A FFIRMED ; O pinion F iled April 7 , 2020

In The



### Court of Appeals

Fifth District of Texas at Dallas

No. 05

- 19

- 00298

- CV

ANTONIO CABALLERO

, Appellant

V.

RUSHMORE LOAN MANAGEMENT SERVICES LLC AND

WILMINGTON SAVINGS FUND SOCIETY

, FSB, D/B/A CHRISTIANA

TRUST, AS TRUSTEE FOR NORMANDY MORTGAGE LOAN TRUST

SERIES 2015

- 1

, Appellee s

On Appeal from the 14th Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC

- 17

- 07665

MEMORANDUM OPINION

Before Justices Myers, Whitehill, and Pedersen, III

Opinion by Justice Myers

Antonio Caballero appeals the trial court’s judgment granting the motion for

summary judgment of Rushmore Loan Management Services LLC and Wilmington

Savings Fund

, FSB, d/b/a Christiana Trust, as trustee for Normandy Mortgage Loan

Trust Series 2015

- 1 on Caballero’s claims for wrongful foreclosure, breach of the– 2

–

deed of trust, and violation of the Texas Debt Collection Practices Act. 1 Caballero

brings two issues on appeal contending the trial court erred by granting appellees’

motion for summary judgment because (1) appellees lacked standing; and (2) there

are outstanding fact issues on at least one element of each of Caballero’s causes of

action. We affirm the trial court’s judgment.

BACKGROUND

In 2006, Caballero borrowed $514,450 from World Savings Bank to purchase

a home. Caballero signed a thirty

- year note and a deed of trust. The note provided

for interest at a variable rate of 6.76 to 11.95 percent

, but no more than the maximum

amount allowed by law. The mortgage servicer was Carrington Mortgage Services.

In 2007, World Savings Bank changed its name to Wachovia Mortgage

, FSB

.

In 2009

, Caballero fell behind on his payments. Caballero and Wachovia

Mortgage modified the loan agreement, reducing the balance to $430,942.15 and

reducing the interest rate to 6.5 percent. The modification extended the maturity

from 2036 to 2049. Caballero alleged that when he executed the modification, he

gave Wachovia Mortgage a check for $100,000 for principal only. After the

modification, the mortgage servicer became appellee Rushmore Loan Management

Services. Later in 2009, Wachovia Mortgage changed its name to Wells Fargo Bank

1 Caballero also brought claims for usury and to quiet title, but he does not assert on appeal that the

trial court erred by granting appellees’ motion for summary judgment as to those claims. Caballero has

waived any error from the trial court’s granting appellees’ motion for summary judgment on these claims,

and we do not address them. See Ontiveros v. Flores , 218 S.W.3d 70, 71 (Tex. 2007) (per curiam).– 3

–

Southwest

, N.A

. and then merged into and operated as part of “ Wells Fargo B ank,

National Association, Sioux Falls, South Dakota. ”

In 2012, “ Wells Fargo

, N.A.” assigned the deed of trust to U.S. Bank

, N.A.

In 2014, Caballero again fell behind on the payments. In 2015, he and

Rushmore modified the loan agreement. By this time, the balance was $648,834.15.

The modification reduced the interest rate to 4.375 percent and required Caballero

to make monthly payments of $3,032.93. Caballero made six payments of $4,300

after the 2015 modification.

In 2 016, U.S. Bank assigned the note and deed of trust to appellee Wilmington

Savings Fund as trustee for Normandy Mortgage Loan Trust.

