## In the Court of Appeals Second A ppellate District of Texas at Fort Wor th

_______________ ____________ No. 02

- 19

- 00238

- CV

___________________________

On Appeal from the 48th District Court Tarrant County, Texas Trial Court No. 048

- 299558

- 18

Before Sudd erth, C.J.; Gabriel and Kerr, JJ. Memo randum Opinion by Justice Gabriel 

### J OSEPH 

### L ITTLETON 

### , Appellant

V


### . N ATIONSTAR 

### M ORTGAGE 

### L.L.C. , Appellee2 MEM ORANDUM OPINION
T his appeal involves a residential

- mortgage l oan agreement , appellant Joseph
Litt leton ’ s failure to pay under the terms of the note and securing deed of tru st , and appellee Nationstar Mortgage L.L.C. ’ s attempts to accelerate the in debtedne ss . Little t on sue d Nat ion star and raised claims for wrongful foreclosure , f raud, b reach of contract, and trespass to try title , bu t the trial court granted summary judgment in
N at ionstar ’ s favor

. Littleton now argues that material fact issues preclude d summary judgment o n his cl aims

. B ecause Littleton failed to raise a genuine issue of material
fact on any of his c laims , we affirm the trial court ’ s summary

- judgment order.
I. BAC KGROUND
A. T HE L O AN AND L ITTLETON ’ S P RIOR L I TIGATIO N In 1988, Glenn and Glenda Barnes executed a p romissory note in favor of Capitol City Savings Association in exchange for a n $85,790 loan to buy a home in Arlington (the property)

. T he Barneses also ex ecuted a d e ed of tr ust for th e property

to s ecure the note. Capitol City assigned the note and deed of trust to First National
B ank in 1989

. In 1991 , the Barneses ex ecuted a warranty deed conveying title to the property
to L ittleton. Littleton si g ned a n assumpt ion deed of trust, agreeing to assume the payment obligations under the Ba rneses ’ n ote and deed of trust. First Nation al Bank assigned the note and deed of t rust to BancPlu s Mortgage Corporation in 1992

.3

BancP lus sub seq u ently merged w ith Homesi de Lending, Inc. , which then merged with Washington Mutual Bank, FA (WAMU )

. Littleton signed a loan modification with WAM U in 2005 , partially amend ing and supplementing the note and deed of trust that Littleton h ad a ssumed from th e Barneses

. The modifi cation increased the unpaid principal bala nce d ue under the

note and deed of trust (and also Littleton ’ s monthly re payment obligation) but did not
relie ve Littleton of his duties under the assumption de ed o f trust : “ Exc e pt as otherwise specifically provide d in this [modific ation], the Note and S ecurity Instrument will remain unchanged, and [Littleton] and [WAMU] will be bound by, and comply with, all o f the terms and provisions thereof, as amende d by thi s A g reement. ” In short, the modification agreement me rely increa sed the amount due
under the assumed deed of tr ust and note and was itself a guaranty agreement
. WA MU , as the successor in interest to Homeside, assigned the note and deed
of trust to Mortgage Electronic Registration Systems, Inc. (MERS) in J anuary 2006

. A
note on the corpora te assig nment indicates that it was “ effective as of 12/30/05. ” On January 17 , 2006 , Aurora Loan Servi ces, Inc., as the mor tgage servicer for M ERS,

n otified Litt leton that MERS had opted to accelerate the debt and that t he proper ty would be sold at a February 7, 2006 foreclosure sale unless the indebtedness balance

was sat isfied. On February 3, 2006 , WAMU , again as the successor in int erest to Homeside, i nexplicably executed a n assignment of the deed of trust and the not e to Homeside Funding Corporation (HFC) even t hough WAMU no longer held the note4

or the deed of trust

. In any event, WAMU ’ s as signment to MERS occurred before its

a ssignment to H FC, rendering the assignment to HFC “ irrelevant. ” Reinagel v. Deutsche
Bank Nat ’ l Tr. Co. , 7 35 F.3d 220 , 225

– 26 (5t h Cir. 2013) (op. on r eh ’ g) ; see also Re eves v. Wells Fargo Home Mortg. , 544 F. App ’ x 564, 571 (5th Cir. 2013) (per curiam)

. Also in February 2006, L ittl e ton file d su it aga inst WAMU , 1 challen ging its

acco unting of Li ttleton ’ s payments and rais in g claims for breach of contrac t and
fraud

. 2 In that case, the trial court ordered Littleton to deposit $1,400 per mo n th into
th e cou r t ’ s registry u ntil the case was resolved. Littleton eventually nonsuited his
claims , and t he parti es agree d to release th e re gis try funds

