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COURT
OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-07-030-CV

DANIEL
K. FIX AND
APPELLANTS

BARBARA
J. FIX

V.

FLAGSTAR
BANK, FSB;
APPELLEES

FIRST
AMERICAN TITLE

INSURANCE
COMPANY OF

TEXAS;
AND FIRST HORIZON

HOME
LOAN CORPORATION

------------

FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

------------

OPINION

------------

I.
Introduction

This
is an appeal from a summary judgment involving the refinance of a home
equity loan.  Appellants
Daniel and Barbara Fix brought suit to force Appellees Flagstar Bank
(Flagstar), First American Title Insurance Company of Texas (First
American), and First Horizon Home Loan Corporation (Horizon) to forfeit
their rights to receive payment from a refinance of a home equity loan
issued by Flagstar to the Fixes in a transaction closed by First American
and later assigned to Horizon.
In ten issues stemming from the claim that the refinance contract
violated two provisions of the Texas constitution, the Fixes argue that
the trial court incorrectly granted summary judgment in favor of all three
companies and incorrectly denied summary judgment in their favor.  We will
affirm.

II.  Factual and Procedural
Background

In
March 2002, the Fixes obtained a $288,000 home equity loan from Liberty
Lending, LLC (the Afirst
loan@),
which was later assigned to Flagstar.  Less than one year later, in
January 2003, the Fixes refinanced the first loan with a conventional loan
through Flagstar in a transaction closed by First American (the
Asecond
loan@).  It is undisputed, however, that
the second loan violated two provisions of the Texas constitution.  First, it was executed within less
than one year=s
time after the first loan was executed.  See Tex. Const. art. XVI,
' 50(a)(6)(M)(iii)
(Vernon Supp. 2007).  Second,
it was in the form of a conventional loan, with provisions allowing for
personal liability against the Fixes and nonjudicial foreclosure.  See id. ' 50(a)(6)(C),
(D).

Several
months after the second loan was executed, in December 2003, Mr. Fix and
the vice president of Flagstar had a phone conversation about the legality
of the second loan.  Mr. Fix
alleges that he told the vice president that the loan violated the two
provisions of the Texas constitution discussed above.  The vice president, however,
maintains that the only topic of their phone conversation was the way in
which title was held on the second loan.[1]

The
day after the December phone conversation, the vice president sent a
letter to the Fixes saying that she and Mr. Fix had engaged in a phone
conversation as to the validity of the Deed of Trust (without going into
the details of the conversation) and that she had mailed a letter of
inquiry to First American, the title insurer.

Claims
counsel for First American also mailed the Fixes a letter saying that
Flagstar had informed him that the Fixes contested the legality of the
second loan (again, without specifying the grounds of the illegality) and
that regardless of the validity of the second loan, Flagstar was
subrogated to the first loan, which was indisputably valid.  In reply, Mr. Fix sent a letter to
Flagstar and First American detailing the two constitutional grounds for
dispute of the second loan.
This letter, which was sent in February 2004, constituted the first
written notice given by the Fixes regarding the potential constitutional
illegalities.

Twenty-one
days after receiving the February letter from Mr. Fix, the vice president
of Flagstar sent the Fixes a letter offering to cure the constitutional
violations via a new home equity loan reclosed at a rate equal to or
better than the rate of the second loan at no cost to the Fixes and to pay
the Fixes $1,000.  The letter
also stated that First American would draft the new loan instrument and
close the transaction for free.
The Fixes refused, in writing, Flagstar=s
and First American=s
offer to cure and instead asked Flagstar to forfeit the entire amount of
the second loan, the principal of which was approximately $287,000, in
addition to all interest.

Flagstar
and First American declined the Fixes=
offer, and the Fixes brought suit to compel forfeiture.  The Fixes also claimed that
Flagstar and First American violated the Texas Deceptive Trade Practices
Act (DTPA).  Finally, the
Fixes brought suit against Horizon, to whom the Fixes=
loan was assigned in February 2005, more than two years after the parties
executed the disputed contract.
All parties moved for summary judgment.  The trial court denied the
Fixes=
traditional motion for summary judgment, granted Flagstar=s
and First American=s
traditional motions for summary judgment, and granted Horizon=s
no-evidence motion for summary judgment.  The Fixes now
appeal.

