Howard Worthing and Lisa Worthing v. Deutsche Bank National Trust Company, as Trustee for Argent Securities Inc., Asset-Backed Pass-Through Certificates, Series 2003-W5 And Homeward Residential, Inc. F/K/A American Home Mortgage Servicing, Inc.

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

§
HOWARD WORTHING AND No. 08-16-00009-CV
LISA WORTHING, §
Appeal from
Appellants, §
33rd District Court
v. §
of Burnet County, Texas
DEUTSCHE BANK NATIONAL §
TRUST COMPANY, AS TRUSTEE (TC # 40677A)
FOR AGENT SECURITIES INC., §
ASSET-BACKED PASS THROUGH
CERTIFICATES, SERIES 2003-W5, §
AND HOMEWARD RESIDENTIAL,
INC. F/K/A AMERICAN HOME §
MORTGAGE SERVICING, INC.,
§
Appellees.
§

OPINION

In this appeal, we review a summary judgment in favor of a lender and a loan servicing

company following the foreclosure on Howard and Lisa Worthings’ homestead. Like many

cases of this type, the homeowners seek to stave off eviction and retain their home while the

lender seeks to enforce a mortgage contract in the face of default and delinquency. For the

reasons that follow, we affirm.
 FACTUAL SUMMARY

Howard and Lisa Worthing allege that they refinanced the purchase of their homestead in

Marble Falls, Texas, through Argent Mortgage Company, LLC (Argent) on August 12, 2003.1

Howard executed a Texas Home Equity Note for $652,500 (the Note) and a Texas Home

Security Instrument (Deed of Trust) in favor of Argent. Argent indorsed the Note to Amerquest

Mortgage Company. In turn, Amerquest later indorsed the Note in blank. Appellee Deutsche

Bank National Trust Company, as Trustee for Argent Securities, Inc., Asset-Backed Pass-

Through Certificates, Series 2003-W5 (Deutsche Bank) was in possession of the Note at the time

of the summary judgment.

The Note had a string of different loan service companies. Amerquest, which later

changed its name to AMC Mortgage Services, Inc., originally serviced the Note. Two years later

AMC assigned the loan servicing functions to Citi Residential Lending, Inc. Effective February

11, 2009, Citi Residential assigned the loan serving to Appellee Homeward Residential Inc.,

f/k/a American Home Servicing, Inc. (Homeward). As a part of that change, Citi Residential as

the “Attorney in Fact for Argent,” conveyed, granted, sold, assigned, and transferred the Deed of

Trust and Note to Deutsche Bank. The transfer document was executed by Crystal Moore,

whose signature was notarized by Bryan Bly. As we note below, both of these persons are

important to the Worthings’ forgery contentions.

On August 18, 2009, Homeward provided notice of default and notice of intent to

accelerate the Note after the Worthings had stopped making payments. Thereafter, Deutsche

Bank filed a proceeding under TEX.R.CIV.P. 736 to judicially authorize the foreclosure. A trial

court granted it permission to do so on March 9, 2010. More than two years later, Deutsche

1
This appeal was transferred to this court from the Third Court of Appeals pursuant to the Texas Supreme Court’s
docket equalization efforts. See TEX.GOV’T CODE ANN. § 73.001 (West 2013). We follow the precedents of that
court to the extent they might conflict with our own. See TEX.R.APP.P. 41.3.

2
Bank appointed a substitute trustee under the Deed of Trust and on July 3, 2012, the substitute

trustee sold the property at a foreclosure sale.

The Worthings, who were still living at the house, sued Deutsche Bank, Homeward, and

others. The factual recitations in the lawsuit claimed that Argent did not qualify as one of the

designated type of lenders allowed to make a home equity loan in Texas. Consequently, the

Worthings assert that Argent automatically forfeited all principal and interest under the Note, and

the ensuing foreclosure was invalid. As we explain in more detail below, the Worthings pled

additional technical problems with the paperwork in the chain of title, including that the

assignment is “fake” having been executed by “robo-signers.”

