REVERSE and RENDER in part; AFFIRM in part; and Opinion Filed April 

13, 2023 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-21-00824-CV 

JACK STADTMAN AND SARAH STADTMAN, Appellants 

V. 

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, 

IN TRUST FOR REGISTERED HOLDERS OF LONG BEACH 

MORTGAGE LOAN TRUST 2005-WL3, 

ASSET-BACKED CERTIFICATES, SERIES 2005-WL3, Appellee 

On Appeal from the 471st Judicial District Court 

Collin County, Texas 

Trial Court Cause No. 471-05554-2018 

MEMORANDUM OPINION 

Before Justices Molberg, Reichek, and Breedlove 

Opinion by Justice Breedlove 

The trial court rendered summary judgment for the appellee bank in this suit 

for judicial foreclosure of a home equity lien. Borrowers Jack Stadtman and Sarah 

Stadtman appeal, contending the trial court erred by admitting certain evidence, by 

denying their motion for summary judgment, by granting summary judgment for the 

bank, and by awarding the bank its attorney’s fees after the bank withdrew its request 

for them. Concluding that the bank established its right to judgment as a matter of 
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law, but that the trial court’s judgment improperly includes an award of attorney’s 

fees, we affirm the trial court’s judgment in part, reverse in part, and render judgment 

deleting the award of attorney’s fees. 

BACKGROUND

On July 2, 2005, appellant Jack Stadtman signed a Texas home equity note to 

Long Beach Mortgage Company in the amount of $749,995.00. The same day, 

Stadtman and his wife Sarah Stadtman executed a Texas home equity security 

instrument granting Long Beach a lien on their homestead. The maturity date of the 

loan was August 1, 2035. Long Beach subsequently indorsed the note in blank, and 

the appellee Bank now has possession of the original note. The Bank is also the 

assignee of the note and security interest by recorded assignment from Long Beach’s 

successor in interest. The loan has been in default since May 1, 2009. 

When Jack Stadtman filed a bankruptcy petition in 2008, the bankruptcy court 

granted the Bank’s motion to lift the automatic stay. The Bank then filed an 

application in the 199th District Court for an expedited order allowing foreclosure 

of the lien. See TEX. R. CIV. P. 736 (requirements for expedited order proceeding in 

certain foreclosures). That court granted the application on March 23, 2010, ruling 

that the Bank “should proceed with foreclosure of the Property under the terms of 

the security instrument and Texas Property Code § 51.002,” but the Bank did not do 

so. 
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Several years elapsed with no further payment by the Stadtmans. The Bank 

sent the Stadtmans notices of intent to accelerate the loan in 2010, 2012, 2013, and 

2014, then accelerated the loan on January 20, 2015, when the Stadtmans did not 

cure the default. 

The Bank filed this suit for judicial foreclosure on October 22, 2018, then 

recorded a notice rescinding the 2015 acceleration. The Bank provided the 

Stadtmans a new notice of default and intent to accelerate, and a final notice of 

acceleration on July 18, 2019. 

The Bank filed a motion for summary judgment, seeking declarations to 

support its foreclosure of the lien. The Stadtmans responded, alleging that the Bank 

did not prove it was the owner and holder of the note and challenging the Bank’s 

request for attorney’s fees. In reply, the Bank withdrew its claim for attorney’s fees. 

The Stadtmans also moved for summary judgment. They argued that 

limitations on the Bank’s claims expired four years after the bankruptcy court’s June 

15, 2009 order lifting the automatic stay. 

The trial court heard the parties’ motions on August 23, 2021. After the 

hearing, the trial court signed orders denying the Stadtmans’ objections to the Bank’s 

summary judgment evidence and denying the Stadtmans’ motion for summary 

judgment. The trial court granted the Bank’s summary judgment motion and 

rendered final judgment for the Bank. The judgment included an award of attorney’s 

fees. This appeal followed. 
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ISSUES AND STANDARDS OF REVIEW

In their “Statement of Issues,” the Stadtmans contend the trial court erred by 

(1) admitting business records unsupported by a proper affidavit, (2) admitting 

certain affidavit evidence, (3) denying their motion for summary judgment, and 

(4) concluding that the Bank’s suit was not barred by limitations. The argument 

section of the brief contains additional complaints that the Bank did not establish it 

was the owner and holder of the note and that the trial court erred by awarding the 

Bank its attorney’s fees. 

We review a trial court’s decision to grant a motion for summary judgment de 

novo. Helix Energy Solutions Grp., Inc. v. Gold, 522 S.W.3d 427, 431 (Tex. 2017). 

