Deutsche Bank National Trust Company, as Trustee for the HSI Asset Securitization Corporation 2006-OPT 3 Pass Through Certificates, Series 2006-OPT3 v. F&M Properties, Inc. and Stephen Callender

• Court: Court of Appeals of Texas
• Decided: August 30, 2024
• Docket: 05-23-00252-CV
• Status: Published

Opinion

REVERSED AND RENDERED and Opinion Filed August 30, 2024

In the Court of Appeals Fifth District of Texas at Dallas No. 05-23-00252-CV

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR THE HSI ASSET SECURITIZATION CORPORATION 2006-OPT 3 PASS THROUGH CERTIFICATES, SERIES 2006-OPT3, Appellant V. F&M PROPERTIES, INC. AND STEPHEN CALLENDER, Appellees

On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-04419-2020

MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Carlyle Opinion by Justice Carlyle Appellant Deutsche Bank National Trust Company, as Trustee for the HIS

Asset Securitization Corporation Trust 200-OPT 3, Mortgage-Pass-Through

Certificates, Series 2006-OPT 3, and Appellee Callender filed competing motions

for summary judgment below, and the trial court granted Callender’s motions. We

reverse.

F&M originally filed an action to quiet title against Deutsche Bank in its

capacity as a “foreign fiduciary corporation” in 2019, and provided an address for

Deutsche Bank it admits deriving from a 2005 instrument filed and recorded in Collin County in 2010. F&M claimed it sought to serve Deutsche Bank at that

address pursuant to the long-arm statute and forwarded citation to the Secretary of

State. See TEX. CIV. PRAC. & REM. CODE § 17.044. The Secretary returned a Whitney

certificate indicating that “the PROCESS was returned to this office on July 26,

2019, Bearing the notation, Return to Sender, Not Deliverable as Addressed, Unable

to Forward.” See Whitney v. L & L Realty Corp., 500 S.W.2d 94, 95 (Tex. 1973).

F&M later amended its petition, adding for the first time the instrument number

under which the Deed of Trust it sued on was recorded. The record does not show

F&M served or attempted to serve this amended petition. When Deutsche Bank

didn’t answer either petition, the trial court granted F&M’s requested default

judgment in August 2019.

F&M conveyed the property to Business Unlimited 27, LLC, for $10 by a

“DEED WITHOUT WARRANTIES” in October 2019. Later that month, Business

Unlimited 27 conveyed its interest by “SPECIAL WARRANTY DEED” to Antar

Investments LLC, again for $10. Then, in early December 2019, Antar conveyed its

interest to Kamal Hantouli by “Special Warranty Deed with Vendor’s Lien” for

$400,000. And in May 2020, Hantouli convyed his interest to appellee Stephen

Callender by “Special Warranty Deed with Vendor’s Lien” for $498,750.

Meanwhile, the 429th District Court issued an order permitting Deutsche

Bank to foreclose on the Deed of Trust in June 2020, and Deutsche Bank set the

property for foreclosure sale the next month. Callender sued to stop the foreclosure

–2– sale, at which time Deutsche Bank says it first learned of the default judgment.

Deutsche Bank filed a bill of review in September 2020, but the trial court granted

Callender’s summary judgment against Deutsche Bank and denied Deutsche Bank’s

summary judgment.

When faced with competing motions for summary judgment and the trial court

grants one motion and denies the other, we determine all issues presented and render

the judgment the trial court should have rendered. See Majgek Partners, LLC v. Mo

and Associate, LLC, No. 05-21-00545-CV, 2022 WL 2236086, at *2 (Tex. App.—

Dallas June 22, 2022, no pet.) (mem. op.). Lack of service is the basis for Deutsche

Bank’s traditional summary judgment motion, meaning the bill of review would be

granted if Deutsche Bank proves “absence of service” because it would be relieved

of proving the traditional bill of review elements. See Mabon Ltd. v. Afri-Carib

Enters., Inc., 369 S.W.3d 809, 812 (Tex. 2012). Callender’s summary judgment

motions rely on the default judgment’s validity.

