Stephens v. LNV Corp.

488 S.W.3d 366, 2015 Tex. App. LEXIS 12240, 2015 WL 7766208
CourtCourt of Appeals of Texas
DecidedDecember 2, 2015
DocketNo. 08-13-00344-CV
StatusPublished
Cited by8 cases

This text of 488 S.W.3d 366 (Stephens v. LNV Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stephens v. LNV Corp., 488 S.W.3d 366, 2015 Tex. App. LEXIS 12240, 2015 WL 7766208 (Tex. Ct. App. 2015).

Opinion

OPINION

YVONNE T. RODRIGUEZ, Justice

Appellants Loyd, and Denise Stephens challenge a summary judgment rendered in favor of LNV Corporation (LNV), the purported assignee of a promissory note and deed of trust that Appellants granted to a predecessor-in-interest. LNV asserted generally, that it was entitled to summary judgment against various claims for fraud, title, and abusive debt collection practices because Appellants defaulted on their mortgage obligations. However, LNV failed to attack all but one cause of action in its motion, and because LNV failed to prove Appellants defaulted as a matter of law by competent evidence, we reverse and remand all claims.1

[370]*370BACKGROUND

Factual History

This case originally arose out of LNV’s attempt to foreclose on a home occupied by Appellants located at 3923 Cross Bend Road in Arlington, Texas (the Property). The facts underlying this case and the chain of purported conveyances at issue here are convoluted. We lay them out here in chronological order.

On September 20, 2007, Appellants refinanced their mortgage and signed a home equity note and deed of trust (the Stephens’ Deed of Trust) to Option One Mortgage' Corporation (Option One) for $212,800. The summary judgment record shows that eight days later, on September 28, Option One purportedly executed an assignment of the Deed of Trust — identified as Tarrant County Clerk File No. D207347862 — to Citigroup Global Markets Realty Corporation (Citigroup Global). The assignment was notarized by a notary in Orange County, California. The information on the execution sheet is handwritten, and the copy in the record contains a stamp from the Tarrant County District Clerk certifying it is a true and correct copy.

On January 25, 2008, Denise Stephens receives a letter from Option One advising her that it transferred its interest in her mortgage to Citi Residential Lending (Citi Résidential). The relationship between Citi Residential and Citigroup Global is unclear from this record. Absent evidence to the contrary, we assume they are two separate entities.

On March - 31, 2008, Citigroup Global entered into a bulk Master Mortgage Loan Sale Agreement with Loan Acquisition Corporation (Loan Acquisition Corp.). The parties agreed that on the date of closing, Loan Acquisition Corp. would obtain rights to all Citigroup Global mortgages listed in Schedule I, appended to the Master Agreement. The sale successfully closed on July 25, 2008, albeit with the mortgages in Schedule I ultimately being assigned to LNV Corporation instead. Schedule I is redacted in this summary judgment record, save for one2 entry: a mortgage identified as AA Loan ID No. 91127, Seller ID No. 223355458, with a current balance of $211,991.30, Bid No. ‘84, to Entity LNV. In its appellate briefing, LNV asserts that this particular entry is the Stephens’ Deed of Trust. However, that set of numbers appears nowhere else in this summary judgment record, and it is unclear whether this mortgage conveyed as part of a bulk transfer is actually the mortgage at issue in this case.

On September 11, 2008, Denise Stephens received notice from Citi Residential that it transferred its interest in her mortgage to Countrywide Home Loans, L.P. (Countrywide). Then, on July 14, 2009, she received a letter from Bank of America (BoA) that its subsidiary, BAC Home Loans Servicing, L.P. (BAC Home Loans), was transferring its interest in her mortgage to MGC Mortgage, Inc. She received another letter from MGC Mortgage, Inc., confirming that the company would begin servicing her loan on August 1, 2009. In her affidavit, Denise Stephens denied ever receiving notice that Countrywide had ever transferred its interest to BoA or BAC Home Loans.

On August 14, 2009, Denise Stephens received a statement from MGC Mortgage, Inc., showing a past due balance of [371]*371$15,369, as well as charges for escrow payments, late fees, and other outstanding fees. . The total past due balance on the statement is $19,011, In her affidavit, Denise -Stephens denied being in arrears and denied receiving a Statement from BoA or its subsidiary indicating she owed that money or that there were escrow payments being made.

According to Denise Stephens’ notarized notice of default to MGC, on August 31, 2009, she sent a demand for an accounting to MGC, which MGC received on September 8, 2009. While Denise Stephens’ default notice was in the mail, on September 2, she received a notice of- default from MGC. For the first time in the record correspondence, LNV is identified as the Deed of Trust mortgagee, with MGC Mortgage, Inc., being its loan servicer. Pursuant to an apparent service agreement with LNV, :MGC Mortgage, Inc., sought to collect $18,721.85, the purported amount due after the Appellants allegedly defaulted on their obligations on April 1, 2009.

On October 1, 2009, Citigroup Global assigned the Stephens’ Deed of Trust to LNV. On October 23, 2009, after allegedly never receiving a debt collector disclosure response from MGC, Denise Stephens sent MGC a notice of default letter and provided a ten-day opportunity- to cure. MGC never responded. Instead, on November 9, 2009, LNV filed a Rule 736 foreclosure action in Tarrant County, which was ultimately dismissed. On January 26, 2011, LNV filed a second Rule 736 action, which lead to the counterclaims at the heart of this suit.

Procedural History ,

. During the foreclosure action that led to this current suit, LNV alleged that it was properly assigned a promissory note and deed of trust secured by the Property and that the Appellants 'refused to pay outstanding amounts owed on the mortgage. The Appellants filed an answer, maintaining that LNV was never properly assigned the deed of trust-and denying that they were in arrears on mortgage payments. They also ' raised' several counterclaims against LNV.

The trial court severed Appellants’ counterclaims and docketed them as a separate lawsuit in Cause No. 096-258699-12. LNV then removed Cause No. 096-258699-12 to the United States District Court for. the Northern District of Texas. While still in federal court, Appellants amended their complaint, ultimately asserting four causes of action: filing of fraudulent documents in the Tarrant County deed records, quiet title, damages under the Texas Debt Collection Act, and damages under the Texas Deceptive Trade Practices Act. Following the amendment, the district court signed an.agreed order remanding this case back to state court. Once back in state district court, LNV moved for summary judgment.

The trial 'court granted LNV summary-judgment oh all claims. This appeal ensued. ’ '

DISCUSSION

Appellants' raise 'four issues on appeal. Their primary ‘argument is that the trial court lacked the authority to render a full summary judgment because LNV failed to challenge all causes of 'action in the live pleading. Appellants also complain that the trial court improperly admitted and considered certain LNV affidavits. Finally, Appellants assert that they raised' genuine-issues of material fact that should have precluded summary judgment on the solé quiet title claim LNV actually challenged in its motion. •

[372]*372L.

Judicial Notice of FedeRal Pleadings

We pause briefly to address a threshold procedural issue.

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Bluebook (online)
488 S.W.3d 366, 2015 Tex. App. LEXIS 12240, 2015 WL 7766208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stephens-v-lnv-corp-texapp-2015.