In 2016, Caballero became concerned that his $100,000 payment in 2009 had

not been properly applied to the loan. He asked Rushmore for the loan’s payment

history. Rushmore responded that it had not received a detailed payment history

from Carrington when Rushmore became the loan servicer. Caballero submitted

another request for the payment history, and Rushmore responded that it would

provide the history by June 30, 2017, which was less than a week before the

threatened foreclosure. 2

In 2017, Caballero filed this suit to stop foreclosure. Caballero alleged causes

of action for wrongful foreclosure, breach of the deed of trust, violations of the Texas

2 The record does not show whether Rushmore provided the payment history or whether Carrington

applied the $100,000 payment to principal.– 4

–

Debt Collection Practices Act, usury, and suit to quiet title . Caballero sought

damages and injunctive relief

. The trial court entered a temporary restraining order

barring the foreclosure.

Appellees moved for summary judgment, asserting Caballero had no evidence

to support one or more elements of his causes of action. The trial court granted

appellees’ motion for summary judgment.

STANDING

In his first issue, Caballero contends the trial court erred by granting

appell ees’ motion for summary judgment because appellees’ lacked standing.

Caballero asserts that Normandy assigned its interest in the deed of trust to Aero

Mortgage Loan Trust 2017

- 1 a week before appellees moved for summary judgment.

Caballero argues that because Normandy did not have any interest in the deed of

trust when appellees moved for summary judgment, the case was moot.

“A case is moot when either no ‘live’ controversy exists between the parties,

or the parties have no legally cognizable interest in the outcome. ‘Put simply, a case

is moot when the court’s action on the merits cannot affect the parties’ rights or

interests.’” Hays St. Bridge Restoration Group v. City of San Antonio

, 570 S.W.3d

697, 702

– 03 (Tex. 2019) (quoting City of Krum v. Rice

, 543 S.W.3d 747, 749 (Tex.

2017) (per curiam)). “ If a case becomes moot, the court must vacate all previously

issued orders and judgments and dismiss the case for want of jurisdiction. ”

Glassdoor, Inc. v. Andra Group, LP

, 575 S.W.3d 523, 527 (Tex. 2019)

. Caballero– 5

–

has not moved for dismissal of the case. Instead, he prays for reversal of the

summary judgment and remand of his claims for trial.

This case is not moot. Caballero’s cause of action for wrongful foreclosure

alleges that appellees do not have an interest in the note or deed of trust because (1)

World Savings Bank did not transfer the loan to Wells Fargo, (2) any transfer by

World Savings Bank was not for full value, and (3) the subsequent transfers of the

note and deed of trust did not grant appellees the right to foreclose the loan. The

cause of action for breach of the deed of trust alleges that Rushmore could not enter

into the 2015 modification as the lender. Caballero’s request for injunctive relief

was based on the pending foreclosure of the property. Caballero does not explain

why these claims are no longer “live” following Normandy’s assignment of the deed

of trust to Aero.

Moreover, it is the plaintiff that must establish standing to bring a lawsuit.

Pratho v. Zapata

, 157 S.W.3d 832, 845 (Tex. App.

— Fort Worth 2005, no pet.).

Appellees are the defendants. Caballero cites no authority that a defendant who does

not seek any relief other than an end to the lawsuit and recovery of its costs has any

burden to establish standing. We overrule Caballero’s first issue.

SUMMARY JUDGMENT

In his second issue, Caballero contends the trial court erred by granting

appellees’ motion for summary judgment.– 6

– Standard of Review

Rule 166a(i) provides that a party “may move for summary j udgment on the

ground that there is no evidence of one or more essential elements of a claim or

defense on which an adverse party would have the burden of proof at trial.” We

review a no

- evidence summary judgment under the same legal sufficiency standard

used to review a directed verdict. See T EX

. R. C IV

. P. 166a(i); Flood v. Katz

, 294

S.W.3d 756, 762 (Tex. App.

— Dallas 2009, pet. denied). Thus, we must determine

whether the nonmovant produced more than a scintilla of probative evidence to raise

a fact issue on the material questions presented. See Flood

, 294 S.W.3d at 762.

When analyzing a no

- evidence summary judgment, “we examine the entire record

in the light most favorable to the nonmovant, indulging every reasonable inference

and resolving any doubts against the motion.” Sudan v. Sudan

, 199 S.W.3d 291,

292 (Tex. 2006) (quoting City of Keller v. Wilson

, 168 S.W.3d 802, 823 (Tex.

