance upon foreclosure. The parties agreed to meet after dismissal and attempt to agree on which properties would go to the bank and which would be kept by the borrower. There was no agreement before dismissal other than an agreement to meet in the future.

The court of appeals found that these statements were not sufficient to prove a valid or enforceable contract. They were merely an agreement to agree in the future that is unenforceable. The court of appeals reversed the trial court's temporary injunction because the plaintiff had not shown a probable right of recovery.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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