Affirmed and Opinion Filed March 5, 2014 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-12-01612-CV 

ANIL DAS & SHEELA DAS, Appellant 

V. 

DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE UNDER POOLING 

AND SERVICING AGREEMENT DATED AS OF APRIL 1, 2006 MORGAN STANLEY 

ABS CAPITAL I INC. TRUST 2006-NC3, BARCLAYS CAPITAL REAL ESTATE INC. 

D/B/A HOMEQ SERVICING, AND OCWEN LOAN SERVICING, LLC, Appellees 

On Appeal from the 101st Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. 11-07136-E 

MEMORANDUM OPINION 

Before Justices Moseley, Bridges, and Francis 

Opinion by Justice Francis 

This case involves the security interest on the residential property of Anil and Sheela 

Das. The Dases sued appellees to enjoin them from moving to foreclose on their property, 

alleging Deutsche Bank National Trust Company was not the holder of the note. Deutsche 

counterclaimed for breach of contract. After considering competing motions for summary 

judgment, the trial court rendered judgment in favor of appellees. The Dases appeal, arguing (1) 

none of the appellees is entitled to enforce the note, (2) appellees are estopped from relying on an 

endorsed version of the note, and (3) the note and deed of trust were separated, rendering the 

security interest in the property invalid. For reasons set out below, we reject their issues and 

affirm the trial court’s judgment. 
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On November 23, 2005, the Dases executed a promissory note to New Century Mortgage 

Corporation in the amount of $263,988 for the purchase of their home in Sunnyvale. The Note 

was secured by a Deed of Trust of the same date. The Deed was signed by the Dases and 

granted a security interest in the property to New Century. The Deed obligated the Dases to 

make monthly payments in accordance with the Note and authorized acceleration of the note 

balance and sale of the property in the event of default. 

The Dases got behind on their mortgage payments. In January 2009, the loan servicer, 

HomEq, notified the Dases they were in default and identified Deutsche Bank as the 

creditor/owner of the note. After attempts to work out a repayment plan failed, the property was 

scheduled for foreclosure on May 5, 2009. Four days before the scheduled sale, Anil Das filed 

for chapter 13 bankruptcy. The record does not indicate what happened with the bankruptcy. 

Two years later, in June 2011, the Dases filed this lawsuit against appellees alleging 

Deutsche Bank was not a holder of the Note or a nonholder with rights of a holder and therefore 

was not entitled to enforce the Note. They asserted claims for breach of contract and deceptive 

trade practices. They also sought declaratory and injunctive relief to prohibit appellees from 

moving to foreclose on their property. 

Appellees filed a general denial. In addition, Deutsche Bank counterclaimed for breach 

of contract, asserting it is the legal owner and holder of the Note and the Dases have failed to 

make full and timely payments under the Note. As relief, Deutsche Bank asked the court to 

declare the Dases in default on their payment obligations and to declare it may foreclose on the 

property under the Note and Deed of Trust. 

Both sides moved for summary judgment on the issue of whether Deutsche Bank was 

owner or holder of the Note. After considering the motions, the trial court granted appellees’ 

motion and denied the Dases’ motion. The trial court rendered judgment that (1) the Dases take 
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nothing on their claims, (2) the Dases are in default on the payment obligations under the Note 

and Deed of Trust, and (3) Deutsche Bank may foreclose on the property. The Dases appealed. 

The summary judgment rule provides a method of summarily ending a case that involves 

only a question of law and no fact issues. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. 

Co., 690 S.W.2d 546, 548–49 (Tex. 1985). When, as here, both sides move for summary 

judgment, and the trial court grants one motion and denies the other, we review the summary 

judgment presented by both sides and determine all questions presented. Commissioners Court 

v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). We review the summary judgment de novo to 

determine whether a party’s right to prevail is established as a matter of law. Howard v. INA 

County Mut. Ins. Co., 933 S.W.2d 212, 216 (Tex. App.—Dallas 1996, writ denied). 