III.  Standards of
review

A.     Traditional
Summary Judgment Motion Standard

In
a summary judgment case, the issue on appeal is whether the movant met the
summary judgment burden by establishing that no genuine issue of material
fact exists and that the movant is entitled to judgment as a matter of
law.  Tex. R. Civ. P. 166a(c); Sw.
Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.
1979).  The burden of proof is
on the movant, and all doubts about the existence of a genuine issue of
material fact are resolved against the movant.  Sw. Elec. Power Co., 73
S.W.3d at 215.

When
reviewing a summary judgment, we take as true all evidence favorable to
the nonmovant, and we indulge every reasonable inference and resolve any
doubts in the nonmovant=s
favor.  Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).  We will not consider evidence
that favors the movant=s
position unless it is uncontroverted.  Great Am. Reserve Ins. Co. v.
San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.
1965).

We
will affirm the summary judgment only if the record establishes that the
movant has conclusively proved all essential elements of the
movant=s
cause of action or defense as a matter of law.  Clear Creek Basin, 589
S.W.2d at 678.

A
defendant who conclusively negates at least one essential element of a
cause of action is entitled to summary judgment on that claim.  IHS Cedars Treatment Ctr. of
DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.
2004).  Once the defendant
produces sufficient evidence to establish the right to summary judgment,
the burden shifts to the plaintiff to come forward with competent
controverting evidence raising a genuine issue of material fact with
regard to the element challenged by the defendant.  Centeq Realty, Inc. v.
Siegler, 899 S.W.2d 195, 197 (Tex.
1995).

A
defendant is entitled to summary judgment on an affirmative defense if the
defendant conclusively proves all the elements of the affirmative
defense.  Rhone-Poulenc,
Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); see Tex. R. Civ. P. 166a(b),
(c).  To accomplish this, the
defendant-movant must present summary judgment evidence that establishes
each element of the affirmative defense as a matter of law.  Ryland Group, Inc. v. Hood,
924 S.W.2d 120, 121 (Tex. 1996).
When reviewing a summary judgment, we take as true all evidence
favorable to the nonmovant, and we indulge every reasonable inference and
resolve any doubts in the nonmovant=s
favor.  IHS Cedars
Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794,
798 (Tex. 2004).

When
both parties move for summary judgment and the trial court grants one
motion and denies the other, the reviewing court should review both
parties=
summary judgment evidence and determine all questions presented.  Valence Operating Co., 164
S.W.3d at 661.  The reviewing
court should render the judgment that the trial court should have
rendered.
Id.

B.     No-Evidence
Motion for Summary Judgment Standard

After
an adequate time for discovery, the party without the burden of proof may,
without presenting evidence, move for summary judgment on the ground that
there is no evidence to support an essential element of the
nonmovant=s
claim or defense.  Tex. R. Civ. P. 166a(i).  The motion must specifically state
the elements for which there is no evidence.  Id.; Johnson v. Brewer &
Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002).  The trial court must grant the
motion unless the nonmovant produces summary judgment evidence that raises
a genuine issue of material fact.
See Tex. R. Civ.
P. 166a(i) & cmt.; Sw. Elec. Power Co., 73 S.W.3d at
215.

When
reviewing a no-evidence summary judgment, we examine the entire record in
the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion.  Sudan v. Sudan,  199 S.W.3d 291, 292 (Tex.
2006).  If the nonmovant
brings forward more than a scintilla of probative evidence that raises a
genuine issue of material fact, then a no-evidence summary judgment is not
proper.  DeSoto v. K Mart
Corp., 981 S.W.2d 266, 269 (Tex. App.CSan
Antonio 1998, pet. denied).