From the factual allegations, the Worthings allege causes of action for (1) wrongful

foreclosure (2) quiet title (3) breach of contract (4) statutory violations of Chapter 51 of the

Texas Property Code (5) violation of Chapter 392 of the Texas Finance Code (6) violation of the

Texas Deceptive Trade Practices Act and (7) violation of Chapter 12 of the Texas Civil Practice

and Remedies Code. Deutsche Bank and Homeward answered and filed a traditional and no-

evidence motion for summary judgment. The traditional motion addressed Argent’s status as a

lender and laid out the chain of title documents for the Note and Deed of Trust. In its no-

evidence motion, Deutsche Bank set out the pled causes of action and claimed the Worthings

lacked evidence on one or more elements of each. The motion further recited that as of

December 2, 2014, the Worthings were still living at the property and had made no payment

since July 2009. The Worthings responded to the affirmative summary judgment claims, and

3
responded to some, but not all of the challenged causes of action under the no-evidence portion

of the motion. The trial court granted the motion and this appeal follows.2

The Worthings present three issues with subparts, and we discern there are four

remaining disputes between the parties: (1) whether the original lender, Argent, was authorized

to make the Worthings’ home equity loans; (2) whether the 2009 assignment of the Deed of

Trust and loan to Deutsche Bank forged; (3) whether claimed discrepancies in the chain of title

create a fact issue; and (4) whether the existence of a non-conforming copy of the Note creates a

fact issue as to who now owns the note. Answering these questions resolves the ultimate issue of

whether the trial court erred in granting summary judgment as to each of the Worthings’ claims.

STANDARD OF REVIEW

We review a trial court’s decision to grant summary judgment de novo. Travelers Ins.

Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). Deutsche Bank filed a hybrid motion

including both traditional and no-evidence grounds. Rule 166a(i) permits a party to move for a

no-evidence summary judgment “without presenting summary judgment evidence,” but requires

the moving party to “state the elements as to which there is no evidence.” TEX.R.CIV.P. 166a(i);

Wade Oil & Gas, Inc. v. Telesis Operating Company, Inc., 417 S.W.3d 531, 540 (Tex.App.--El

Paso 2013, no pet.); Aguilar v. Morales, 162 S.W.3d 825, 834 (Tex.App.--El Paso 2005, pet.

denied). The burden then shifts to the non-movant to produce summary judgment evidence

raising a genuine issue of material fact regarding each element challenged in the motion. Wade

Oil & Gas, 417 S.W.3d at 540. The trial court must grant the motion unless the non-movant

produces summary judgment evidence raising a genuine issue of material fact. TEX.R.CIV.P.

166a(i).

2
The Worthings made various objections to Deutsche Bank’s evidence that were overruled; no issue is raised on
appeal attacking the evidentiary rulings. The summary judgment also addressed a claim that this loan was invalid
under New York trust law. That issue also has not been brought forward on appeal.

4
 A no-evidence motion for summary judgment is essentially a pretrial directed verdict,

and we apply the same legal sufficiency standard of review as we would for a directed verdict.

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). Under this standard, we

review the evidence in the light most favorable to the non-movant, crediting evidence favorable

to that party if a reasonable fact finder could, and disregarding contrary evidence unless a

reasonable fact finder could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).

The non-movant raises a genuine issue of material fact by producing more than a scintilla of

evidence regarding the challenged element. King Ranch, 118 S.W.3d at 751. More than a

scintilla of evidence exists when reasonable and fair-minded individuals could differ in their

conclusions. Id. at 751. There is not a scintilla of evidence when the evidence is so weak as to

do no more than create a mere surmise or suspicion of material fact. Wade Oil & Gas, 417

S.W.3d at 540. Evidence that fails to constitute more than a mere scintilla is, in legal effect, no

evidence at all. Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001); Wade Oil & Gas, 417

S.W.3d at 540.

Deutsche Bank also asserted a traditional summary judgment under TEX.R.CIV.P.

166a(c). Under a traditional motion, the moving party carries the burden of showing that there is

no genuine issue of material fact and it is entitled to judgment as a matter of law. Diversicare

General Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005); Nixon v. Mr. Property Mgmt.

Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). Evidence favorable to the non-movant is taken as

true in deciding whether there is a disputed issue of material fact. Fort Worth Osteopathic

Hospital, Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004); Tranter v. Duemling, 129 S.W.3d 257,

260 (Tex.App--El Paso 2004, no pet.). All reasonable inferences, including any doubts, must be

resolved in favor of the non-movant. Fort Worth Osteopathic Hospital, 148 S.W.3d at 99. Once

5
the movant establishes its right to summary judgment, the burden then shifts to the non-movant

to present evidence that raises a genuine issue of material fact, thereby precluding summary

judgment. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.

1979).

The common thread to each of the Worthings’ causes of action is that the chain of title

from Argent to Deutsche Bank was for various reasons broken, and thus it had no right to

foreclose on the property. We take each of the challenges in turn.

COULD ARGENT REMEDY ITS STATUS AS AN UNLICENSED LENDER?

The Worthings claim that because Argent was an unlicensed lender at the time the loan

was made, the loan was void at its inception and Argent (and any subsequent holder or assignee

of the Note) could not foreclose on the property. Because this was a home equity loan involving

homestead property, the loan must have conformed to the requirements for such loans as set out

in the Texas Constitution. See TEX.CONST. art. XVI, § 50. Section 50(c) provides that no

mortgage, trust deed, or other lien on the homestead shall ever be valid unless it secures a debt

“described by this section.” TEX.CONST. art. XVI, § 50(c). One of the constitution’s

requirements is that only certain entities can make home equity loans. Id. at § 50(a)(6)(P).

Argent was apparently not such an entity at the time of the loan because it lacked a proper

license.

However, when the loan was made, the constitution gave leeway to cure defects. Article

XVI, § 50(a)(6)(Q)(x) at the time read:

[T]he 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[.] [emphasis added]

6
TEX.CONST. art. XVI, § 50(a)(6)(Q)(x)(amended 2003). This language was substantially

changed through the 2003 amendment to Section 50 that replaced the “reasonable time”

language with a sixty-day deadline, and defined specific cures for specific defects. TEX.CONST.

art XVI § 50(a)(6)(Q)(x)(a)-(f). But the amendment removed entirely the cure language for an

unlicensed lender:

[T]he 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 extension of credit is
made by a person other than a person described under Paragraph (P) of this
subdivision . . . .

Id. at § 50(a)(6)(Q)(xi). The amendments became effective on September 13, 2003. See Act of

May 24, 2003, 78th Leg., R.S., S.J.R. 42, 2003 TEX.GEN.LAWS 6219, 6225 (setting forth date for

election). In this case, Argent remedied the licensure issue on December 17, 2003 when it

obtained an appropriate license as a Texas Mortgage Banker. Thus it cured the problem well

before the Worthings ever made complaint, but only after the adoption of the 2003 amendment to

the Texas Constitution.

The pre-amendment version of Section 50(a)(6)(Q)(x) was construed in Doody v.

Ameriquest Mort. Co., 49 S.W.3d 342 (Tex. 2001). That decision convinces us that under the

law in effect at the time the loan’s execution, Argent validly remedied the absence of the license.

In Doody, the lender charged excessive closing costs. Id. at 343. It discovered the overcharge on

its own, and refunded the amount to the borrower, thus curing the overcharge. Nonetheless, the

borrower sued claiming both that the lien on his residence was invalid, and that the lender should

forfeit all principal and interest. Before the supreme court, the borrower claimed the remedy

option in Section 50(a)(6)(Q)(x) only applies to a forfeiture of principal and interest, and not to

remedy the defect in the lien. The court rejected that claim and any narrow construction of

Section 50(a)(6)(Q)(x). Instead, the court held that the cure option applied to all the lender’s

7
obligations under the extension of credit. Id. at 345. Because licensure of those who can make

an extension of credit is one of the obligations, the prior version of the constitution would permit

a cure of Argent’s lack of licensure. See also Boutari v. JPMorgan Chase Bank, N.A., 2010 WL

9453407 at *5 (W.D. Tex. June 10, 2010), aff’d, 429 F.App’x 407 (5th Cir. 2011)(holding lender

could cure licensure deficiency under prior version of constitution).

