Oscar Melendez and Connie Melendez v. Citimortgage, Inc. Ernestine Williams And Wendy Alexander
Opinion
ACCEPTED
03-14-00029-CV
6244541
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/27/2015 10:49:19 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00029-CV
In the Court of Appeals July 28, 2015 for the
Third Court of Appeals District of Texas Sitting at Austin, Texas
Oscar Melendez and Connie Melendez, Appellants vs.
Citimortgage, Inc., Ernestine Williams and Wendy Alexander, Appellees
Appealed from the 261st District Court of Travis County, Texas
The Honorable Lora Livingston, Presiding
MOTION FOR REHEARING
Michael Brinkley
State Bar No. 03004300
BRINKLEY LAW PLLC
P. O. Box 820711
Fort Worth, TX 76182-0711 (817) 284-3535; metro (817) 589-7111 (888) 511-0946
Attorney for Appellant, Oscar Melendez MOTION FOR REHEARING
No. 03-14-00029-CV
In the Court of Appeals
for the
Third Court of Appeals District of Texas Sitting at Austin, Texas
Oscar Melendez and Connie Melendez, Appellants vs.
Citimortgage, Inc., Ernestine Williams and Wendy Alexander, Appellees
Appealed from the 261st District Court of Travis County, Texas
The Honorable Lora Livingston, Presiding
MOTION FOR REHEARING
TO THE HONORABLE COURT OF APPEALS:
Appellant, Oscar Melendez, respectfully submits this Motion for Rehearing under Texas Rule of Appellate Procedure 49.1 and any other applicable law. Mr. Melendez acts solely herein, as his wife, Connie Melendez, died after the case was submitted.
I.
On the 25th day of June, 2015, this Court’s panel upheld the judgment of the trial court in a memorandum opinion signed on behalf of the Court by Justice Bourland (the “Opinion”).
II.
This Court erred in overruling Appellant’s Points of Error, because the trial court should have denied summary judgment first, as a matter of fundamental law, and additionally due to fact questions raised by Appellee’s own summary judgment evidence–as already explained at length in the Appellants’ response to the motion for summary judgment, in their motion for new trial, and in briefing to this Court.
III.
The Opinion makes an assumption at several points of something not proven by the summary judgment evidence: that Amtrust made Citimortgage, Inc. the mortgage servicer because Amtrust was the mortgagee at the time of such designation of Citimortgage’s status. However, the Note, even as offered by Citimortgage (page 62 of the Clerk’s Record) does not indicate any date of indorsement, nor is there any other indication of when Amtrust’s interest might have terminated. Thus, there was not sufficient proof before the trial court to determine whether or not Citimortgage was properly deemed the “mortgage servicer” at the times of taking actions preliminary to foreclosure. It is not enough to rely on a presumptive appointment of Citimortgage as servicer by Amtrust, because at the time of the giving of all predicate notices to the foreclosure, Citimortgage was claiming in those notices that Amtrust then held no interest, hence the status of Citimortgage in relation to the Note and Deed of Trust had to be determined at those
times by means other than a questionably timed appointment as servicer in 2006.
IV.
Melendez clearly can challenge the Assignment to Citimortgage, Inc., and/or the Appointment of substitute trustees, in the circumstances of (a) a claim involving the fraudulent nature of all or part of the instrument, or (b) the invalidity of the Assignment or Appointment due to the lack of capacity of the person executing such instruments, respectively. A Texas bankruptcy court has noted:
. . . it is axiomatic that an assignee walks in the shoes of the assignor. State v. Oakley, 181 S.W.3d 855 (Tex. App. -Austin 2005), and other courts in other jurisdictions have held that when a perfected lien is assigned, no new lien is created, and therefore, an assignee of a lien which has been perfected succeeds to the perfected status via the assignment and may assert the lien. In re Wuerzberger, 284 B.R. 814 (Bankr. W.D. Va. 2002); In re Field, 263 B.R. 323, 329 (Bankr. D. Idaho 2001).
In Re Kleibrink,346 B.R. 734, 758; 2006 Bankr. LEXIS 1633 *56 (Bankr. N. D. Tex. 2006), affirmed August 28, 2007.
In Green v. JPMorgan Chase Chase Bank, 937 F.Supp.2d 849, 855-856 (N.D.Tex. 2013), a Texas federal district court squarely addressed this issue at length, and found that debtors such as Melendez can indeed challenge assignments (emphases supplied):
The Court is aware of no Texas court that has denied standing to all borrowers to challenge assignments of their mortgages. Rather, as this Court has previously noted,
The law is settled that the obligors of a claim may defend the suit brought thereon on any ground which renders the assignment void, but may not defend on any ground which renders the assignment voidable only, because the only interest or right which an obligor of a claim has in the instrument of assignment is to insure himself that he will not have to pay the same claim twice.
Puente v. CitiMortgage, Inc., No. 3:11-CV-2509-N, 2012 WL 4335997, at *6 (N.D. Tex. Aug. 29, 2012) (quoting Kramer v. Fed. Nat'l Mortg. Ass'n, No. A-12-CA-276-SS,, 2012 WL 3027990, at *4-5 (W.D. Tex. May 15, 2012)); accord Miller v. Homecomings Fin., LLC, 881 F.Supp.2d 825, 831 (S.D. Tex. 2012) ("Texas has long followed the common law rule which permits a debtor to assert against an assignee any ground that renders the assignment [p. 856] void or invalid." ) (citing Tri-Cities Constr., Inc. v. American Nat'l Ins. Co., 523 S.W.2d 426, 430 (Tex.Civ.App.–Houston [1st Dist.] 1975, no writ); Glass v. Carpenter, 330 S.W.2d 530, 537 (Tex.Civ.App.–San Antonio 1959, writ ref'd n.r.e.)).
As the Glass court observed, "a debtor may, generally, assert against an assignee all equities or defenses existing against the assignor prior to notice of the assignment, any matters rendering the assignment absolutely invalid or ineffective, and the lack of plaintiff's title or right to sue." 330 S.W.2d at 537 (quoting 6 C.J.S. Assignments § 132 [no ed.
given]) [4] (emphasis added). And, as the Miller court recognized, " Texas courts routinely allow a homeowner to challenge the chain of assignments by which a party claims the right to foreclose." 881 F.Supp.2d at 832 (citing Martin v. New Century Mortg. Co., 377 S.W.3d 79, 2012 WL 2529251 (Tex. App. --Houston [1st Dist.] June 14, 2012, no pet.); Austin v.
Countrywide Homes Loans, 261 S.W.3d 68 (Tex. App.–Houston [1st Dist.]
2008, pet denied); Leavings v. Mills, 175 S.W.3d 301 (Tex. App.–Houston [1st Dist.] 2004, no pet.); Shepard v. Boone, 99 S.W.3d 263 (Tex. App.– Eastland 2003, no pet.) ; Priesmeyer v. Pac. Sw. Bank, F.S.B., 917 S.W.2d 937 (Tex. App.–Austin 1996, no writ)).
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