— $28,304.2 5

— to Countrywide as the loan servicer

. Both Nati onstar and Littleton a verre d that the
fu nd s release , which had occurred in 2010, acted as a n abandonment of the January 17, 2006 acceleration.
I n 2 012 , MERS assigned it s rights u nder the note and deed of trust to
Nationstar. A few months after MER S ’ s a s s i g nment to Na tionstar, Little t on filed a
Ch apter 13 b ankruptcy petition and iden tified Nat ions tar as having a $226,87 0 .82
secured c laim arising from the note and deed of trust on the property. In his

1 Aurora and Cou ntrywide H ome Loan s of Texas, Inc. had serviced the loan for WAM U and MERS

. Littleton in itially named Auror a and Countryw ide as defendan ts but later nonsuited both and named WAMU as the def end ant base d on W

AMU ’ s statu s as th e holder of the note and d e ed of trust.

2 Littleton ’ s petition is no t included in the clerk ’ s record f or this app eal ; however, Nationsta r as serted this was the na ture of Littleton ’ s 2006 suit against WAMU a nd its servicers , and Lit tleton has not disputed this characterization

.5

personal

- property schedule, Li ttlet o n disclosed th at he had a “ [p ]o t e ntial cause of
action . . . for fraud, misappropriation of funds, e tc. ” again st Nationstar and its predecessor s in in ter est. The bank ruptcy cou rt dismissed Littleto n ’ s petition on May 20, 2013, after Little ton f a iled to tim e ly remit the required trustee payments. The
dismissal ord e r expressly stated that Littl eton ’ s deb ts , including the note and deed of

trust , were “ NOT DISCHARGED or a ffected in any manner by this Order. ”
On November 4 , 201 3 , Littleton fi led a second Chapter 13 bankruptcy petition and again i dentified N a t ionstar as a secured credito r. He further listed a pot ential

“ fraud, misappropriation of f unds, etc

. ” cause of ac tion against Nationst ar and its predeces sors i n interest i n his personal

- property schedule. S even months later in Jun e 2014 , the bankruptcy court d ismissed Littleton ’ s petition based on his nonpayment to
the trustee. Again, Littleton ’ s debts we re neither d ischarged nor affect e d by the
dismis sa l. On February 25, 2014, s ho rtly before Littleton ’ s second bankruptcy petition

w a s dismissed, Nati onstar noti fied L ittleton that he was in default of his repayment obligations under the note and deed of trust 3 and t hat he could cure the de fault an d
avoid acceleration of the debt by pay ing $141,757.31 by March 27, 2014. Lit t l eton did
not cure the defaul t , and Nationstar hired an attorn ey to begin foreclo sure

3 T he letter stated that his account “ is now due for the 03 /0 1 /2006 pay ment, and s ubsequen t pay me nts. ”6

proceedings. Nationstar then assigned the deed of t rust t o U.S. Bank Na tional
A ssociat ion in April 2015 , but Na tionstar cont inued to service the debt

. O n September 2 8 , 201 7 , 4 Nationsta r, through its attorney a nd as U.S. Bank ’ s servicer, sen t Little ton a notice of acceleration, ad vising that U. S . Bank had ele ct ed to
accelerate the mat ur

ity of the debt and that the property wo uld be sol d at a
November 7, 2017 foreclosure sa le if the accelerated debt could not be s atisfied

. Littleton respo nded by fil ing a third C hapter 13 ban kruptcy pet i tion on November 6 , 20 17

. Lit tl eton did not id entify U.S. Bank as a secured creditor in his petition , but he
did list a potential lawsuit against Nationstar as a fina nc ial as s et
. Four months later on March 7, 2018 , Nati o ns tar , as U.S. Bank ’ s servicer , filed a

mo tion for relie f from the bankruptcy s tay based on Littleton ’ s “ failure to pay the post

- petition monthly install ments when due under the Note ” an d on the fact that th e amount due on the note was almost double the p r operty ’ s value. Nationstar as ke d
that the stay be termi na ted to allow it “ to p ursue its statutory and contractual remedies, including the taking of any action in orde r to gain possession of , o r fo reclose upon , or conduct a short sale of, or acc e pt a deed in lieu a s t o the Property. ”
A t the hearing on Nationst ar ’ s mo tion, the partie s agreed on the record to end the
stay for foreclo s ure p urposes , leading to the bankrupt c y court ’ s May 9, 201 8 agree d
order terminat ing the bankruptcy s t ay :

4 Th e three

- y ear gap bet

wee n N ationstar ’ s 2014 d efaul t notice and its 2 017 notice of accelera tion is not explained in the record.7

[It is ] ORDERED t ha t the automatic st ay is terminated effective April 10, 2 01 8. [Nationstar] is a uthorized to pursue and enforce all of its statutory and contractual rights and reme dies , including forec losu re on and repossession of the Property . .