“We review the evidence presented in the motion and response in the light most 

favorable to the party against whom the summary judgment was rendered, crediting 

evidence favorable to that party if reasonable jurors could, and disregarding contrary 

evidence unless reasonable jurors could not.” Mann Frankfort Stein & Lipp 

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). 

To prevail on a traditional motion for summary judgment, the movant has the 

burden to demonstrate that no genuine issue of material fact exists and judgment 

should be rendered as a matter of law. TEX. R. CIV. P. 166a(c). “When both sides 

move for summary judgment and the trial court grants one motion and denies the 

other, the reviewing court should review both sides’ summary judgment evidence 
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and determine all questions presented.” FM Props. Operating Co. v. City of Austin, 

22 S.W.3d 868, 872 (Tex. 2000). 

We review a trial court’s decision to admit or exclude summary judgment 

evidence for abuse of discretion. Harris v. Showcase Chevrolet, 231 S.W.3d 559, 

561 (Tex. App.—Dallas 2007, no pet.). A trial court abuses its discretion when in 

acts without reference to guiding rules and principles. Downer v. Aquamarine 

Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). To obtain reversal of a 

judgment based on error in the admission or exclusion of evidence, a party must 

show “that the error was reasonably calculated to cause and probably did cause 

rendition of an improper judgment.” Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 

394, 396 (Tex. 1989). “We must review the entire record to determine whether the 

judgment was controlled by the evidence that should have been excluded.” Lopez v. 

La Madeleine of Tex., Inc., 200 S.W.3d 854, 864 (Tex. App.—Dallas 2006, no pet.). 

DISCUSSION

We first consider whether the trial court erred by denying the Stadtmans’ 

motion for summary judgment. We then turn to the Stadtman’s arguments that the 

Bank failed to establish its right to judgment as a matter of law. 

A. Limitations

The cause of action for foreclosure of a deed of trust lien accrues, and 

limitations commences, on the maturity date of the final installment or when the 

holder exercises its option to accelerate. Castillo v. Branch Banking & Tr. Co., 
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No. 05-19-00854-CV, 2020 WL 1983361, at *4 (Tex. App.—Dallas Apr. 27, 2020, 

pet. denied) (mem. op.). Suit must be brought not later than four years after the day 

the cause of action accrues. TEX. CIV. PRAC. & REM. CODE § 16.035(a). 

“Effective acceleration requires two acts: (1) notice of intent to accelerate, and 

(2) notice of acceleration. Both notices must be clear and unequivocal.” Holy Cross 

Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001) (citations omitted). 

In response to the Stadtmans’ motion for summary judgment, the Bank offered 

evidence of its notices accelerating the maturity of the note and rescinding prior 

accelerations less than four years prior to filing this suit on October 22, 2018. 

In the trial court, the Stadtmans sought summary judgment on the sole ground 

that limitations began to run on June 15, 2009, the date of the bankruptcy court’s 

order granting the Bank relief from the automatic stay. The Stadtmans did not cite 

authority to support this proposition, the Bank argues there is none, and we have 

found none. We conclude the trial court did not err by denying summary judgment 

for the Stadtmans on this ground. See Castillo, 2020 WL 1983361, at *4 (limitations 

on foreclosure action commences on the maturity date of the final installment or 

when the holder exercises its option to accelerate.)

On appeal, the Stadtmans rely on several different dates—all more than four 

years prior to October 22, 2018—in support of their argument that limitations had 

run. Among other arguments, the Statdmans now contend that limitations began to 

run in 2010 when the Bank filed its application for expedited foreclosure under 
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former civil procedure rule 736. We may not consider these arguments on appeal 

because the Stadtmans did not raise them in the trial court. Affordable Motor Co., 

Inc. v. LNA, LLC, 351 S.W.3d 515, 521–22 (Tex. App.—Dallas 2011, pet. denied) 

(in suit on promissory note and guaranty agreement, court of appeals could not 

consider new limitations argument not expressly presented to trial court); see also 

TEX. R. CIV. P. 166a(c) (“Issues not expressly presented to the trial court by written 

motion, answer or other response shall not be considered on appeal as grounds for 

reversal.”). Concluding that the trial court did not err by denying the Stadtmans’ 

motion, we decide the Stadtmans’ third and fourth issues against them. 

B. Bank’s right to foreclose

The Stadtmans argue that a material fact issue exists as to whether the Bank 

is the owner and holder of the note. They contend the Bank’s proof “fails to address 

any transfer to Washington Mutual Bank, or from Long Beach Mortgage Company,” 

and therefore “fails to connect the dots between Long Beach Mortgage Company 

and the [Bank].” 