2005)). A no

- evidence summary judgment is improperly granted if the nonmovant

presented more than a scintilla of probative evidence to raise a genuine issue of

material fact. King Ranch, Inc. v. Chapman

, 118 S.W.3d 742, 751 (Tex. 2003).

“More than a scintilla of evidence exists when the evidence rises to a level that would

enable reasonable, fair

- minded persons to differ in their conclusions.” Id. (quoting

Merrell Dow Pharms., Inc. v. Havner

, 953 S.W.2d 706, 711 (Tex. 1997)). “Less

than a scintilla of evidence exists when the evidence is ‘so weak as to do no more– 7

–

than create a mere surmise or suspicion’ of a fact.” Id. (quoting Kindred v.

Con/Chem, Inc.

, 650 S.W.2d 61, 63 (Tex. 1983)).

In deciding whether a disputed material fact issue exists precluding summary

judgment, evidence favorable to the nonmovant will be taken as true. In re Estate

of Berry

, 280 S.W.3d 478, 480 (Tex. App.

— Dallas 2009, no pet.). Every reasonable

inference must be indulged in favor of the nonmovant and any doubts resolved in its

favor. City of Keller v. Wilson

, 168 S.W.3d 802, 824 (Tex. 2005). We review a

summary judgment de novo to determine whether a party’s right to prevail is

established as a matter of law. Dickey v. Club Corp. of Am.

, 12 S.W.3d 172, 175

(Tex. App.

— Dallas 2000, pet. denied).

Wrongful Foreclosure

The elements of wrongful foreclosure are: (1) a defect in the foreclosure sale

proceedings; (2) a grossly inadequate selling price; and (3) a causal connection

between the defect and the grossly inadequate selling price. Villanova v. Fed.

Deposit Ins. Corp.

, 511 S.W.3d 88, 101 (Tex. App.

— El Paso 2014, no pet.)

.

Appellees moved for summary judgment on the ground that Caballero had no

evidence of any of these elements because there has not been a foreclosure. We

agree with appellees. “ Texas law is clear that there is no cause of action in Texas

for attempted wrongful foreclosure. ” Ebrahimi v. Caliber Home Loans, Inc.

, 05

- 18

-

00456

- CV, 2019 WL 1615356, at *4 (Tex. App.

— Dallas Apr. 15, 2019, pet.

denied) ; s ee EverBank, N.A. v. Seedergy Ventures, Inc.

, 499 S.W.3d 534, 544 (Tex.– 8

–

App.

— Houston [14th Dist.] 2016, no pet.)

. A claim for wrongful foreclosure before

a foreclosure sale occurs fails as a matter of law

. Ebrahimi , 2019 WL 1615356, at

*4.

Caballero argues that Texas does recognize a cause of action for attempted

wrongful foreclosure, citing McCaig v. Wells F argo Bank (Texas), N.A.

, 788 F.3d

463, 471 (5th Cir. 2015)

. In that case, Wells Fargo repeatedly, and wrongly,

threatened to foreclose on the McCaigs’ house for violating a forbearance

agreement. The McCaigs sued Wells Fargo for breach of the forbearance agreement

and violations of the Texas Debt Collection Act. 3 Id. at 471. The McCaigs prevailed

in the trial court, and a majority of the Fifth Circuit mostly affirmed. Id. at 471

– 72,

486. The dissenting judge characterized the majority’s decision as creating a cause

of action for attempted wrongful disclosure. Id. at 486 (Jones, J., dissenting)