That brings us to the primary bone of the parties’ contention: Does the 2003 amendment,

which eliminates the cure option, apply retroactively? We conclude that it does not. This same

issue was directly addressed in Fix v. Flagstar Bank, FSB, 242 S.W.3d 147, 155 (Tex.App.--Fort

Worth 2007, pet. denied). The court there held the portions of the 2003 amendments that

replaced the “reasonable time” cure period with a specific sixty-day period did not apply

retroactively. The court’s analysis began with the general rule that constitutional amendments

and statutes operate prospectively unless they expressly provide otherwise. Id. at 155, citing

Benchmark Bank v. Crowder, 919 S.W.2d 657, 660 (Tex. 1996)(noting intervening amendment

to homestead provision has no bearing on our disposition of this case because the [lender’s

rights] “rights were fixed before the amendment’s adoption”) and Deacon v. City of Euless, 405

S.W.2d 59, 61 (Tex. 1966)(changes may operate retroactively when it is apparent that the

adopters intended retroactive application of the amendment, provided that retroactive application

does not impair vested rights). Absent clear intent, retroactive application is disfavored and

should occur “only where the public policy is so clearly and broadly stated as to be

unmistakable.” Beck v. Beck, 814 S.W.2d 745, 750 (Tex. 1991) (Cook, J., concurring).

The Fix court found no expressed intent or public policy basis for retroactively applying

the 2003 amendment. As to public policy, the court noted the presumption that parties to a

contract know and take into consideration the law in effect at the time of contract. Id. at 155,

8
quoting Jamestown Partners, L.P. v. City of Fort Worth, 83 S.W.3d 376 (Tex.App.--Fort Worth

2002, pet. denied). Accordingly, courts should be reluctant to change the rights and obligations

of parties by retroactively applying a change in the original law. Moreover, nothing in the text of

the 2003 amendment indicates that the makers and adopters intended retroactive application.

The legislative history of the constitutional amendment indicates that the makers meant it as

nothing more than a “clarif [ication of] the cure process”, thus belying any public policy purpose

that would necessitate retroactive application. Id. at 156, quoting House Comm. Report on

Financial Institutions, Comm. Report, Tex. S.J.R. 42, 78th Leg., R.S. (2003). As the Worthings

offer no compelling reason to hold to the contrary, we adopt Fix’s reasoning and hold the 2003

amendment does not apply retroactively here. We therefore reject the claim that Argent was an

unauthorized lender for the Worthings home equity loan.3

DID APPELLANT’S RAISE A FACT ISSUE ON FORGERY?

The Worthings also argue that the assignment of the Note and Deed of Trust from Argent

to Deutsche Bank was forged, making the assignment void and divesting Deutsch Bank of any

rights to foreclose on the property. See Dyson Descendant Corp. v. Sonat Exploration Co., 861

S.W.2d 942, 947 (Tex.App.--Houston [1st Dist.] 1993, no writ)(“A forged deed is void ab

initio.”).

Effective February 11, 2009, Citi Residential as attorney in fact for Argent, assigned the

Deed of Trust together with the “certain note(s) described therein” to Deutsche Bank. The

forgery claim centers on the assignment document containing the signature of Crystal Moore as

3
As a subpart to that issue, the Worthings also challenged the portion of the summary judgment that argued that the
four-year statute of limitations would also bar any claim based on the absence of the Argent’s license. While this
case was on appeal, the Texas Supreme Court’s decided Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542, 545 (Tex.
2016) that holds “liens securing constitutionally noncompliant home-equity loans are invalid until cured and thus not
subject to any statute of limitations.” We need not decide the statute of limitations question in light of our holding
on retroactive application of the 2003 amendment.

9
“Vice President” and Bryan Bly, as notary. Apparently, both of these individuals have received

some notoriety as so called “robo-signers” of loan documents. See e.g. Reinagel v. Deutsche

Bank Nat. Trust Co., 735 F.3d 220, 227 (5th Cir. 2013)(questioned signature of Bryan Bly as

Vice President of Citi Residential Lending); Vazquez v. Deutsche Bank Nat. Trust Co., N.A., 441

S.W.3d 783, 785 (Tex.App.--Houston [1st Dist.] 2014, no pet.)(claim that Bryan Bly did not

authorize his signature as Vice President of Citi Residential Lending); In re Carrsow-Franklin,

456 B.R. 753, 757 (Bankr. D.S.C. 2011)(noting Reuters Magazine article discussing Bly);

Forrest v. Citi Residential Lending, Inc., 73 So.3d 269, 273 (Fla. 2d Dist. App. 2011)(appeal of

injunction ruling prohibiting posting of Crystal Moore and Bryan Bly’s deposition).

