COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00005-CV
FLORA XANTHINE APPELLANT
ALEXANDER
V.
WELLS FARGO BANK, APPELLEE
N.A.
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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Introduction
This is an appeal from the trial court’s grant of two traditional summary
judgments to appellee Wells Fargo Bank, N.A. in its suit seeking a declaratory
1
See Tex. R. App. P. 47.4.
judgment allowing it to foreclose its real property lien on the residence of
appellant Flora Xanthine Alexander. We affirm.
Background
Wells Fargo attached to its first summary judgment motion a copy of a note
signed by “Flora Alexander” as borrower and dated November 24, 2004. The
lender is shown as “SFMC, LP. – DBA Solutions Funding Mortgage Company.”
The note states that it is secured by a deed of trust dated the same date. The
note also has a maturity date of December 1, 2024. At the bottom of the note is
an endorsement “[w]ithout recourse” from SFMC, LP to Wells Fargo signed by
W. Padilla as Operations Manager, Agent, and Attorney-in-Fact.
Also attached as summary judgment evidence is a Deed of Trust dated
November 24, 2004 and signed by Flora Alexander as Grantor to Mortgage
Electronic Registration Systems, Inc. as Trustee. The collateral covered by the
deed of trust is 1503 Rambler Road, Arlington, Texas, described as “Lot 46,
Block 20, Fifth Installment of [t]he Arkansas Heights Addition to the City of
Arlington, Tarrant County, Texas.” The deed of trust states that it secures a note
of the same date with a maturity date of December 1, 2024. The deed of trust
was recorded in the real property records of Tarrant County on November 30,
2004.
The summary judgment evidence shows that Wells Fargo and Alexander
entered into a Loan Modification Agreement on December 8, 2006, which,
among other things, extends the undefined “contractual due date” from June 1,
2
2006 to February 1, 2007. Also included in the summary judgment proof is a
copy of a Temporary Forbearance Agreement between Wells Fargo and
Alexander setting forth a payment plan schedule from 12/31/07 to 7/30/08. The
Agreement is signed by “Flora Alexander” and is dated “12/27/07”; it also bears
the stamp of “Hank Grady, Wells Fargo Home Mortgage” dated January 7, 2008.
Wells Fargo further attached deemed admissions showing that Alexander
was in default on the loan “prior to December 26, 2006,” that she and Wells
Fargo entered into a Loan Modification Agreement on December 26, 2006, that
she did not make all the required payments under the Loan Modification
Agreement, that she entered into the Temporary Forbearance Agreement on
December 27, 2007, and that she did not make all the required payments under
that Agreement. Also included are deemed admissions that Wells Fargo served
Alexander with notice of default, gave her at least thirty days to cure, and that
she did not cure the default.
Finally, Wells Fargo attached eleven documents Alexander created and
sent to Wells Fargo or filed in various places as official documents from May 23,
2005 to July 25, 2008 purporting to show that she had a lien on, or that title was
in question as to, the Rambler Road property.
Alexander filed a general denial and asserted a counterclaim that the
endorsement signatures on the original note were superimposed, destroying the
original note and making it void under the Fair Debt Collection Practices Act.
According to Alexander, this attempted endorsement means she does not owe
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any more money on the note. In addition, Alexander claimed that she had no
obligation to Wells Fargo and that it was fraudulently trying to extract money from
her. She sought a declaratory judgment seeking to have Wells Fargo remove
“their Building” from the property for an access fee of $330,000.
The trial court signed an interlocutory summary judgment for Wells Fargo
on all of its claims against Alexander. The trial court found that the note is valid,
that Wells Fargo is the current owner of the note and deed of trust, that
Alexander is in default on the loan, that she received thirty days’ notice of default
and did not cure within that period, and that Wells Fargo is entitled to
nonjudicially foreclose the deed of trust and sell the property. The trial court also
found all of the eleven documents created by Alexander to be fraudulent and
therefore void and unenforceable. See Tex. Civ. Prac. & Rem. Code Ann. §
12.002 (Vernon Supp. 2010). The trial court ordered Alexander to pay Wells
Fargo $110,000 for each fraudulent document. Id.
