### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00716- CV

Roy Blizzard and Donn a Blizzard, Appellan ts

v. Select P ortfolio Servicing f /k/a Fairbanks Cap ital and Manuf acture rs and Traders Trust Com pany, Ap pellees

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 277 TH JUDICI AL DISTRICT

NO. 12- 1132 -C27 7, H ONO RAB LE K EN ANDERSON, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Roy Blizz ard and Donna Blizz ard appea l a judgme nt rende red in fav o r o f Select Portfolio S er v i cing f/k/ a Fairba nks Capital (SPS ) and Manufa cture rs and Trade rs Trust Company (MTT). The Blizz ards filed suit seeking a deter mination reg arding whether either SPS or MTT was entitled to rec eive the f

inal balloon pay

ment on the Bliz zards’ mortg ag e note a nd asser ting c auses of action for fra

ud, violations of the Texas Fa ir Debt Collection Practice s Act, and filing a fra udulent lien or claim. The trial court g rante d SPS and MTT’s motion for summary judgme nt and dismiss ed all of t he Bliz zards’ claims ag ainst them. On appe al, the Bliz zards asser t that summary judgme nt

was i m p ro p er b eca

use of the exis tence of a g enuine issue of materia l fac t reg arding whether the final balloon pay

ment should be made to SPS

. The Blizz ards also challeng e the leg al g round for the trial court’ s summary

judgme nt on their fra

udulent lien claim. We will affirm.BACK GR OUND I n 1995, the Blizz ards purcha sed a house with the proce eds of a loan obtained from Horizon Ba

nk. I n 1997, the Blizz ards ref inance d the loan and executed a balloon promissory note in th e a mo u n t o f $ 5 0 , 7 0 0 p a

y a b le to N o r th A me r ic a

n M o r tg a g e Co mp a

ny . T h e B li zza

r d s a ls o e xe c u te d

a deed of trust secur ing pay ment of the debt evidenc ed by the note. The deed of trust provided that North Americ an Mortg ag e Company was the benef iciary of that instrument. Shortly there afte r, North Americ an Mortg ag e Company executed an as s i gn m en t of the deed of trust and the note to ContiMortgag e Corporation. T h e n o t e wa s indorsed first with a specia l indorsement from North Americ an Mortg ag e Company to ContiMortgag e Corporation and then with a blank i n dorsement by ContiMortgag e Corporation. Both indorsements are stamped on the back pag e of the orig inal
note and are signe d by authorized signa tories for North Americ an Mo rt gage C o mpany and for ContiMortgag e Corpora

tion. I n Aug ust 2001, SPS acquir ed servicing rig hts to the Blizz ards’ loan. Since 2001, 1 the Blizz ards have made all pay ments on the note to SPS

. The note had a maturity date of October 2, 2012, at which time all amounts due on the note wer e require d to be paid in full. One y ear befor e the final balloon pay

ment was due, SPS mailed the Blizz ards a letter reminding them of the maturity date and that pay

ment should be mad e t o S P S

. SPS sent a second reminder in Marc h 2012, and
ag ain d i re ct ed t h e Bliz zards to make the final pay ment to SPS

. The Blizz ards did not make the final balloon pay

ment. On October 16, 2012, the Blizz ards filed the underly ing suit ag ai n s t J P

At that time, SPS was known as F airba nks Capital. Fair

banks Capital cha

ng ed its name 1 to Select Portfolio Servicing in 2004. 2Morg an Chase, N.A., ContiMortgag e Corporation, SPS , M T T, Boston Portfolio Advisors, and

CFN L iquidating Trust. At the time of the summary -judg ment hear ing, Boston Portfolio Advisors 2 had filed an answe r in which it disclaimed any interest in the note or deed of trust. The rec ord does
not contain an y responsive pleading s for J P Morg an C hase, N.A., ContiMortgag e C orpora tion, or CFN L iquidating Tr

ust. The Blizz ards’ first amende d petition beg ins with a para g raph entitled “Summary ,” which states:

This is a rea l estate note case broug ht by Roy and Donna Bl i z z ar d. The Blizz ards are seeking to asce rtain which party is the owner and holder of the l o an and note associate d [wit h] the proper ty that they purcha sed in 1997. The Blizz ards alleg e that no leg itimate owner a

nd holder of this note ha s been ide ntified.
The pe tition further stated that the Blizz ards had paid $41,281.47 into the reg istry of the court and that the suit was broug ht to deter mine “the rig htful owner and holder of the Note and Dee d of Trust,

so that the Plaintiffs may satisfy the rema inder due on their home loan.” The Blizz ards also asser ted

a cause of action to quiet title to the proper ty and alleg ed that the named d ef en d ants (1) violated chapte r 12 of the Texas Civil Practice and Remedies Code by filing fra udu lent liens or claims, (2) violated the Texas Fa ir Debt Collection Practice s act by threa tening to take actions they wer e not lawfully entitled to take, and (3) committed actionable fra ud by making misrepre sentations that cause d the B liz zards to pay money to SP S that SP S was not entitled to rece ive.

Ac co rd i n g to the petition, these parties are “all of the alleg ed lender s and mortg ag e 2 service rs that have held out or have been held out by others as having an interest in the Note and/or Dee d of Trust.” 3SPS and MTT filed a traditional and a no-evide nce motion for summary judgme nt, which the trial court g rante d. The trial court dismiss ed all claims ag ainst SPS and MTT and sever ed the claims ag ainst SPS and MTT from those ag ainst the other defe ndants, making the judgme nt final and appe alable. T he B liz zards then per fec ted this appea l.

DISCUSSIO N On appea l, the Blizz ards arg ue that summary judgme nt was improper beca use there

was a g enuine issue of materia l fac t reg arding who was entitled to rec eive pay ments under the note and beca use chapte r 12 of the Texas Civil Practice and R em ed i es Code does not apply solely to fra udulent liens, but also to a fra udulent assig nment of a de ed of trust. 3
Proper Party to Rece ive Pay m ents on t he Note T h e Bliz zards asser

t in their brief that the identity of the party entitled to rec ei v e pay ments under the note is in dispute. We understand the Blizz ards to arg ue that the trial court

err ed in conc luding that, a s a matter of law, SPS was the pa

rty entitled to rec eive the f

inal balloon
pay ment. The summary -judg ment evidenc e established that SPS was in posse ssion of the orig inal

The “I ssues Presented” portion of the Blizz ards’ brief is composed of thirteen para g raphs 3 s ta ti n g v a r io u s r e a s o n s th e y b e li e v e s u mm a r y ju d g me n t w a s im

p r o p e r . H o w e v e r , th e a

r g u me n t s e c ti o n of the brief is more limit ed, addre ssin g o nly whether there was a g enuine issue of materia l fac t reg arding whether SPS was entitled to pay men t under the note and whether chapte r 12 of the Texas Civil Practice and Remedies Code applies to doc uments other than liens. We will there fore confine our analy sis to the two issues the Blizz ards briefe d and will not addre ss the rema ining unbriefe d issues. See Tex. R. Ap p . P

. 3 8.1(i) (appe llant’s brief must contain clea r and concise arg ument that includes appropr iate citations to authorit ies and rec ord); Canton-Carter v. Baylor Coll. of Med. , 271 S.W .3d 928, 931 (Tex. App.—Houston [14t h Dist.] 2008, no pet.) (“Fa ilure t o cite leg al authority or to provide substantive analy sis of the leg al issues prese nted results in waiver of the c omplaint.”). 4“we t ink” note, indorsed in blank. SPS and MTT submitt ed ex ce rp t s fr om the depositions of

Roy Bliz zard and Donna Blizz ard in which eac h authentica ted the note by acknow ledg ing their signa tures there on. The summary -judg ment evidenc e included the aff idavit of Michelle Simon, in whi ch she aver

red that “SPS is in possession of t he original Balloon Note, and S PS maintains the orig inal Ba lloon Note in a collater al file containing other orig inal documents re lating to the loan.” This a ffidavit was uncontrove rted. Finally , counsel for SPS and MTT broug ht the orig inal note to the summary -judg ment hear ing. The Blizz ards prese nted no evidenc e to challeng e the indorsements on the note, including the indorsement in blank by ContiMortgag e Corpora tion. This evidence conclusively establishes that SPS was entitled to rec eive the ba lloon
pay ment under the note. A person is entitled to enfor ce a neg otiable instrument if that person is “the holder of the instrument.” Tex. Bus. & Com. Code § 3.301. A “holder ” is “the person in possession of a neg otiable instrument that is pay able either to bear er or to an identified person that is the person in possession.” Id. § 1.201(b)( 21)(A)