. . [It is ] FURTHER O RD ERED that Joseph L ittleton d oes n ot waive any of hi s rig ht s under the note and deed of trust, or stat e law. [It is] FURT HER ORDERED that Jo seph Little ton sh all vacat e the Property by Jul y 23, 2018, subject to a prior resolution o f his rights. [It is] F URTHER ORD ERED t ha t Nationstar may immediately commence fo reclosure proceedings , including sending all required notices for a foreclosure da te not earlier tha n August 7 , 2018. On the same day as the agreed order, the b ankruptcy court denied confirma t ion of
L it tleton ’ s Chapter 13 plan and dismissed Littleton as a debtor with prejud ice until November 4, 2018. T he ba nkruptcy action was closed on May 31, 2018

.

B. L ITTLETON ’ S S U IT A GAINST N ATIONSTA R
O n t h e same day the bankruptcy court l if ted the stay and dismissed Littleton as
a debtor (May 9, 2 018) , Littlet on f i led the instant su

it against Nationstar , raising claims
for (1) wrongful foreclosu re bas ed on “ no proper chain of title ” 5 and on the fact th a t Nationstar was barre d from foreclosing b ased on lac h es, the statute of limitations, and equitable estoppel; (2) f raud ulent m i srepresen tation ; (3) common

- law fraud ; (4) breach of con tract ; (5) trespass to t ry tit le based on his superior right to title ; a n d (6) temporary injunc tive relief. Natio nstar answered Littleton ’ s petition and raised
several affirmat ive de f

ense s, including lim itati ons and collateral esto ppel

.

5 This assertion was based on WAMU ’ s assign ment to HFC

.8

On July 18, 2018 , Littleton filed a motion in the bankruptcy court, se e k ing to
reopen h i s bankrupt cy for a re consider ation of the p rior agreed order lifting the s tay
. T he bankruptcy court, after li sten i ng to the audio rec or d of the parties ’ oral agreement

a nd of the hearing on Nationstar ’ s motion to lift t h e stay , conclude d that Littleton

“ u nderstoo d t he agreement read into the record ” and that there was no cause to

re open the b ankruptcy. O n August 14, 2018, the bankru ptcy court approved the

trustee ’ s final report and discharged the trustee

. A f ter the bankruptcy iss ue was re so lved, Nationstar f iled a combined

tra dition al and no

- evidence summary

- judgm ent mo tion . In its no

- evidence motio n, Natio nstar argue d that Littleto n had prese n ted no evidence to support hi s wrongful

foreclo sure , fraud , breach

- of

- con tract, and trespass

- to

- try

- title claims. In its
traditi onal motion , Nationstar asserted that it had conclusively negated Littleton ’ s claims and that the cl aims failed as a matter of law based on the affirmative defenses

o f standing, es toppel, and limitations

. After Littleton responded to Nationsta r ’ s motion and after Nat ionstar filed a reply, the trial court gr a nted N ationstar ’ s motion , wit hout s pecif

yin g the grou nds on w hich it was based, and orde red th a t Littleton take nothing on his claims.
C. A PPEAL Littleton appeals and asserts that the summary judgment was in error based on
material fact issu e s regarding his cl aims for af firmati ve relief

. In his brief, Littleton
first l ists five presented issues but then discusses in his summ ary at least eight issues.9

His table of conte nts suggests there are nine issues pres ented. We will liberally

construe Littleton ’ s brief and assume that he is chall e ngin g each ground upon wh ich
the trial court could have g ranted summar y judgment in Nationstar ’ s fav or . See
Rohrmoos Venture v. UTSW DVA Heal thcare, LLP , 578 S. W.3d 469, 480 (Tex . 2019) ; Garza v. Garcia , 137 S.W.3d 36, 38 (Tex. 2004)

. S ee generally Malo o ly B ros., Inc. v. Napier , 461 S.W.2d 119, 121 (Tex. 1970) (holding app ellant sufficiently briefed ch allenge to

summa ry judgment by broadly asserting trial court erred by granting summary ju dgmen t). We will address all arg uments necessary to de termine the prop riety of the
summary judgment but will not try to attac h a specific issue number to our
conclusion s. See Tex. R. App. P. 47.1 ; St. John Missionary Baptist Chu rch v. Flakes , 595 S.W.3d 211 , 213

– 14 (Tex. 2020) (per curiam) ; El Paso N at. Gas C o. v. Minc o Oil & Gas, Inc. , 8 S.W.3d 309, 316 (Tex. 1999)

. But because the trial court ’ s order did not specify the grounds upon which it granted summary judgment , “ we must affirm the
trial court ’ s judgment if any of the t heories advanced are me r itorious. ” W. Invs ., Inc

. v. Urena , 162 S.W.3d 547, 550 (Tex. 2005) ; see Jon es v. Landry ’ s Seafood Inn & Oyster Bar

– Galveston, Inc. , 328 S.W.3d 909, 913 (Tex. App.

