ACCEPTED
03-15-00382-CV
7042507
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/22/2015 4:02:24 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00382-CV
FILED IN
3rd COURT OF APPEALS
IN THE THIRD COURT OF APPEALS OF TEXASAUSTIN, TEXAS 9/22/2015 4:02:24 PM
JEFFREY D. KYLE
Clerk
STEVEN B. ARMBRUSTER
Appellant
v.
DEUSTCHE BANK NATIONAL TRUST COMPANY, Appellee
Appeal from the 277th District Court Williamson County, Texas
BRIEF OF APPELLANT
David Rogers Texas Bar No. 24014089 Law Office of David Rogers 1201 Spyglass Suite 100 Austin, TX 78746 Telephone: (512) 923-1836 Fax: (512) 201-4082
ATTORNEY FOR APPELLANT
ORAL ARGUMENT NOT REQUESTED
Armbruster)v.)DBNTC,)Appellant’s)Brief) ) ) ) ) !
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No. 03-13-00532-CV
IN THE THIRD COURT OF APPEALS OF TEXAS
STEVEN B. ARMBRUSTER,
Appellant
v.
DEUSTCHE BANK NATIONAL TRUST COMPANY, Appellee
Appeal from the 277th District Court Williamson County, Texas
BRIEF OF APPELLANTS
David Rogers Texas Bar No. 24014089 Law Office of David Rogers 1201 Spyglass Suite 100 Austin, TX 78746 Telephone: (512) 923-1836 Fax: (512) 201-4082
ATTORNEY FOR APPELLANT
ORAL ARGUMENT NOT REQUESTED
Armbruster)v.)DBNTC,)Appellant’s)Brief) ) ) ) ) !
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IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties, as well as the names and addresses of all counsel:
PARTIES
Appellants/Plaintiffs: DEUSTCHE BANK NATIONAL TRUST COMPANY Counsel: Peter C. Smart Texas Bar No. 00784989 Crain, Caton & James Five Houston Center 1401 McKinney, Suite 1700 Houston, Texas 77010 Phone: (713) 658-2323 Fax: (713) 658-1921 psmart@craincaton.com
Appellees/Defendants: Steven Armbruster 623 Greenlawn Blvd Round Rock, Texas 78664
Counsel: David Rogers Texas Bar No. 24014089 Law Office of David Rogers 1201 Spyglass Suite 100 Austin, TX 78746 Phone: (512) 923-1836 Fax: (512) 201-4082
Armbruster)v.)DBNTC,)Appellant’s)Brief) ) ) ) ) !
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TABLE OF CONTENTS
Identity of Parties and Counsel…………………………………………iii
Table of Contents……………………………………………………….iv
Index of Authorities…………………………………………………….v
Statement on Oral Argument……………………………………………1
Statement of the Case………………………………..………………….1
Issues Presented…………………………………………………………2
Summary of Argument………………………………………………….3
Argument…………………………………………………………….….3
Prayer…………………………………………………………………...9
Certificate of Service…………………………………………..……….9
Certificate of Compliance…………………………………………..…10
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INDEX OF AUTHORITIES
TEXAS SUPREME COURT Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413, 422 (Tex. 2000)……..5 State v. Ninety Thousand Two Hundred Thirty-Five Dollars & No Cents in U.S. Currency ($90,235), 390 S.W.3d 289, 292 (Tex. 2013)………………………..5 Slaughter v. Qualls, 162 S.W. 2d 671, 675 (Tex. 1942)……………………….8 Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)..3 Winters v. Slover, 251 S.W. 2d 726 (Tex. 1952)………………………………..8
TEXAS COURTS OF APPEALS Bever Props., L.L.C. v. Jerry Huffman Custom Builder, L.L.C., 355 S.W.3d 878, 888, (Tex. App. Dallas 2011)…………………………………..………………..4 Faine v. Wilson, 192 S.W. 2d 456, 458 (Tex. App. – Galveston 1946)………....8 Ford v. Emerich, 343 S.W.2d 527, 531 (Tex. App. – Hous. 1961, writ ref’d n.r.e)……………………………………………………………………………..8 Henke v. First Southern Properties, Inc., 586 S.W. 2d 617, 620 (Tex. App. – Waco 1979, writ ref’d n.r.e.)……………………………………………………8 Martin v. New Century Mortg. Co., 377 S.W.3d 79, 85 (Tex. App.—Houston [1st] 2012). …………………………………………………….………………..3 Miresco Inv. Servs., Inc. v. Yatoo Enters. (USA), Inc., 2012 Tex. App. LEXIS 10520 (Tex. App. Houston 1st Dist. Dec. 20, 2012)……………………………3 Mott v. Red's Safe & Lock Servs., Inc., 249 S.W.3d 90, 98 (Tex. App.—Houston [1st Dist.] 2007, no pet.)…………………………..…………………………..2-4 Murchison v. Freeman, 127 S.W. 2d 369, 372 (Tex. App. – El Paso 1939, writ ref’d)……………………………………………………………………………..8 Roventini v. Ocular Sciences, Inc., 111 S.W.3d 719, 722 (Tex. App.--Houston [1st] 2003, no pet.)…………...………………………………………………….4 Sadler v. Tex. Farm Bureau Mut. Ins. Cos., 2013 Tex. App. LEXIS 11300, 5, 2013 WL 4736392 (Tex. App. San Antonio Sept. 4, 2013)…………………….4
