![]() ![]() McLarty requested damages from PMC Capital and foreclosure of its alleged constitutional mechanic=s and materialman=s lien. In February 2004, McLarty filed a motion for summary judgment on the grounds that he had a constitutional mechanic=s and materialman=s lien on the golf course=s water pump for unpaid labor and materials, that PMC Capital had actual and constructive notice of this lien prior to the foreclosure, and that McLarty=s lien was superior to PMC Capital=s interest. PMC Capital filed a general denial and a verified denial that it was not a proper party to the lawsuit. Thus, pursuant to its loan agreement with Benson, PMC Capital again holds a deed of trust secured by the golf course. Benson received a loan from PMC Capital, secured by a deed of trust, to purchase the property. In October 2003, after suit had been filed, PMC Asset Holding sold the golf course to Dorcas Benson. In August 2003, McLarty filed suit against PMC Capital, as recipient of the foreclosure sale proceeds, to recover payment of the funds its mechanic=s and materialman=s lien secured. McLarty did not receive any money from the foreclosure sale to extinguish its lien, which McLarty alleges remains unsatisfied. PMC Asset Holding (a subsidiary of PMC Capital) purchased the golf course at the foreclosure sale. In January 2003, with permission from the bankruptcy court, PMC Capital foreclosed on the golf course, ignoring McLarty=s lien and the efforts to resolve its lien. McLarty received notice of the bankruptcy and attempted to make an agreement with PMC Capital to remove the pump pursuant to its mechanic=s and materialman=s lien in the event that the bankruptcy court permitted PMC Capital to foreclose. In April 2002, Academy defaulted on the note and filed for bankruptcy. In December 2001, McLarty filed an affidavit for a statutory and constitutional mechanic=s and materialman=s lien on the golf course for the unpaid labor and materials. Academy failed to pay for the service and repair. ![]() In August 2001, after PMC Capital had assigned the note to PMC Joint Venture, Academy contracted with McLarty for service and repair of the pump. In August 2000, while PMC Capital still held the note, Academy contracted with McLarty to install an irrigation pump for a sprinkler system. PMC Capital retained the authority to service the loan and foreclose under the terms of the deed of trust if Academy defaulted. In December 2000, PMC Capital assigned the note to PMC Joint Venture, who then pledged the note to BNY Midwest Trust Company. Plano Bank & Trust subsequently became Legacy Bank of Texas, which assigned the note and deed of trust to PMC Capital in November 1999. The note was secured by a deed of trust recorded in September 1999. In 1998, Academy at Waterchase, the owner of a golf course, executed a promissory note in favor of Plano Bank & Trust. We reverse the trial court=s judgment and remand the case for trial. ![]() Because genuine issues of material fact exist, we hold that summary judgment was improper. damages of $6,620.52, attorney=s fees, and a constitutional mechanic=s and materialman=s lien and ordering foreclosure of this lien. This is an appeal from a summary judgment awarding Appellee Harvey McLarty, Inc. FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY ![]()
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