IV.
No Retroactive Application of
the Constitutional Amendment

Before
reaching the issues presented by the Fixes, we must first determine which
version of the Texas constitution governs our disposition of this
case.  See, e.g., Benchmark
Bank v. Crowder, 919 S.W.2d 657, 660 (Tex. 1996) (refusing to apply
constitutional amendments to loan rights fixed prior to the effective date
of the amendments); accord Subaru of Am., Inc. v. David McDavid Nissan,
Inc., 84 S.W.3d 212, 219 (Tex. 2002) (addressing whether a statutory
amendment applied retroactively); Beck v. Beck, 814 S.W.2d 745, 750
(Tex. 1991) (applying a constitutional amendment retroactively).  Because the determination of which
version of the constitutional amendment applies is a question of law, we
will review this issue de novo.  See Subaru of Am., Inc., 84
S.W.3d at 219; Benchmark Bank, 919 S.W.2d at 660; Beck, 814
S.W.2d at 750.

The
second loan was executed in January 2003.  At that time, the Texas
constitution provided that

the
lender or any holder of the note for the extension of credit shall forfeit
all principal and interest of the extension of credit if the lender or
holder fails to comply with the lender=s
or holder=s
obligations under the extension of credit within a reasonable time
after the lender or holder is notified by the borrower of the
lender=s
failure to comply.

Act
of May 24, 2003, 78th Leg., R.S., S.J.R. 42, 2003 Tex. Gen. Laws 6219
(amended 2003) (current version at Tex. Const. art. XVI,
'
50(a)(6)(Q)(x)) (emphasis added).
This section of the constitution did not include any specific
provisions directing a lender how to cure a loan=s
constitutional defect or setting a time limitation on when a cure
must be tendered.  See
id.

In
September 2003, the citizens of Texas voted to amend this section.  In addition to adding specific
ways by which a lender or holder could cure a home equity loan=s
constitutional violations, the amendment changed the Areasonable
time@
period standard to require curing action within a more specific, sixty-day
time period.  Id.  The question presented by this
case is whether these 2003 changes retroactively apply to Flagstar and
First American=s
offer to cure the constitutional defects in the Fix-Flagstar contract,
which was executed before the changes were passed.

When
we interpret our state constitution, we rely heavily on its literal text
and must give effect to its plain language.  Stringer v. Cendant Mortgage
Corp., 23 S.W.3d 353, 354 (Tex. 2000).  We strive to give constitutional
provisions the effect their makers and adopters intended.  Id.  In construing a constitutional
amendment, we may also consider its legislative history.  Id.

Generally,
constitutional amendments and statutes operate prospectively.  Tex. Const. art. XVII,
' 1(c)
(reciting that a constitutional amendment Ashall
become a part of [the] [c]onstitution@
when it appears that Aa
majority of the votes cast have been cast in favor of [the]
amendment@);
Benchmark Bank, 919 S.W.2d at 660 (refusing to apply a
constitutional amendment retroactively); Deacon v. City of Euless,
405 S.W.2d 59, 61 (Tex. 1966) (addressing whether laws may apply
retroactively); Cox v. Robison, 105 Tex. 426, 439, 150 S.W. 1149,
1156 (1912) (same).  They may
operate retroactively, however, when it is apparent that the makers and
adopters intended retroactive application of the amendment, provided
retroactive application does not impair vested rights.  Deacon, 405 S.W.2d at 61;
Cox, 105 Tex. at 439, 150 S.W. at 1156.  Without such clear intent,
retroactive application is commonly regarded with disfavor and should
occur Aonly
where the public policy is so clearly and broadly stated as to be
unmistakable.@  Beck, 814 S.W.2d at
750 (Cook, J., concurring); see Deacon, 405 S.W.2d at 61.

Indeed,
public policy is a driving force in determining whether retroactive
application is proper.  It is
well-established that laws in effect at the time a contract is entered
into should govern the fulfillment of the contract.  Wessely Energy Corp. v.
Jennings, 736 S.W.2d 624, 626 (Tex. 1987).  This doctrine is based on the
presumption that the parties to a contract knew and took into
consideration the law in effect at the time of contract.  See Jamestown Partners,
L.P. v. City of Fort Worth, 83 S.W.3d 376 (Tex. App.CFort
Worth 2002, pet. denied).
Therefore, courts are reluctant to change the rights and
obligations of parties from those originally agreed to by retroactively
applying a change in the original law.  See
id.

