Martin v. New Century Mortgage Co.
377 S.W.3d 79
| Tex. App. | 2012Background
- Homeowners Marvin Martin and Natalie Arceneaux face a non-judicial foreclosure on their mortgage.
- Carrington Mortgage Services serviced the loan for New Century Mortgage Corporation, which held the note and deed of trust.
- New Century assigned the deed of trust and debt to Wells Fargo in 2009; Carrington continued servicing.
- Foreclosure sale was scheduled for April 6, 2010; suit filed April 5, 2010 seeking injunctive relief and statutory claims.
- Homeowners asserted statutory fraud, RESPA, DTPA, and TILA claims; challenged Wells Fargo/Carrington standing and note ownership.
- Trial court granted summary judgment for lenders; homeowners challenged on grounds including pooling concerns; motion for new trial denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose on the note | Martin/Arceneaux contend Wells Fargo lacks standing; no indorsement shows transfer | Wells Fargo holds the note through an assignment from New Century as assignee | Wells Fargo had standing as assignee of the note and deed of trust |
| Fraud and deceptive practices claims viability | Claims allege statutory fraud, RESPA, and DTPA violations | No evidence of true misrepresentations or servicing violations; time-barred or not supported | No genuine issue on statutory fraud and RESPA/DTPA; claims fail on merits or limitations |
| Statutory limitations on TILA and DTPA claims | Claims timely despite signing in 2006 | Claims filed in 2010 are time-barred | TILA and DTPA claims barred by statute of limitations |
| New trial based on pooling evidence | New pooling evidence shows lack of standing | Evidence not newly discovered; pooling clause not violated | Trial court did not abuse discretion; no basis for new trial |
Key Cases Cited
- Wells Fargo Bank, N.A. v. Ballestas, 355 S.W.3d 187 (Tex.App.-Houston [1st Dist.] 2011) (ownership of note essential; standing to foreclose)
- Leavings v. Mills, 175 S.W.3d 301 (Tex.App.-Houston [1st Dist.] 2004) (distinction holder vs owner; non-holder in possession may enforce)
- Jernigan v. Bank One, Tex., N.A., 803 S.W.2d 774 (Tex.App.-Houston [14th Dist.] 1991) (transfer proof required to enforce; gap may create fact issue)
- First Gibraltar Bank, FSB v. Farley, 895 S.W.2d 425 (Tex.App.-San Antonio 1995) (ownership transfer principles under mising indorsement)