— Houston [14th Dist.] 2010 , no pet.).

II . PROPRIETY OF SUMMARY JUDGMENT Although Nations t ar moved for both a tradi ti on al and a no

- evidence sum mary judgment , we generally are to re view Nationstar ’ s no

- ev idence motion firs t. See First
United Pen tecostal Church of Beaumont v. Parker , 514 S.W.3d 214, 219 (Tex . 2017). A nd if
no claims sur

vive a n o
- evi dence review, a revi ew of the tradit ion al motion becomes10

moot
. Id

. But this is not an inflexible rule. See B.C. v. Steak N Shake Op erations, Inc. , No. 17

- 1008, 2020 WL 1482586, at *3 (Tex. Mar. 27, 2020) (per c uriam). In this case,

our rev iew w il l be more concise by consi de r ing each claim to determi ne if any of the
g rounds raised by Nationstar, wheth er in its tra dition al or no

- evid ence motion, justify a summary dis missal under the correct stand ar d of review.
A. S TANDARDS OF R EVIEW 1. N o - E vidence Motion
After an ad equate t ime for discovery, Nations tar , as the party without the burden of proof

, was entitled to move for summary judgmen t on the ground that no
evid ence supports an essential element of Littleton ’ s claim . Tex. R. Civ. P

. 166a(i) &
1997 cmt

. Bec au se Nati onstar carried the burden of proof on its pleaded affi rmative defenses, Nationstar could not seek a no

- evidence summary ju dg ment on th ose defenses. See id. Nationstar w as required , however, to specifically state the el e ments of Littleton ’ s cl aim s for whi ch no evidence exi st ed

. Pa rker , 514 S.W.3d at 219 ; Timpte Indus., Inc. v. Gish , 286 S.W.3d 30 6, 310 (Tex. 2009). The trial court wa s required to grant the motion unless Littl eton pr oduce d more than a scintilla o f summa r y
judgment evidence that r ai se d a g enuine, material f act issue. See Te x. R. Civ. P. 166a(i) & 1997 cmt.; Hamilton v. Wilson , 249 S.W.3d 425 , 426 (Tex. 2008) (per curiam)

. W e revie w the no

- evidence summary judgment de novo and exa mine the entire
record in the light m o st favorable to Little ton , indulging every reasonable inference and resolving any doubts in favor of L i ttleton

. See Parker , 514 S.W.3d at 219 ; Timpte11

Indus. , 286 SW.3d at 310; Sudan v. Sudan , 199 S. W.3d 291, 292 ( Tex. 2006) (per curiam)

. If Littleton br ought f o rw ard more than a scintill a of probative evidence tha t raises a genuine issue of material fact, then the no

- evidence summary judgment was im proper. See Smith v. O’Donnell , 288 S.W.3d 417, 424 (Tex. 2009); Kin g Ranch, Inc. v. Chapm an , 118 S.W.3d 742, 7 51 (Tex

. 2 003).
2 . Tradition al Motion
A s with a no

- evid ence summary judgment, w e review a trad itional summary judgment de novo. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010). As
the movant , Nation star carried the burden to prove that th ere was n o genui ne issue of
materia l fact and that it was entitl ed to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Mann Frankfo rt Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009)

. We conside r the evidence presented in th e lig h t most favorable to
Little ton , indulg ing every reasonab le inference and r esolv ing any doubts in Littleton ’s
favor. See 20801, Inc. v. Parker , 249 S.W.3d 392, 399 (Tex. 2008). If Nationstar
conclusivel y neg ate d at least one essential element of Litt l e t on ’s claim , Nationstar w as entitled to a tra ditional summary judgment o n that claim. See Tex. R. Civ. P. 166a(b), (c); Frost Nat’l Bank v. Fernandez , 315 S.W.3d 494, 508 (Tex. 2010)

. To the extent
Nation star moved fo r a tr aditional sum mary judgment on an affir mati ve defense, it was requi red to conclusively prove , th rough su mmary

- judgment evidence, all elements
of that defense. Fr

ost Nat ’ l , 315 S.W.3d at 508

– 09 ; Chau v. Riddle , 254 S.W.3d 453 , 455 (Tex. 20 08) (per curiam) (op. on reh ’ g)