(“Another way to look at this result is that in Texas, there has been no cause of action

for ‘attempted wrongful foreclosure.’ Until today.” (citations omitted)). Wells

Fargo also characterized its conduct as “attempted wrongful foreclosure.” Id. at 478

n.6. The McCaigs did not bring a claim for attempted wrongful foreclosure, and

neither the Fifth Circuit nor any court in Texas has created one. As this Court

recently observed, “ there is no cause of action in Texas for attempted wrongful

3 The “Texas Debt Collection Act” and the “Texas Debt Collection Practices Act” are different names

for the same legislation: Chapter 392 of the Texas Finance Code.– 9

–

foreclosure. ” Ebrahimi

, 2019 WL 1615356, at *4

. Because there was no foreclosure

sale, Caballero’s claim for wrongful foreclosure fails as a matter of law

. Id.

We conclude the trial court did not err by granting appellees’ motion for

summary judgment on Caballero’s claim for wrongful foreclosure.

Breach of Deed of Trust

Caballero pleaded that the 2015 modification constituted a breach of the deed

of trust because the evidence did not show Rushmore had authority to agree to a

modification of the note or deed of trust. Caballero alleged Rushmore lacked

authority because it was the mortgage servicer and not the lender and because

Caballero alleges these facts breache d paragraph 23 of the deed of trust, which

provided that the deed of trust “may be modified or amended only by an agreement

in writing signed by Borrower and Lender.”

Caballero’s claim for breach of the deed of trust is one for breach of contract.

The elements for breach of contract are (1) the existence of a valid contract, (2) the

plaintiff ’ s performance or tendered performance, (3) the defendant ’ s breach of the

contract, and (4) damages as a result of the breach. P aragon Gen. Contractors, Inc.

v. Larco Const r

., Inc.

, 227 S.W.3d 876, 882 (Tex. App.

— Dallas 2007, no pet.)

.

Appellees moved for summary judgment on the ground that Caballero had no

evidence he performed or tendered performance, that appellees breached the deed of

trust, or that Caballero suffered damages as a result of the breach.– 10

–

The deed of trust defined “Lender” as meaning “World Savings Bank, FSB,

its successors and/or assignees.” (Capitalization omitted.) Therefore, Caballero had

the burden of presenting some evidence that Rushmore was not a successor or

assignee of World Savings Bank. The only evidence Caballero presented was his

declaration. In it, he does not provide evidence that Rushmore was not the successor

or assignee of World Savings Bank. The record shows that Rushmore became the

loan servicer after Carrington, but nothing shows it did not have authority to enter

into the 2015 modification. Accordingly, Caballero has not presented any evidence

that appellees breached the deed of trust.

Caballero also failed to present any evidence of how the modification of the

loan agreement damaged him. The 2015 modification reduced the interest rate from

6.5 percent to 4.375 percent on a balance of $648,834.15.

Caballero argued in his response to the motion for summary judgment and he

argues on appeal that appellees breached the deed of trust by violating sections

51.002 and 51.0025 of the Property Code by wrongfully accelerating the note,

issuing notices of trustee’s sale, and failing to give Caballero statutorily required

notices. Caballero did not plead any of these violations. See T EX

. P ROP

. C ODE A NN

.

§§ 51.002, .0025. A party is not required to move for summary judgment on claims

that were not pleaded. Clark v. Dillard’s, Inc.

, 460 S.W.3d 714, 729 (Tex. App.

—

Dallas 2015, no pet.). Therefore, appellees did not have to move for summary

judgment on these asserted violations of the Property Code.– 11

–

We conclude the trial court did not err by granting appellees’ motion for

summary judgment on Caballero’s claim for breach of the deed of trust.

Texas Debt Collection Practices Act

Caballero alleged appellees violated the Texas Debt Collection Practices Act.

See T EX

. F IN

. C ODE A NN

. §§ 392.001

– .404. Specifically, Caballero alleges appellees

violated sections 392.301(a)(8), 392.303(a)(2), and 392.304(a)(8) and (19).