STATUTES Texas Property Code §51.0001(3)……………………..…………………….6, 7 Texas Property Code §51.0001(4)………………..………………………….6, 7 Texas Property Code §51.002………………………..………..………………..7 Texas Property Code §51.0025……………………..…………………………..7
Armbruster)v.)DBNTC,)Appellant’s)Brief) ) ) ) ) !
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TO THE HONORABLE THIRD DISTRICT COURT OF APPEALS:
Appellant, Steven Armbruster, hereby pleads that the honorable Court
of Appeals reverse the summary judgment of the district court and order the
court below to continue the case to trial, and in support of this motion show
the Court:
Statement on Oral Argument
As this case is not legally complex, involving an area of the law
continuously developed since before statehood and subject to a variety of
interpretation and argument, and as the facts are straightforward, Appellees
do not request oral argument. In the even the Court finds that oral argument
would be helpful, Appellants request to participate in such argument.
Statement of the Case
1.1 Appellant is Steven Armbruster (hereinafter “Armbruster”).
1.2 Appellee is DEUSTCHE BANK NATIONAL TRUST COMPANY
(hereinafter “DBNTC”).
1.3 Carrington Mortgage Services (“Carrington”) caused the foreclosure
sale of Armbruster’s home, at which DBNTC was the high bidder,
“paying” by credit bid $105,000 for a house with a purchase money loan
in 2004 of $151,000, with a 2013 County Tax Appraisal of $167,975.
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1.4 Armbruster alleges that the foreclosure was unlawful, and filed suit for
Quiet Title, Declaratory Judgment as to Void Title, and violations of the
Texas Civil Practice and Remedies Code Chapter 12.
1.5 DBNTC filed a traditional and no-evidence summary judgment on all
causes of action.
1.6 The Court granted both traditional and no-evidence summary judgment,
denying all relief sought, and containing a “Mother Hubbard” clause.
Issues Presented
2.1. The Court erred in granting no-evidence summary judgment where the
no-evidence summary judgment did not specify which elements of which
causes of action no evidence was lacking, but merely stated: “Defendants
incorporate paragraphs 1-3 7 herein. Defendants seek summary judgment
under Rule 166a(i) in addition to under traditional grounds as discussed
above.”
2.2. The Court erred in granting summary judgment to DBNTC
where DBNTC presented undisputed evidence that Carrington
Mortgage Services, which foreclosed was NOT the “mortgagee” as
defined under Texas Property Code §51.0001(4), undisputed evidence
that Carrington was NOT holder of the Note entitled to enforce, and no
evidence that Carrington was the mortgage servicer as defined under
Texas Property Code §51.0001(3).
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Summary of Argument
3.1. Failure to specify the elements for which proof in lacking in specific
causes of action is a pleading defect in the no evidence summary judgment that
precludes granting summary judgment. Mott v. Red's Safe & Lock Servs., Inc.,
249 S.W.3d 90, 98 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
3.2. The evidence put forth by DBNTC is inadequate to conclusively
disprove the causes of action alleged by Armbruster.