. “When i ndorsed in b l ank, an instrument become s pay able
to bear er an d m ay b e neg otiated by transfe r of possession alone until specia lly indorsed.” Id. § 3.205(b). Her e, it was undisputed that the note was indorsed in blank and was in SPS ’s possession. Consequ en tly , SPS was entitled to enfor ce the note and rec eive pay ment from the Blizz ards. See,
e.g. , Bierwirth v. BAC Home Loans Servic ing, L.P. , No. 03-11-00644- CV, 2012 WL 3793190, at *5 (Tex. App.—Austin Aug

. 30 , 2 0 1 2 , no pet.) (mem. op.) (“A n instrument containing a blank endorse ment is p ay ab l e t o the bear er and may be neg otiated by transfe r of possession alone.” ); Robeson v. Mortgage Elec. Registration Sys., Inc. , No. 02-10-00227-C V, 2 0 1 2 W L 42965, at *4 (Tex. App.—For

t Worth J an. 5, 2012, pet. denied) (mem. op.) (same)

. The trial court did not err in concluding that, as a ma tter of law , SPS was e ntitled to rece ive the balloon pay ment on the note.
5On appea l, the Blizz ards maintain that SPS did not conclusively establish its rig ht to

rec eive pay

ments under the note. First, the Blizz ards point to section 3.201(b) of the Texas Business and Commerce Code, which provides that “[ i ] f an instrument is pay able to an identified person, neg otiation requires transfe r of possession of the instrument and its indorsement by the holder.” S ee T ex . Bu s. & Com. Code § 3.201(b). Thus, acc ording to the Blizz ards, SPS was require d t o conclusively prove the transfe r by which it acquir ed the note, which they cont en d i t failed to do. Section 3.201(b), howeve r, applies to an instrument pay able to an identified person, not one indorsed in blank as in the prese nt case . When an instrument is indorsed in blank, it become s “pay able to the bear er and may be neg otiated by transfe r of possession alone.” Id. § 3.205(b). Be cause the note was indorsed in blank, S P S’s possession of the note was sufficie nt to prove it was the note’s holder entitled to pay

ment. The Blizz ards’ relianc e on Jernigan v. Bank One, Texas, N.A. , 803 S.W .2d 774 ( T e x. A p p . — H o u s to n [1 4 th D is t. ] 1 9 9 1 , n o w r it ) , is s im il a r ly mi s p la c e d

. J

e r n ig a n is in a p p li c a b le to this case beca

use the note at issue in that case was not indorsed to bear er or in blank. Id. at 775-76. T h e summary judgme nt evidenc e established that SPS was in possession of an instrument indorsed in blank and, as its holder, was entitled to pay ment. SPS was not require d to prove the transfe r by which it acquir ed the note. See Tex. Bus. & Com. Code § 3.205(b). The trial 4

The Blizz ards’ brief also includes a discussion of the distinction betwee n a “statutory 4 mortg ag ee” and a “common-la w mortg ag ee” in a

n eff ort to explain why neither SPS nor MTT is a “m o rt gage e” with the power to fore close on the proper ty secur ing the note. As set forth abov e, howeve r, a party in possession of a note indorsed in blank is its holder entitled to pay ment reg ardle ss of whe ther it is a lso a mortg ag ee. T he fa ct that SPS was in possession of a note indorsed in blank was dispositi ve of the issue of whether SPS was entitled to rec eive the final balloon pay ment on the promissory

note. 6court did not err in g ranting SPS and MTT’s motion for summary judgme nt that SP S was entitled to pay ment of the ba lance of the note.

Texas Civil Practice and Remedies Code Ch apter 12

The Blizz ards alleg ed in their amende d petition that the defe ndants violated chapte r 12 of the Texas Civil Practice and Remedies Co d e b y p re s enti ng and using documents or other

rec ords with knowledg e that they constituted a fra u dulent claim to an interest in rea l proper ty

. Section 12.002 provides:
(a) A per son may

not make, pre sent, or use a document or othe r re cord w ith: (1) knowledg e that the document or oth er re co rd i s a fra udulent court rec ord or a fra udulent lien or claim ag ainst rea l o r persona l proper ty or an interest in rea l or persona l property ; (2) intent that the document or othe r cour t rec ord be g iven the same leg al ef fec t as a court rec ord or document of a court cre ated by or established under the constitution or laws of this state or the United States or another entity listed i n S ection 37.01, Penal Code, evidenc ing a valid lien or claim ag ainst rea l or persona l property or an interest in re al or pe rsonal prope rty , and (3) intent to ca

use anothe r per son to suffer : (A) phy sical injury ; (B ) financ ial injury ; or (C) mental a

ng uish or emotional distress.