An
example of a constitutional amendment requiring retroactive application is
found in the Beck case, in which the supreme court evaluated the
1980 amendment to article XVI, section fifteen of the Texas constitution,
which allowed spouses to enter into premarital agreements.  Tex. Const. art. XVI,
' 15
(amended 1980); Beck, 814 S.W.2d at 745.  In that case, a husband and wife
entered into a premarital agreement in 1977.  Beck, 814 S.W.2d at
746.  At that time, although
section 5.41(a) of the family code authorized such agreements, they were
illegal under the Texas constitution.  Id. at 748-49.  In 1980, the citizens of Texas
voted to amend article XVI, section fifteen so as to legalize premarital
agreements.  Id. at
747.  Thereafter, the husband
died in 1981, and the executor of his estate brought suit to have the
premarital agreement declared invalid.  Id. at 746.  The supreme court looked to the
legislative history and public policy behind the constitutional amendment
and, applying the doctrine of implied validation to family code section
5.41(a), determined that retroactive application of the constitutional
amendment to the premarital agreement at issue was warranted.  Id. at 746,749.  Looking at testimony presented to
the legislature that one purpose of the amendment was Ato
allow people to do what they wanted to do all along,@
the supreme court determined that the makers and adopters intended
retroactive application of the amendment.  Id. at
748.

Apart
from the constitutional amendment dealing with the implied validation of
family code section 5.41(a), appellate courts of this state have seldom
allowed retroactive application of a constitutional amendment.  For example, in one case, the
supreme court dealt with a federal tax lien on a homestead.  Benchmark Bank, 919 S.W.2d
at 660.  By the time the case
made its way to the supreme court, the people of Texas had approved an
amendment that would have been dispositive of the issue, allowing the tax
lien.  Id. at 660.  The supreme court, however,
refused to retroactively apply the amendment because the tax lien and the
lender=s
right to recover were fixed before the amendment=s
adoption.  Id.

Likewise,
in evaluating the 2003 amendment to the notice provision of article XVI,
section 50(a)(6)(Q)(x), the exact provision applicable here, the
Bankruptcy Court for the Northern District of Texas explicitly refused
retroactive application of the amendment creating the sixty-day time
period for a cure.  See
Adams v. Ameriquest Mortgage Co., 307 B.R. 549, 559 (Bankr. N.D. Tex.
2004).  The court in
Adams looked to the legislative history of the 2003 amendment and
decided that the purpose of the amendment was merely to clarify the cure
process to be utilized by a lender, not to retroactively superimpose a
series of procedural hoops on lenders who had entered into home equity
loans prior to September 2003.
Id. at 559.

In
determining whether retroactive application of the 2003 amendment is
appropriate in the case at bar, we first look at the literal language of
the amendment.  See
Stringer, 23 S.W.3d at 354.
The face of the amendment nowhere indicates that the makers and
adopters intended retroactive application.  Furthermore, unlike the
legislative history of the constitutional amendment in Beck, the
legislative history of the constitutional amendment in this case indicates
that the makers meant it as nothing more than a Aclarif[ication
of] the cure process.@  House Comm. Report on Financial
Institutions, Comm. Report, Tex. S.J.R. 42, 78th Leg., R.S.
(2003).[2]  Furthermore, there is no
overriding social policy in favor of retroactive application.  Therefore, retroactive application
of the 2003 amendment is not warranted, and instead, we apply the version
of the constitution in force at the time the Fixes and Flagstar entered
into the contract.[3]  Benchmark Bank, 919 S.W.2d
at 660 (refusing to apply a constitutional amendment when a
party=s
rights were fixed before the amendment=s
adoption).

V.  Offer to
Cure

As
discussed above, the version of section 50(a)(6)(Q)(x) of the Texas
constitution in effect at the time the Fixes and Flagstar executed the
loan agreement mandated that a lender forfeit the principal and interest
of a home equity loan that contained constitutional defects if the
borrower notified the lender of the lender=s
failure to comply with its obligations under the constitution, and the
lender did not correct the defects within a reasonable time.  Act of May 24, 2003, 78th Leg.,
R.S., S.J.R. 42, 2003 Tex. Gen. Laws 6219 (amended 2003).
The section did not set forth specific cure provisions;
those were enacted with the passage of the September 2003 amendment.  See Tex. Const. art. XVI,
'
50(a)(6)(Q)(x) (amended 2003).