Argument
4.1. Questions of law are reviewed by the appellate court de novo.1 When
reviewing a decision of the trial court after a full bench trial, the Appellate
Court must affirm if there is any set of facts or law presented to the Trial
Court that could support the trial court’s ruling.2
No evidence MSJ grant is plain error.
4.2 “‘A no-evidence challenge that only generally challenges the sufficiency
of the non-movant's case and fails to state specific elements is fundamentally
defective and insufficient to support summary judgment as a matter of law.’
Mott v. Red's Safe & Lock Servs., Inc., 249 S.W.3d 90, 98 (Tex. App.— """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 1 Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) 2 When findings of fact and conclusions of law are not properly requested and none are filed by the trial court, "the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence." Miresco Inv. Servs., Inc. v. Yatoo Enters. (USA), Inc., 2012 Tex. App. LEXIS 10520 (Tex. App. Houston 1st Dist. Dec. 20, 2012)
Armbruster)v.)DBNTC,)Appellant’s)Brief) ) ) ) ) !
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Houston [1st Dist.] 2007, no pet.).” Martin v. New Century Mortg. Co., 377
S.W.3d 79, 85 (Tex. App.—Houston [1st] 2012). see also Roventini v. Ocular
Sciences, Inc., 111 S.W.3d 719, 722 (Tex. App.--Houston [1st] 2003, no pet.)
(noting that the "motion must specify which essential elements of the
opponent's claim or defense lack supporting evidence").3
4.3. The No-Evidence Motion in this case is precisely this kind of
fundamentally defective motion which will not support summary judgment as
a matter of law.
4.4. “A proper no-evidence motion must state there is no evidence of one or
more elements of a claim or defense on which the nonmovant would have the
burden of proof at trial. Tex. R. Civ. P. 166a(i).” Sadler v. Tex. Farm Bureau
Mut. Ins. Cos., 2013 Tex. App. LEXIS 11300, 5, 2013 WL 4736392 (Tex.
App. San Antonio Sept. 4, 2013).
4.5. The no-evidence motion does not state there is no evidence of one or
more elements of a claim or defense on which the nonmovant would have the
burden of proof at trial. The lower Court therefore erred in failing to deny the
no-evidence motion for summary judgment.
""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 3 Accord., Bever Props., L.L.C. v. Jerry Huffman Custom Builder, L.L.C., 355 S.W.3d 878, 888, 2011 Tex. App. LEXIS 9098, 19-20 (Tex. App. Dallas 2011); Sadler v. Tex. Farm Bureau Mut. Ins. Cos., 2013 Tex. App. LEXIS 11300, 4-5, 2013 WL 4736392 (Tex. App. San Antonio Sept. 4, 2013)
Armbruster)v.)DBNTC,)Appellant’s)Brief) ) ) ) ) !
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Traditional Summary Judgment lacks sufficient evidence.
4.6. An appellate court reviews “a grant of summary judgment de novo.
When the trial court does not specify the grounds for its ruling, a summary
judgment will be affirmed if any of the grounds advanced by the motion are
meritorious. A party moving for traditional summary judgment has the
burden to prove that there is no genuine issue of material fact and it is entitled
to judgment as a matter of law. The non-movant has no burden to respond to
or present evidence regarding the motion until the movant has carried its
burden to conclusively establish the cause of action or defense on which its
motion is based.” State v. Ninety Thousand Two Hundred Thirty-Five Dollars
& No Cents in U.S. Currency ($90,235), 390 S.W.3d 289, 292 (Tex. 2013).
(internal citations omitted.) Where there is doubt, the court accepts as true all
evidence favoring the non-movant, and indulges every reasonable inference in
favor of the non-movant. Huckabee v. Time Warner Entm’t Co., 19 S.W.3d
413, 422 (Tex. 2000).
4.7. DBNTC has not met its burden.
4.8. The evidence attached to the Motion for Summary Judgment
conclusively shows that the party that foreclosed did not have the power to do
so.
4.9. The Court erred in granting summary judgment to DBNTC where
DBNTC presented undisputed evidence that Carrington Mortgage Services,
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which foreclosed was NOT the “mortgagee” as defined under Texas Property
Code §51.0001(4), undisputed evidence that Carrington was NOT holder of
the Note entitled to enforce, and no evidence that Carrington was the
mortgage servicer as defined under Texas Property Code §51.0001(3).