Caballero alleged that “[t]he acts, omissions, and conduct of Defendant [sic], as

alleged above” violated these provisions. Those alleged acts, omissions, and

conduct consist of World Bank’s alleged failure to transfer the loan to Wells Fargo,

the allegedly invalid subsequent assignments of the note and deed of trust, the

modification agreements, the charging of usurious interest, and the pending

foreclosure.

Section 392.301(a)(8) provides that “a debt collector may not use threats,

coercion, or attempts to coerce that employ any of the following practices:

. . . (8)

threatening to take an action prohibited by law.” Appellees moved for summary

judgment on the ground that Caballero had no evidence to support any of these

elements, including that they threatened to take an action prohibited by law. Neither

Caballero’s declaration nor the other summary judgment evidence shows that

appellees threatened to take an action prohibited by law. To the extent Caballero

may argue that the threatened foreclosure was a threat to take an action prohibited– 12

–

by law, none of the documents related to the allegedly pending foreclosure are in the

record, so the record con tains no evidence of threats prohib ited by law.

Section 392.303(a)(2) provides, “a debt collector may not use unfair or

unconscionable means that employ the following practices:

. . . (2) collecting or

attempting to collect interest or a charge, fee, or expense incidental to the obligation

unless the interest or incidental charge, fee, or expense is expressly authorized by

the agreement creating the obligation or legally chargeable to t he consumer.”

Appellees moved for summary judgment on the ground that Caballero had no

evidence of these elements. Neither Caballero’s declaration nor any of the other

summary judgment evidence shows that appellees violated this provision.

Section 392.304(a)(8) prohibits a debt collector from using “a fraudulent,

deceptive, or misleading representation that employs the following practices:

. . .

(8) misrepresenting the character, extent, or amount of a consumer debt, or

misrepresenting the consumer debt’s status in a judicial or governmental

proceeding.” Appellees moved for summary judgment on the ground that Caballero

had no evidence of any of these elements. Neither Caballero’s declaration nor any

of the other summary judgment evidence shows that appellees violated this

provision. No evidence shows that any representation of Caballero’s debt was false.

Section 392.304(a)(19) prohibits a debt collector from using “a fraudulent,

deceptive, or misleading representation that employs the following practices:

. . .

(19) using any other false representation or deceptive means to collect a debt or– 13

–

obtain information concerning a consumer.” Appellees moved for summary

judgment on the ground that Caballero had no evidence of any of these elements.

Neither Caballero’s declaration nor any of the other summary judgment evidence

shows that appellees violated this provision. No evidence shows appellees made a

false representation or used a deceptive means to collect on the loan or obtain

information

.

Caballero argues that appellees violated these provisions because appellees

lacked authority to take any of the actions they took in this case. However, he

presented no evidence that appellees lacked authority. Caballero also complains that

the notice of acceleration and sale, the notices of default and opportunity to cure,

and the notices of trustee’s sale we re given improperly, did not comply with statutory

requirements, and constituted inherently false and deceptive means of collecting the

loan. Those documents are not in the record, and t he record contains no evidence of

any of those documents

, whether they failed to meet the requirements for those

documents

, or whether they were false or deceptive.

Caballero also argues that appellees violated these provisions by attempting

to accelerate the note and foreclose the lien when they had not properly posted

Caballero’s payments on the loan. Caballero stated in his declaration that he was

“ concerned ” that his $100,000 payment had not been properly applied to the loan,

but he did not testify or present evidence that i t, in fact, was not properly applied to– 14

–

the loan. No evidence shows that appellees had not properly posted Caballero’s

payments on the loan.

H e also complains that appellees violated these provisions by not properly

responding to him in the servicing of t he loan. He testified that Rushmore failed to

provide him a payment history of the loan from the period when Carrington was

servicing the loan. He testified that Rushmore said Carrington had not provide d it

with a detailed payment history. No evidence s hows that Rushmore’s statements

were not true. These facts, standing alone, are not evidence of threatening, coercive,

unfair, unconscionable, fraudulent, deceptive, or misleading conduct by appellees.