.12 B
. L ITTLETON ’ S C LAIMS 1. Wrongful Forec l osure The essential elem ents of a claim for wrongful for eclo sure are (1) a defect in
the foreclos ure

- sale pr oceedings, (2) a grossly inade quate selling price , and (3) a causal
connection betwe en the defect an d the grossly inadeq uate se lli ng price. Se e B u chanan v. Compass Bank , N o. 02

- 14

- 00034

- CV, 2015 WL 22214 3, at *5 (Tex. App

. — For t Worth Jan. 15, 2 015, pet. denied) (mem. o p.). N ationstar asserted that Littleton failed to
pre sent any evidence that a foreclo sure sale of the pro pe rty a ctu ally occurred wi t h a
defect in the sales p roceedings

. I ndeed , Li ttlet on does not d ispu te that the pro perty has not been sold at a foreclosure sale and that he continues to live there. Littleton ’ s claim is one for at tempted wrongful foreclo sur e, which is not a v i able caus e of action.
See De La G arza v. Bank of N.Y. Me llon , No. 02

- 17

- 00 427

- CV, 2018 WL 5725250, at *4
& n.8 (Tex. App.

— Fort Worth Nov. 1, 2018, no pet.) (mem. op .)

. Accordingly, the
trial court did not er r by granting Nationstar ju dg ment as a matter o f law on t his
claim. See id. at * 4 ; see also Lopez v. We lls Fargo Bank, N. A. , No. 5:18

- CV

- 44, 202 0 WL 224485, at *2 ( S.D. Tex. Jan. 14, 2020) (mem. & order)

. Because th is claim is not cognizable , we do not a ddress Littlet on ’ s affirma tiv e assertio ns atte m pting to support13

his wrongful

- fore closure claim : superior title, ab andonmen t, limitations, lac hes, and

e stoppel. 6
2
. Statutory and Common

- Law Fr aud
Littlet on claimed that Nationstar committed statutory and com mon

- law fraud
when it and it s prede cessor s in interest withdr ew “ $28,304.2 5 f rom the c ourt registry
and ultimately did not apply th e funds to Mr. Littleton ’ s acc oun t ” and when those
entities misrepre sented the facts “ regarding the princip al and interest on his loan , ”
which “ induce [d] ” him t o en ter into the modification agreement wi th WAMU. See
Tex. Bus. & C om . Code Ann. § 27.01

. Statutory fraud under S ection 27.01 requires proof that (1) Nationstar made a repr esentation of mate rial f act , (2) tha t was fa lse, (3) that was ma d e to induce Li ttleton

to enter a contract , (4) that was r elied upon by Litt leton in entering the contr act, and (5) that caused in jur y. See id. ; In re FirstMerit Ban k, N.A. , 52 S.W.3d 749, 758 (Tex.
20 01) (orig. proceeding) ; Scott v. Sebree , 986 S.W.2d 36 4 , 37 1 (Tex. Ap p.

— Austin 1999, pet. deni ed)

. Comm on

- law fraud requi res these elements plus pro of that Nationstar
made the al leged mis representation either knowing that it was false or with
reckless ness to its truth

. See FirstMeri t , 52 S.W.3d at 758; Form o sa P lastics Co rp. USA v. Presidio Eng ’

r s & Contra ctors, Inc. , 960 S .W.2d 41, 47 (Tex. 1998) (op. on reh ’ g) ; L arsen v.

6 Even were we to add ress these argu ment s, we would con c l ude that Littleton failed to c arry his summary

- j udgment burden as co gently argued by N ationstar i n its brief.14

Carlene La ngford & As

s ocs., Inc. , 41 S

. W.3d 245, 249 (Tex. App.

— Waco 2001, pet. denied). Nati ons ta r asserted that Littleton could produce no evidence o f or raise a genuine issue of material fa ct regardi ng thes e elements. A gu ar anty a greement secured by real est ate, or a modification of such an agreement , is no t subject to Section 27.01 because it does not in volve the transfer , sale, or con v e yance of r eal pr o perty
. See Braley v. BAC Homes Loans Servicing, LP , No. 3:10

- CV

- 2105

- O, 201 1 WL 13233558, at * 8 (N.D. Tex . July 8, 2011) (order) (collecting Texas cases)

. I n other words, “ [a] loan transaction, even if secured by land,
is not considere d to come un der [Section 27.01 ]

. ” Bur leson State Bank v. Plunkett , 27 S.W.3d 605, 611 (Tex. Ap p.