Wells Fargo subsequently filed a second motion for summary judgment on
Alexander’s counterclaims. In its motion, Wells Fargo argued that contrary to
Alexander’s claim, a note need not be signed by the lender to be enforceable
against the borrower; the borrower’s signature alone is sufficient. In addition, the
endorsement could not have rendered the note invalid because that procedure is
expressly provided for by the Texas Business and Commerce Code. The trial
court signed a final judgment for Wells Fargo ordering that Alexander take
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nothing on her counterclaim and incorporating the terms of the interlocutory
summary judgment.
Standard of Review
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A plaintiff is entitled to
summary judgment on a cause of action if it conclusively proves all essential
elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710
S.W.2d 59, 60 (Tex. 1986). A defendant who conclusively negates at least one
essential element of a cause of action is entitled to summary judgment on that
claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); see
Tex. R. Civ. P. 166a(b), (c).
Analysis
Alexander raises four discernable issues in her brief: (1) that the trial court
failed to credit payments she had made on the note, (2) that she cancelled and
rescinded the note under the Truth in Lending Act, (3) that Wells Fargo could not
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enforce the note and deed of trust because it failed to produce the originals, and
(4) that the trial court denied her due process.2
Alexander first claims that the trial court failed to take into account
“payments that had been previously made by [her] as agreed.” But Alexander
did not provide the court with any evidence that she made payments for which
she was not given credit by Wells Fargo. Thus, this allegation does not raise a
fact issue to defeat summary judgment. See Keenan v. Gibraltar Sav. Ass’n, 754
S.W.2d 392, 393–94 (Tex. App.––Houston [14th Dist.] 1988, no writ).
Alexander also claims that she cancelled and rescinded the deed of trust
under Regulation Z of the Truth in Lending Act (TILA). See 12 C.F.R. § 226.23
(2009), WL 12 CFR s 226.23. However, the right to rescind under the TILA does
not extend to first-lien purchase money mortgages, such as the one at issue
here. Id. § 226.23(a), (f)(1); see Betancourt v. Countrywide Home Loans, Inc.,
344 F. Supp. 2d 1253, 1261 (D. Colo. 2004). The evidence shows that the deed
of trust collateral was Alexander’s residence paid for from the proceeds of the
loan evidenced by the note. Accordingly, any attempt by Alexander to rescind
the loan under the TILA could not have been effective to defeat Wells Fargo’s
summary judgment.
2
Alexander does not appear to challenge the part of the trial court’s
judgment finding that the documents she filed were fraudulent and awarding
damages under chapter 12 of the civil practice and remedies code; therefore, we
will not address that part of the summary judgment. See Tex. R. App. P. 47.1;
Stephens v. Dolcefino, 126 S.W.3d 120, 129–30 (Tex. App.––Houston [1st Dist.]
2003, pet. denied).
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Alexander also contends that summary judgment was improper because
Wells Fargo failed to present the original note and deed of trust. According to
Alexander, although counsel for Wells Fargo purported to present the original
note, the trial court failed to inspect it for originality.3 Alexander contends that
production of the original note and deed of trust is required under section 1692g
of the Fair Debt Collection Practices Act. 15 U.S.C.A. 1692g (West 2009).
Assuming the Act even applies to Wells Fargo in this case, nothing in section
1692g requires the holder of a note to produce original documents before
foreclosing under the terms of a deed of trust. See id.; Tesi v. Chase Home Fin.,
LLC, No. 4:10-CV-272-Y, 2010 WL 2293177, at *4 (N.D. Tex. June 7, 2010)
(order); Alexander v. U.S. Bank, N.A., No. 3:07-CV-1239-L, 2008 WL 3152989,
at *4 (N.D. Tex. July 30, 2008) (mem. op. and order).
Moreover, the record from the hearing on Wells Fargo’s second motion for
summary judgment shows that counsel presented both Alexander and the trial
judge with what he represented to the court was the original note. He also
provided the court with the copy of the note that was attached to the motion for
summary judgment so that the trial court could compare the two. Counsel further
3
Alexander also contended at trial and at oral argument that Wells Fargo’s
endorsement on the note itself somehow altered the note so that it was no longer
valid and could not be enforced. The Texas Business and Commerce Code
provides for an endorsement to be made on the note itself in order to effect a
transfer of the note. See Tex. Bus. & Com. Code Ann. § 3.201(a) (Vernon Supp.
