Court of Appeals of Texas, Fourth District, San Antonio
the 45th Judicial District Court, Bexar County, Texas Trial
Court No. 2011-CI-02839 Honorable Barbara Hanson Nellermoe,
Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini,
Justice Patricia O. Alvarez, Justice
Bryan Marion, Chief Justice
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.
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.
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.
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.
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.
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.
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.
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.
to the Jurisdiction
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.
Standard of Review
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."
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.
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