On appeal, Deutsche Bank complains that a recent supreme court case requires

reversal for failure of service pursuant to Civil Practice and Remedies Code section

17.028. See U.S. Bank Nat’l Ass’n as Tr. for Residential Asset Mortgage Products,

Inc., Mortgage Asset-Backed Pass-Through Certificates Series 2005-EFC2 v. Moss,

644 S.W.3d 130, 137 (Tex. 2022). We agree.

In Moss, the supreme court concluded that “section 17.028 is mandatory and

provides the exclusive methods of service for financial institutions.” Id. Coming to

–3– that conclusion, the court assayed the “statutory landscape” and reasoned that

“service on the Secretary pursuant to Chapter 505 of the Estates Code does not

constitute service on the institution’s registered agent as required by section 17.028.”

Id. at 136.

F&M claims it never sought to serve Deutsche Bank pursuant to the Estates

Code, seeking service only under 17.044, and thus Moss is distinguishable. It also

claims Deutsche Bank has no registered agent and maintains no office in Texas,

meaning service under section 17.028 is impossible and service is only possible

under section 17.044. We are unable to connect the statutory framework in a

different way than the supreme court has in Moss, and thus must disagree with

appellees.

Moss plainly states that “section 17.028 is mandatory and provides the

exclusive methods of service for financial institutions.” 644 S.W.3d at 137. Deutsche

Bank is a financial institution for purposes of section 17.028. See TEX. FIN. CODE

§ 201.101(1). For foreign corporate fiduciaries, the Secretary of State is not a

“registered agent” as defined in the Business Organizations Code. Moss, 644 S.W.3d

at 135.

The record here demonstrates that in the original action, F&M sought to serve

the Secretary but that it never mentioned section 17.028 below and made no attempt

to comply with that section. F&M’s petition states, “service of process should be

upon the Texas Secretary of State, pursuant to C.P.R.C. Section 17.044. Process

–4– should then be transmitted to Defendant at its home office.” Notwithstanding F&M’s

claim that Deutsche Bank has failed to appoint a registered agent in Texas, Moss

instructs that the Secretary is not Deutsche Bank’s registered agent. Id. at 135–36.

The record clearly indicates that F&M failed to comply with section 17.028 and the

face of the record indicates a lack of service, demonstrating that the default judgment

is void. Id. at 137; see Caldwell v. Barnes, 154 S.W.3d 93, 96–97 (Tex. 2004). The

trial court should have granted Deutsche Bank’s summary judgment and granted the

bill of review. The court should have denied summary judgment for Callender

because all relief Callender sought depends on the validity of the underlying

judgment Deutsche Bank challenges by the bill of review.

We reverse the judgment of the trial court in the bill of review and render

judgment for Deutsche Bank on its summary judgment motion and against Callender

on his summary judgment motions.

/Cory L. Carlyle/ 230252f.p05 CORY L. CARLYLE JUSTICE

–5– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DEUTSCHE BANK NATIONAL On Appeal from the 416th Judicial TRUST COMPANY, AS TRUSTEE District Court, Collin County, Texas FOR THE HSI ASSET Trial Court Cause No. 416-04419- SECURITIZATION 2020. CORPORATION 2006-OPT 3 PASS Opinion delivered by Justice Carlyle. THROUGH CERTIFICATES, Justices Partida-Kipness and SERIES 2006-OPT3, Appellant Pedersen, III participating.

No. 05-23-00252-CV V.

F&M PROPERTIES, INC. AND STEPHEN CALLENDER, Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and judgment is RENDERED that:

Deutsche Bank National Trust Company, As Trustee For The Hsi Asset Securitization Corporation 2006-Opt 3 Pass Through Certificates, Series 2006- Opt3’s motion for summary judgment on the issue of absence of service and for dismissal of Stephen Callender’s claims is GRANTED and Stephen Callender’s motions for summary judgment are DENIED.

It is ORDERED that appellant DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR THE HSI ASSET SECURITIZATION CORPORATION 2006-OPT 3 PASS THROUGH CERTIFICATES, SERIES 2006-OPT3 recover its costs of this appeal from appellees F&M PROPERTIES, INC. AND STEPHEN CALLENDER.

–6– Judgment entered this 30th day of August, 2024.

–7–