Alanis v. Wells Fargo Bank N. A.

          From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2011-CI-02839 Honorable Barbara Hanson Nellermoe, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Patricia O. Alvarez, Justice

          MEMORANDUM OPINION

          Sandee Bryan Marion, Chief Justice

         Nancy Alanis appeals a series of orders signed by the trial court culminating in a final judgment, including orders denying pleas to the jurisdiction, granting special exceptions, and granting and denying motions for summary judgment. We affirm the trial court's judgment.

          Background^[1]

         In June of 2006, Alanis borrowed $193, 500 from New Century Mortgage Company to purchase a house. Alanis signed a note secured by a deed of trust.

         New Century declared bankruptcy, and Alanis's note and deed of trust lien became assets of New Century's bankruptcy estate which were subsequently transferred and assigned to Wells Fargo Bank National Association, as Trustee for the Pooling and Servicing Agreement Dated October 1, 2006 Securitized Asset Backed Receivables LLC Trust 2006-NC3 Mortgage Pass Through Certificates Series 2006 NC3. Initially, HomeEq Servicing Corporation serviced the loan for Wells Fargo. In April of 2010, HomeEq sent Alanis notice of a substitute trustee's sale scheduled for June 1, 2010; however, the foreclosure was subsequently suspended. Effective August 31, 2010, the servicing of the loan was transferred to Ocwen Loan Servicing, LLC.

         On December 8, 2010, Ocwen sent Alanis a notice of default with intent to accelerate. In January of 2011, Mackie Wolf Zientz & Mann, P.C., a law firm representing Ocwen (the "Law Firm"), sent Alanis notice of Wells Fargo's acceleration and intent to foreclose.

         In response to the notice, in February of 2011, Alanis filed the underlying lawsuit alleging multiple causes of action against Wells Fargo, HomeEq, Ocwen, and the Law Firm. Wells Fargo filed a counterclaim seeking a judicial foreclosure.

         On May 6, 2011, Alanis took a default judgment against HomeEq. Wells Fargo, the Law Firm, and Ocwen then obtained a series of orders in their favor relating to various claims asserted by Alanis, culminating in an order dated March 3, 2016 which (1) granted Wells Fargo a summary judgment on its counterclaim for a judicial foreclosure, (2) declared that Alanis take nothing on certain claims, and (3) stated the judgment fully and finally disposed of all remaining parties and claims.

         On April 1, 2016, Barclays Capital Real Estate, Inc. filed a motion to set aside the default judgment against HomeEq, alleging HomeEq's assets, including the right to use the name "HomeEq Servicing, " were sold to Barclays in 2006. Barclays argued the May 6, 2011 default judgment against a party identified as "HomeEq Servicing Corporation" was obtained after improper service. On May 12, 2016, the trial court signed an order setting aside the default judgment against HomeEq and severed Alanis's claims against HomeEq into a separate cause.

         On December 14, 2016, this court issued an opinion holding the trial court erred in severing Alanis's claims against HomeEq. See Alanis, 2016 WL 7234047, at *2. We reversed the order granting the severance and remanded the cause for further proceedings. See id. After the cause was remanded, Barclays filed a motion for summary judgment which was granted by the trial court. As previously noted, Alanis appeals numerous orders that culminated in a final judgment, including orders denying her pleas to the jurisdiction, granting special exceptions, and granting and denying motions for summary judgment.

         Pleas to the Jurisdiction

         In her first and second issues, Alanis challenges the trial court's orders denying her pleas to the jurisdiction. Alanis contends the trial court erred in denying her pleas because: (1) Wells Fargo lacked standing to seek a foreclosure because the transfer or assignment of lien from New Century to Wells Fargo was void; and (2) Wells Fargo's right to foreclose was barred by limitations.

         A. Standard of Review

         We review a trial court's ruling on a plea to the jurisdiction de novo. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016). If the plea to the jurisdiction challenges the pleadings, we liberally construe the pleadings to determine if the plaintiff "has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause." Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If the plea to the jurisdiction challenges the existence of jurisdictional facts, "we consider relevant evidence submitted by the parties to determine if a fact issue exists." Suarez v. City of Tex. City, 465 S.W.3d 623, 632-33 (Tex. 2015). "We take as true all evidence favorable to the nonmovant, indulge every reasonable inference, and resolve any doubts in the nonmovant's favor." Id. at 633. "If the evidence creates a fact question regarding jurisdiction, the plea must be denied pending resolution of the fact issue by the fact finder." Id. "If the evidence fails to raise a question of fact, however, the plea to the jurisdiction must be granted as a matter of law." Id.

         B. Standing

         With regard to Wells Fargo's standing, Alanis recognizes in her brief that she only had standing to challenge the assignment from New Century to Wells Fargo on grounds that would render the assignment void. Vasquez v. Deutsche Bank Nat'l Trust Co., N.A., 441 S.W.3d 783, 787 (Tex. App.-Houston [1st Dist.] 2014, no pet.); Reinagel v. Deutsche Bank Nat'l Trust Co., 735 F.3d 220, 225 (5th Cir. 2013). Alanis does not have standing to challenge the assignment on any ground that "merely renders the assignment voidable at the election of the assignor." Reinagel, 735 F.3d at 225.

         In her brief, Alanis uses the word "forgery" in an effort to present an argument that would cause the assignment from New Century to Wells Fargo to be void. See Vasquez, 441 S.W.3d at 789 (recognizing forgery would render assignment void). Examining the actual bases on which Alanis claims the assignment was forged, however, reveals that Alanis claims the assignment was forged based on the timing of the assignment and indorsement and the authority of those who signed the assignment and indorsement. The execution of a document by a person who lacks authority renders the document voidable, not void. Reinagel, 735 F.3d at 226; Uribe v. Carrington Mortg. Servs., LLC, No. 04-16-00060-CV, 2017 WL 603648, at *3 (Tex. App.-San Antonio Feb. 15, 2017, no pet.) (mem. op.). Similarly, whether the timing of the assignment violated some deadline in an agreement governing the assignment or was otherwise unauthorized would render the assignment voidable, not void. Reinagel, 735 F.3d at 228 (holding "facially valid assignment cannot be challenged for want of authority except by defrauded assignor"); Uribe, 2017 WL 603648, at *3 (assignment in violation of terms of agreement pursuant to which assignment was made "would not render ...