Court of Appeals of Texas, Eighth District, El Paso
from 33rd District Court of Burnet County, Texas (TC #
McClure, C.J., Rodriguez, and Hughes, JJ.
CRAWFORD McCLURE, Chief Justice.
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.
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.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.
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
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 Bank
appointed a substitute trustee under the Deed of Trust and on
July 3, 2012, the substitute trustee sold the property at a
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
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 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
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.
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.
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
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 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).
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