— Waco 2000, pet. denied

). Here, the assumed note and deed of trust, along with the later supplemental modifi c ation, were loan

transa c tio ns secured by pr operty
. A c cor ding ly, Littleton could produce no evidence
in support of this n on

- cognizable claim, and the tria l court was required under R ule 166a(i ) to grant Nationstar ’ s motion

. See, e.g. , Lindsey Constr., In c. v. AutoNa tion Fin.
Servs. , LLC

, 541 S.W.3d 355, 3 66 (Te x. A pp.

— H ouston [14th Dist.] 2017, no pet.).
R e garding common

- l aw fraud, Nationstar asserted that Littleton had no evidence of a specific misrepresentation, choosing instead to rely on general

ave r ments of misrepresentations re garding his payments a nd the loa n modification , and had no evidence of Nat i onstar ’ s knowledg e of the falsity of these rep r esentations

. Littleto n pointed to his affidavit in which he stated that Nat ionstar and its15

pre decessors in inte rest misapp lied his payments an d then fal sel y cla imed the
indebtedness was in default : In 1993 I paid my mortgage pay ments to Bank Plus Mortgage but w hen Ho meside received my l oan in 199 3, they claimed they never got the payments. This w as not true because I made the payment s to Bank Plus

. I asked Homeside for my p ayment history documentati o n b ut th ey neve r gave it to me. . . . [WAMU] th en falsely claimed again that I was be hind on my payments. The y also refused to show me any documentation. [WAMU] wanted me to do a loan modification in 2004 . . . that I refused to sig n because they woul d no t show me th e payment history. One and a half years later, . . . [WAMU] added extra interest and late payments in the modifi cation that I did not ha ve nor owe but I signed the modification . . . be cause I feared t hat they wou ld take the house.
After I s igned the mo dification, [WAMU] passed off the loan to Aurora.

. . . Aurora claimed I was behi nd on my payments again [and] r efused to send [a payment history] to me. At that point Countrywide took over the loan and c laimed I did not make my loan payme n ts which was no t true. . . . . . . The bank s t ook all my money f rom the court registr y. S ome years later, Nationstar . . . claimed they now owned the loan and that I hadn ’ t made payment s since 200 5. I asked what hap p e ned to the [registry] money

. . . . They claimed at first they didn ’ t have it but then sent it back to me. Lit tleton ’ s affidavit did nothing more than create a mere s urmise or suspicion of fact because he failed to in clude the required factual speci fi c ity and detail , such as
the time, the pl a ce , or the exact nature of the alleged false sta tements. See All Am. Tel., Inc. v. USLD Commc ’ ns, Inc. , 291 S.W.3d 518, 530

– 31 (Tex. App.

— Fort Worth 2009, pet. denied) ; see also Brownlee v. Brownlee , 665 S.W.2d 111, 112 (Te x . 1984)

. In16

other words , Litt l eton ’ s affidavit was no evid enc e a t all regarding any actionable representations or regarding Nationstar ’ s knowledge and , therefore, did not raise a genuine issue of material fact

. Acc ordingly, the trial court d id not err by granting
Nationstar ’ s summary

- judgment m otion on Littleton ’ s clai m for common

- law fraud.
See , e.g. , All A m . Tel. , 291 S.W .3d at 53 0

– 3 1

. B ut even if Littleton ’ s fraud claims were not subject to judg ment as a matter of
la w on these bases, N at

ionstar conclu sively established its pleaded affirmat i ve defense
of limita t i ons. Both sta tutory and common

- law fraud ar e subject to a four

- year

statute of limitations , beginning after the date of acc rual

. See T e x. Civ. Pra c. & Rem.
Code Ann

. § 16.004(a)( 4) ; B urrus v. R e yes , 516 S.W.3d 170, 193 ( Tex. App.

— El Paso
2017 , pet. denied). Although the accrual date g enerally is a question of fact, if
reasonable minds could not differ on the conclusion to be drawn from the summary

judgmen t evidence on the issue, the accrual date may be determined as a m a tter of
law. See Burr

us , 51 6 S.W.3d at 193. Nationstar argued that Littleton ’ s fraud claims based on the re presentations surrounding the modificatio n agreement accrued no later than March 1, 2005

. To the

exten t Littleton ’ s fraud claims were b ased on the withdrawal of the registr y funds , Na tionstar asserted l

imitations began no later than July 21, 2010

— thirty d ays after the
withdrawal when L ittleton could have ensured the correct ap plica tion of the

w ithdrawn fun ds to his account

. L ittleton argued that lim itations had not expired
because Nat ionstar ’ s fraudulent ac tions were undiscovered until suit was filed :17

The fraud [

Litt leton] complains o f is not barred by the statute of limitations b ecause it is cur rent fraud that is occurring a t this moment as Nationstar tries to coun tersue and fraudulen tly claims lost interest over mortgage payments that were paid in to the court re gis t ry and then taken out of the registry to pay off the l oan bala nce. . . . These pa yments we re not allocated to [