The Bank responds that it is the holder of the note because the note is indorsed 

in blank by the original lender, the Bank is in possession of the original, indorsedin-blank note, and the Bank offered summary judgment proof of those facts. See 

Zarges v. Bevan, 652 S.W.2d 368, 369 (Tex. 1983) (per curiam) (photocopy of note 

attached to affidavit of plaintiff who swore it was true and correct copy was proper 

summary judgment evidence). 
 –8– 

The Bank also argues that it is the owner/assignee of the note and security 

instrument by virtue of the assignment from JPMorgan Chase Bank, N.A., “which 

reflects an unbroken chain of title” to the Bank from Long Beach, the original lender 

and beneficiary of the security instrument. The chain of title from Long Beach to JP 

Morgan Chase to the Bank is shown under the signature block of the assignment and 

repeated in the verification: “JPMorgan Chase Bank, National Association, as 

purchaser of the loans and other assets of Washington Mutual Bank, formerly known 

as Washington Mutual Bank, FA (the –Savings Bank–) from the Federal Deposit 

Insurance Corporation, acting as receiver for the Savings Bank and pursuant to its 

authority under the Federal Deposit Insurance Act, 12 U.S.C. § 1821(d), as successor 

in interest to Long Beach Mortgage Company by operation of law.” 

We conclude the Bank established by summary judgment evidence that it is 

the owner and holder of the note. See Zarges, 652 S.W.2d at 369. 

C. Admission of evidence 

We next consider the Stadtmans’ challenges to the Bank’s summary judgment 

evidence. They argue the trial court erred by admitting two affidavits of Patrick 

Riquelme, a Document Control Officer for Select Portfolio Servicing, Inc. (SPS), 

because (1) the affidavits were not sworn before a notary, (2) the affidavits do not 

satisfy the business records exception to the hearsay rule because Riquelme lacked 

personal knowledge of the necessary facts, (3) the affidavits are conclusory, and 

(4) Riquelme misstated the source of one of the attached documents. 
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1. Requirements for affidavits 

An affidavit is “a statement in writing of a fact or facts signed by the party 

making it, sworn to before an officer authorized to administer oaths, and officially 

certified to by the officer under his seal of office.” TEX. GOV’T CODE § 312.011(1). 

Summary judgment affidavits “shall be made on personal knowledge, shall set forth 

such facts as would be admissible in evidence, and shall show affirmatively that the 

affiant is competent to testify to the matters stated therein.” TEX. R. CIV. P. 166a(f); 

Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) (per curiam). “Conclusions in an 

affidavit are insufficient either to support summary judgment or to raise a fact issue 

in response to a summary-judgment motion.” Holloway v. Dekkers, 380 S.W.3d 315, 

323 (Tex. App.—Dallas 2012, no pet.). “A conclusory statement is one that does not 

provide the underlying facts to support the statement.” Id.

Evidence rule 803(6) establishes an exception to the hearsay rule for certain 

business records. TEX. R. EVID. 803(6). Subsections (A) through (E) of the rule set 

forth the requirements for admission. Id. A records custodian or other qualified 

witness must testify that the record was made and kept in accordance with these 

requirements. See id. In addition to documents the business itself creates, “[a] 

document authored or created by a third party may be admissible as business records 

of a different business if: (a) the document is incorporated and kept in the course of 

the testifying witness’s business; (b) that business typically relies upon the accuracy 

of the contents of the document; and (c) the circumstances otherwise indicate the 
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trustworthiness of the document.” Savoy v. Nat’l Collegiate Student Loan Tr. 2005-

3, 557 S.W.3d 825, 831–32 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (internal 

quotation omitted); Cockrell v. Republic Mortgage Insurance Co., 817 S.W.2d 106, 

112–13 (Tex. App.—Dallas 1991, no writ) (“A document can comprise the records 

of another business if the second business determines the accuracy of the information 

generated by the first business.”).

