Calderon v. Bank of America N.A.
941 F. Supp. 2d 753
W.D. Tex.2013Background
- Plaintiffs obtained a $415,500 home-equity loan in 2006 secured by real property in San Antonio, originated by Countrywide; the Deed of Trust names MERS as beneficiary and nominee for lender.
- MERS later assigned the Deed of Trust to Bank of New York Mellon (BNY) as trustee for CWABS 2006-22; assignment recorded June 1, 2010; Calderon sworn statement acknowledges the Deed of Trust assignment to BNY Mellon.
- Bank of America, through a servicing agreement, acts as mortgage servicer for BNY by 2011–2012.
- Plaintiffs defaulted; Bank of America began foreclosure after attempting loan modifications; Plaintiffs filed state-court petition seeking various reliefs before removal to federal court in 2012.
- Bank of America moved for summary judgment; Plaintiffs moved to strike/limit expert testimony; court granted summary judgment for Bank of America and struck Plaintiffs’ expert, denying other strikes.
- Court addresses standing, the role of MERS, and whether Bank of America may foreclose as servicer for BNY via the note and deed of trust.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge assignments | Plaintiffs argue they lack standing to contest the PSA-void transfer. | Plaintiffs, not parties to the assignments, cannot challenge them unless void; otherwise no standing. | Plaintiffs lack standing to challenge non-void assignments; BNY’s possession of the indorsed-in-blank Note controls. |
| Holder of the note and foreclosure authority | Note transfer may be voidable under PSA and New York law governing trusts. | BNY holds the Note; Mortgage follows the Note; BOA may foreclose as servicer for BNY. | BNY holds the Note; the mortgage follows the note; BOA may foreclose as BNY’s servicer. |
| Bank of America foreclosing as servicer under Texas law | Servicer lacks authority to foreclose absent assignment of the Deed of Trust. | Servicer authorized to foreclose on behalf of mortgagee under Texas Property Code § 51.0025. | BOA, as BNY’s servicer, may foreclose on behalf of BNY. |
| Remaining claims (Declaratory Judgment, UCC, Quiet Title, Injunctive Relief) | Plaintiffs seek declaratory relief and other relief against foreclosure. | No genuine dispute; relief unavailable given lender’s perfected claims. | All remaining claims fail; summary judgment granted for Bank of America on these claims. |
Key Cases Cited
- Athey v. Mortg. Elec. Registration Sys., Inc., 314 S.W.3d 161 (Tex.App.2010) (MERS authority to foreclose valid when in deed of trust)
- Carter v. Gray, 81 S.W.2d 647 (Tex.1935) (separate enforcement rights for note and lien)
- Crowell v. Bexar County, 351 S.W.3d 114 (Tex.App.2011) (assignment of deed of trust within scope of grant; enforceability)
- Gilbreath v. White, 903 S.W.2d 851 (Tex.App.1995) (assignment validity and lien priority considerations)
- Stephens v. LPP Mortgage, 316 S.W.3d 742 (Tex.App.2010) (severability of note and lien; foreclosure rights)