Our
supreme court analyzed the pre-2003 amendment version of section
50(a)(6)(Q)(x) in the Doody case.  Doody v. Ameriquest Mortgage
Co., 49 S.W.3d 342 (Tex. 2001).
In that case, the supreme court, answering certified questions from
the United States Court of Appeals for the Fifth Circuit, evaluated a home
equity loan entered into in January 1998.  Id. at 343.  Approximately three months after
the parties executed the loan, the lender discovered that it had violated
a provision of the Texas constitution by charging too much in closing
costs.  Id.  To cure this error, the lender
refunded the excess amount to the borrower.  Id.  The borrower brought suit to
compel forfeiture of the principal and interest of the loan in accordance
with section 50(a)(6)(Q)(x).
Id.

In
interpreting section 50(a)(6)(Q)(x), the supreme court determined that the
section provided a lender with a reasonable opportunity to cure defects in
the original loan contract.
Id. at 346.
This cure power gave lenders the ability to cure not only the
particular defect at issue but also to validate the entire lien.  Id. at
347.

Assuming
that the December phone call between Fix and the vice president of
Flagstar constituted sufficient notice of the loan=s
constitutional violations,[4]
Flagstar and First American responded within, at the latest, approximately
three months of receiving notice.
During these months, the record indicates that there was
communication between the Fixes and First American and between counsel for
Flagstar and the vice president of First American regarding the loan.  We additionally note that Flagstar
and First American acted to cure defects in the second loan within the
same three-month time period in which the lender in Doody acted to
cure the Doody=s
home equity loan defect.  The
supreme court determined that the lender in Doody had cured within
a reasonable time.  Id.
at 344, 347.  Consequently,
applying the pre-2003 amendment version of section 50(a)(6)(Q)(x), we hold
that the summary judgment evidence here conclusively establishes that
Flagstar and First American=s
offer to cure occurred within a reasonable time
period.

Furthermore,
to cure the defects in the second loan, Flagstar offered to redo the
Fixes=
loan contract to bring it into compliance with the Texas constitution, pay
the Fixes $1,000, and give the Fixes at least the same or a better
interest rate than the rate set in the second loan.  First American additionally
offered to reclose the transaction at no cost to the Fixes.[5]  Applying the pre-2003 amendment
version of section 50(a)(6)(Q)(x) of the Texas constitution, the summary
judgment evidence conclusively establishes that this offer to cure by
Flagstar and First American properly constituted a sufficient offer to
cure the defects in the second loan.[6]

We
note that all parties in this appeal extensively discuss the
LaSalle case.  See
LaSalle Bank Nat=l
Ass=n
v. White,
217 S.W.3d 573 (Tex. App.CSan
Antonio 2006, pet. filed).
That case, however, has no application here.  The alleged unconstitutionality of
the loan in LaSalle was based on the agricultural-use provision in
section 50(a)(6)(I), not on section 50(a)(6)(Q)(x).  See id. at 577-78.  Furthermore, the lender in the
LaSalle case never made any offer to cure, unlike Flagstar
and First American here.
Id.  The
appellate court in LaSalle was therefore forced to consider an
issue that we need not reachCwhether
equitable subrogation is appropriate in the context of home equity loan
contracts (issues one and two presented by the Fixes)Cbecause
Flagstar and First American=s
timely offer to cure pursuant to the pre-2003 amendment version of section
50(a)(6)(Q)(x) validated the lien on the Fixes=
home.  See Doody, 49
S.W.3d at 347; LaSalle, 217 S.W.3d at 578.

Thus,
the summary judgment evidence conclusively established thatCunder
the pre-2003 amendment version of section 50(a)(6)(Q)(x)CFlagstar
and First American offered to cure all defects in the second loan within a
reasonable time after being notified of the defects.  See Tex. R. Civ. P. 166a(b), (c);
Rhone-Poulenc, 997 S.W.2d at 223.