2. Notarization 

The Stadtmans argue that Riquelme’s affidavits were not competent summary 

judgment evidence because they were not signed or sworn to before a notary. They 

rely on the deposition testimony of Cynthia May, also an SPS document control 

officer, who provided an affidavit on the Bank’s behalf. SPS, a loan servicing 

company, maintained electronic records of the Stadtmans’ loan documents. The 

Stadtmans cite May’s testimony that at SPS, officers’ affidavits were signed at 

workstations in a “document control room” where the officers reviewed supporting 

documents. May testified there would be 25 to 30 other officers in the room 

performing the same tasks. The officers would then take their signed affidavit and 

documents to a notary in the same room. The Stadtmans argue that under these 

circumstances, the SPS officers’ affidavits were not signed or sworn to “before” the 

notary, as required by § 312.011(1) of the government code and civil procedure rule 

166a(f). See TEX. GOV’T CODE § 312.011(1); TEX. R. CIV. P. 166a(f). 
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The Bank responds that § 312.011(1) requires an affidavit to be “sworn to” 

before an officer, and May explained how this requirement is met. May testified: 

“Once I reviewed the document and make sure everything’s complete, I stamp my 

name, I stamp my position, I sign my name, and I date the document. Then I hand 

it—I go to the notaries, raise my right hand, swear to the document, and they take it 

from there and then I’ll sign their book.” All of these actions take place in the 

document control room. We conclude that May’s testimony sufficiently established 

that the Bank’s supporting affidavits met the requirements of government code 

§ 312.011(1) and rule 166a(f). 

3. Personal knowledge 

The Stadtmans next contend that Riquelme’s affidavits “are not proper 

business record affidavits” because “there is nothing that shows how Patrick 

Riquelme knows anything about the events recorded on any third-party documents, 

how the information is incorporated into the records of SPS, or why the information 

is trustworthy.” In Botello v. MidFirst Bank, No. 05-19-00461-CV, 2020 WL 

3263434, at *2 (Tex. App.—Dallas June 17, 2020, no pet.) (mem. op.), we 

considered whether a loan servicing officer’s affidavit was sufficient to support the 

foreclosing lender’s motion for summary judgment. We explained that affidavits in 

support of a motion for summary judgment must be made on personal knowledge 

and must show how the affiant became familiar with the facts set forth in the 

affidavit. Id. “An affiant’s position or job responsibilities can qualify him to have 
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personal knowledge of facts and establish how he learned of the facts.” Id. (internal 

quotation and citations omitted).

In his affidavits, Riquelme states that he is a Document Control Officer with 

SPS. He explains his familiarity with SPS’s “Loan Records,” which he defines as 

“electronic records, an electronic file of imaged loan documents and 

correspondence, and hard-copy files of certain original loan documents” for the 

mortgage loans SPS services. In connection with his job duties and responsibilities 

as a Document Control Officer, he has access to the Loan Records and knowledge 

of how the Loan Records are “made, received, and maintained.” He states that when 

SPS receives documents from other parties regarding a loan that SPS services, the 

documents are placed in the Loan Records at or near the time they are received and 

are adopted as business records of SPS. He explains that SPS “conducts quality 

control and verification of the information received from the prior servicer” to ensure 

its accuracy during the “boarding process.” And he explains, “It is the regular 

practice of SPS to integrate prior servicers’ records into SPS’s business records, and 

to rely upon the accuracy of those boarded records in providing its loan servicing 

functions. These prior servicer records are integrated and relied upon by SPS as part 

of SPS’s business records and constitute Loan Records of SPS. These Loan Records 

are kept in the course of SPS’s regularly conducted business activity.” Riquelme 

authenticated the records attached to his affidavits as “exact duplicates of the original 

records of SPS.” 
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We conclude these statements sufficiently describe Riquelme’s position and 

responsibilities and the basis for his personal knowledge. See Botello, 2020 WL 

3253434 at *3 (affiant’s testimony that she was a vice president of the bank and had 

familiarity with the bank’s loan servicing records was sufficient to identify the basis 

for her personal knowledge); Hydroscience Techs., Inc. v. Hydroscience, Inc., 401 

S.W.3d 783, 792 (Tex. App.—Dallas 2013, pet. denied) (references to true and 

correct copies of documents in support of an affidavit can establish personal 

knowledge); Kyle v. Countrywide Home Loans, Inc., 232 S.W.3d 355, 359 (Tex. 

App.—Dallas 2007, pet. denied) (affiant’s testimony that she was both a foreclosure 

specialist and custodian of records for mortgagee with respect to mortgagor’s loan 

was sufficient to identify the custodian’s position and responsibilities, meeting 

personal knowledge requirement). 

4. Conclusory statements

The Stadtmans complain that many of Riquelme’s statements are 

“conclusory” because he lacks knowledge about the preparation of the original loan 

documents or the Stadtmans’ default. They cite Powell v. Vavro, McDonald & 

Associates, L.L.C., 136 S.W.3d 762, 765 (Tex. App.—Dallas 2004, no pet.), in 

support of their arguments. In that case, we concluded that a travel agency’s 

custodian of records could not provide the testimony required to establish that the 

Powells had received a refund from MasterCard of funds they had paid the travel 

agency for a vacation package. See id. at 764–65. The custodian relied on notice of 
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a chargeback the travel agency received from a credit card processing company 

rather than having any knowledge of MasterCard’s recordkeeping. Id. at 764. 