The Worthings’ petition claims that the assignment is “fake” or “fraudulent” because

Crystal Moore is not a Vice President of Citi Residential Lending, or her signature and the

notary’s signature are a “forgery.” The gravamen of the complaint is actually that Moore and

Bly sign documents they do not read, or others electronically make their signature. We reject

the claim for several reasons.

First, the Worthings’ response to the no evidence motion for summary judgment never

showed that Moore was not a designated Vice President for Citi Residential. Even at that, “[t]he

rule is also clear that one who signs [their] true name, purporting to act as the agent of another,

has not committed a forgery.” Nobles v. Marcus, 533 S.W.2d 923, 926 (Tex. 1976). At most, a

misrepresentation of a signer’s position might render the contract voidable at the election of the

defrauded principal, but not void. Id. As such, the Worthings would lack standing to complain

of a merely voidable defect. Reinagel, 735 F.3d at 226 (“Bly’s alleged lack of authority, even

accepted as true, does not furnish the Reinagels with a basis to challenge the second

assignment.”).

10
 A true forged signature, however, would make the transaction void, which might give the

Worthings standing. Vazquez, 441 S.W.3d at 787; Reinagel, 735 F.3d at 224-25. The

Worthings, however, carried the burden of presenting some evidence of the forgery in response

to the no-evidence motion for summary judgment. They attempted to meet this burden by

attaching the transcript of a congressional hearing and an internet news article to their response.

As for the congressional hearing transcript, it only contained as an exhibit a reprint of an

Associated Press story. That story includes a claim that several hundred documents filed in a

North Carolina county had “suspect signature[s]”, some of which were from Bryan Bly and

Crystal Moore. The two had supposedly admitted to “signing their names to mortgage

documents without having read them.” The other evidence the Worthings rely on was a web

based news article reporting on a deposition taken of Bly and Moore in an unnamed lawsuit. The

gist of the article is that each admitted to signing documents without reading them, and some

signatures were “e-signed” in counties that permit that practice.

Deutsche Bank objected to the articles on authentication and hearsay grounds, but never

obtained a ruling from the trial court. Nonetheless, even accepting the articles as valid summary

judgment evidence, they fail to show why the document is a forgery. Under the Texas Penal

Code, the term “forge,” means: “(A) to alter, make, complete, execute, or authenticate any

writing so that it purports: (i) to be the act of another who did not authorize that act; (ii) to have

been executed at a time or place or in a numbered sequence other than was in fact the case; or

(iii) to be a copy of an original when no such original existed . . . [.]” TEX.PENAL CODE ANN. §

32.21(a)(1)(A)(West 2016); In re Estate of Flores, 76 S.W.3d 624, 630 (Tex.App.--Corpus

Christi 2002, no pet.)(applying definition in civil proceeding). The mere fact that Moore or Bly

sign many documents a day does not meet this definition. The Worthings presented no evidence

11
that these particular signatures were “e-signed”, or if so, that Moore did not authorize the e-

signing of her signature. Nor did they link any of the “robo-signing” allegations in the two

articles to the companies in this case.

The Worthings place great emphasis on Vazquez v. Deutsche Bank Nat. Trust Co., N.A.,

441 S.W.3d 783 (Tex.App.--Houston [1st Dist.] 2014, no pet.) where the court reversed a

summary judgment based on the debtor’s forgery allegation regarding a document signed by

Bryan Bly as Vice President of Citi Residential Lending. The summary judgment filed in

Vazquez was a traditional Rule 166a(c) motion where Deutsche Bank carried the burden to

disprove the forgery allegation. Id. at 785. Here, the no evidence portion of the hybrid motion

shifted the burden to the Worthings and they simply failed to meet their burden. In Vazquez, the

plaintiffs had also alleged “Bly’s electronic signature was affixed to the assignment by someone

else without his knowledge or approval.” Id. at 785. That is a far cry from merely complaining

he did not read the document before signing it.4 We therefore reject the Worthings claim that the

assignment was forged and thus void, or that if fraudulent and voidable, that they have standing

to raise that claim.

