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Justice v. Wells Fargo Bank, National Association

Court of Appeals of Texas, Ninth District, Beaumont

December 12, 2019

BRIAN W. JUSTICE, Appellant
v.
WELLS FARGO BANK, NATIONAL ASSOCIATION, ON BEHALF OF THE REGISTERED HOLDERS OF BEAR STEARNS ASSET BACKED SECURITIES I TRUST 2007-AC2, ASSET-BACKED CERTIFICATES, SERIES 2007- V2, Appellee

          Submitted on October 22, 2019

          On Appeal from the 410th District Court Montgomery County, Texas Trial Cause No. 18-05-06155-CV

          Before McKeithen, C.J., Kreger and Johnson, JJ.

          MEMORANDUM OPINION

          LEANNE JOHNSON JUSTICE.

         Appellant Brian W. Justice appeals the trial court's summary judgment in favor of Appellee Wells Fargo, National Association, on Behalf of the Registered Holders of Bear Stearns Asset Backed Securities I Trust 2007-AC2, Asset-Backed Certificates, Series 2007-AC2 ("Wells Fargo"). We affirm.

         Procedural Background

         Original Pleadings

         On May 11, 2018, Wells Fargo filed its original petition, stating a claim against Justice for breach of contract and judicial foreclosure on the property located at 10503 E. Wild Wind Circle in The Woodlands ("the property"). The petition alleged that Justice had defaulted on the promissory note on the property and Wells Fargo was the holder of the note. Wells Fargo also asserted that, under the terms of the note, it could recover unpaid principal and accrued interest, late charges, and lender's costs of collection, including reasonable attorney's fees.

         Justice filed two pro se answers, generally denying the allegations. The answers indicate that Justice's address is:

10503 E. WildWind Cir.
The Woodlands, Tx 77380

         The clerk's record also includes a copy of the envelope Justice used to mail one of the answers, and it reflects a return address of:

P.O. Box 30413
Fort Lauderdale, FL 33303

         The trial court sent the parties a scheduling order on July 26, 2018, setting the case for trial on May 28, 2019, and ordering that all motions for summary judgment should be filed forty-five days before trial. The scheduling order reflected that it was sent to Justice via email, and to the Woodland's address for Justice.

         Wells Fargo's Motion for Summary Judgment

         On October 29, 2018, Wells Fargo filed a traditional motion for summary judgment. In its motion, Wells Fargo argued that it was entitled to summary judgment because it was the legal holder of the promissory note that Justice executed, Justice had defaulted on the note, the note was secured by a deed of trust, and that Wells Fargo sent Notice of Acceleration to Justice. The following exhibits were attached in support of Wells Fargo's motion:

• A "Texas Home Equity Note" executed by Justice in December 2006 payable to Maverick Residential Mortgage, Inc. ("Maverick") and a "Texas Home Equity Security Instrument" giving Maverick a secured interest in the property. The Texas Home Equity Security Instrument reflected that Mortgage Electronic Registration Systems, Inc. ("MERS") is the nominee for the lender and the lender's successors and assigns, and MERS is the beneficiary under the security instrument.
• An affidavit of Monica Vongdara, a Document Control Officer for Select Portfolio Servicing, Inc. ("SPS"), which was the servicer for the loan. In her affidavit, Vongdara attested that Wells Fargo is the current holder of Justice's note on the property.
• An Assignment of Note and Deed of Trust executed in September 2008, in which MERS assigned the deed of trust to Wells Fargo Bank, National Association, as Trustee for Certificateholders of Bear Stearns Asset Backed Securities I LLC, Asset Backed Certificates, Series 2007-AC2, and the markings on ...

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