Accordingly,
the trial court properly granted Flagstar=s
and First American=s
traditional motions for summary judgment on the ground that they properly
and timely offered to cure the constitutional defects in the second
loan.[7]  See Tex. R. Civ. P. 166a(c); Sw.
Elec. Power Co., 73 S.W.3d at 215.  Furthermore, with the exception of
the DTPA issue discussed below, the Fixes based their own motion for
summary judgment on their forfeiture claim for Flagstar=s
and First American=s
violation of constitutional provisions and failure to cure such
violations.  Because we have
already disposed of these issues in Flagstar=s
and First American=s
favorCholding
that the summary judgment evidence conclusively established that an offer
to cure all defects was made within a reasonable timeCwe
hold that the trial court properly denied the Fixes=
motion for summary judgment on their forfeiture claim.  Accordingly, because the
Fixes=
third, fourth, fifth, seventh, eighth, and ninth issues all challenge the
propriety of the trial court=s
denial of the Fixes=
motion for summary judgment on their forfeiture claim, we overrule them
all and address the Fixes=
sixth and tenth issues below.

VI.  DTPA
Violations

In
their sixth issue, the Fixes allege that the trial court improperly
granted Flagstar=s
and First American=s
motion for summary judgment on the Fixes=
claim of a violation of the DTPA.
The Fixes allege that Flagstar and First American provided
refinancing and title insurance services in an unconscionable fashion and
that the Fixes suffered economic damage from such conduct.  Flagstar and First American
respond with two arguments:
the Fixes were not consumers under the DTPA because the purpose of
the second loan was not the purchase of a good or service and, even if the
Fixes were consumers for DTPA purposes, they were unable to show any
damages as a result of the refinance.

To
maintain a DTPA cause of action, the claimant must establish that (1) he
or she is a consumer of the defendant=s
goods or services; (2) the defendant committed a false, misleading, or
deceptive act in connection with the lease or sale of goods or services,
breached an express or implied warranty, or engaged in an unconscionable
action or course of action; and (3) such actions were the producing cause
of the claimant=s
actual damages.  Brown v.
Bank of Galveston, Nat=l
Ass=n,
963 S.W.2d 511, 513 (Tex. 1998); Wingate v. Acree, No.
14-01-00851-CV, 2003 WL 1922569, at *3 (Tex. App.CHouston
[14th Dist.] Apr. 24, 2003, no pet.) (mem. op.); see Tex. Bus. & Com. Code Ann.
'
17.50(a) (Vernon Supp. 2006).

A.     Qualifying as a
Consumer under the DTPA

A
person qualifies as a consumer under the DTPA by meeting two
requirements.  First, the
person must seek or acquire goods or services by lease or purchase.  Tex. Bus. & Com. Code Ann.
'
17.45(4).  Second, the goods
or services sought or acquired must form the basis of the
party=s
complaint.  Melody Home
Mfg. Co. v. Barnes, 741 S.W.2d 349, 351B52
(Tex. 1987).  If either
requirement is lacking, the party must look to the common law or some
other statutory provision for redress.  Cameron v. Terrell &
Garrett, Inc., 618 S.W.2d 535, 539 (Tex. 1981); Ford v. City State
Bank of Palacios, 44 S.W.3d 121,133 (Tex. App.CCorpus
Christi 2001, no pet.).
Whether a person meets these requirements is a question of
law.  Johnson v.
Walker, 824 S.W.2d 184, 187 (Tex. App.CFort
Worth 1991, writ denied); see also Ortiz v. Collins, 203 S.W.3d
414, 424 (Tex. App.CHouston
[14th Dist.] 2006, no pet.).

Generally,
a person cannot qualify as a consumer if the underlying transaction is a
pure loan because money is considered neither a good nor a service.  Riverside
Nat=l
Bank v. Lewis,
603 S.W.2d 169, 173B74
(Tex. 1980) (holding that the refinance of a car loan did not confer
consumer status on the debtor).
Since the Riverside decision, the supreme court has limited
the case to its facts, emphasizing that the claimant in Riverside
sought only an extension of credit and nothing more.  La Sara Grain Co. v. First
Nat=l
Bank of Mercedes,
673 S.W.2d 558, 566 (Tex. 1983).