Tex. Civ. Prac. & Rem. Co d e § 12.002. The Blizz ards alleg ed that various documents, including assig nments of their deed of trust to MTT, wer e fra udulent and that SPS and MTT violated section 1 2

. 0 0 2 b y ma

k in g , p r e s e n ti n g , o r u s in g th o s e d o c u me n ts

. S P S a

n d M T T mo v e d f

o r s u mm a r y ju d g me n t

on the ground that the documents, consi s t i ng of allege dly defe ctive assignments, appointm ents of

7substitut e trustees, notices of trustee’ s sales, and substitut e trustee’ s deed, wer e not “liens” or claims

to p r o p e r ty f a ll in g w it h in th e p u r v ie w o f s e c ti o n 1 2

. 0 0 2

. SP S a n d M T T a r g u e d th a t th e s ta tu te c r e a te d

a cause of action against a person who filed a fra udulent judgme nt lien or fra udulent documents purporting to create a lien ag ainst or interest in proper ty , not documents as s i gn i n g o r notify ing a party of action being taken on an existing lien or interest in proper ty

. SPS and MTT also moved for

a no-evide nce summary judgme nt on the g round that the Blizz ards prese nted no evidenc e that either SPS or MT T (1) used any document with knowledg e that it was fra udulent or with the intent to dece ive and (2) intended to ca u se the Blizz ards either phy sical injury , financ ial injury , or mental
ang uish. The trial court g rante d the motion for summary judgme nt without specify ing the g rounds. On appea l, the Blizz ards urg e this Court “to hold tha t a n ‘assig nment’ of interest in

a Dee d of Trust can constitute a claim of an interest in rea l p ro p er t y , an d that Chapter 12 does there fore apply to such assig nments when they are fra udulent.” The Blizz ards do not challeng e on appea l the no-evide nce g rounds for summary judgme nt reg arding their chapte r 12 claims. The trial court’s or der g ranting summary judgme nt does not specify the g round or g rounds on which it was based. A party appea ling such an order must neg ate all possible g rounds on which the order could have been based by either asser ting a separ ate issue challeng ing eac h possible g round, or asser ting

a g ener al iss u e that the trial court err ed in g ranting summary judgme nt and within that issue providing arg ument neg ating all possible g rounds on which s u m m ar y judgme nt could have been
g rante d. See W

ilhite v. Glazer’s W

holesale Drug Co

. , 3 0 6 S

. W

. 3 d 952, 954 (Tex. App.—Dallas 2010, no pet.). I f the appellant does not challeng e eac h possible g round for summary judgme nt, we must uphold the summary judgme nt on the unchalleng ed g round. See Adams v. First Nat’l Bank of

8Bells/Savoy , 154 S.W .3d 859, 875 (Tex. App.—Dallas 2005, no pet.) (“ [ A] reviewing court will

af firm the summary judgme nt as to a particula r claim if an appellant does not presen t ar gu m en t challeng ing all g rounds on which the summary judgme nt could have been g rante d.”). The Blizz ards have neither challeng ed the no-evide nce g rounds for summary judgme nt as to the fra udu l en t lien claim nor explained how the summary -judg ment evidenc e raised fac t issues as to particula r essential elements of that claim. Consequently , we will a ffirm the summary judgme nt a s to tha t c laim. See La Paz Funeral Home, Inc. v. Foreve r Ent ers., Inc. , No. 03-05-00196-CV; 2007 WL 1451665, at *2 (Tex. App.—Austin May 16, 2007, no pet.) (mem. op.) (citing Provident Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 216 (Tex. 2003)).

CONCLUSION For the rea sons stated above, we aff irm the trial court’s order g ranting summary judgme nt and dismissi ng the B liz zards’ cla ims ag ainst SP S and MTT.

__________________________________________ Scott K. Field, Just ice Be fore J ustices Pury ear , Pemberton, and F ield Affir med Filed: Aug ust 27, 2015

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