CLAIMED DISCREPANCIES IN THE ASSIGNMENT AND CHAIN OF TITLE
DOCUMENTS

Deutsche Bank claims its right to foreclose through actual possession of the Note

(indorsed in blank by the previous holder) and through the assignment of the Deed of Trust and

Note. It supported its traditional summary judgment with an affidavit laying out the chain of

title, and included the assignment for the Deed of Trust and Note. In their response, the

4
We note the authorizing signature here was of Crystal Moore, and that Bryan Bly only notarized the instrument.
The court in Reinagel v. Deutsche Bank Nat’l Trust Co. held Texas law does not require an assignment to be
notarized, and thus a defective acknowledgment has no bearing on the rights between the mortgagor and mortgagee.
735 F.3d 220, 227-28 (5th Cir. 2013). We need not reach that issue because the Worthings have failed to present
evidence that either signature was forged.

12
Worthings attached an “Assignment of Lien” form, which purports to assign the Note and liens

to Deutsche Bank from Deutsche Bank “by Citi Residential Lending, Inc. as Attorney-in-Fact.”

The Worthings claim this “Assignment of Lien” is in error because it states that the Note was

executed by “Howard Worthing and wife, Lisa Worthing,” when the actual note was only

executed by Howard Worthing. They further claim that the chain of title for the Deed of Trust

and the Note take different and inconsistent paths. Their brief fails to explain the significance of

the “Assignment of Lien” and Deutsche Bank never relied on that document to prove its chain of

title.

Additionally, an implicit assumption in the argument is that Note and Deed of Trust must

travel together, when the weight of authority is to the contrary. See Martins v. BAC Home Loans

Servicing, L.P., 722 F.3d 249, 255 (5th Cir. 2013)(noting two cases supporting the “split the

note” view, but then stating “[t]he weight of Texas authority, however, suggests just the

opposite.”); Bierwirth v. BAC Home Loans Servicing, L.P., No. 03-11-00644-CV, 2012 WL

3793190, at *3-4 (Tex.App.--Austin Aug. 30, 2012, pet. denied)(mem.op.)(“[A] lien creditor

may pursue foreclosure of a lien against real property under the deed of trust independent of any

personal action against the borrower for collection on the note.”). The Worthings never respond

to this argument, and we fail to see how the claimed discrepancy in the “Assignment of Lien” or

the differing routes that the Note and Deed of Trust took create a genuine issue of material fact

as to any contested issue in this case.

DOES THE EXISTENCE OF A NON-CONFORMING COPY OF THE NOTE CREATE
A FACT ISSUE?

Deutsche Bank purportedly produced at some point in the discovery process a copy of the

Note that did not have any indorsements. The Worthings claim this non-conforming copy

creates a fact issue about whether Deutsche Bank actually holds the true note.

13
 The mere existence of a non-conforming copy of a note does not raise a genuine issue of

material fact with regard to the authenticity of the note, or here the fact that the original note was

indorsed. In Chance v. CitiMortgage, Inc., 395 S.W.3d 311, 314-15 (Tex.App.--Dallas 2013,

pet. denied) the court considered a summary judgment record where one copy of a note

contained a stamp and another copy did not. The court concluded this difference failed to raise a

genuine fact issue as the note’s authenticity. Id. When a note goes from one holder or mortgage

servicing company to another (here over a ten-year period), it would in fact be surprising not to

find non-conforming copies littered in various files. The non-conforming copy infers little more

than someone copied the Note before it was indorsed. See Wilner v. Deutsche Bank Nat. Trust

Co., 02-11-00287-CV, 2012 WL 6632508, at *4 (Tex.App.--Fort Worth Dec. 21, 2012, no

pet.)(mem.op.)(non-movant who pointed to copies of note filed of record before a certain date

and which did not contain indorsement, at most proved that the indorsement was made at some

later date). Nor does the Worthings’ claim create a genuine issue of material fact challenging

Deutsche Bank’s affidavit, which details its possession of the original note. Chance, 395 S.W.3d

at 315 (noting non-conforming copy created no more than “mere speculation or conjecture” and

did not overcome affidavit of record custodian who held original note).

