Samuel and Shawn Calvillo, Arielle Noel Calvillo, Samuel Elliott Calvillo, Elliott Arcelis Calvillo and Matthew Lars Calvillo v. Carrington Mortgage Services and Wells Fargo Bank, N.A., as Trustee for Carrington Mortgage Loan Trust, Series 2006-NC5 Asset-Backed Pass-Through Certificates
08-13-00353-CV
| Tex. Crim. App. | Nov 30, 2015Background
- Samuel and Shawn Calvillo obtained a home equity adjustable-rate note and deed of trust in October 2006; the note was later assigned (allonge) ultimately to Wells Fargo as trustee while Carrington Mortgage Services remained servicer.
- The Calvillos defaulted; Carrington granted two loan modifications but borrowers failed to comply, and Carrington initiated non-judicial foreclosure notices in December 2011 and sold the property at trustee sale on January 3, 2012; Wells Fargo purchased the property and a substitute trustee’s deed was executed.
- The Calvillos sued Carrington and Wells Fargo asserting fraud, deceptive practices, violations of the Texas Property Code (insufficient 21-day notice), conspiracy, and sought to set aside the foreclosure and recover damages and fees.
- At trial the Calvillos presented evidence (including multiple versions of the note); after the plaintiffs rested, the trial court granted defendants’ motion for directed verdict. Plaintiffs appealed.
- On appeal the court addressed briefing defects (failure to cite reporter’s record), preservation of evidentiary objections, and whether the record contained more than a scintilla of evidence to defeat a directed verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. 21-day notice under Tex. Prop. Code §51.002 | Notice was untimely because substitute-trustee appointment post-dated posting and was only 12 days before sale | Appointment instrument was effective December 12, 2011; pre-appointment acts by substitute trustee were ratified | Court held notice timely; ratification doctrine applies; directed verdict proper |
| 2. Authenticity/forgery of note / ownership | Multiple versions of the note lacking the allonge show genuine issue of forgery and title | Defendants’ note with allonge was admitted without objection; plaintiffs waived authenticity challenge; no evidentiary showing of forgery | Court held plaintiffs waived objection and produced only suspicion of forgery (no more than a scintilla); directed verdict upheld |
| 3. Public policy based on OCC consent order | Enforcement of the note is contrary to public policy because Wells Fargo engaged in unsafe/unsound foreclosure practices identified in OCC consent order | Consent order relates to servicing (Wells Fargo was trustee, not servicer); order does not create private rights; not applicable to Carrington | Court rejected public-policy claim (consent order not a private cause of action and inapplicable here) |
| 4. Sufficiency of evidence to avoid directed verdict | Plaintiffs assert conflicting, probative evidence existed to submit issues to jury | Plaintiffs failed to cite reporter’s record or identify trial evidence beyond the note versions; failed directed-verdict legal analysis | Court concluded plaintiffs did not meet the more-than-a-scintilla standard and failed to preserve and brief issues adequately; directed verdict affirmed |
Key Cases Cited
- Prudential Ins. Co. of Am. v. Financial Review Servs., Inc., 29 S.W.3d 74 (Tex. 2000) (stating one basis for directed verdict is no evidence to support a material issue)
- Vance v. My Apartment Steak House, 677 S.W.2d 480 (Tex. 1984) (directed verdict appropriate where evidence conclusively establishes a fact)
- Service Corp. Int’l v. Guerra, 348 S.W.3d 221 (Tex. 2011) (describes the more-than-a-scintilla sufficiency threshold)
- Valadez v. Avitia, 238 S.W.3d 843 (Tex. App. El Paso 2007) (appellant bears burden to point to record showing alleged error; court will not independently review entire record)
- Chandler v. Guar. Mortgage Co., 89 S.W.2d 250 (Tex. Civ. App. San Antonio 1935) (substitute trustee’s post-appointment acts ratify pre-appointment posting of sale notices)
- Wilson v. Armstrong, 236 S.W. 755 (Tex. Civ. App. Beaumont 1921) (acts of posting notices are ministerial; subsequent appointment can ratify prior signing/posting)