Appellees moved for summary judgment on the ground that Deutsche is the holder of the 

Note. Attached to their motion was the affidavit of Paul Myers, a loan analyst at Ocwen Loan 

Servicing, LLC. Myers stated his job duties included researching loan histories of parties in 

litigation with Ocwen; determining whether or not the parties made timely principal, interest, 

escrow and other payments on their mortgages serviced by Ocwen; reviewing the loan files that 

Ocwen had for these parties to determine whether the loans were properly originated and 

serviced; and serving as Ocwen’s corporate representative in trials, court hearings, depositions, 

and mediations. Myers attested that he had researched and reviewed all of Ocwen’s documents 

regarding the subject loan. 

According to Myers, the original Note, after it was originated by New Century, was 

endorsed by New Century in blank. Myers further asserted that along with its execution of this 

endorsement, New Century, on December 1, 2005, executed an Assignment of Deed of Trust 

reflecting the assignment of the Note from New Century to an unnamed assignee. Myers further 

attested that on or about April 1, 2006, New Century transferred ownership of the Note to 
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Deutsche. Later, an assignment was executed on March 4, 2009 to reflect the assignment of the 

Note and Deed of Trust to Deutsche, and this assignment was recorded in the Dallas County real 

property records six days later. The assignment was signed by Joyce Nelson, an employee of 

HomEq, who had the authority from New Century to execute documents relevant to the Note for 

New Century. 

Further, Myers attested that HomEq was the loan servicer after the loan was originated by 

New Century in November 2005. The Dases’ loan service, including the Note, transferred to 

Ocwen on or about August 31, 2010, and Ocwen assumed the servicing agent obligations for the 

Note at that time. He also stated that Ocwen has physical possession of the Note and is 

maintaining physical possession of the Note in its capacity as the servicing agent for Deutsche. 

Finally, Myers stated that, as of October 1, 2012, the Dases were forty-seven months behind on 

their payment obligations and owed $366,185.92 on the Note. 

Attached to the affidavit as business records were copies of the (1) original note endorsed 

by New Century in blank; (2) the Deed of Trust; (3) the December 1, 2005 Assignment of Deed 

of Trust from New Century to an unnamed assignee; and (4) the March 4, 2009 Assignment of 

Note and Deed of Trust to Deutsche, signed by Nelson. 

To recover on a debt due under a promissory note, a lender must establish that the note in 

question exists, the debtor executed the note, the lender is the holder or owner of the note, and a 

certain balance is due and owing on the note. Martin v. New Century Mortg. Co., 377 S.W.3d 

79, 84 (Tex. App.—Houston [1st Dist.] 2012, no pet.). A “holder” is the “person in possession 

of a negotiable instrument that is payable either to bearer or to an identified person that is the 

person in possession.” TEX. BUS. & COM. CODE ANN. § 1.201(b)(21)(A) (West 2009). An 

instrument containing a blank endorsement is payable to the bearer and may be negotiated by 

transfer of possession alone. See id. § 3.205 (West 2002); Farkas v. Aurora Loan Svcs., LLC, 
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No. 05-12-01095-CV, 2013 WL 6198344, at *4 (Tex. App.—Dallas Nov. 26, 2013, no pet. h.) 

(mem. op.) 

Here, Myers attached to his affidavit a copy of the original note endorsed by New 

Century in blank. Myers also testified that Ocwen had physical possession of the Note and was 

maintaining physical possession in its capacity as servicing agent for Deutsche. Moreover, 

Myers swore that Deutsche acquired the Note from New Century. This evidence established 

Deutsche was holder of the Note. See Farkas, 2013 WL 6198344, at *4 (concluding party was 

“holder” of note because it was in possession of note that was endorsed payable to bearer at time 

of foreclosure). 

In reaching this conclusion, we reject the Dases’ argument that appellees are judicially 

estopped from relying on the note endorsed in blank because Deutsche attached an unendorsed 

note, made payable to the order of New Century, to a Proof of Claim in Anil’s bankruptcy 

proceeding. They cite Hall v. GE Plastic Pacific PTE Ltd., 327 F.3d 391, 396 (5th Cir. 2003) for 

the elements of judicial estoppel. The Hall court explained the doctrine as follows: 

Judicial estoppel ‘prevents a party from asserting a position in a legal proceeding 

that is contrary to a position previously taken in the same or some earlier 

proceeding.’ The purpose of the doctrine is to prevent litigants ‘from playing 

‘fast and loose’ with the courts . . . .’ In this Circuit, ‘two bases for judicial 

estoppel’ must be satisfied before a party can be estopped. First, it must be shown 

that ‘the position of the party to be estopped is clearly inconsistent with its 

previous one; and [second,] that party must have convinced the court to accept 

that previous position.’ 