Littleton ’ s ] account. . . . Instead Nat ionstar, as successo rs in interest to [the] mortgage loan and [by] their own actions, now tries to f

oreclose bas ed on this ad ditio nal interest gained by returning the funds an d foreclosing . T h us , the stat ute of limitations runs from the ti me this suit was filed.
I t appears Little ton attempted to invoke the discov ery rule to toll the applicable
limi ta tion s period based on Nationstar ’ s alleged obfusca tion of how Littleton ’ s payments were applied , which also alleged l y induced the modification

. See Archer v. Tregellas , 566 S.W.3d 281 , 290 (Tex. 2018). T h e discovery rule defers the accrual date

u ntil Lit tlet on knew , or in the exercise of reasonable dil igence should have known, the
fact s giving ris e to his fraud claim

. See id. ; Univ. of H ou s. v. Barth , 178 S.W.3d 157, 162

– 63 (Tex. App

. — Houston [1 st Dist.] 2005, no pet.).
Littleton filed his s uit on May 9, 2 018; thus, Nations tar must have conclusively
established that Littleton knew or sho uld have known of any fraud b efore May 9,
2014. See Rh ô ne
- Poulenc, I nc. v. Steel , 997 S.W.2d 217, 223 (Tex. 1999). I n February 2006, Littleton filed suit again st WAMU alle ging misapplicatio n of his payment s under
the assumed note , the deed of trust , and the supp l emental modificatio n to both;
breach of contract ; and fraud

— the same tenor as his in stant c laims against Nationstar as WAMU ’ s successor in interest

. After the r egist ry f unds were released to the loan servicer, Littleton was notified in February 2014 tha t he had defaulted on his18

obligations und er the note and deed of trust

. Additionally, in Littleton ’ s first two bankruptcy petitions (b oth filed before 2 014), Littleton ide n tifie d as personal property
a cause of action for “ fraud, misappropriatio n of funds, e tc. ” against Nationstar and its predecessors in inte rest
. This summary

- judgment evidence conclusi vely
establish ed tha t Littleton knew o r should h ave known through the e xercise of reasonable diligence the facts showing Nationstar or its pre decessors in in ter est allegedl y misappli ed fund s or fraudulently induced him to modify the a ssumed deed
of trust a nd no te well before May 9, 2014. See, e.g. , Meredit h v. Rose , No. 05

- 15

- 00054

- CV, 2016 WL 4205686, at *5

– 6 (Tex. App.

— Dallas Aug. 9, 2016, no pet.) (m e m. op .)

. Thus, the tri al court did not err by granting Natio nstar ’ s t r aditional motion for summary judg ment on the ba sis of its pleaded affirma tive defense of li mitations. See generally Hooks v . Samson Lone Star, Ltd. P ’ ship , 457 S.W.3d 52, 57

– 58 (Tex. 2 015) (noting reasonable diligence in the context of limita tions ordina rily is fact issue but

reco gnizing “ in some circumstance s , we can still de termine as a matte r of law that reasonable diligenc e would have un covered the wrong ” ).
3 . Breach of Contr act To su pport a breach

- of

- con tract cla im, L

itt leton mus t show (1) a valid, enforceable contract; (2) he per formed, tendered performance, or was exc u s ed from performi ng his con tractual obligations; ( 3) Nati onstar breached the con tract; and (4) Nations tar ’ s br e ach c aused L ittleton in jury. See Ci

ty o f The Colony v. N. Tex. Mun.
Wa te r Dist. , 272 S.W.3d 699, 739 (T ex. App.

— Fort Worth 200 8, pet. d ism ’ d ).19

Nationstar assert ed that Littleton ’ s breach

- of

- con tract c laim fa iled as a matter of law
because Littleton had n ot al leged and failed to raise a genuine issue of material fact
that Nationstar breached a contract or t hat Littleton performed or t endered perf ormance under a co ntract. Littleton responded that Nationstar and its predeces sors in in terest b reached “ the mortgag e a greement both bef ore and after the
loan modification ” by refusing to “ apply ” his payments and th ereafter attempting to
fo re clo s e. Littleton relied solely on his affidavit

. Littleton ’ s a ffidavit , which we discus s ed regarding Littleton ’ s claim for

com mon

- law fraud, was not more than a scintilla of evidence supporting hi s assertions of pe rformance a nd Nationsta r ’ s breach and, theref ore, fails to raise a genuine issue of material fact rega rding breach of contract

. See, e .g. , Tatum v. Wells Fargo Home Mo rtg., Inc. , No. 01

- 13

- 00855

- CV, 2014 W L 7474074, at *6 (Tex. App.