Therefore, they are not evidence appellees violated these provisions of the Texas

Debt Collection Practices Act.

Caballero argued in his response to the motion for summary judgment and he

argues on appeal that U.S. Bank and Wilmington violated section 392.101(a) of the

Finance Code by being third

- party debt collectors withou t being bonded. See F IN

. §

392.101(a). Even if U.S. Bank and Wilmington were required to be bonded,

Caballero presented no evidence that they were not bonded. Moreover, Caballero

did not allege this claim in his petition , and a ppellees were not required to move for

summary judgment on a claim that he did not plead. Clark , 460 S.W.3d at 729.

We conclude the trial court did not err by granting appellees’ motion for

summary judgment on Caballero’s claim for violations of the Texas Debt Collection

Practices Act.– 15

– Estates Code

Caballero also argued in his response to the motion for summary judgment

and on appeal that provisions of the Estates Code barred the summary judgment in

this case. Caballero asserts that U.S. Bank and Wilmington are foreign business

entities and that the Estates Code requires foreign entities acting in a fiduciary

capacity in this state to register with the Texas Secretary of State. See T EX

. E STATES

C ODE § 505.004. Even if U.S. Bank and Wilmington were required to register with

the Secretary of State, no evidence shows they have not done so.

Caballero asks this Court “to take judicial notice of the absence of the

referenced proper registration of [U.S. Bank] and Wilmington with the Texas

Secretary of State.” Caba llero made the same request of the trial court, but he did

not provide the trial court with any information showing U.S. Bank and Wilmingt o n

had not registered. See T EX

. R. E VID

. 201(c)(2) (trial court “must take judicial notice

if a party requests it and the court is supplied with the necessary information”).

We decline to take judicial notice of the absence of filings in the Secretary of

State’s office

. 4 “The Court of Appeals is not a trier of fact. ‘For us to consider

evidence for the first time, never presented to the trial court, would effectively

4 Appellate courts may take judicial notice of documen ts outside the appellate record to determine their

jurisdiction or to resolve matters ancillary to decisions that are mandated by law, such as calculation of

prejudgment interest when the appellate court renders judgment. See Freedom Commc ’ ns, Inc. v.

Coronado

, 372 S.W.3d 621, 623

– 24 (Tex. 2012); SEI Bus. Sys., Inc. v. Bank One Tex., N.A.

, 803 S.W.2d

838, 841 (Tex. App.

— Dallas 1991, no pet.). Whether Wilmington or U.S. Bank registered with the

Secretary of State is not one of those situations

.– 16

–

convert this Court into a court of original, not appellate jurisdiction.’” SEI Bus. Sys.,

Inc. v. Bank One Tex.

, N.A.

, 803 S.W.2d 838, 841 (Tex. App.

— Dallas 1991, no pet.)

(quoting Deerfield Land Joint Venture v. S. Union Realty Co.

, 758 S.W.2d 608, 610

(Tex. App.

— Dallas 1988, no writ)).

Address All Claims

Caballero also argues the trial court erred by granting appellees’ motion for

summary judgment because it “did not address Caballero’s factual statements and

argument in Caballero’s Original Petition paragraphs 4 or 8 through 18 .” Paragraph

4 allege s that Wilmington “is a foreign fiduciary that does not maintain a registered

agent, as required under the Texas Estates Code.” Paragraph s 8 through 14 allege

the reasons why Caballero believes World Savings Bank never transferred the loan,

which he asserts involved a 1031

- exchange with a mortgage collateralization

scheme. P aragraph s 1 5, 16, and 17 describe the modifications of the loan agreement.

Paragraph 18 describes Caballero’s concern about whether his $100,000 payment

was properly applied to the loan and his attempts in 2016 to obtain the payment

history. Caballero asserts that he did not have the burden of proof o n these matters.