327 F.3d at 396 (citations omitted). 

As to the first element, the Dases argue Deutsche took the position in the bankruptcy 

proceeding that the unendorsed version of the note (attached to the Proof of Claim) was true and 

correct, which is inconsistent with its present position that the endorsed version of the note is 

true and correct. Initially, we note our record does not show the unendorsed note was attached to 
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the Proof of Claim. The documents are found under different exhibits in the record.1

 

Regardless, we agree with appellees the documents are not clearly inconsistent. In the 

bankruptcy court, Deutsche filed a copy of the note as it existed at the time it was signed by the 

Dases at closing. As sworn to by Myers, the original note was later endorsed in blank by New 

Century. Thus, Deutsche produced an accurate copy of the note as it exists today in this 

litigation. 

As for the second element, the Dases argue the bankruptcy court “accepted [Deutsche’s] 

claim regarding the unendorsed version of the Note.” They cite no evidence to support this 

assertion and, when asked at oral argument, acknowledged any such evidence was outside the 

record. We conclude the Dases have failed to raise a fact issue as to judicial estoppel. To the 

extent they argue the unendorsed version of the note creates a material fact issue on Deutsche’s 

status as holder, we disagree for the same reasons set out previously. Specifically, Myers 

attested in his affidavit that the original note was later endorsed in blank by New Century, and 

the Dases have not produced any evidence to controvert this statement. 

Finally, the Dases argue the trial court erred in “failing to acknowledge the separation of 

the note and deed of trust which rendered the security interest void.” This issue was not raised 

below. According, it is waived. See TEX. R. CIV. P. 166a(c); City of Houston v. Clear Creek 

Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). We conclude appellees have conclusively 

established their entitlement to summary judgment. 

 

 1

 A copy of the Proof of Claim is found in the Appendix of Summary Judgment Evidence Supporting Plaintiff’s Motion for Summary 

Judgment as Exhibit G, but a copy of the Note is not attached. A copy of the Proof of Claim is also found in the Appendix of Summary Judgment 

Evidence in Support of Plaintiff’s Response to Defendant’s Motion for Summary Judgment as Exhibit A; a copy of the unendorsed Note is found 

in Exhibit B of the same pleading. 
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We affirm the trial court’s judgment. 

121612F.P05 

 

/Molly Francis/ 

MOLLY FRANCIS 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

ANIL DAS AND SHEELA DAS, 

Appellants 

No. 05-12-01612-CV V. 

DEUTSCHE BANK NATIONAL TRUST 

COMPANY AS TRUSTEE UNDER 

POOLING AND SERVICING 

AGREEMENT DATED AS OF APRIL 1, 

2005 MORGAN STANLEY ABS 

CAPITAL I INC. TRUST 2006-NC3, 

BARCLAYS CAPITAL REAL ESTATE 

INC. D/B/A HOMEQ SERVICING, AND 

OCWEN LOAN SERVICING, LLC, 

Appellees 

 On Appeal from the 101st Judicial District 

Court, Dallas County, Texas 

Trial Court Cause No. 11-07136-E. 

Opinion delivered by Justice Francis; 

Justices Moseley and Bridges participating. 

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

AFFIRMED. It is ORDERED that appellees DEUTSCHE BANK NATIONAL TRUST 

COMPANY AS TRUSTEE UNDER POOLING AND SERVICING AGREEMENT DATED 

AS OF APRIL 1, 2005 MORGAN STANLEY ABS CAPITAL I INC. TRUST 2006-NC3, 

BARCLAYS CAPITAL REAL ESTATE INC. D/B/A HOMEQ SERVICING, AND OCWEN 

LOAN SERVICING, LLC, recover their costs of this appeal from appellants ANIL DAS AND 

SHEELA DAS. 

 

Judgment entered March 5, 2014 

/Molly Francis/ 

MOLLY FRANCIS 

JUSTICE