395 S.W.3d 311
Tex. App.2013Background
- Chance executed a November 2008 Texas Home Equity Note to Overland Mortgage secured by his Dallas County home; deed of trust named MERS as nominee.
- Chance defaulted; CitiMortgage, as loan servicer, sought a court order for non-judicial foreclosure under the deed of trust and Texas Property Code §51.002; Chance filed suit challenging CitiMortgage’s right to foreclose, alleging Overland was the real party in interest and the note was unsigned and stamped VOID.
- CitiMortgage counterclaimed for foreclosure and moved for summary judgment; Chance responded with an affidavit and a copy of the note; after a hearing, the trial court granted summary judgment allowing foreclosure.
- On appeal, Chance challenged (1) the void stamp on a blank indorsement as discharging the note, (2) the authenticity of the note and whether CitiMortgage possessed a true copy, (3) CitiMortgage’s ownership of the note, and (4) any damages issues; the court reviews de novo and ultimately affirms the trial court’s judgment for CitiMortgage.
- The court concludes the void stamp over a blank indorsement does not, on this record, discharge Chance’s obligations; photocopies of the note can suffice for summary judgment when authenticated; CitiMortgage has an unbroken chain of title showing ownership of the note; and all claims are resolved in CitiMortgage’s favor, so the judgment is affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effect of void stamp on indorsement | Chance argues void stamp cancels the note. | CitiMortgage contends stamp does not discharge the note. | Void stamp alone does not discharge; no fact issue. |
| Authenticity of the note | Photocopy lacks true copy; note not proven authentic. | Photocopy authenticated as true and correct; original in CitiMortgage possession. | Photocopy sufficient; no issue as to authenticity. |
| Ownership of the note | CitiMortgage did not prove ownership or chain of title. | Affidavit and D-1 exhibit show unbroken chain Overland→CitiMortgage. | CitiMortgage established ownership; holder entitled to foreclose. |
| Damages claim | Summary judgment failed to award damages; mischaracterized claims. | Foreclosure relief sought under deed of trust; damages not in dispute. | All claims disposed; no damages issue defeating summary judgment. |
Key Cases Cited
- Kyle v. Countrywide Home Loans, Inc., 232 S.W.3d 355 (Tex. App.—Dallas 2007) (absence of promissory note in summary judgment evidence does not preclude summary judgment when foreclosing.)
- Life Ins. Co. of Va. v. Gar-Dal, Inc., 570 S.W.2d 378 (Tex. 1978) (photocopy of original note may suffice as summary judgment evidence.)
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (de novo review standard for summary judgment)