Under rule 166a(i), appellees’ only burden was to specify the elements of

Caballero’ s causes of action on which Caballero had the burden of proof that lacked

evidentiary support

. See T EX

. R. C IV

. P. 166a(i). Appellees did this for each of

Caballero’s causes of action. Caballero then had the burden to produce some

evidence supporting those elements. Id. Caballero as serts in his brief that he did– 17

–

not have the burden of proof under Rule 166a, but he does not explain why he did

not have the burden of producing some evidence as required by Rule 166a(i)

.

Caballero has not shown that appellees had to address the facts alleged in paragraphs

4 or 8 through 18 of his petition to be entitled to summary judgment.

Lack of Authentication of Appellees’ Exhibits

Caballero also argues the trial court erred by granting appellees’ motion for

summary judgment because appellees’ exhibits containing the note and the 2009

modification were not authenticated. Although Caballero objected in the trial court

that these exhibits lacke d authentication, the trial court made no ruling on his

objections

. A complete absence of authenticating evidence is a defect in substance

that may be raised for the first time on appeal

. Blanche v. First Nationwide Mortg.

Corp.

, 74 S.W.3d 444, 451 (Tex. App.

— Dallas 2002, no pet.). However, a

complaint that evidence was not properly authenticated is a defect of form that must

be object ed to and ruled on in the trial court

. Seim v. Allstate Tex. Lloyds , 551

S.W.3d 161, 164 (Tex. 2018)

.

E ven if any error were preserved and existed, we could not reverse unless the

error probably caused the rendition of an improper judgment. T EX

. R. A PP

. P.

44.1 (a)(1). If the record were reviewed without considering these exhibits

, there

would still be no evidence in support of Caballero’s claims. See Seim , 551 S.W.3d

at 166. Therefore, the trial court’s consideration of appellees’ exhibits did not– 18

–

probably cause the rendition of an improper judgment, and any error i s not

reversible.

Caballero’s Marital Status

Caballero argue d in his response to the motion for summary judgment and he

argues on appeal that the trial court erred by granting appellees’ motion for summary

judgment because he was married and his spouse was not a party to the

modifications. Caballero asserts that without the joinder of his spouse

, the

modification s violated article 16, section 50(c) of the Texas Constitution “ and [were]

thus constitutionally deficient to perfect a lien on the Property.” See T EX

. C ONST

.

art. XVI, § 50(c).

Caballero did not allege the violation of article 16, section 50(c) in his petition,

nor did he allege that he was married. Appellees were not required to move for

summary judgment on claims that Caballero did not plead. Clark

, 460 S.W.3d at

729.

We conclude the trial court did not err by granting appellees’ motion for

summary judgment. We overrule Caballero’s second issue.– 19

– CONCLUSION

W e affirm the trial court’s judgment.

190298 F

. P 05 /Lana Myers /

LANA MYERS

JUSTICE– 20

– 

### Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

ANTONIO CABALLERO,

Appellant

No. 05

- 19

- 00298

- CV V.

RUSHMORE LOAN

MANAGEMENT SERVICES LLC

AND WILMINGTON SAVINGS

FUND , FSB, D/B/A CHRISTIANA

TRUST, AS TRUSTEE FOR

NORMANDY MORTGAGE LOAN

TRUST SERIES 2015

- 1 , Appellees On Appeal from the 14th Judicial

District Court, Dallas County, Texas

Trial Court Cause No. DC

- 17

- 07665.

Opinion delivered by Justice Myers.

Justices Whitehill and Pedersen, III

participating.

In accordance with this Court’s opinion of this date, the judgment of the trial

court is AFFIRMED

.

It is ORDERED that appellees Rushmore Loan Management Services LLC

and Wilmington Savings Fund, FSB, d/b/a Christiana Trust, as trustee for

Normandy Mortgage Loan Trust Series 2015

- 1 recover their costs of this appeal

from appellant Antonio Caballero

.

Judgment entered this 7 th day of April, 2020

.