Maria Jilma Uribe and Jose Carlos Uribe v. Carrington Mortgage Services, LLC on Behalf of Wells Fargo Bank NA, as Trustee for Carrington Mortgage Loan Trust, Series 2006-NC4 Asset Backed Pass Through Certificates
04-16-00060-CV
| Tex. App. | Feb 15, 2017Background
- Maria and Jose Uribe sued to stop foreclosure, alleging the foreclosing party lacked a valid chain of title and filed fraudulent deed-record documents.
- Appellee (Carrington on behalf of Wells Fargo as trustee for a Carrington trust) moved for traditional summary judgment attaching the note, deed-equivalent security instrument, an assignment to the trust, and a limited power of attorney.
- The Uribes responded challenging the chain of title, asserting the assignment and power of attorney were defective, and asserting Mr. Uribe’s signature on the security instrument was forged; Mr. Uribe submitted an affidavit stating his signature was not his.
- The Uribes filed a late discovery request and a motion to compel; they sought a continuance of the summary-judgment hearing to obtain documents, which the trial court denied and then granted summary judgment for appellee.
- On appeal the Fourth Court reviewed (de novo) the summary judgment and (for abuse of discretion) the denial of continuance; it upheld the denial of continuance but reversed the summary judgment because the forgery allegation raised a genuine fact issue making the security instrument void if true.
Issues
| Issue | Uribe's Argument | Carrington/Wells Fargo Argument | Held |
|---|---|---|---|
| Chain of title / standing to challenge assignment | Assignment and supporting records do not conclusively show trust owned note; assignment capacity and identity defects render assignment invalid | Assignment and limited POA show the trust is assignee and Carrington had authority as attorney-in-fact; any defect is voidable not void | Uribes lack standing to attack assignment on grounds that would make it merely voidable; assignment evidence sufficient for summary judgment on chain-of-title issues (except forgery) |
| Assignment occurring after trust closing date | Assignment after closing violates pooling/servicing agreement and thus invalidates transfer | Even if assignment violated trust PSA, such breach renders assignment voidable, not void; Uribes lack standing | Court held timing/PSA argument does not render assignment void; Uribes lack standing on this ground |
| Alleged forgery of Mr. Uribe’s signature on security instrument | Mr. Uribe’s affidavit states his signature was forged; forged deed/security is void ab initio and passes no title | Instrument is self-authenticating and notarization intact; appellee argued notarization was not shown to be fraudulent (argument not raised at trial) | Affidavit raised a genuine fact issue; forgery, if proven, would render the security instrument void, so summary judgment was improper |
| Fraud claim (based on false chain of title / filings) | Trust fraudulently claimed ownership / recorded documents were fraudulent | Underlying summary-judgment proof established trust ownership; fraud claim depends on same chain-of-title facts | Because the court found the trust was owner/holder (subject to forgery issue), the fraud claim was disposed of along with the title determination |
| Denial of continuance for discovery | Continuance needed because appellee failed to produce requested documents; motion to compel pending | Uribes waited nearly ten months to request discovery and filed motion to compel the day before hearing | Denial not an abuse of discretion given delay, short notice, and case age; continuance denial affirmed |
Key Cases Cited
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (standard for reviewing traditional summary judgment)
- Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005) (summary-judgment standard)
- Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004) (viewing evidence and inferences in favor of nonmovant on summary judgment)
- Vasquez v. Deutsche Bank Nat’l Trust Co., 441 S.W.3d 783 (Tex. App.—Houston [1st Dist.] 2014) (standing to challenge an assignment that is voidable vs. void)
- Reinagel v. Deutsche Bank Nat’l Trust Co., 735 F.3d 220 (5th Cir. 2013) (assignment defects that make transfers voidable, not void)
- Yarbrough v. Household Fin. Corp. III, 455 S.W.3d 277 (Tex. App.—Houston [14th Dist.] 2015) (forged security instrument/deed is void ab initio)
- Glass v. Carpenter, 330 S.W.2d 530 (Tex. Civ. App.—San Antonio 1959) (standing to challenge conveyance)
- McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337 (Tex. 1993) (appellate review limited to grounds presented in trial court motion for summary judgment)