Even
if the claimant seeks or acquires a Agood@
or Aservice@
as defined by the DTPA and subsequent case law, the claimant must
additionally show that the good or service sought or acquired forms the
basis of the party=s
complaint in order to qualify as a consumer and to bring a valid DTPA
claim.  Melody Home Mfg.
Co., 741 S.W.2d at 351B52.  While title insurance is a service
under the DTPA, 3Z Corp. v. Stewart Title Guar. Co., 851 S.W.2d
933, 937 (Tex. App.CBeaumont
1993, writ denied), a claimant can bring a DTPA claim against the title
insurance company only if the title insurance services form the basis of
the claim.  See Chicago
Title Ins. Co. v. McDaniel, 875 S.W.2d 310, 310 (Tex. 1994) (deciding
a case where homeowners brought a DTPA claim against their title insurance
company because their property was subject to a preexisting lien
undiscovered by the title company); Everson v. Mineola Cmty. Bank,
No. 12-05-00334-CV, 2006 WL 2106959, at *2 (Tex. App.CTyler
July 31, 2006, pet. denied) (mem. op.) (holding that homeowners were not
consumers on the basis of their forced purchase of private mortgage
insurance where their DTPA claim had nothing to do with the insurance
itself but rather an allegedly wrongful
foreclosure).

B.     The Fixes do not
Qualify as Consumers under the DTPA

The
Fixes argue that they are consumers under the DTPA because they sought
refinancing services from Flagstar and title insurance services from First
American.  First, the
refinancing services sought from Flagstar are directly analogous to the
refinancing services sought by the claimant in Riverside.  See 603 S.W.2d at
173B74.  Because the Fixes had already
purchased their house, the Flagstar refinance merely extended credit to
the Fixes.  As such, the
refinance cannot qualify as a good or a service under the DTPA.  See id.  Therefore, summary judgment in
favor of Flagstar was proper because Flagstar conclusively disproved the
consumer status element of a DTPA claim.  See IHS Cedars Treatment
Ctr., 143 S.W.3d at 798.

As
to First American, assuming that title insurance constitutes a service
under the DTPA, the Fixes must meet the second element of consumer status
by basing their DTPA claim on faulty title insurance.  See Chicago Title Inc. Co.,
875 S.W.2d at 310; Melody Home Mfg. Co., 741 S.W.2d at
351B52.  The Fixes failed to do this,
however, because the basis of their claim is that Flagstar and First
American refinanced too soon after the initial home equity loan with
documents that permitted personal recourse and nonjudicial
foreclosure.  The
Fixes=
DTPA claim does not implicate the title insurance services provided by
First American.  Therefore,
summary judgment in favor of First American was proper because First
American also conclusively disproved the consumer status element of the
DTPA claim.  See IHS Cedars
Treatment Ctr., 143 S.W.3d at 798.  Accordingly, we overrule the
Fixes=
sixth issue.

VII.  No-Evidence Summary Judgment in
Favor of Horizon

The
Fixes argue in their tenth issue that the no-evidence summary judgment
granted in favor of Horizon was improper.  As discussed, once a party without
the burden of proof specifically states the elements for which there is no
evidence on a claim, the party with the burden of proof must demonstrate
that a genuine issue of material fact exists as to that element.  Tex. R. Civ. P. 166a(i);  Johnson, 73 S.W.3d at 207;
Sw. Elec. Power Co., 73 S.W.3d at 215.  If the party with the burden of
proof cannot show a genuine issue of material fact, then a no-evidence
summary judgment is proper.
Tex. R. Civ. P.
166a(i);  Johnson, 73
S.W.3d at 207; Sw. Elec. Power Co., 73 S.W.3d at 215.