4.10. DBNTC’s exhibit #6 shows that the Note and Deed of Trust were
assigned to DBNTC by Carrington, acting on behalf of New Century
Mortgage Corporation, on December 9, 2008. After that time, only DBNTC
had the power to foreclose, unless it transferred the Note and Deed of Trust to
a third party or it designated a third party as mortgage servicer, as permitted
under Texas Property Code §51.0001(3).
4.11. There is no evidence attached to the MSJ that shows that either of those
events occurred.
4.12. To the contrary, there is a great deal of evidence attached that
Carrington acted as though the December 9, 2008 assignment never occurred,
and it continued to represent itself as agent of New Century or the New
Century Trust, with power over the Note and Deed of Trust. See Exhibit 7, 8,
9, 10, 11, 12, 13.4
""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" 4 Exhibit 5, a limited Power of Attorney, purports to grant New Century as Servicer over some unidentified assets of DBNTC related to the New Century Home Equity Loan Trust 2004-2. The Armbruster loan is not identified in any document attached to the MSJ or otherwise in evidence as being related to such a trust, quite possibly because the Armbruster Note is not a Home Equity Note. Exhibit 3, a bankruptcy court order related to New Century and Carrington, also does not identify the Armbruster loan.
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4.13. There is no evidence attached to the MSJ that the terms of Texas
Property Code §51.0001(3) were fulfilled.
(3) "Mortgage servicer" means the last person to whom a mortgagor has been instructed by the current mortgagee to send payments for the debt secured by a security instrument. A mortgagee may be the mortgage servicer.
4.14. No evidence was attached to the MSJ that showed that “the current
mortgagee,” DBNTC instructed the mortgagor, Armbruster, to pay Carrington.
4.15. Mortgagee can mean multiple things, according to 51.0001(4).
(4) "Mortgagee" means: (A) the grantee, beneficiary, owner, or holder of a security instrument; (B) a book entry system; or (C) if the security interest has been assigned of record, the last person to whom the security interest has been assigned of record.
4.16. In this case, since “the security interest has been assigned of record,”,
“the last person to whom the security interest has been assigned of record,”
DBNTC, is the mortgagee.
4.17. Under Texas Property Code 51.0025, a “A mortgage servicer may
administer the foreclosure of property under Section 51.002 on behalf of a
mortgagee,” but in order to qualify as a mortgage servicer and administer such
a mortgage, Carrington would have to qualify under the definition in this
chapter. There is no evidence Carrington qualifies.
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4.18. A trustee’s power to sell property at foreclosure arises from the
language of the particular deed of trust. See, e.g., Winters v. Slover, 251 S.W.
2d 726 (Tex. 1952); Ford v. Emerich, 343 S.W.2d 527, 531 (Tex. App. –
Hous. 1961, writ ref’d n.r.e). A trustee has no power to sell the debtor’s
property except such as may be found in the deed of trust, and the powers
therein conferred must be strictly followed. Slaughter v. Qualls, 162 S.W. 2d
671, 675 (Tex. 1942); Faine v. Wilson, 192 S.W. 2d 456, 458 (Tex. App. –
Galveston 1946); Murchison v. Freeman, 127 S.W. 2d 369, 372 (Tex. App. –
El Paso 1939, writ ref’d) (the terms of a deed of trust are strictly construed).
If the trustee conducting a foreclosure sale has no power or authority to offer
the property for sale, or if there exists a defect or irregularity in the foreclosure
process that would render the foreclosure sale void, then the purchaser at
foreclosure cannot acquire title to the property. Henke v. First Southern
Properties, Inc., 586 S.W. 2d 617, 620 (Tex. App. – Waco 1979, writ ref’d
n.r.e.)
4.19. If title has not passed, then the superior right of title rests in the party
who possesses prior title – the mortgagor, in this case, the Armbrusters. This
Court must therefore reverse the lower Court and remand with appropriate
instruction.
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Prayer
Appellant Armbruster respectfully request that the Court reverse the judgment of the District Court in all things and remand for further action consistent with its opinion.