— Houston [1st Dist.] D ec. 30, 2014 , no pet.) (mem. op.). The trial court did not err by granting Nationstar ’ s summary

- judg me nt motion on this claim

. 4 . Tre spass to Try Title
A claim for t re spass to try title is a proce dura l device by which rival claims to
title or right to possession c an be adjudicate d. See Te x. Prop. Code Ann. § 22.00 1 ; Tex. R. Civ. P. 783; King Ranch, Inc . v. Chapman , 118 S.W.3d 74 2, 755 (Tex. 2003)

. To
establish this c laim as pl eaded , L i ttle ton must affirmatively show that he has superior
title to the p roperty out of a common sour ce . S ee Martin v. Amerman , 133 S.W.3d 262, 265 (Tex. 2004) ; see also Tex. R. Civ. P. 783

. Nationstar argue d in its summary

-20

judgm ent mot ion that Little ton ’ s cl aim failed a s a matter of law because he failed to affirmatively establish his s uperior right to the propert y . In response , Littleton relied
on his argument that there wa s a gap in t he cha in of tit le surrounding WAMU ’ s assignment to MER S , rendering Nationstar ’ s claim invalid

. Littleton ’ s claims are based on his content ion that the holde r of the note and
deed of trust is HFC, which is not in Nationstar ’ s ch ain of assign m ents
. Littleton
asserts that WAMU ’ s assignment to MERS was invali d becaus e it was filed after the assignment to HFC

. But as we previously explained, WAMU assig ned the note and deed of trust to MERS before it assigned them to H FC ; thus, WAMU ’ s sub sequent assignmen t to HFC is irrele vant to Nation star ’ s interest in the no te and de ed of trust.
See Reinagel

, 7 35 F.3d at 225

– 26

. And because an assign ment is effec tive when sign ed (or when the assignment i tself expressly provides its effective date ), the later date of filing of the assignment to HFC does not affect the validi ty of the previ ous assignment to MERS. See Deutsche Bank Nat ’ l Tr. Co. v. Burke , 655 F. App ’ x 251, 254 (5 th Cir. 2016). Thus, the assignment from WAMU to HFC is no evidence and does

not r aise a f

act issue that L

ittleton ’ s claim to title is superior

. T h i s is e specially t rue here because L

ittleton ’ s right to recover under a tr espass

- to

- try

- title claim depends on the strength of his own title, not on any weakness of Nat ionstar ’ s title; thus, Littlet on could not raise a fact issue on this claim with evidence that alleged only defects in21

Nat ionstar ’ s title. 7 See Hunt v. Heaton , 643 S.W.2d 677, 679 (Tex. 1982); B rooks v. Binger , No. 14

- 17

- 00562

- CV, 2019 WL 3023226, at *2 (Tex. App.

— Housto n [14t h Dist.] July 11, 2019, no pet.) (mem. op.). The trial court d id n ot err by gra n ting
Nationstar ’ s summary

- judgment motion on this claim.
5
. I n junctive Re lief
Lit tleton pleaded for injun ctive r elief based on the merits of his underlying
claims. Nationstar arg ued that it was entitled to summary judgment o n this reques t because L ittleton could not recover on any of his pleaded claims. Injunctive r elief is
available only i f liab ility is establish ed under a ca use of action. S ee Val enzuela v. Aquino , 853 S.W.2d 5 12, 514 n .2 (Tex. 1993); Cooper v. Li tton Loan Servicin

g, L P , 325 S.W.3d 766, 769 (Tex. App.

— Dallas 2010, pet. d enied). Littleton ’ s pleaded
claims fail as a matter of law ; thus, h is injunc tive

- relie f remedy likewise fa ils. See Etan Indus., Inc. v. Lehman n , 359 S. W.3d 620, 625 n.2 (Tex. 2011 ) (per c uriam)

. II I. CONCLUSION
Littleton proffered no evidence to support and failed to establ ish a genuine,
material fact is s ue on his claims for wrongful foreclosure , fraud, b re a ch of contract,
and trespass to try tit le. And the di smissal of these claims dooms Littleton ’ s request for injunctive relief

. Based on these con clusions, we affirm the trial court ’ s summary

7 Little ton attempts to assert his superior right under adv erse possession ; however, he did not plead this th eory in the trial co ur t.22

judgment order. Se e Tex. R . App. P. 43.2(a); Carr v. Brasher , 776 S.W.2d 5 67 , 56 9 (Tex.
19 89 ). /s/ Lee Gabriel
Lee Gabriel Justice

Delive red: April 23, 2020