Henning, Kenneth v. OneWest Bank FSB
2013 Tex. App. LEXIS 8124
| Tex. App. | 2013Background
- Henning obtained a 2005 mortgage loan from Willow Bend Mortgage Company to buy a home in Rowlett, Texas, secured by a deed of trust and a note.
- The note was endorsed from Willow Bend to IndyMac Bank, F.S.B., with a blank endorsement; OneWest later claimed to hold the note and deed of trust.
- A June 30, 2010 loan modification amended the debt allegedly due under the note and deed of trust to $308,804.88, payable to IndyMac Mortgage Services, a division of OneWest.
- IndyMac notified Henning of default on October 19, 2010, offering cure by a specified date and warning that failure could lead to foreclosure.
- Henning sued OneWest on December 22, 2010; OneWest counterclaimed for foreclosure and sought to enforce the note and deed of trust; the trial court granted OneWest summary judgment.
- The appellate court affirmed, holding OneWest was the holder of the note, Henning defaulted, and dismissing Henning’s other claims under both traditional and no-evidence summary judgment standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OneWest validly held the note and established default | Henning contends robo-signer flaws create a chain-of-title issue and dispute about default. | OneWest proved possession and holder status; Henning defaulted per the Notice of Default and acceleration. | OneWest validly held the note and Henning defaulted. |
| Whether OneWest’s no-evidence motion on Henning’s fraud claims was proper | Henning argued there was evidence of common law and statutory fraud and damages. | OneWest showed lack of evidence on damages and essential fraud elements; Henning failed to prove damages. | No-evidence summary judgment on fraud claims upheld. |
| Whether Henning was entitled to claims of fraudulent lien under section 12.002 | Henning asserted fraudulent assignments created liens impairing his property. | Assignments did not create liens as defined; evidence insufficient to prove fraudulent lien. | No evidence supported § 12.002 claim; judgment affirmed. |
| Whether Henning met elements for negligent misrepresentation | OneWest misrepresented loan terms and modified obligations, causing damages. | No competent evidence of false representations or damages; misrepresentations not proven. | No reversible error; no evidence of negligent misrepresentation. |
| Whether Henning established TDCPA or DTPA violations and related remedies | OneWest engaged in deceptive debt collection and misrepresented debt status and collection methods. | Henning failed to cite evidence supporting TDCPA or DTPA violations. | No-evidence judgments upheld; TDCPA/DTPA claims rejected. |
Key Cases Cited
- Austin v. Countrywide Homes Loans, 261 S.W.3d 68 (Tex. App.—Houston [1st Dist.] 2008) (holder of the note and enforceability requirements for foreclosure)
- King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) (standards for no-evidence review; scintilla threshold)
- Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (burden-shifting framework in summary judgment)
- Green v. McKay, 376 S.W.3d 891 (Tex. App.—Dallas 2012) (summary judgment standards and affirmative pleading requirements)
- Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211 (Tex. 2002) (broad appellate review of no-evidence motions and evidence standard)