RESPECTFULLY SUBMITTED,
/s/ David Rogers DAVID ROGERS Law Office of David Rogers State Bar No. 24014089 1201 Spyglass Drive, Suite 100 Austin, TX 78746 (512) 923-1836 (512) 201-4082 (fax) DARogers@aol.com
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion was served upon Counsel of record for Appellants via the Court’s online filing system on this 17th day of September, 2015.
Peter C. Smart Texas Bar No. 00784989 Crain, Caton & James Five Houston Center 1401 McKinney, Suite 1700 Houston, Texas 77010 Phone: (713) 658-2323 Fax: (713) 658-1921 psmart@craincaton.com
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/s/ David Rogers DAVID ROGERS Attorney for Appellees
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify that this document contains 1822 words.
__/s/__David Rogers___________ David Rogers SBN 24014089 Law Office of David Rogers 1201 Spyglass Suite 100 Austin, TX 78746 (512) 923-1836 (512) 201-4082 [Facsimile]
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Appendix!
Ma~ 22 2015 3:00PM HP LASERJET FAX p. 1
Stacey Mathews
District Judge
277th Judicial District
405 Martin Luther King Blvd., Box 6 Georgetown, Texas 78626
(512) 943-1277 FAX (512) 943-1276
DATE: May 22, 2015
TO: David Rogers 512-201-4082
FROM: Stacey Mathews, District Judge 277th District Court, Williamson County
PAGE(S) INCLUDING COVER:_4 pages
NOTE:
Ma~ 22 2015 3:00PM HP LASERJET FAX p.2
NO. 13-0631-C277
STEVEN ARMBRUSTER § DISTRICT COURT § §
~ § WILLIAMSON COUNTY, TEXAS §
DEUTSCHE BANK NATIONAL § 'TRUST COMPANY as Indenture § Trustee for New Century Home Equity § Loan Trust 2004-2, and § JUANITA STRICKLAND § 277th JUDICIAL DISTRICT
JUDGMENT.
On this day came on to be heard Defendants' Traditional and No-Evidence Motion for
Summary Judgment. This lawsuit concerns residential real estate and improvements located at
6211623 Greenlawn Boulevard, Round Rock, Texas 78664 and described as:
Lot 7, Block "Z," of Greenslopes at Lake Creek Section Nine, a subdivision in Williamson County, Texas, according to the Map or Plat thereof recorded in Cabinet F, Slide(s) 115, Plat Records of Williamson County, Texas (the "Property").
The Court reviewed the motion, any responsive plea that was filed, pertinent authorities
and listened to arguments of counsel. The Court is of the opinion that the motion should be
granted. It is therefore,
ORDERED, ADJUDGED and DECREED that Defendants' Traditional and No-Evidence
Motion for Summary Judgment is granted. It is further,
ORDERED, ADJUDGED and DECREED that all relief sought by Plaintiff, Steven
Armbruster, is denied. It is further,
ORDERED, ADJUDGED and DECREED that Plaintiff, Steven Armbruster, take nothing
from Defendants, Deutsche Bank National Trust Company a5 Indenture Trustee for New Century
012851/000097 131:. 8S1982vl
Ma~ 22 2015 3:00PM HP LASERJET FAX p.3
Home Equity Loan Trust 2004-2 and Juanita Strickland by way of this lawsuit and all relief
sought by Plaintiff, Steven Armbruster is denied.
This is a finaf)~~~lainti:tr, Steven AtlllbtustCI, sind! pay all cmts of esli];l. All
relief not granted herein is denied.
Signed this ~~ay of May, 2015.
0128511000097 2 131- 851982vl
Ma~ 22 2015 3:00PM HP LASERJET FAX p.4
APPROVED AS TO FORlvf AND SUBSTANCE:
CRAIN, CATON & JAMES
By: {s.LJ'eter C. Smart Peter C. Smart State Bar No. 00784989 psmart@craincaton.com 1401 McKinney, Suite 1700 Five Houston Center Houston, Texas 77010 713-658-2323 713-658-1921 (fax)
Attorneys for Defendants, Deutsche Bank National Trust Company as Indenture Trustee for New Century Home Equity Loan Trust 2004-2 and Juanita Strickland
01285!/0V0097 3 lll '· 851982vl