Henning v. OneWest Bank FSB

• Decision Date: 02 July 2013
• Docket Number: No. 05–12–00078–CV.,05–12–00078–CV.
• Citation: 405 S.W.3d 950
• Parties: Kenneth HENNING, Appellant v. ONEWEST BANK FSB, Appellee.
• Court: Texas Court of Appeals

405 S.W.3d 950

Kenneth HENNING, Appellant

v.ONEWEST BANK FSB, Appellee.

No. 05–12–00078–CV.

Court of Appeals of Texas, Dallas.

July 2, 2013.

Patricia Ann Wilhite McCartney, McCartney Law Firm, Forney, for Appellant.

C. Ed Harrell, Hughes, Watters & Askanase, L.L.P., John Wesley Taylor Jr., Houston, for Appellee.

Before Justices LANG, MYERS, and EVANS.

OPINION

Opinion by Justice LANG.

Appellant Kenneth Henning challenges the trial court's summary judgment in favor of appellee OneWest Bank FSB (“OneWest”) in a dispute respecting a residential mortgage loan. Specifically, Henning asserts in twelve issues ¹ that the trial court erred by granting OneWest's (1) traditional motion for summary judgment on OneWest's “foreclosure action” and (2) no-evidence motion for summary judgment on Henning's claims against OneWest pertaining to OneWest's status as “holder” of the note in question, common law and statutory fraud, filing a fraudulent lien, negligent misrepresentation, violation of the Texas Debt Collection Practices Act and the Texas Deceptive Trade Practices Act, breach of contract, exemplary damages, and declaratory and injunctive relief.

We decide against appellant on his twelve issues. The trial court's judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

The record shows that in 2005, Henning obtained a mortgage loan (“the loan”) from Willow Bend Mortgage Company for the purchase of a home at 10409 Huffines Drive in Rowlett, Texas (“the property”). In connection with the loan, Henning signed a December 22, 2005 promissory note (“the note”) payable to Willow Bend Mortgage Company. Additionally, to secure repayment of the debt evidenced by the note, Henning executed a deed of trust (“the deed of trust”) granting a security interest in the property.²

On June 30, 2010, Henning signed a “Loan Modification Agreement” (the “loan modification agreement”) which stated that it “amends and supplements” the note and deed of trust. In the loan modification agreement, Henning agreed that the amount payable under the note and deed of trust was $308,804.88 and promised to repay that amount, plus interest, to “IndyMac Mortgage Services, a division of OneWest Bank, FSB,” in specified payments.

In a letter to Henning dated October 19, 2010, IndyMac Mortgage Services notified him that (1) the loan was in “serious default,” (2) he could cure the default by submitting the specified amount due by certified mail on or before November 20, 2010, and (3) failure to cure the default could result in foreclosure. On December 22, 2010, Henning filed this lawsuit against OneWest, asserting the claims described above.

OneWest filed a general denial answer and a counterclaim for foreclosure. In its counterclaim, OneWest asserted in part

One West or its successor in interest is the holder of the Note and a lien on the Property securing the payment of the Note and is entitled to enforce the Note and Deed of Trust in accordance with the terms of the Note, Deed of Trust, and applicable law.

Henning filed a general denial answer to OneWest's counterclaim.

On November 18, 2011, OneWest filed a traditional motion for summary judgment on its counterclaim for foreclosure and a no-evidence motion for summary judgment on all of Henning's claims. In its traditional motion for summary judgment, OneWest stated in part

In his Petition, Henning asserts that OneWest is not the holder of the Note, and, as such, could not enforce the Note. This Court should grant final summary judgment for OneWest because OneWestcan conclusively establish the existence of a valid note, the chain of title on that note, Henning's liability to OneWest for the debt evidenced by the note, and Henning's default on the note. Therefore, OneWest is entitled to final judgment in its favor as a matter of law.

The evidence attached to OneWest's traditional motion for summary judgment included an affidavit of OneWest manager Rebecca Marks in which she stated in part (1) a “true and correct copy” of the note is attached, (2) Henning's signature is on the note, (3) payment of the note is secured by the deed of trust, (4) “OneWest Bank, FSB is in possession of the original Note, is the current holder of the Note and Deed of Trust, and is entitled to enforce the Note and Deed of Trust and to collect all sums due thereunder,” (5) “Henning defaulted on the Note and Deed of Trust by failing to make payments as they became due,” (6) “Movant mailed to Henning a written Notice of Default informing Henning of Movant's intent to accelerate the remaining installments under the Note if the default in payments were not timely cured,” (7) “[t]he default was not cured, and a Notice of Acceleration was sent on behalf of Movant” and (8) “the sum of $324,143.86 is due and owing on the Note.” Copies of the note, deed of trust, loan modification agreement, and documents pertaining to Henning's payment history were attached to Marks's affidavit. The copy of the note showed an endorsement by Willow Bend Mortgage Company to “IndyMac Bank, F.S.B.” and, below that endorsement, an endorsement in blank by “IndyMac Bank, F.S.B.”