The Stadtmans acknowledge that under rule of evidence 803(6), “[b]usiness 

records that have been created by one entity, but which have become another entity’s 

primary record of the underlying transaction may be admissible” under evidence rule 

803(6). See Cockrell, 817 S.W.2d at 112–13. But they argue rule 803(6) does not 

apply here because Riquelme lacked the personal knowledge to testify about “the 

record-keeping practices of the ‘predecessor.’” As we have already discussed, 

Riquelme addressed SPS’s practices in verifying and relying on documents it 

receives regarding the loans it services, consistent with rule 803(6)’s requirements. 

See TEX. R. EVID. 803(6); Cockrell, 817 S.W.3d at 112–13. We conclude that 

Riquelme’s testimony about the documentation of the loan and the Stadtmans’ 

default was not conclusory. 

5. Misstatement about document’s source 

The Stadtmans also argue that one of Riquelme’s statements is false. 

Riquelme testified that Exhibit 3-C to his August 11, 2021 affidavit, a January 22, 

2013 letter giving notice of intent to foreclose, “was created and transmitted by the 

Harvey Law Group.” As the Stadtmans argue, Exhibit 3-C is a letter from Chase 

Bank to Jack Stadtman; only Exhibits 3-A and 3-B are from the Harvey Law Group. 

The Bank concedes that the letter was from Chase Bank and that Riquelme made a 

misstatement, but argues that Riquelme’s erroneous description of the letter in 2021 
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had no bearing on the efficacy of the notice in 2013.1

 After review of the entire 

record, we conclude that any error in overruling the Stadtmans’ objection to 

admission of Exhibit 3-C did not cause the rendition of an improper judgment. See 

TEX. R. APP. P. 44.1(a)(1); Gee, 765 S.W.2d at 396; Lopez, 200 S.W.3d at 864. 

We conclude the trial court did not abuse its discretion by overruling the 

Stadtmans’ objections to the Bank’s summary judgment evidence. See Harris, 231 

S.W.3d at 561. We decide the Stadtmans’ first two issues against them. 

D. Attorney’s fees

The Bank concedes that it withdrew its request for attorney’s fees in its reply 

to the Stadtmans’ summary judgment response. Accordingly, we sustain the 

Stadtmans’ complaint that the trial court awarded more relief than the Bank 

requested by awarding its attorney’s fees for trial and appeal. 

 

1

 The Bank argues, “[w]hile the notice itself could have been relevant because it shows an abandonment 

of any prior acceleration of the loan as of the date of the notice (a fact the Stadtmans never controverted), 

whether the notice was created by the Harvey Law Group, as counsel for Trustee, or by Chase, as servicer 

for Trustee, is irrelevant because both were acting on behalf of Trustee and, in any event, the efficacy of 

such a notice does not turn on who created it.” 
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CONCLUSION 

We reverse the trial court’s awards of attorney’s fees to the Bank and render 

judgment deleting those awards. In all other respects, we affirm the trial court’s 

judgment. 

210824F.P05 

 

/Maricela Breedlove/

MARICELA BREEDLOVE 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

JACK STADTMAN AND SARAH 

STADTMAN, Appellants 

No. 05-21-00824-CV V. 

DEUTSCHE BANK NATIONAL 

TRUST COMPANY, AS TRUSTEE, 

IN TRUST FOR REGISTERED 

HOLDERS OF LONG BEACH 

MORTGAGE LOAN TRUST 2005-

WL3, ASSET-BACKED 

CERTIFICATES, SERIES 2005-

WL3, Appellee 

 On Appeal from the 471st Judicial 

District Court, Collin County, Texas 

Trial Court Cause No. 471-05554-

2018. 

Opinion delivered by Justice 

Breedlove. Justices Molberg and 

Reichek participating. 

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

court is AFFIRMED in part and REVERSED AND RENDERED in part. We 

REVERSE that portion of the trial court’s judgment awarding attorney’s fees to 

appellee and render judgment deleting that award. In all other respects, the trial 

court’s judgment is AFFIRMED. 

 It is ORDERED that appellee Deutsche Bank National Trust Company, as 

Trustee, in Trust for Registered Holders of Long Beach Mortgage Loan Trust 2005-

WL3, Asset-Backed Certificates, Series 2005-WL3, recover its costs of this appeal 

from appellants Jack Stadtman and Sarah Stadtman. 

Judgment entered April 13, 2023