2010). Alexander provides no authority showing that the endorsement of a note
in accordance with the Texas Business and Commerce Code violates any
provision of, or invalidates a note under, federal law.
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represented upon questioning by the court that Wells Fargo was the only holder
of the note and that it had not been securitized. Although Alexander admitted
that the signature on the document was hers,4 she stated to the trial court that
she doubted the note was actually the original because “the original note should
have been passed on. The evidence stipulates that under Section 28 of the
National Currency Act[5] it is unlawful for any officer to hold a claim.” The trial
court then stated its intention to grant summary judgment to Wells Fargo.
Contrary to Alexander’s contention, the record appears to show that the trial
court examined the note; it determined that her argument that she doubted its
originality was frivolous. At the very least, the record does not show that the trial
court refused or failed to inspect what Wells Fargo’s counsel tendered.
Alexander further claims that the trial court denied her due process by
granting the motions for summary judgment because her “request for evidence to
be heard and tried by a jury of her peers was denied.” A civil litigant does not
have an absolute right to a jury trial. Green v. W.E. Grace Mfg. Co., 422 S.W.2d
4
Alexander also contends that the note is unenforceable because it was
not signed by the original lender; however, a promissory note need not be signed
by the lender to be valid and enforceable against the borrower. See De Shay v.
Beatty, No. 02-02-00444-CV, 2003 WL 21476303, at *2 (Tex. App.––Fort Worth
June 26, 2003, no pet.) (mem. op.).
5
The National Currency Act of 1863 and the National Bank Act of 1864
“provided . . . for federal chartering of national banks.” Clarke v. Sec. Indus.
Ass’n, 479 U.S. 388, 410–11, 107 S. Ct. 750, 763 (1987) (Stevens, J.,
concurring). There is no private right of action under the National Currency Act
or National Bank Act. See, e.g., Poindexter v. Wells Fargo Bank, N.A., No.
3:10cv257-RJC-DLH, 2010 WL 3023895, at *3 (W.D.N.C. July 29, 2010) (order).
8
723, 725 (Tex. 1968); Vann v. Gaines, No. 02-06-00148-CV, 2007 WL 865870,
at *3 (Tex. App.––Fort Worth Mar. 22, 2007, no pet.) (mem. op.). Summary
judgment is proper only when the standard is met. See Vann, 2007 WL 865870,
at *3. Here, we have determined that there are no genuine issues of material
fact and that all issues of law raised by Alexander in an attempt to defeat
summary judgment are without merit. Accordingly, we conclude and hold that
the trial court did not deny Alexander due process by granting Wells Fargo’s
motions for summary judgment. See id.
We overrule all of the issues raised and fairly included in Alexander’s brief.
See Tex. R. App. P. 38.1(f).6 To the extent she attempts to state claims not
raised in the trial court, we do not address those issues.7 See Tex. R. App. P.
33.1(a)(1); Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).
6
It is possible that a reference in Alexander’s brief relates to her contention
in the trial court that Wells Fargo failed to respond to interrogatories and requests
for admissions; however, Wells Fargo filed its timely response to that discovery in
the clerk’s record. See Tex. R. Civ. P. 197.2(a), 198.2(a). Although Wells Fargo
did object to many of the discovery requests, it also answered subject to the
objections. Alexander did not file a motion to compel in the trial court. See Tex.
R. App. P. 33.1(a)(1); Burgess v. Feghhi, No. 12-04-00367-CV, 2007 WL
2178544, at *5 (Tex. App.––Tyler July 31, 2007, pet. denied) (mem. op.).
7
For instance, Alexander argues that Wells Fargo breached its contract
and violated the DTPA and Texas Finance Code, but she did not make any of
these claims at trial. She also discusses problems with the securitization of
loans, but there is no evidence that this loan was securitized.
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Conclusion
Having overruled the issues raised in Alexander’s appeal, we affirm the
trial court’s judgment.
PER CURIAM
PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ.
DELIVERED: April 7, 2011
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