On December 12, 2011, Henning filed two responses to OneWest's summary judgment motions, one titled “Objection and Response to Defendant's Motion for Summary Judgment” and one titled “Response to Defendant's No–Evidence Motion for Summary Judgment.” In his “Objection and Response to Defendant's Motion for Summary Judgment,” Henning asserted OneWest “has failed to establish its claim of foreclosure.” Specifically, Henning argued in part (1) “[t]he Note was not signed in favor of Indymac [or] OneWest”; (2) Henning entered into a loan modification agreement with OneWest that he relied on and OneWest did not honor; and (3) OneWest prepared and produced documents, including an assignment recorded in Dallas County, that were signed by a “notorious robo-signer” and such documents are invalid and “probative, if not indicative of [OneWest's] intent to mislead and rely on fraudulent documents.” Further, Henning contended OneWest “failed to establish default” because (1) “[OneWest's] own documents reflect confusion and misrepresentations regarding its claim of default”; (2) “the incorporated obligation that [OneWest] undertook created specific actions that it must undertake in the event of a default” and “[u]nder this analysis, missing payment(s) cannot be a material breach under the terms of the contract, since the contract specifically imposes obligations on mortgagees and loan servicers in the event of arrearage prior to acceleration and foreclosure”; and (3) the “guidelines” governing Henning's loan provide that OneWest “is to maintain payments to Fannie Mae, despite [Henning's] failure to make them” and “[u]nder those terms, there can be no default if the mortgage payments continued to be made by OneWest to Fannie Mae.” Henning's “Objection and Response to Defendant's Motion for Summary Judgment” listed twenty exhibits purportedly “attached” as summary judgment evidence. However, the record does not show any attachments to that document.

In his response to OneWest's no-evidence motion for summary judgment, Henningcontended in part that OneWest's no-evidence motion “raises only conclusory objections and, without more specific challenges, is improper.” Additionally, Henning restated the arguments described above and asserted, inter alia, (1) OneWest “has failed to establish it is the valid holder of the Note”; (2) “OneWest's actions, contradictions and miscommunications regarding payment arrangements and amounts owed reflect a pattern or practice intended to mislead [Henning]”; (3) communications between Henning and OneWest reflect “lack of reasonable care,” “confusing and contradictory information regarding [Henning's] loan balance, amounts owed and payment arrangements,” and Henning's reliance; (4) OneWest utilized deceptive means to collect the debt in question and deceptive trade practices respecting services independent of the original mortgage loan; (5) Henning has properly brought a cause of action under the Texas Declaratory Judgment Act based on his contentions that OneWest “is a stranger to and possesses no rights or status” in regard to the note and “must be enjoined from their unlawful attempts to evict or otherwise disturb the quiet enjoyment of [Henning's] property”; and (6) Henning will suffer irreparable harm without the injunctive relief sought. Evidence cited in and attached to Henning's response to OneWest's no-evidence motion for summary judgment included the same twenty exhibits listed in his “Objection and Response to Defendant's Motion for Summary Judgment.” Among those exhibits were an affidavit of Henning, documents and correspondence pertaining to the loan in question, and assignments of the note and deed of trust.

The trial court signed an order dated December 21, 2011, granting OneWest's no-evidence motion for summary judgment as to all of Henning's claims. ³ Additionally, the trial court signed a December 21, 2011 “Final Judgment” in which it granted OneWest's traditional motion for summary judgment and ordered that, due to default by Henning, OneWest is entitled to foreclose its security interest in the property or proceed with non-judicial foreclosure of its lien. This appeal timely followed.

II. SUMMARY JUDGMENT

A. Standard of Review

We review a trial court's decision to grant or deny a motion for summary judgment de novo. See Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex.2007); Mid–Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d 618, 621 (Tex.2007); Beesley v. Hydrocarbon Separation, Inc., 358 S.W.3d 415, 418 (Tex.App.-Dallas 2012, no pet.). We consider the evidence in the light most favorable to the nonmovant and resolve any doubts in the nonmovant's favor. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.1985). Where,...