Reviewing
the entire record in the light most favorable to the Fixes, indulging
every reasonable inference in their favor, and resolving any doubts
against the motion, we cannot say that the trial court erred by granting
the no-evidence motion for summary judgment.  See IHS Cedars Treatment Ctr.,
143 S.W.3d at 798.
Horizon was not involved in the transaction between the Fixes,
Flagstar, and First American, and, in fact, did not become the assignee
until two years after the parties signed the contract.  As the assignee, Horizon had an
interest in the ultimate resolution of the suit; however, that interest
was wholly contingent on the determination of the suit between the Fixes,
Flagstar, and First American.
Once Flagstar and First American established the grounds for a
traditional summary judgment, the Fixes had to bring forth at least a
scintilla of evidence raising a genuine issue of material fact as to any
cause of action against Horizon.
See Moore, 981 S.W.2d at 269.  Because the Fixes were unable to
meet this burden, the trial court properly granted Horizon=s
no-evidence motion for summary judgment.  Therefore, we overrule the
Fixes=
tenth issue that the no-evidence summary judgment in favor of Horizon was
improperly granted.

VIII.
Conclusion

Having
overruled all of the Fixes=
issues, we affirm the trial court=s
judgment.

SUE
WALKER

JUSTICE

PANEL
B:   LIVINGSTON, WALKER
and MCCOY, JJ.

DELIVERED:
November 21, 2007

[1]Specifically,
title was in the individual names of Daniel and Barbara Fix rather than in
the name of the family trust, implicating issues beyond this appeal.

[2]Those
proposing the amendment discussed its purpose as
follows:

The
Constitution provides that the lender forfeits all principal and interest
if a failure to comply with all the lender=s
obligations is not corrected in a reasonable time.  The Acure
process@
is not otherwise described, either in the Constitution or in statute . . .
[the bill proposing the amendment] addresses these issues by authorizing
home equity lines of credit . . . [and] clarifying the cure
process.

House
Comm. Report on Financial Institutions,
Comm. Report, Tex. S.J.R. 42, 78th Leg., R.S.
(2003).

[3]Because
we have held that the makers and adopters of the cure provisions set forth
in the post-2003 amendment version of section 50(a)(6)(Q)(x) did not
intend for the amendment to apply retroactively to home lending contracts
executed prior to September 12, 2003, analysis of an Ex Post Facto Clause
violation (including whether the changes are remedial in nature) is
unnecessary.  Cf., e.g.,
Sims v. Adoption Alliance, 922 S.W.2d 213, 215B16
(Tex. App.CSan
Antonio 1996, writ denied) (determining whether a statutory amendment was
intended to be retroactive before addressing whether its retroactive
application would violate the constitutional prohibition against ex post
facto laws).

[4]We
note that the explicit provisions of the Fix-Flagstar contract require
written notice of any defects in the contract or in the performance
of the contract and that the contract=s
forbearance clause would make waiver of this right to written notice
difficult on these facts.
Nonetheless, proof of the exact date on which the Fixes gave notice
and whether Flagstar and First American waived their right to receive
written notice is not necessary to support the trial court=s
summary judgment because the pre-2003 amendment version of section
50(a)(6)(Q)(x) controls, and that version required only that Flagstar and
First American respond within a Areasonable
time,@
which, as set forth below, they did.

[5]The
Fixes argued in their brief and during oral argument that
Flagstar=s
and First American=s
offer to cure does not comply with various provisions of the post-2003
amendment version of section 50(a)(6)(Q)(x).  Because we have held that the
pre-2003 amendment version of this section is applicable to the
Fix-Flagstar refinance contract, we need not address these
contentions.

[6]We
recognize that the Fixes refused to execute the documents necessary to in
fact cure the constitutional defects in the second loan.  We cannot speculate as to whether
the pre-2003 version of section 50(a)(6)(Q)(x) permits such refusal
because the parties did not present such issue to the trial court and have
not presented it on appeal.
See Tex. R. App.
P. 33.1, 38.1.
Addressing the issues before us, we hold only that, applying the
pre-2003 version of section 50(a)(6)(Q)(x), Flagstar and First American
conclusively established a timely offer to cure and thereby properly
obtained summary judgment on the Fixes=
forfeiture claim.

[7]The
trial court=s
order granting summary judgment provided that Athere
is no genuine issue as to any material fact and that the Defendants are
entitled to judgment as a matter of law on all of the issues set out in
their motions.@  Thus, we must uphold the trial
court=s
summary judgment for Flagstar and First American if it is proper on any
ground they asserted.  See
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216
(Tex. 2003); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.
1995).