The argument fails for another reason. The Worthings attached the non-conforming copy

of the Note as a naked exhibit to their summary judgment response -- there was no affidavit

linking the copy to Deutsche Bank’s discovery responses, nor were the discovery responses

included. There is no summary-judgment evidence to substantiate their claim that the non-

conforming copy came from Deutsche Bank, or if so, the context of the discovery response. See

Judah v. EMC Mortg. Corp., 03-14-00304-CV, 2015 WL 5096798, at *4 (Tex.App.--Austin

14
Aug. 25, 2015, pet. denied)(mem.op)(rejecting similar claim of non-conforming copy for the

same reason).

APPLICATION TO PLED CAUSES OF ACTION

Resolution of the four issues above dictate the outcome of the summary judgment for

each of the Worthings’ causes of action. A successful plaintiff in a quiet title action must show

the invalidity of the defendant’s claim to the property. Vernon v. Perrien, 390 S.W.3d 47, 61

(Tex.App.--El Paso 2012, pet. denied); Essex Crane Rental Corporation v. Carter, 371 S.W.3d

366, 387-88 (Tex.App.--Houston [1st Dist.] 2012, pet. denied); Longoria v. Lasater, 292 S.W.3d

156, 165 n.7 (Tex.App.--San Antonio 2009, pet. denied). The Worthings attempted to do so

through the challenge to Argent’s status as a proper lender, and the various challenges to

Deutsche Banks’ chain of title. Because we overrule those contentions, we agree that summary

judgment was proper as to the quiet title action.

For the same reason, we affirm the summary judgment on the wrongful foreclosure

claim, which has as one of its elements proof of a defect in the foreclosure sale proceeding. See

Collins v. Bayview Loan Servicing, LLC, 416 S.W.3d 682, 687 n.7 (Tex.App.--Houston [14th

Dist.] 2013, no pet); Sauceda v. GMAC Mortgage Corp., 268 S.W.3d 135, 139 (Tex.App.--

Corpus Christi 2008, no pet.). The Worthings put on no proof of irregularities in the foreclosure

sale itself, other than chain of title arguments that we have already rejected. The trial court

properly granted summary judgment on the wrongful foreclosure cause of action.

The Worthings’ Texas Property Code claim under Chapter 51 is likewise based on the

claimed improper assignment of the Note and Deed of Trust, which in turn implicates Deutsche

Banks’ appointment of a substitute trustee, acceleration of the note, and other prerequisites

required by TEX.PROP.CODE ANN. § 51.002 (West 2014). We likewise affirm the summary

15
judgment as to this cause of action. The Worthings’ fraudulent lien claim under

TEX.CIV.PRAC.&REM.CODE ANN. § 12.002(a)(West 2017) required them to show: (1) the

defendant made, presented, or used a document with knowledge that it was a fraudulent lien, (2)

the defendant intended that the document be given legal effect, and (3) the defendant intended to

cause plaintiff physical injury, financial injury, or mental anguish. Merritt v. Davis, 331 S.W.3d

857, 860-61 (Tex.App.--Dallas 2011, pet denied). Deutsche Bank challenged each of these

elements below. It is enough for us to address the first element, because the Worthings’

argument makes clear the foreclosure related documents were fraudulent only because the

assignment was “forged” or “void.” Because we find proof of neither here, the claim that the

ensuing foreclosure filings were fraudulent necessarily fails.

The Worthings do not address the specific no evidence challenges made to their breach of

contract, DTPA, or Texas Finance Code claims. Without any responsive evidence, the trial court

was required to grant Deutsche Bank’s no-evidence motion for summary judgment on those

claims. TEX.R.CIV.P. 166a(i); see also Leffler v. JP Morgan Chase Bank, N.A., 290 S.W.3d 384

(Tex.App.--El Paso 2009, no pet.)(Although an appellant may challenge a summary judgment in

a single issue, the appellant’s argument in support of that issue must address and negate each

ground upon which the trial court could have based its decision.). We overrule Issues One, Two

and Three and affirm the trial court’s judgment.

July 31, 2017
ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., not participating

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